author: ALDERMAN, Justice.

text:
    AUBURN MACHINE WORKS CO., INC., etc., Petitioner, v. Clyde Pete JONES and Irma Jean Jones, his wife, Respondents.
    No. 53526.
    Supreme Court of Florida.
    Jan. 18, 1979.
    Jacqueline R. Griffin, of Wells, Gattis & Hallowes, Orlando, for petitioner.
    Robert Orseck, Walter H. Beckham, Jr.,' Robert L. Parks and Joel D. Eaton, of Podhurst, Orseck & Parks, Miami, for respondents.
   ALDERMAN, Justice.

We have for review the decision in Jones v. Auburn Machine Works Co., 353 So.2d 917 (Fla. 2d DCA 1977), in which the Second District refused to apply the “patent danger” or “open and obvious hazard” doctrine so as to preclude liability on the part of a manufacturer. This decision conflicts with Farmhand, Inc. v. Brandies, 327 So.2d 76 (Fla. 1st DCA 1976), in which the First District applied the doctrine and held that it created an exception to a manufacturer’s liability. To resolve this conflict, we must either accept or reject the patent danger doctrine. We reject the doctrine and hold that the obviousness of the hazard is not an exception to liability on the part of the manufacturer but rather is a defense by which the manufacturer may show that the plaintiff did not exercise a reasonable degree of care as required by the circumstances. We also conclude that the principles of comparative negligence apply where this defense is raised.

The facts can be stated briefly. Clyde Jones, sixteen years of age, worked with a crew laying underground telephone cable. He had been instructed by his supervisor on the day of the accident to climb into the trench behind the trench digging machine in order to place the cable flat at the bottom of the trench. While guiding the cable into the trench directly behind the trencher, he lost his balance when the side of the trench caved in, and his foot became entangled in the exposed chain of the machine. He sustained injuries which required the amputation of his left leg below the knee. The trencher possessed no shield or guard and was obviously dangerous.

Jones and his wife sued C. C. Construction, his employer, and Auburn Machine Works Company, the manufacturer of the trench digging device. The employer was granted summary judgment based on its workmen’s compensation immunity. In their amended complaint against Auburn, the Joneses alleged negligence, breach of warranty, and strict liability arising out of the alleged defective manufacture and design of the trencher. They alleged that Auburn failed to provide reasonable safety features, shields, and guards on moving, exposed, and dangerous portions of the machine; that Auburn failed to design and manufacture the trencher so that the driver or operator could adequately view the operation of the machine’s dangerous moving parts; and that Auburn failed to furnish adequate operation instructions. The amended complaint further alleged that Auburn impliedly warranted to ultimate users of the trencher that it was fit for its intended purpose and was safely designed; that the trencher, however, was not of merchantable quality because of its lack of safety devices; and that Auburn was strictly liable in tort. Proximate cause was alleged on all counts.

Auburn filed a motion for summary judgment. In opposition to this motion, the Joneses filed an affidavit of an expert witness testifying that the trencher’s design constituted a departure from the reasonably safe and sound engineering practice at the time of its manufacture. The witness stated that the placement of the trencher upon the tractor by Auburn constituted a departure from reasonably safe and sound engineering practice at the time of its manufacture in that Auburn failed to equip the tractor with a rearview mirror which would allow the operator to see the trencher in operation; that Auburn failed to have a library containing safety and design standards at the time this machine was manufactured; that the machine was manufactured without any thought to prevailing safety requirements for the trencher; that the trenching boom was not guarded or shielded, leaving an exposed chain; that a guard or shield probably would have prevented the accident; and that such guard or shield was available at the time this trencher was manufactured or prior to the time of the accident. The trial court entered summary judgment for Auburn, and the Jones-es appealed.

Holding that Auburn as movant failed to meet its burden of showing conclusively that no genuine issues of material fact existed, the Second District reversed the trial court’s order granting summary judgment; and, referring to its earlier decision in Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA 1977), it refused to adopt the obvious and patent danger rule espoused by the First District in Farmhand, Inc. v. Brandies, supra.

Auburn, relying primarily upon Farmhand and Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), argues that we should apply the patent danger doctrine and contends that this doctrine is based upon sound principles. In response, the Joneses argue that we should reject this doctrine and hold that the obviousness of the hazard is merely an element to be considered in the determination of contributory fault.

The most cogent statement of the patent danger doctrine is found in Campo v. Scofield, supra. In that case, the New York Court of Appeals stated:

[T]he manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. .
If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.

301 N.Y. at 471-2, 95 N.E.2d at 803-04.

The First District in Farmhand applied the patent danger doctrine as enunciated in Campo v. Scofield to the facts of the case before it because it believed the doctrine to be the controlling law in Florida at the time it rendered its decision, holding that the doctrine barred the plaintiff’s negligence and breach of warranty claims. The First District recognized,, however, that its decision in Farmhand passed upon a question of great public interest. Because of this concern, the First District in Farmhand certified for our consideration the question of whether the manufacturer of a machine in a defective condition unreasonably dangerous to the user should be held liable to the user notwithstanding that the condition was obviously dangerous. No petition for writ of certiorari was filed, however, and the certified question was therefore never answered by this Court.

Farmhand was decided shortly before the New York Court of Appeals, in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976), overruled Campo v. Scofield, supra. The New York court, concluding that the patent danger doctrine produced harsh results and suffered from rigidity, held that rather than preventing a plaintiff from establishing his ease, the obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care required under the circumstances. The New York court said:

Apace with advanced technology, a relaxation of the Campo stringency is advisable. A casting of increased responsibility upon the manufacturer, who stands in a superior position to recognize and cure defects, for improper conduct in the placement of finished products into the channels of commerce furthers the public interest. To this end, we hold that a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended .
What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve “a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm” (2 Harper & James, Torts, § 28.4; see Pike v. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229, supra). Under this approach, “the plaintiff endeavors to show the jury such facts as that competitors used the safety device which was missing here, or that a ‘cotter pin costing a penny’ could have prevented the accident. The defendant points to such matters as cost, function, and competition as narrowing the design choices. He stresses ‘trade-offs’. If the product would be unworkable when the alleged missing feature was added, or would be so expensive as to be priced out of the market, that would be relevant defensive' matter” .
We next examine the duty owing from a plaintiff or, in other words, the conduct on a plaintiff’s part which will bar recovery from a manufacturer. As now enunciated, the patent-danger doctrine should not, in and of itself, prevent a plaintiff from establishing his case. That does not mean, however, that the obviousness of the danger as a factor in the ultimate injury is thereby eliminated, for it must be remembered that in actions for negligent design, the ordinary rules of negligence apply . . . . Rather, the openness and obviousness of the danger should be available to the defendant on the issue of whether plaintiff exercised that degree of reasonable care as was required under the circumstances.

39 N.Y.2d at 385-7, 384 N.Y.S.2d at 121-22, 348 N.E.2d at 577-8.

The modern trend in the nation is to abandon the strict patent danger doctrine as an exception to liability and to find that the obviousness of the defect is only a factor to be considered as a mitigating defense in determining whether a defect is unreasonably dangerous and whether plaintiff used that degree of reasonable care required by the circumstances.

For example, in Dorsey v. Yoder Co., 331 F.Supp. 753 (E.D.Pa.1971), aff’d, 474 F.2d 1339 (3d Cir. 1973), a products liability suit brought by a plaintiff whose right arm and hand were almost severed by the blades of a metal slicer machine, the court held that even though the danger of the unguarded rotary blades was obvious to plaintiff, recovery was not precluded for that reason alone. The court explained:

It does not follow from this holding that the manufacturer of every obviously defective or dangerous product owes an automatic duty to an injured party..' Although a knife qualifies as an obviously dangerous instrumentality, a manufacturer need not guard against the danger that it presents. “[Nor is it] necessary to tell a zookeeper to keep his head out of the hippopotamus’ mouth.” Bartkewich v. Billinger, supra [432 Pa. 351] at 356, 247 A.2d [603] at 606. See also, 2 Harper and James, The Law of Torts, § 28.6 (1956 ed). The point is that to preclude absurd results the obviousness of the danger must constitute but one of the factors that determines whether the danger is unreasonable.
The proper test of “unreasonable danger” is whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to the plaintiff with knowledge of the potential dangerous consequences the trial just revealed. See P. Keeton, Manufacturer’s Liability: The Meaning of “Defect” in the Manufacture and Design of Products, supra note 2 at 568. See also Pike v. F. G. Hough Co., supra.
To answer this question one must:
“[balance the] likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of precaution which would be effective to avoid harm.” 2 Harper and James, The Law of Torts § 28.4 (1956 ed), cited with approval in Pike v. F. G. Hough Co., supra.
And in measuring the likelihood of harm one may consider the obviousness of the defect since it is reasonable to assume that the user of an obviously defective product will exercise special care in its operation, and consequently the likelihood of harm diminishes.
In a persuasive article, Dean Wade has enumerated the specific factors that enter into the final balance as follows: “(1) the usefulness and desirability of the product, (2) the availability of other and safer products to meet the same need, (3) the likelihood of injury and its probable seriousness, (4) the obviousness of the danger, (5) common knowledge and normal public expectation of the danger (particularly for established products), (6) the avoidability of injury by care in use of the product (including the effect of instructions or warnings), and (7) the ability to eliminate the danger without seriously impairing the usefulness of the product or making it unduly expensive.”
Taking the Harper and James formulation as expanded by Dean Wade, it becomes understandable why the plaintiff accidentally injured by a knife does not recover from the manufacturer. The product is not unreasonably dangerous and no duty arises because (1) everyone realizes the dangers; (2) by definition a guard over the blade (the part that causes danger) would eliminate its utility; (3) the cost of a “safe” knife might be prohibitive. Balancing the likelihood and gravity of harm against the burden of protection, a manufacturer should not be liable for a slip of the knife.
But consider the Yoder machine. Certainly Dorsey knew the danger of unguarded cutters. On the other hand, a guard would not eliminate the machine’s usefulness, nor would the cost of $200 to $500 on an $8,000 machine be unreasonable. .

