author: CAWTHON, Associate Judge.

text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Tina J. GREEN, Appellee.
    No. Y-336.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied March 11, 1976.
    Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
    Fredric G. Levin, Pensacola, for appel-lee.
   CAWTHON, Associate Judge.

This is an appeal from a final judgment of the Circuit Court in and for Escambia County, William S. Rowley, Circuit Judge, which held that an excess indemnity policy provided uninsured motorist coverage for any damages sustained by the plaintiff over and above $100,000.00 as a result of the following facts:

1. The named insured rejected in writing uninsured motorist coverage on the motor vehicle involved in the accident, a commercial vehicle, which could have been provided by a comprehensive liability policy which did provide bodily injury liability coverage of $100,000.00 for each person and $300,000.00 for each occurrence. He did not reject uninsured motorist coverage for one of the private passenger vehicles covered by the policy and selected lower limits of uninsured motorist coverage for the others and the policy appropriately reflected these decisions.

2. The named insured’s decision to reject uninsured motorist coverage on the commercial vehicles and not on the private passenger vehicles was based on his belief that only persons covered by workmen’s compensation would or should occupy the commercial vehicles and that therefore uninsured motorist coverage would be a needless expense insofar as those vehicles were concerned.

3. At the same time that the named insured applied for the general liability policy, he applied for an excess indemnity (umbrella) policy which listed the liability policy as underlying insurance.

4. The named insured was never offered uninsured motorist coverage under the excess indemnity policy and therefore never rejected it except by implication.

The applicable provision of the Florida Statutes read as follows:

No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, **[or such lower limits complying with the company’s rating plan as may be selected by the named insured,] under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage ., § 627.727(1), Florida Statutes.

The record and briefs present this court with the following questions:

1. Is the excess indemnity policy issued by the appellant to Mr. Charles Scruggs one of “automobile liability insurance” as referred to in § 627.727(1), Florida Statutes ?

2. If the answer to 1. above is in the affirmative did Mr. Scruggs reject uninsured motorist coverage under the excess indemnity policy in a manner which would satisfy the requirements of § 627.727(1), Florida Statutes?

Our answer to the first question is in the affirmative. As indicated by their serial numbers and other evidence the comprehensive liability policy numbered 76AL 800707 CCA and the excess indemnity policy numbered 76XS 800707 WCA were parts of a general insurance program. The insured vehicles were listed on policy numbered 76AL 800707 CCA and it in turn was listed as an underlying insurance on policy numbered 76XS 800707 WCA. The policies were different in form but the excess indemnity policy “covered liability arising out of the ownership, maintenance or use of” a motor vehicle, and we consider these words as used in § 627.727(1), Florida Statutes to be in apposition to the phrase “automobile liability insurance” rather than in amplification, since any policy of automobile liability insurance would provide at least that coverage.

A comparison of the endorsement CC-46 8-2 to policy numbered 76XS 800707 WCA (Tr-47) with the endorsement CC-5003 to policy numbered 76AL 800707 CCA (Tr-75) clearly indicates the similarity in the type of automobile liability coverage provided by the two policies.

In order to answer the second question it is not necessary nor in our opinion desirable, that this court here approve what we consider the extremes to which one of our sister courts has gone in finding purported rejections of uninsured motorist coverage ineffective, Weathers v. Mission Insurance Company, Fla.App., 258 So.2d 277 and Protective National Insurance of Omaha v. McCall, Fla.App., 310 So.2d 324.

The evidence in this case shows clearly that the required offer of coverage was never made. The named insured’s statement in a deposition admitted by stipulation was to the effect that he did not reject the coverage because he was not given the option.

This court held in Wilson v. National Indemnity Company, Fla.App., 302 So.2d 141, that the rejection must be an informed rejection.

For the foregoing reasons the judgment of the trial court is affirmed.

The appellee has moved for leave to file an amendment to her brief and has requested, pursuant to Florida Appellate Rule 3.16(e), that her attorneys be awarded a fee.

The motion for leave to file an amendment to the appellee’s brief is denied and the assessment of attorney’s fees, if any are found to be due, is remanded to the trial court.

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


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Marvin Leroy CUMBIE, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-315.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 11, 1976.

      Donald G. Nichols, Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury found the defendant guilty of the crimes of assault with the intent to commit first degree murder and assault with the intent to commit rape. The defendant appeals from the judgments of conviction and sentence to concurrent fifteen year terms. The issues raised are whether the trial court erred (1) in failing to admit the results of a lie detector test into evidence, (2) in failing to require the state to elect one of the two crimes charged to present to the jury, (3) in sentencing the defendant on each crime, and (4) in permitting two witnesses for the state to testify to statements made to them by the defendant where the state, in