331 F.Supp. at 759-60.

The patent danger doctrine encourages manufacturers to be outrageous in their design, to eliminate safety devices, and to make hazards obvious. For example, if the cage which is placed on an electric fan as a safety device were left off and someone put his hand in the fan, under this doctrine there would be no duty on the manufacturer as a matter of law. So long as the hazards are obvious, a product could be manufactured without any consideration of safeguards. This example of the fan differs from the example of the knife in Dorsey v. Yoder Co., supra, wherein the court explained that the utility of the knife would be eliminated by placing a guard over the blade. As the New York court in Micallef pointed out in discussing reasonable care, the defendant may show as relevant defensive matter the cost, function, and competition as narrowing design choices, the unworkability of the product when the alleged missing feature is added, or that the product would be so expensive as to price it out of the market.

The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users. It puts the entire accidental loss on the injured plaintiff, notwithstanding the fact that the manufacturer was partly at fault. This is inconsistent with the general philosophy espoused by this Court in Hoffman v. Jones, 280 So.2d 431 (Fla.1973); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); and Blackburn v. Dorta, 348 So.2d 287 (Fla.1977).

In adopting the doctrine of comparative negligence, in Hoffman v. Jones, supra, we said:

Whatever may have been the historical justification for it, today it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose, negligent conduct combined with the negligence of the other party to produce the loss. If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the oc-
currence is more consistent with liability based on a fault premise.

280 So.2d at 436.

Subsequently, we decided West v. Caterpillar Tractor Co., supra, in which we adopted strict liability in tort, as expressed in section 402A, Restatement (Second) of Torts (1965). The issue in West was whether a road grader’s design defects, the absence of rearview mirrors and an audible warning system for use in backing the grader, were actionable. We stated that the user of the product seeking to hold the manufacturer strictly liable in tort must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of proximate causal connection between such condition and the user’s injuries. Having established the applicability of the strict liability doctrine, we went on to explain what conduct by the injured party would create a defense of contributory negligence, and in this discussion, we viewed the obviousness of the hazard as part of the defense of contributory negligence rather than as an exception to liability. We relied on the definition of contributory negligence in comment n to section 402A, Restatement (Second) of Torts, and held:

We recognize that contributory negligence of the user or consumer or bystander in the sense of a failure to discover a defect, or to guard against the possibility of its existence, is not a defense. Contributory negligence of the consumer or user by unreasonable use of a product after discovery of the defect and the danger is a valid defense. . . . The defendant manufacturer may assert that the plaintiff was negligent in some specified manner other than failing to discover or guard against a defect, such as assuming the risk, or misusing the product, and that such negligence was a substantial proximate cause of the plaintiff’s injuries or damages. . . The fact that plaintiff acts or fails to act as a reasonable prudent person, and such conduct proximately contributes to his injury, constitutes a valid defense. In other words, lack of ordinary due care could constitute a defense to strict tort liability.

336 So.2d at 90.

In West we .concluded that contributory negligence is available in determining the apportionment of the negligence of the manufacturer of the alleged defective product and the negligence of the consumer, and we emphasized that the ordinary rules of causation and the defenses applicable to negligence are available. We additionally held that contributory negligence may properly be asserted in an action for breach of implied warranty and specifically said in this regard:

If the injured person’s conduct is a proximate cause of the injuries, the defendant would have the right to a charge on comparative negligence in an action for breach of implied warranty. If the injured person failed to use that degree of care which a reasonably careful person would use under like circumstances then he is guilty of some negligence. If this negligence was a proximate contributing cause of the injuries, the defendant would be entitled to raise the defense of contributory or comparative negligence.
In other words, lack of ordinary due care could constitute such a defense.

336 So.2d at 92.

Further support of our holding in the present case is found in our recent decision of Blackburn v. Dorta, supra, which held that the affirmative defense of implied assumption of the risk is merged into the defense of contributory negligence and that the principles of comparative negligence apply in all cases where such defense is raised. In Blackburn, we declared that there is no reason supported by justice or law to give credence to the defense of assumption of the risk which bars a plaintiff from recovery merely because he voluntarily exposed himself to a known risk notwithstanding the fact that his conduct may be reasonable, and we held that assumption of the risk as a complete bar to recovery is inconsistent with the holding of this Court that liability should be equated with fault.

Accordingly, we reject the patent danger doctrine and conclude that it does not create an absolute exception to liability on the part of the manufacturer, and we hold that the district court correctly refused to apply this doctrine as an absolute bar to recovery. We approve the decision of the Second District reversing the summary judgment and holding that material issues of fact are presented, including the proximate cause of Jones’ injuries.

ENGLAND, C. J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.

      . Section 402A, Restatement (Second) of Torts, comment n provides:

        Contributory negligence. Since the liability with which this Section deals is not based upon negligence of the seller, but is strict liability, the rule applied to strict liability cases (see § 524) applies. Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.
      On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.

      . The recent decision of the District Court of Appeal, Fourth District, in Blaw-Knox Food & Chem. Equip. Corp. v. Holmes, 348 So.2d 604 (Fla. 4th DCA 1977), is consistent with our holding in the present case. In Blaw-Knox the Fourth District held that the patent danger doctrine amounts to an assumption of the risk defense that is merged into the defense of contributory negligence subject to the principle of comparative negligence.

      . Cf. Watson v. Lucerne Mach. & Equip., Inc., supra, wherein the District Court of Appeal, Second District, held:
      It appears to us that Watson’s death was not a result of any defect in the Kinsey Sampler, but was solely caused instead by his own disregard of his supervisors’ warnings to stay away from a machine which presented obvious dangers during operation. His job did not require him to be in the area where he was killed; in fact, he had to kneel down and crawl under a conveyer belt to get to where he was killed. As the Supreme Court said in West, ‘Strict liability does not make the manufacturer or seller an insurer.’ 336 So.2d at 90. See also Isaacs v. Powell, 267 So.2d 864, 866 (Fla. 2d DCA 1972). We conclude that Watson’s demise was caused solely by his own actions and was not contributed to by any defect in the Kinsey Sampler. We think, therefore, the trial court properly awarded summary judgment to the defendants. [Footnote omitted.]
      347 So.2d at 461.


source: Caselaw Access Project

author: HATCHETT, Justice. BOYD, Justice,

license: Public Domain

text:
    HARBOR VENTURES, INC., etc., et al., Plaintiffs-Appellants, v. Robert C. HUTCHES et al., Defendants-Appellees.
    No. 53659.
    Supreme Court of Florida.
    Jan. 18, 1979.
    David K. Deitrich, of Dye, Cleary, Scott, Deitrich & Price, Bradenton, for plaintiffs-appellants.
    Robert E. Knowles and Clifford L. Walters> 111 of Knowles, Blalock, Coleman & Landers; and E. N. Fay, Jr., of Mann & Fay, Bradenton, for defendants-appellees.
   HATCHETT, Justice.

We are asked to determine whether section 193.461(4)(a)3., Florida Statutes (1973), is unconstitutional because it sets up an irrebuttable presumption that land rezoned non-agricultural at the request of its owners will not be used for a bona fide agricultural purpose. Exercising jurisdiction under article V, section 3(b)(1), Florida Constitution, we decline to address the constitutional question and find the statute inapplicable to the facts of this case because the zoning change was from one non-agricultural use to another non-agricultural use.

In 1973, appellants, Harbor Ventures, Inc. and others, owned land in the unincorporated area of Manatee County. The land was zoned R-1AA (non-agricultural). Agricultural use of land in a non-agriculturally zoned district is permitted by an exception granted by the County Commissioners of Manatee County. The appellants’ property was classified and assessed as agricultural in 1973. On December 18, 1973, the land was rezoned at the request of its owner to a use classification of planned unit development (PUD) (non-agricultural). In a timely manner and in accordance with all existing laws, appellants sought agricultural classification and assessment for 1974. The request was denied by the appellees, the Property Appraiser for Manatee County and other county officials. After exhausting administrative remedies, appellants instituted this action in the circuit court seeking declaratory relief.

The facts in this case are undisputed. As of January 1, 1974, the land which is the subject of this suit was being used in the same manner as it was being used on January 1, 1973. The sole reason for the denial of agricultural classification and assessment was the rezoning of the land at the request of its owners. Because of the denial of the agricultural classification and assessment, appellants’ land was assessed at a higher value than adjacent land devoted to the same use.

Appellants attack section 193.461(4)(a)3., Florida Statutes (1973), alleging that it denies equal protection of the laws as guaranteed by the fourteenth amendment to the Constitution of the United States and article I, section 2 of the Florida Constitution. The trial judge upheld the constitutionality of the statute.

We must initially determine whether section 193.461(4)(a)3, Florida Statutes (1973), applies where land is rezoned from one non-agricultural use to another non-agricultural use. If the statute applies, we must address the constitutional question.

Article VII, section 4(a) of the Florida Constitution provides:

Section 4. Taxation; assessments—
By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, provided:
(a) Agricultural land or land used exclusively for non-commercial recreational purposes may be classified by general law and assessed solely on the basis of character or use. [Emphasis added.]

In interpreting these provisions, we have held that the policy of the Greenbelt law and its 1972 amendments is to promote agricultural use of land.

Section 193.461(4)(a)3., Florida Statutes (1973), provides:

The assessor shall reclassify the following lands as nonagricultural: ... 3. Land that has been zoned to a nonagri-cultural use at the request of the owner subsequent to the enactment of this law

Considering the stated purpose of the Greenbelt law and our adherence to the actual use test, we find that the legislature intended to limit application of this statute to those cases where land is rezoned from an agricultural use to a non-agricultural use at the owner’s request. Such an interpretation provides an incentive for agricultural lands to remain devoted to agricultural production by discouraging speculative rezoning. Such speculative rezoning must have been viewed by the legislature as a first step toward non-agricultural use. The legislature could not have intended to deny the benefits of the Greenbelt law where a clear bona fide commercial agricultural use was being made of land that was rezoned from one non-agricultural use to another non-agricultural use.

We believe this interpretation is in compliance with our duty to construe tax statutes in favor of taxpayers where an ambiguity may exist. Maas Brothers Inc. v. Dickinson, 195 So.2d 193 (Fla.1967); Leadership Housing, Inc. v. Department of Revenue, 336 So.2d 1239 (Fla. 4th DCA 1976).

We hold that section 193.461(4)(a)3. applies only to those situtations where land zoned agricultural is changed to a non-agricultural zoning at the request of its owner. In light of this disposition, we need not reach the constitutional issue.

Accordingly, the trial court is reversed and the case remanded to that court for further action consistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

It seems to me that the majority opinion in effect rewrites section 193.461(4)(a)(3), Florida Statutes (1973), in order to avoid the constitutional issue. The statutory words are clear, however, and the strained construction utilized by the majority is beyond this Court’s power. I would meet directly the constitutional challenge.

To reach the result obtained by the majority it is necessary to construe the legislative intent to require reclassification only when the zoning change is from agricultural to non-agricultural. This conflicts with the clear language of the statute. The law provides for reclassification when zoning is changed, at the request of the owner, to a non-agricultural use and it makes no reference to the type of zoning from which the change is made.

The majority is correct in stating that this Court has in the past held that actual use should be the basic test in interpreting the provisions of the greenbelt law. In Straughn v. K & K Land Management, Inc., 326 So.2d 421 (Fla.1976), the issue was whether the rebuttable presumption established by Section 193.461(4)(c), Florida Statutes (1973) was reasonable in view of the policy objectives of the statute.

It should be noted, however, that the statutory provision at issue here is not a legislative presumption. It is a clear legislative directive to the property appraisers of the state. If the greenbelt law and the decisions interpreting it have established actual use of land as the general test for entitlement to the agricultural assessment, then clearly section 193.461(4)(a)(3) constitutes a legislatively-mandated exception to that test. For the enactment directs that the preferential tax treatment be denied upon the happening of an event, regardless of actual use. Lauderdale v. Blake, 351 So.2d 742 (Fla. 3d DCA 1977); 1976 Op. Atty.Gen.Fla. 076-162 (Aug. 11,1976). The question before us, then, is whether this statutory exception denies due process or the equal protection of the laws.

The Constitution mandates that all property is to be assessed for ad valorem taxation at a “just valuation.” Art. VII, § 4, Fla.Const. This Court has declared that these words mean assessment at fair market value. Walter v. Schuler, 176 So.2d 81 (Fla.1965). So, there is a general mandate for all property to be assessed for ad valo-rem tax purposes at the amount a purchaser willing but not obliged to buy, would pay to a seller willing but not obliged to sell. The Constitution authorizes a more favorable treatment for agricultural land, Art. VII, § 4(a), Fla.Const., but the constitutional language is permissive only, so that the assessment of agricultural land is a policy matter. Straughn v. Tuck, 354 So.2d 368 (Fla.1978).

We have said that the “reduced taxation for farmland is based on a legislative determination that agriculture cannot reasonably be expected to withstand the tax burden of the highest and best use to which such land might be put.” Straughn v. K & K Management, Inc., above, at 424. Viewed differently, the lower assessment for agricultural land is an indirect subsidy to agriculture. Agriculture is one of the leading industries of our state, and the precious commodities it produces bring high prices in the marketplace. Nevertheless, the Legislature in its wisdom has determined to promote agriculture by partially insulating it from the pressures of encroaching and competing land uses and the increases in market value associated with a rapidly developing state and region.

The legislative policy of giving preferential tax treatment to agricultural lands does not create any right in the owner to receive the preferential treatment. Its denial does not violate any personal or property right. Rainey v. Nelson, 257 So.2d 538 (Fla.1972). Therefore the issue is whether the legislative enactment and the classification it establishes are rationally related to some permissible state objective.

As the majority opinion recognizes, “speculative rezoning must have been viewed by the Legislature as a first step toward non-agricultural use.” It is just as reasonable, however, to view a change of zoning from one non-agricultural classification to planned unit development as the precursor to a change in actual use as it is to so view a change from agricultural zoning to non-agricultural zoning. Administrative convenience in the task assigned to the property appraisers of the state is served by the enactment. The legislative directive is rationally related to the purposes of the greenbelt law.

The fact that the statutory provision sets up a classification under which some lands actually being used for agriculture will receive the favorable assessment while others will not does not violate equal protection. If we can conceive of any basis of justification for the classification made, we must hold that equal protection is not violated. Riley v. Lawson, 106 Fla. 521, 143 So. 619 (1932); Park v. Morgan, 64 Fla. 414, 60 So. 347 (1912). In establishing classifications, in which no fundamental rights or suspect classes are involved, and especially in economic matters, the Legislature need not draw lines with mathematical precision. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 813, 96 S.Ct. 2488, 2499, 49 L.Ed.2d 200, 233 (1976); Hiers v. Mitchell, 95 Fla. 345, 116 So. 81 (1928).

For the foregoing reasons, I respectfully dissent. I would hold that section 193.-461(4)(a)(3) is applicable to this case and is constitutional. The judgment of the circuit court, upholding the reclassification of appellant’s land, should be affirmed.


author: PER CURIAM.

text:
    THE FLORIDA BAR. Re: PETITION TO AMEND INTEGRATION RULE AND BYLAWS (Nonresident Board of Governors Seat).
    No. 55348.
    Supreme Court of Florida.
    Jan. 18, 1979.
    Robert L. Floyd, President, Miami, L. David Shear, President-elect, Tampa; Joel H. Sharp, Jr., Orlando; Marshall R. Cassedy and William B. Wiley, Tallahassee, for The Florida Bar, petitioner.
   PER CURIAM.

This matter is before the Court upon the petition of The Florida Bar to amend Article III of the Integration Rule of The Florida Bar and the Bylaws thereunder. It is the purpose of the amendments to provide for one representative of the active non-resident members of The Florida Bar on the Board of Governors. The petition is in response to the suggestion of this Court in In the Matter of The Florida Bar, 355 So.2d 426, 427-28 (Fla.1978):

In particular, we invite the Board to consider at the earliest opportunity such matters as . direct representation of non-resident lawyers

After review of the petition and hearing oral argument on behalf of The Florida Bar, it is the judgment of the Court that the petition should be granted. However, the proposed amendment to Article III of the Integration Rule contains a provision which repeals the section authorizing such representation as of June 30, 1981, unless the Board of Governors petitions this Court to the contrary. Since this Court is always open to entertain applications for revisions to the Integration Rule, we deem it inappropriate to include such a “sunset” provision in the Integration Rule. If evaluation of equitable representation for nonresident members requires a revision in the future, application for a change in the Integration Rule and Bylaws can be made at that time.

Accordingly, Article III of the Integration Rule of The Florida Bar and Article III of the Bylaws thereunder are hereby amended in accordance with the attachments annexed hereto.

It is so ordered.

ENGLAND, C. J, and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

PROPOSED AMENDMENTS TO ARTICLE III, INTEGRATION RULE OF THE FLORIDA BAR

Article III

Board of Governors

1. The Board of Governors shall be the governing body of The Florida Bar. It shall have the power and duty fully' to administer this rule, including the power to employ necessary personnel, and to publish The Florida Bar Journal, and The Florida Bar News, which shall be the official publications of The Florida Bar. The Board shall adopt, amend or rescind the bylaws in the manner provided in this rule, and it shall adopt a common seal.

2.The Board of Governors shall consist of the president of The Florida Bar, the president-elect, the president of the Young Lawyers Section, the president-elect of the Young Lawyers Section, a representative of the active non-resident members of The Florida Bar, and representatives elected by and from the active members of The Florida Bar in each judicial circuit. There shall be one such circuit representative from each judicial circuit and fourteen additional circuit representatives who shall be apportioned among and elected from the judicial circuits on the basis of the number of members in good standing residing in each circuit. The formula for determining the number of representatives apportioned to and elected from each judicial circuit shall be: first, determine the average number of members in good standing residing in each judicial circuit by dividing the number of Florida resident members in good standing by the total number of judicial circuits, and then dividing the members in good standing residing in each judicial circuit by such average. Apportionment of representatives among the judicial circuits shall be in accordance with the results thus obtained, by apportioning each judicial circuit one representative for each multiple of one (including tone) of the results obtained for such circuit, provided such number does not exceed fourteen, and one representative for the circuit’s remaining fraction of a multiple commencing with the largest such fraction and continuing in descending order to the next largest fraction and so on until all representatives of this category shall be apportioned to judicial circuits; in the event the sum of the whole integers so determined exceeds fourteen, then circuits whose results show whole integers from the application of the formula shall be determined by eliminating one representative for the lowesf fraction of a whole integer among such circuits and continuing in ascending order until fourteen is reached.

3. The executive director annually, as of December 15, commencing with the year 1977, from the records of The Florida Bar shall certify to the clerk of the Supreme Court of Florida the number of active members of The Florida Bar residing in each judicial circuit, and his certificate or a notice thereof shall forthwith be published in The Florida Bar Journal or The Florida Bar News. This certificate of the executive director of The Florida Bar shall be the basis of apportionment of circuit representatives elected to the Board of Governors in the ensuing regular Bar judicial circuit elections.

4. All circuit representatives elected to the Board of Governors shall serve out the full term of which elected even though a subsequent circuit membership as certified by the executive director discloses a reduction in the number of representatives to which any judicial circuit is entitled.

5. The members of the Board of Governors from each judicial circuit shall be nominated and elected by the active members of The Florida Bar residing in such judicial circuit. Each elected member shall hold office for two years and until his successor is elected and qualified. Elections shall be held each year beginning in 1974. The Board of Governors shall, through bylaw adopted pursuant to this section, provide for staggered terms with approximately one-half of the circuit representatives being elected each year. The Board of Governors may provide for interim one-year terms for circuit representatives to institute the establishment of staggered terms. The bylaws shall provide for all nominations and elections of members of the Board of Governors. Newly elected members shall take office at the conclusion of the annual meeting of The Florida Bar following election to office. Any vacancy arising on the Board of Governors shall be filled for the unexpired term by a special election held in the circuit in which the vacancy occurs in accordance with the bylaws, which bylaws shall provide for a nominating and election procedure similar to that provided in this article.

6. Commencing in 1979, a non-resident member of the Board of Governors shall be nominated and elected in accordance with the bylaws by the active non-resident members of The Florida Bar. Such elected member shall hold office for a term of two years. Any vacancy arising in such office shall be filled for the unexpired term by a special election held in accordance with the bylaws. In-r-ecognitioa-of-the-desire-of the Board of Governors to create this additional Board seat on a two year trial basis and the Board’s continuing study of equitable Board representation, this section is repealed as of June- 30r-1981-,-unless -the - Board of Governors petitions the Supreme Court and the Court-decides to the-contrary-

PROPOSED AMENDMENTS TO BYLAWS UNDER ARTICLE III, INTEGRATION RULE OF THE FLORIDA BAR

Article III

Board of Governors

Section 1. DUTIES AND RESPONSIBILITIES. The Board of Governors, as the governing body of The Florida Bar elected by the active members, shall be vested with exclusive power and authority to formulate, fix, determine and adopt matters of policy concerning the activities, affairs or organization of The Florida Bar, subject only to any limitations imposed by the Integration Rule. The Board of Governors shall be charged with the duty and responsibility of enforcing and carrying into effect the provisions of the Integration Rule and the accomplishment of the aims and purposes of The Florida Bar. The Board of Governors shall direct the manner in which all funds of The Florida Bar are disbursed and the purposes therefor, and shall adopt and approve a budget for each fiscal year. The Board of Governors shall perform all other duties imposed under the Integration Rule and shall have full power to exercise such functions as may be necessary, expedient or incidental to the full exercise of any powers bestowed upon it by the Integration Rule or any amendment thereto or by these bylaws.

Section 2. NOMINATION.

a. Staggered Terms. Elections shall be held in even-numbered years beginning in 1974 for the following circuit representatives:

Circuit Circuit
(Office Number) (Office Number)
1 11(3)
3 11(5)
4(1) 13(1)
6(1) 14
7 15(1)
9 17(1)
10 18
11(1) 20

Elections shall be held in odd-numbered years beginning in 1975 for the following circuit representatives:

Circuit Circuit
(Office Number) (Office Number)
2 11(6)
4(2) 12
5 13(2)
6(2) 15(2)
8 16
9(2) 17(2)
11(2) 19
11(4)

In order to convert from the system of election of all members every two years, to a system of staggered terms, there shall be an election for all circuit representatives in 1974. Those representatives in the circuits designated herein for election in odd-numbered years, shall be elected for a one-year term in 1974.

Additions or deletions of circuit rSpre-sentatives resulting from the application of the Integration Rule formula will necessitate changes in the lists set forth above, both in circuit and office numbers; such changes will be made by the executive director as appropriate. In the initial year of application of the formula the three additional representatives will be elected in 1978 but two of them shall be for one year terms to provide for staggered terms of approximately one-half of the Board to be elected each year.

b. Time for filing nominating Petitions. Nominations for the election of representatives on the Board of Governors from each judicial circuit in accordance with the provisions of Article III of the Integration Rule, as amended, shall be made by written petition signed by not less than five active members of The Florida Bar in good standing. In each circuit in which there is more than one representative to be elected, the offices of the representatives shall be designated numerically, with the executive director making whatever adjustments are necessary to reflect changes resulting from the annual certification, and a nominating petition shall state the number of the office sought by a nominee. Any number of candidates may be nominated on a single petition, and any number of petitions may be filed, but all candidates named in a petition and all members signing such petition shall be residents of the judicial circuit which the candidate is nominated to represent, and shall be active members of The Florida Bar in good standing. Nominations for the election of a non-resident member of The Board of Governors in accordance with the provisions of Article III of the Integration Rule, as amended, shall be made by written petition signed by not less than five active non-resident members of The Florida Bar in good standing. Nominees shall endorse their written acceptance on such petitions but no nominee shall accept nomination for more than one office. All nominating petitions shall be filed with the executive director at the headquarters office on or before 5:00 p. m. February 15. On a date to be fixed by the executive director, the nominating petition shall be canvassed and tabulated by the executive director and the clerk of the Supreme Court of Florida, and they shall thereupon certify in writing the names of all members who have been properly nominated.

Section 3. ELECTION. Voting shall be by secret ballot. The executive director shall prepare and cause to be printed a sufficient pumber of ballots for the election of a non-resident Board member and for each judicial circuit office for in which an election is to be held and whore more than one candidate has been-nominated for any position to bo filled-on-the Board of Governors? One of such ballots shall be mailed to each active member of The Florida Bar in good standing in each of such judicial circuits and to each active non-resident member of The Florida Bar in good standing in the case of election of a non-resident Board member. The records of the executive director shall be conclusive in determining the members entitled to receive such ballots. When more than one office is to be filled, the offices shall be listed on the ballots in numerical order. The names of candidates on the ballots shall be listed alphabetically for each office. The ballots shall be mailed on of before March 1, and voted ballots shall be filed with the executive director or postmarked prior to midnight on March 15. Ballots not filed or postmarked within such period of time shall not be counted or tabulated. Immediately after March 15, the executive director and the clerk of the Supreme Court of Florida shall canvass and tabulate the ballots received and certify the results of the election. Failure to make a nomination shall result in a vacancy to be filled in accordance with the provisions of Section 2 of Article III of the Integration Rule. The candidate for an office receiving a majority of the votes cast for the office shall be declared elected. In the event no candidate receives such majority there shall be a run-off election between the two candidates receiving the highest number of votes. The ballots for the run-off shall be mailed on or before April 1 and the voted ballots shall be filed with the executive director or postmarked prior to midnight on April 15. The ballots shall be counted and the results certified as provided for the first election. In the event that only one candidate has been nominated for a particular office on the Board of Governors in any judicial circuit, such candidate shall be declared elected. Results of the election shall be furnished by the executive director to the officers, members of the Board of Governors, and all candidates, and may be furnished to any other interested persons upon their request.

Section 4. REMOVAL. If any member of the Board of Governors should be determined by such Board to have become so incapacitated as to prevent performance of his duties as a member of said Board, such member may be removed by resolution adopted by a majority of the Board of Governors declaring his position vacant. Any member of the Board of Governors may be removed for cause or resolution adopted by two-thirds of the entire membership of the Board of Governors.

Section 5. VACANCY. In the event of a vacancy on the Board of Governors arising in the office of representative from the judicial circuit the vacancy shall be filled by a special election within the framework of the pertinent election procedures presently existing under the Integration Rule and Bylaws relating to the election of members of the Board of Governors. Notice of the vacancy and the special election shall be given to members of the circuit in which the vacancy occurs by a special mailing within 10 days of the occurrence of the vacancy which notice shall provide that nominating petitions must be filed within 15 days of the date of the notice with the executive director. The special election shall be held not less than 30 days and not more than 45 days after the mailing of the notice. The procedures set forth in the Integration Rule and Bylaws for election shall be followed as closely as possible. A vacancy on the Board of Governors arising in the office of non-resident representative shall be filled in a like manner.

Section 6. MEETINGS. The Board of Governors shall hold meetings at such times and places as may be designated by the Board or called by the president. Any active member of The Florida Bar in good standing may attend meetings at any time except during such times as the Board shall be in executive session concerning disciplinary matters. Minutes of all meetings shall be kept by the executive director.

Section 7. QUORUM. A majority of the members of the Board of Governors shall constitute a quorum for the transaction of business at all meetings, and no action whatever may be taken except upon a majority vote of the members present and voting.


text:
    Maria WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 54184.
    Supreme Court of Florida.
    Jan. 18, 1979.
    Paul D. Ley and Crockett Farnell of Nixon & Farnell, Clearwater, for appellant.
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, and Lee Mandell, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.


text:
    Edward MERCER, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 52231.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, Richard E. Mandell, Cas-selberry, and Michael Sigman, Orlando, for petitioner.

      Jim Smith, Atty. Gen., and Robert L. Bogen and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for rehearing is granted. The petition for writ of habeas corpus is treated as a motion to apply belatedly for certiorari review and is granted. Jurisdictional briefs shall be served as follows: petitioner’s brief shall be served on or before ten days from the date of this order; respondent’s brief shall be served twenty days from the date petitioner’s brief is served; and petitioner’s reply brief shall be served ten days from the date respondent’s brief is served.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

ENGLAND, C. J., and SUNDBERG and ALDERMAN, JJ., dissent.


text:
    David Ansgar NYBERG, Petitioner, v. STATE of Florida, Respondent.
    No. 53738.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Baya Harrison, III, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
    Basil S. Diamond and Charles W. Mus-grove, Asst. Attys. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is treated as a motion to apply belatedly for certiorari review and is granted. Jurisdictional briefs shall be served as follows: petitioner’s brief shall be served on or before ten days from the date of this order; respondent’s brief shall be served twenty days from the date petitioner’s brief is served; and petitioner’s reply brief shall be served ten days from the date respondent’s brief is served.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur.

ENGLAND, C. J., and SUNDBERG and ALDERMAN, JJ., dissent.


author: ERVIN, Judge.

text:
    SILVER SPRINGS SHORES, INC., Petitioner, v. FLORIDA DEPARTMENT OF REVENUE, Respondent.
    No. GG-455.
    District Court of Appeal of Florida, First District.
    May 25, 1978.
    Willard Ayres of Ayres, Cluster, Curry & McCall, Ocala, for petitioner.
    Robert L. Shevin, Atty. Gen., Harold F. X. Purnell, Asst. Atty. Gen., for respondent.
   ERVIN, Judge.

Silver Springs Shores, Inc. seeks review of a Department of Revenue order upholding the validity of Rule 12A-4.13(22) as a valid exercise of delegated legislative authority following a Section 120.56 proceeding. The evidence adduced at the hearing revealed that Silver Springs Shores, Inc., is a wholly owned subsidiary of Amrep Corporation, primarily engaged in developing a large subdivision in Marion County. Amrep Construction Company, Inc. is also a wholly owned subsidiary of Amrep which, among other things, contracts to build homes for purchasers of lots in Silver Springs Shores. Another subsidiary, Holiday Shores Tours, Inc., seeks prospective purchasers of lots owned by Silver Springs Shores and encourages them to contract with Amrep Construction to have their homes built on the lots purchased in Silver Springs Shores. The typical transaction shows that once Holiday Shores Tours, Inc. has secured the intended purchaser, Amrep Construction Company makes arrangements for the conveyancing of the lot, the financing of the mortgage and the constructing of the home. Later Amrep Construction, Inc. and the purchaser execute a building agreement which provides for the purchase both of the home and the lot. Later, Amrep Construction, Inc. forwards a warranty deed initiation request to Silver Springs Shores, Inc. asking Silver Springs to issue a warranty deed to the purchaser. The warranty deed describes only the value of the lot without improvements and both documentary stamp taxes and surtaxes are placed upon the deed for the consideration paid only for the lot. Later at the closing, the buyer pays the total purchase price including both the price of the lot and home to Amrep Construction, Inc.

After numerous transactions were closed in the above manner, DOR filed a notice of a proposed assessment seeking to assess documentary stamp taxes, surtaxes, penalties’and interest in the total amount of $13,002.10 against Silver Springs Shores, Inc. During the administrative hearing, Silver Springs conceded that the transactions were package deals within the meaning of the rule but challenged the rule as not being validly authorized by the Florida Documentary Stamp Tax statutes, specifically Section 201.02, empowering a documentary stamp tax of $.30 on each $100 of consideration on deeds and other documents, and Section 201.021(1) permitting a documentary surtax on such documents at the rate of $.55 per $500 of the consideration paid.

It is difficult for us to perceive the rule is facially invalid since it provides the determinative factor as to whether the tax applied is the intention of the parties. The statement is clearly consistent with the law relating to delivery of deeds, which states that the intention of the parties, particularly the grantor, is an essential and controlling element of the delivery of the deed. Smith v. Owens, 91 Fla. 995, 108 So. 891 (1926). The applicable stamp tax statutes generally follow the language of the corresponding federal revenue tax statute, 26 U.S.C. § 4361 (now repealed). Florida courts have usually given the same construction to Florida taxing statutes as is placed upon corresponding federal statutes by federal courts. Gay v. Inter-County Telephone and Telegraph Co., 60 So.2d 22 (Fla.1952); Choctawhatchee Electric Cooperative, Inc. v. Green, 132 So.2d 556 (Fla.1961); Rasberry v. Dickinson, 243 So.2d 236 (Fla. 1st DCA 1971). In interpreting Section 4361, as it related to package deals, the United States Court of Claims, upon facts similar to those involved here, concluded that the critical factor in determining the amount of tax due is the intention of the parties at the time of execution and recor-dation of the instrument. Raccoon Development, Inc. v. United States, 391 F.2d 610, 613, 183 Ct.Cl. 276 (1968). The Court noted that the intended purchasers were neither offered nor did they bargain for anything other than a home, including a lot at a certain price, and that the lot was in reality an inseparable part of what the purchasers bought. The Court concluded that “the lump sum purchase price that they paid is therefore the proper measure of documentary stamp tax liability.” Id. at 613-14. The test applied by Raccoon in determining the taxable event is entirely consistent with that stated in Rule 12A-4.13(22).

Nevertheless the precise point has previously been decided adverse to the Department’s position in Department of Revenue v. Young American Builders, 358 So.2d 1096 (Fla. 1st DCA 1978). Stare decisis demands that we follow Young America Builders, supra, grant the petition for review and set aside the agency action. Still, being persuaded that the question of the rule’s validity is one of great public importance, we certify it to our Supreme Court as being so.

SMITH, Acting C. J., and BOOTH, J., concur.

      . The Rule provides:
      Joint Venture Contracts, Package Deals: Where corporations engaged in the business of land development for residential purposes conduct their operations in conjunction with sister corporations (or even same corporation) engaged in building homes, and one individual is controlling shareholder and principal officer of all corporations, tax is required on the deeds based upon the total price that home purchaser pays for house and lot and not limited to portion of consideration attributable to the lot. The tax attaches at the time the deed or other instrument of conveyance is delivered, irrespective of the time the sale is made or the instrument is recorded. The critical factor is the intention of the parties.

      . A distinguishing fact is that in Raccoon Development, Inc. v. United States, 391 F.2d 610, 613, 183 Ct.Cl. 276 (1968), the deed was withheld by the developer and not delivered until after the improvements were added, unlike the situation here. Nevertheless the decision in Raccoon, supra, did not, as indicated above, turn upon this one factor.


author: BOYER, Judge. MILLS, Judge,

text:
    Laquita SHULER, as Superintendent of Schools, Petitioner, v. The SCHOOL BOARD OF LIBERTY COUNTY, Florida, Respondent.
    No. HH-377.
    District Court of Appeal of Florida, First District.
    June 9, 1978.
    Rehearing Denied July 13, 1978.
    Joseph C. Jacobs and Brian S. Duffy, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Clinton E. Foster, Panama City, Cynthia S.Tunnicliff and Sam Spector, of Spector & Tunnicliff, Tallahassee, for respondent.
   BOYER, Judge.

By petition for review pursuant to the Administrative Procedures Act petitioner seeks resolution of a dispute which has arisen between the superintendent and the school board of Liberty County regarding the federally funded Headstart Program in Liberty County and peripheral issues related thereto. No useful purpose will be accomplished by a recitation of the rather complicated factual background. Suffice to say, for resolving the issues presented, our examination of the record convinces us that the challenged resolution which was passed by the school board did not impose an illegal limitation upon the statutory powers of the superintendent (Point One); that such resolution did not constitute a rule within the meaning of F.S. 120.52(14) thereby requiring adherence to the procedure set forth in F.S. 120.54 and that the board did not act improperly in failing to afford the superintendent a “section 120.57 hearing” prior to the passage of the challenged resolution. (Point Two)

The third Point presented to us relates to the refusal of the school board to employ or retain an attorney to represent the superintendent in accordance with the formally adopted and promulgated policies of the school board. We are of the view that when a viable legal issue develops between a superintendent and a school board, as to the respective powers and responsibilities of each, of such magnitude as to reasonably require competent legal advice, each is entitled to independent representation by competent legal counsel at public expense and that the holder of the purse strings is required, upon request, to make appropriate financial arrangements therefor. The record reveals that the Liberty County School Board has adopted a policy (policy # 136) providing that when legal services are needed by the superintendent, the school board may employ or retain a competent attorney to render such services. That policy may not be disregarded simply because the subject dispute is between the superintendent and the school board itself. Analogous, but not directly on point, is this court’s decision in Perkins v. Florida State University, 303 So.2d 415 (Fla.1st DCA 1974), wherein we held that F.S.U. having elected, without legal requirement, to furnish gratuitous transcripts of hearings to some of its employees was required to do so for all. We reject, however, the contention of the superintendent that her entitlement to attorney’s fees in this action is pursuant to F.S. 120.57(l)(b)(9) which provides that “in the event a court reverses an agency’s order, the court in its discretion may award attorney’s fees and costs to the aggrieved prevailing party.” That statute is inapplicable. The superintendent is, nevertheless, entitled to attorney’s fees and necessary costs pursuant to the school board policy as above held.

It is so ORDERED.

SMITH, J., concurs.

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurs in part and dissents in part:

I agree with Judge Boyer that under the circumstances of this case the Board should have provided the Superintendent with an attorney at the Board’s expense.

I do not agree with the majority that the Board’s resolutions do not impose limitations on the statutory authority of the Superintendent and that the Superintendent is not entitled to an attorney’s fee for representation in the appeal she brought here.

The record before us clearly demonstrates that the Board’s resolutions directly or indirectly usurped the Superintendent’s statutory authority. In addition, without an adversary hearing, the Board accepted HEW’s demands, some of which violated Florida statutory law.

The administration of county school programs should be carried out by the Board and the Superintendent as directed by Florida law. A federal agency should not dictate the administrative procedures and a board should not permit a federal agency to accomplish this by threatening to cut off federal funds.

I would grant the Superintendent’s petition for review and would reverse or set aside the Board’s resolutions. I would grant an attorney’s fee to the Superintendent for representation here.


text:
    FLORIDA ELECTRIC POWER COORDINATING GROUP, INC., Petitioner, v. Honorable Reubin O’D. ASKEW, Governor of the State of Florida, Honorable Bruce A. Smathers, Secretary of State of the State of Florida, et al., Respondents.
    No. FF-296.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Rehearing Denied July 31, 1978.

      Wade L. Hopping, Tallahassee, Gary P. Sams, William E. Williams and William H. Green, of Mahoney, Hadlow & Adams, Jacksonville, for petitioner.
    Robert L. Shevin, Atty. Gen., J. Kendrick Tucker, Asst. Atty. Gen., and Reynolds L. Caleen, Jr., Tallahassee, for respondents.
   ERVIN, Judge.

The petitioner has as its members the electric power companies of Florida. Respondents are the Governor and Cabinet, the Environmental Regulation Commission and the Department of Environmental Regulation. This court is called on to construe in two respects Section 403.804(2), Florida Statutes (1975), which reads:

The commission shall direct the department to have a study conducted of the economic and environmental impact which sets forth the benefits and costs to the public of Any standard existing on July 1, 1975, which sets a stricter or more stringent standard than one which has been set by federal agencies pursuant to federal law or regulation. All such studies shall be submitted to the governor and cabinet no later than March 1, 1976. Such studies as are provided for in this paragraph shall be submitted to the commission, who shall initially adopt the standards. Final action shall be by the governor and cabinet, who shall accept, reject, modify or remand for further proceedings the standard within 60 days from the submission. Such review shall be appellate in nature. Hearings shall be in accordance with the provisions of chapter 120.

We are asked to decide (1) whether the Cabinet properly exercised its appellate review, and (2) whether the Commission correctly selected standards which are stricter or more stringent than those set by federal law or regulation.

In January, 1976, the Department submitted to the Commission a list of nine department standards that it felt were stricter than federal law. Various industry spokesmen, including petitioner, objected to the list, contending it did not include all the standards that are more restrictive in Florida than in other parts of the country. The Department reasoned: where federal agencies had not set an environmental standard, or had merely approved or adopted a state department standard, a department standard could not be “stricter . . . than one which has been set by federal agencies pursuant to federal law or regulation.” After a workshop, the Department added two more standards to the list of “stricter” standards requiring studies. These were approved by the Commission. The Commission revised seven of the eleven “stricter standards” so that only four department standards remained “stricter” than federal standards.

On February 1, 1977, the Cabinet met to take final action on the four remaining department standards. Petitioner raised arguments and filed a brief urging the Cabinet to reject the Commission’s and the Department’s narrow interpretation of the statute section. Petitioner urged that the Department be ordered to conduct economic and environmental impact studies on certain state standards that should have been identified as more stringent than federal standards. The Cabinet granted a motion to strike the petitioner’s brief. It found:

Under Section 403.804(2), the Governor and Cabinet have been granted only the power to “accept, reject, modify or remand” standards submitted by the Environmental Regulation Commission which the Commission has determined to be more stringent than federal standards. The Governor and Cabinet have no jurisdiction granted, expressly or by necessary implication, to hear appeals from determinations by the Environmental Regulation Commission whether a department standard is stricter than a corresponding federal standard. . . . Review of such determinations by the judiciary are amply provided for pursuant to Chapter 120, Florida Statutes.

The Governor and Cabinet took action not relevant here on the four remaining stricter standards. The Commission was also requested to issue an order identifying those department standards not found to be stricter than federal standards.

We find the Governor and Cabinet correctly refused to consider whether additional state environmental standards were more stringent than corresponding federal standards. Section 403.804(2) gives the Governor and Cabinet authority to review only those regulations submitted by the Commission. The intent behind the statute was to have policy decisions on Florida’s environmental regulations made by statewide elected officials — aided by cost-benefit analyses prepared by the Department. The Governor and Cabinet lack the technical expertise as well as the statutory authority to determine which of the many state standards are indeed more stringent.

The issues as framed by the parties do not require a complete disentanglement of the complex web of federal-state regulations. Petitioner simply asks us to determine as a matter of law (1) if a state standard approved by the federal Environmental Protection Agency (EPA) can be more stringent than a federal standard, and (2) if a state standard which limits the same pollutant from the same source as a federal standard, but by a different method, can be compared to determine which is more stringent. We have jurisdiction by virtue of timely petition from the Commission’s order detailing those standards not submitted to the Governor and Cabinet.

For a Florida standard to be “a stricter or more stringent standard than one which has been set by federal agencies pursuant to federal law or regulation”, the federal standard must be in counterpoise to the state standard. However, in many instances federal standards interlock with, but do not necessarily correspond with, state standards. For example, the federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 33 U.S.C. § 1361 et seq., require all discharges of pollutants to meet technology-based effluent limitations set by the EPA, as well as the ambient water quality standards adopted by the states and approved by EPA. A discharger may be required to achieve a greater reduction in effluent than the federal standard requires if the prevailing water quality standards so require. But this does not mean the federal effluent standards can be compared with Florida’s water quality standards. Presumably the amount of effluent that can be discharged into a body of water before water quality standards are violated will depend upon many factors, such as the size of the body, other pollution sources, etc. The major problem is that there are no federal water quality standards independently set by EPA against which Florida’s standards can be compared to determine which is “stricter.” On the other hand, Florida’s air quality standards were included in the study. The Clean Air Act of 1970, Public Law No. 91-604, 42 U.S.C. § 1857 et seq., required the EPA to set national primary and secondary ambient air quality standards. These independently set national standards can be directly compared with the state ambient air standards. This was done by the Department and it was determined certain state standards were stricter than their federal counterparts, requiring, therefore, a study under Section 403.804(2).

In the same sense, we cannot find as a matter of law Florida standards are stricter when state and federal standards regulate a pollutant by different methods. For example, thermal pollution, the artificial heating of natural waters by industrial discharge, is dealt with differently under national and state regulations. EPA requires a certain type water cooling system which must be installed at new power plants. The Department simply requires that heated water having a temperature at the point of discharge more than five degrees Fahrenheit higher than the natural temperature of a stream shall not be discharged into the stream. Fla.Admin.Code R. 17-3.05(3)(d)(i). Whether the Florida standards are more restrictive than their federal counterparts will depend on such factors as the natural temperature of the stream and the level of activity in the plant. We cannot say the Department erred in not finding the Florida standards more stringent.

We find no error in the Department’s determination of those standards requiring study under Section 403.804(2). The petition for review is

DENIED.

BOYER, Acting C. J. and MILLS, J., concur.


text:
    John THEOPHILE, Appellant, v. STATE of Florida, Appellee.
    No. JJ-257.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1978.
    Rehearing Denied Feb. 26, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Charles A. Stampelos, Asst. Attys. Gen., for appellee.
   PER CURIAM.

The judgment below is AFFIRMED subject to remand for correction of discrepancies appearing of record as to the amount of gain time due appellant under Florida Statute § 921.161.

MILLS, Acting C. J., and SMITH and BOOTH, JJ., concur.


author: MOORE, Judge.

text:
    Sheldon GODFREY and Willie Godfrey, a minor, By and Through his next friend, natural guardian and father, Sheldon Godfrey, Appellants, v. Verica NEUMANN, Liberty Mutual Insurance Company, et al., Appellees.
    No. 78-108.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellants.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee — Verica Neumann.
   MOORE, Judge.

This is an appeal from an order of the trial court denying the defendants’ motion to quash service of process. In denying the motion to quash the trial court initially and directly passed upon the constitutionality of Section 48.193(l)(b), Florida Statutes (1977).

The plaintiff was injured in a swimming pool when the minor defendant dived into the pool and landed on the plaintiff’s back. The defendants are permanent residents of Canada. The sole basis of the defendants motion to quash service of process as to the minor defendant’s father was that Section 48.193(l)(b) is unconstitutional because it fails to satisfy the “minimum contacts” requirements of due process. In denying the motion the trial court specifically addressed this contention:

This provision of the Florida law is a reasonable extension of its jurisdiction over visitors to Florida and does not violate the due process clause of the United States Constitution. See Hess v. Pawloski, (1927) 274 U.S. 352, 356, 47 S.Ct. 632, 71 L.Ed. 1091, 1095; Smyth v. Twin State Improvement Corp., (1951) 116 Ut. [Vt.] 569, 575, 80 A.2d 664, 668; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.

We can find no Florida appellate decision passing upon the constitutionality of Section 48.193(l)(b) insofar as it is applicable to the commission of a single, isolated tortious act. We therefore find that this appeal should be transferred to the Florida Supreme Court. Fla.Const., Art. V, § 3(b)(3); Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977).

Appeal transferred to the Supreme Court of Florida.

DAUKSCH and LETTS, JJ., concur.


text:
    Stanley HEADRICK, Appellant, v. STATE of Florida, Appellee.
    No. KK-498.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Rehearing Denied Feb. 26, 1979.
    Stephen A. Smith of Smith & Smith, Lake City, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Headrick appeals from a plea of nolo contendere to burglary and grand larceny wherein he reserved the right to appeal the admissibility of a confession made after twenty-four hours of imprisonment, but before his first appearance. We disagree with his argument that the violation of Fla.R.Crim.P. 3.130(b) requires that the confession be automatically suppressed. Here, the defendant was advised of his rights and we have concluded that the confession was otherwise voluntary. Further, there is no indication that the delay induced the confession. Romanello v. State, 160 So.2d 529 (Fla. 1st DCA 1964), cert. denied, 168 So.2d 148 (Fla.1964).

Each case must be examined upon its own facts to determine whether a violation of Rule 3.130(b), considering its purpose and effect, has induced an otherwise voluntary confession. See Kilgore v. State, 350 So.2d 1144 (Fla. 1st DCA 1977). Accordingly, we affirm.

McCORD, C. J., and ERVIN and MELVIN, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    John Louie MELANSON, Relator, v. The Honorable James T. NELSON, Respondent.
    No. LL-313.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1979.
    Rehearing Denied Feb. 19, 1979.
    Craig T. James and Mark A. Zimmerman of Clayton & James, DeLand, for relator.
    Robert L. Shevin, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Acting Chief Judge.

Petition for writ of prohibition. Relator Melanson, a medical doctor, was arrested at his office on a charge of unlawful delivery of a controlled substance by written order, not issued in good faith, in the course of his professional practice. At the time of his arrest, Melanson was served with a subpoena duces tecum commanding him to appear “instanter” before a state attorney and bring all medical records in his possession relating to a certain individual. The deputy sheriff who served the subpoena explained that the subpoena required Melanson to produce the records immediately or “you will be found in contempt of court.” Me-lanson surrendered the records to the deputy, as requested, without asserting his privilege against self-incrimination secured by both the Fifth Amendment to the United States Constitution and Article I, Section IX of the Florida Constitution.

Melanson filed a motion to dismiss in the circuit court on grounds that when he complied with the subpoena duces tecum he gained immunity from prosecution under Section 914.04, Florida Statutes (1977). The circuit court denied the motion. Me-lanson now asks that we prohibit the circuit court from prosecuting him further on the charge because the court erroneously denied his motion to dismiss and thus is acting in excess of its jurisdiction. We issued our order to show cause and the Attorney General has responded. We hold that Melanson is not entitled to immunity under the statute.

Section 914.04 provides:

No person, having been duly served with a subpoena or subpoena duces te-cum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.

The purpose of Section 914.04 is to aid criminal prosecutions by allowing the state to elect to immunize one offender to secure the offender’s self-incriminating testimony for use in prosecuting another. Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977); State v. Powell, 343 So.2d 892 (Fla. 1st DCA 1977); State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. 2d DCA 1970). The statute is not intended to confer immunity where the state does not choose to employ it. Thus, the mere issuance of a subpoena does not confer immunity, Tsavaris v. Scruggs, supra at 749. Nor is the state required to foresee that its compulsory process will result in eliciting testimony the witness deems incriminating. State v. Perkins, 349 So.2d 802 (Fla. 2d DCA 1977); Orosz v. State, 334 So.2d 26 (Fla. 1st DCA 1976). The witness must assert his privilege against self-incrimination, upon being interrogated or ordered to surrender documents, thus presenting the state with a choice of conferring immunity and compelling the witness to testify, or relieving the witness of providing incriminating evidence. State v. Perkins, supra.

In this case, Melanson had been placed under arrest and given Miranda warnings immediately before he was served with the subpoena duces tecum. We do not doubt that the state was acutely aware of the incriminating nature of the records Melan-son was ordered to produce. Clearly the state hoped that Melanson would comply with the subpoena before he reflected on his right against self-incrimination or could confer at any length with his counsel. We hold, however, that the state’s coercive purpose did not relieve Melanson of the requirement that he assert his privilege against self-incrimination and receive a grant of immunity from the state. Where the subpoena is used, as it was here, to coerce an arrestee into producing incriminating evidence, it is as if Melanson had been interrogated at the jail and had there been coerced into giving incriminating testimony. Such conduct by the state does not automatically confer immunity, as the trial judge correctly noted in his order denying the motion to dismiss the prosecution:

The procedure utilized by the State in this case, the use of an Instanter Subpoena duces tecum to obtain the records . , appears to this Court to be a highly irregular procedure. However no motion to suppress was filed in the ease at bar and the Court leaves open and does not decide any questions regarding the admissibility of such documents in evidence.

The state also argues that Melanson had no privilege to refuse to produce the records, no matter how incriminating, because the state had a written authorization from Melanson’s patient, actually an undercover policeman, to receive those records pursuant to Section 458.16, Florida Statutes (1977). That statute does not have the effect contended for it by the state. It was enacted to provide a convenient means for the release of medical information out of court, and to protect physicians from patients’ claims of personal privacy or privileged communications. See Morrison v. Malmquist, 62 So.2d 415 (Fla.1953); Comment, 6 U.Fla.L.Rev. 568 (1953), 7 Mia.L.Q. 580 (1953). Section 458.16 cannot be employed to override the physician’s own constitutional protection against involuntary self-incrimination.

The petition is DENIED.

ERVIN and MELVIN, JJ., concur.

      . Section 458.16, Florida Statutes (1977), provides:
      Any doctor or other practitioner of any of the healing sciences making a physical or mental examination of, or administering treatment to, any person, shall upon request of such person, his guardian, curator, or personal representative in the event of his death, furnish copies of all reports made of such examination or treatment. Such reports shall not be furnished to any person other than the patient, his guardian, curator, or personal representative, except upon the written authorization of the patient; provided, however, that nothing herein shall prevent the furnishing of such reports without such written authorization, to any person, firm, or corporation who with the patient’s consent shall have procured or furnished such examination or treatment, and where compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, copies of the medical report shall be furnished both the defendant and the plaintiff.


author: OTT, Judge.

text:
    ZURICH INSURANCE COMPANY et al., Appellants, v. Joanne SCOFI, etc., Appellees.
    No. 77-1087.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.
    As Modified On Denial of Rehearing Feb. 9, 1979.

      Alton G. Pitts of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellants.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and John A. Lloyd, Jr. of Lloyd & Henninger, St. Petersburg, for ap-pellees.
   OTT, Judge.

The appellees’ decedent was working in a trench when a cave-in occurred. He died as a result of his injuries. At the time of his death, the decedent and the appellant/supervisor were employed by the same company. The appellant was neither an officer, shareholder nor director in the employing company. Appellant, however, was the supervisor in charge at the job site.

The issue is whether the appellant, decedent’s supervisor, is immune from a common law third party action in negligence by virtue of the employer’s workmen’s compensation coverage. We believe so and reverse.

The survivors received workmen’s compensation benefits. Thereafter, this tort action was brought against the supervisor which resulted in a jury verdict and final judgment for the survivors.

The law of Florida is that “the liability of a corporate officer in a third party action must derive from acts done by him in the capacity of a co-employee and may not be predicated upon acts done by him in his capacity as a corporate officer.” West v. Jessop, 339 So.2d 1136, 1137 (Fla. 2d DCA 1976) citing Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973). The West court also stated:

[A] corporate officer becomes amenable to suit as a co-employee when he has committed an affirmative act of negligence which goes beyond the scope of the nondelegable duty of the employer to provide his employees with a safe place to work. West, supra at 1137 citing Kruse, supra.

In Kruse the supreme court of Wisconsin elaborated upon a supervisor’s liability:

Under what circumstances can a duty be owed to a fellow employee additional to and different from the duty of proper supervision that is owed to the employer by a corporate officer or supervisory employee? Clearly something extra is needed over and beyond the duty owed the employer. [Emphasis supplied]. 213 N.W.2d at 67.

In the instant case, there is nothing in the record to indicate that the supervisor committed any such affirmative act of negligence which went beyond the scope of his employer’s duties. Simply stated, the “something extra” as required by Kruse was missing in the instant case.

The lower court admitted into evidence various state safety rules. These rules were to the effect that trenches in excess of a certain depth must have sheeting or bracing. The lower court gave instructions regarding the state safety rules as follows:

There are other aspects of the requirements of those rules and regulations . which you will have an opportunity to examine at length when you go to the jury room. But you’re instructed [that] a violation of these rules is negligence. If you find a person alleged to have been negligent violated these rules then that person is negligent.

This was the negligence charged to the appellant. If a state safety rule was violated at the job site, this was a responsibility of the employer which it can only discharge (or fail to discharge) through its supervisory employee. The supervisor merely carries out the responsibility or duty of the employer. For this purpose he is the employer’s alter ego. Thus, under such circumstances, the supervisor should be entitled to the immunity of the employer.

Appellee contends that immunity does not extend to the supervisor because he was neither a shareholder, officer, nor director of the corporation for whom he worked. Most of the reported cases deal with corporate officers (or shareholders or directors) and hence the appellee argues that such cases are authority that the employer’s immunity from tort liability by virtue of workmen’s compensation coverage extends only to such “official” persons. We do not think this is the import of these cases.

Our holding is that the immunity of the corporate employer extends to its supervisor where that supervisor has committed no affirmative act of negligence going beyond the scope of his employer’s nondelega-ble duty. We would point out that this holding would apply to any employee, regardless of rank or title, so long as that employee was the agency for carrying out the employer’s duties. The umbrella of immunity applies to those who fill the role of the corporation’s alter ego. In our estimation, this is the only possible common sense application of the immunity rule.

Accordingly, we reverse and set aside the judgment of the lower court entered upon the jury verdict and remand to the lower court with direction to enter final judgment for the appellants notwithstanding the jury verdict.

HOBSON, Acting C. J., and SCHEB, J., concur.

      . On remand, the court in Kruse v. Schieve held that the amended complaint sufficiently alleged facts showing that the defendant’s negligence was in the course of his duties as a co-employee and not in the course of his general supervisory duties as a vice president of the corporation. Although this technically changes the result, it has no effect upon the black letter law recited in Kruse v. Schieve quoted above. See Kruse v. Schieve, 72 Wis.2d 126, 240 N.W.2d 159 (1976).

      . Four Wisconsin cases are on point: Lupovici v. Hunzinger Construction Co., 79 Wis.2d 491, 255 N.W.2d 590 (1977); Laffin v. Chemical Supply Co., 77 Wis.2d 353, 253 N.W.2d 51 (1977); Garchek v. Norton Co., 67 Wis.2d 125, 226 N.W.2d 432 (1975); and, Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 225 N.W.2d 635 (1975). In each of these cases, the Kruse rules cited above were quoted with approval. In Ortman a trench cave-in fatality was also involved. The plaintiff therein made many of the same allegations in its pleadings as in the instant case, i. e., the trench was unsafe. However, the Wisconsin court held for the defendant stating that there had been “no allegation of any affirmative act of negligence by the respondent [defendant] which increased the risk of injury.” 225 N.W.2d at 639.

      . The lower court refused the request of the plaintiff/appellee that it give an instruction with regard to the federal (OSHA) safety regulations. Appellee cross-appeals on the ground that this was error. In view of our decision on other grounds we do not address this point.


author: GRIMES, Chief Judge.

text:
    Shauna Michelle SISAM, By and Through her natural mother and next friend, Sharon Arleen Taylor, Appellant, v. Bobbie Claire BRANTLEY, Patricia Dean Bossom and Alvin J. Sisam, Appellees.
    No. 78-271.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.
    Rehearing Denied Feb. 5, 1979.

      Leroy H. Merkle, Jr. and Britt Whitaker, Tampa, for appellant.
    W. M. Carson and Gary W. Nicholson of Carson & Guemmer, Tampa, for appellees.
   GRIMES, Chief Judge.

This is an appeal from a judgment predicated upon a jury determination that appellant’s injuries were due 60% to her own negligence.

Appellant, a 12 year old girl, was injured in an automobile accident while riding as a passenger in her mother's automobile. Appellant’s mother was proceeding north on Hubert Avenue when she arrived at its intersection with El Prado Boulevard in Tampa. El Prado Boulevard is a four-lane road separated by a median strip. There was no traffic control light at the intersection. After first stopping at a stop sign governing motorists on Hubert Avenue, appellant's mother drove across the eastbound lanes. She then slowed but continued across the westbound lanes. She was struck on the right passenger door by appel-lees’ automobile which was travelling west on El Prado Boulevard in the curb lane. Appellant, who was riding in the front passenger’s seat, sustained serious injuries. As a consequence, she instituted this action for damages against appellees.

Both appellant and her mother testified that they did not see the car which struck the mother’s vehicle. There was testimony to the effect that when appellant rode with her mother as a passenger she would sometimes inform her mother of oncoming traffic. There was, however, no testimony that appellant had indicated to her mother the condition of traffic in the intersection prior to this accident.

At the conclusion of testimony, appellant’s motion for directed verdict on the issue of liability was denied. The jury then returned a verdict finding the appellees to be 40% of the cause of appellant’s injuries and appellant to be 60% of the cause of her injuries. Appellant’s motion for judgment notwithstanding the verdict was denied. Because the total damages were assessed at $25,000, the court entered a judgment in favor of appellant for $10,000.

The sole point on appeal is whether any evidence existed upon which the issue of appellant’s negligence could have been submitted to the jury. We find none.

As a general rule, the negligence of the driver of an automobile is not imputed to a passenger who has no authority or control over the car or the driver. Porter v. Jacksonville Electric Co., 64 Fla. 409, 60 So. 188 (1912). In Bessett v. Hackett, 66 So.2d 694, 698-99 (Fla.1953), however, our supreme court outlined certain circumstances under which the passenger himself may be found negligent.

An exception to the general rule that a guest riding in an automobile is entitled to trust the vigilance and skill of the driver arises where the passenger knows, or by the exercise of ordinary and reasonable care should know, from the circumstances of the occasion, that the driver is not exercising that degree of care in the operation of the vehicle compatible with the safety of his passenger. “In such case it becomes the duty of the guest to make some reasonable attempt through suggestion, warning, protest or other means suitable to the occasion, to control the conduct of the driver. However, before the duty to warn, protest, or take other such action suitable to the circumstances of the case, arises, it is necessary that the occupant should know or have reason to know that it is reasonably essential to his own safety to attempt to warn or to control the conduct of the driver, and there must be sufficient time and opportunity for the guest to give warning or make protest before the happening of the accident; for a guest in an automobile may know at a particular time what the driver is doing, yet have no reason to realize that it is necessary that he intervene for his own safety. See Restatement of the Law, Volume II, pp. 1282-1284, 1230, 1231, 1262; Huddy’s Cyclopedia of Automobile Law, 9th Ed., pp. 257, 258, 265.” Knudsen v. Hanlon—Knudsen v. Balderston, 160 Fla. 566, 36 So.2d 192, 194.

The appellees argue that even though the appellant did not see their automobile until the accident, she was in a position where she should have seen it in time to warn her mother. Yet, even if appellant had seen the approaching automobile, there is nothing to indicate that she knew her mother was going to pull across the westbound lanes of El Prado Boulevard directly in front of it. There is no suggestion that the mother was driving recklessly before she reached the intersection. Under the facts of this case, to impose upon appellant a duty to warn would place upon automobile passengers an unrealistic responsibility for any sudden acts of negligence by their drivers.

We can only surmise that the jury erroneously sought to impute the mother’s negligence to appellant. In any event, there was no evidence of independent negligence on the part of the appellant. With appellant’s negligence out of the picture, the appellees’ negligence becomes the sole legal cause of the accident. Hence, there is no need for a new trial. The case is reversed with instructions to enter a judgment in favor of appellant for the entire $25,000.

BOARDMAN and OTT, JJ., concur.


text:
    Robert William ROSSELLE, Appellant, v. Eva Ramona ROSSELLE, Appellee. Eva Ramona ROSSELLE, Appellant, v. Robert William ROSSELLE, Appellee.
    Nos. 77-2446, 77-2635.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 19, 1979.

      Hilton R. Carr, Jr., and L. J. Cushman, Miami, for Robert Rosselle.
    Eleanor Levingston Schockett, Miami, for Eva Rosselle.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Robert Rosselle, in a dissolution of marriage action, appeals a final judgment and amended final judgment resolving financial aspects of the marriage.

After some 25 years, Eva Rosselle, appellee, filed a petition for dissolution of her marriage to Robert and requested that she be awarded permanent alimony, child custody, and title to two jointly owned residences in which she claimed a special equity. Robert Rosselle subsequently filed a counter-petition for dissolution of marriage and alleged a special equity in the jointly owned property. Following lengthy pretrial discovery, the judge entered a final judgment dissolving the marriage and retained jurisdiction to determine and resolve the property and financial aspects of the marriage. After a hearing on these matters, a final judgment and amended final judgment was entered awarding Eva Ros-selle child custody, child support of $50 per week, rehabilitative alimony of $75 per week for a period of one year, and title to the marital residence and a second residence (“the hurricane house”) based upon the finding that she had a special equity therein. In addition, the judgment directed that the funds of Eva, Inc., wholly owned by Robert Rosselle, be frozen pending a hearing on Eva Rosselle’s motion for attorney’s fees. Thereafter she was awarded $1,875 as attorney’s fees for services resulting from Robert Rosselle’s contempt and/or failure to make discovery. All other expenses for services performed were to be the responsibility of Eva Rosselle. Robert Rosselle appeals the final and amended final judgment resolving the financial aspects of the marriage. Eva Rosselle cross-appeals the award of rehabilitative alimony and attorney’s fees as being inadequate. Under the holdings of Shaw v. Shaw, 334 So.2d 13 (Fla.1976) and Herzog v. Herzog, 346 So.2d 56 (Fla.1977) we find no merit in the points on appeal raised by Robert Ros-selle with respect to the resolution of the financial aspects of the marriage and awards made pursuant thereto. However, we find merit in the contention that the court erred in freezing the funds of Eva, Inc. Eva, Inc. was not a party to the present litigation and, therefore, the court lacked authorization and/or jurisdiction to freeze the corporation’s funds. See Friedus v. Friedus, 89 So.2d 604 (Fla.1956); Turner v. Turner, 175 So.2d 47 (Fla. 3d DCA 1965). Accordingly, that provision (#8) of the final judgment resolving financial aspects of the marriage is hereby stricken and Robert Rosselle’s motion for release of those funds is granted.

Turning to Eva Rosselle’s cross-appeal under the authority of Shaw v. Shaw, supra, and Herzog v. Herzog, supra, we find no reversible error in the award of rehabilitative instead of permanent alimony. Likewise, we find no abuse of discretion in the $1,875 attorney’s fee award in that neither attorney’s fees or costs may be awarded as punishment. See Watterson v. Watterson, 353 So.2d 1185, 1189 (Fla. 1st DCA 1977). We also find that Eva Rosselle has the financial ability to pay for the remainder of the legal services rendered on her behalf.

Accordingly, the judgments and order on attorney’s fees are affirmed in all aspects with the exception of the provision directing that the funds of Eva, Inc. be frozen.

Affirmed in part, reversed in part.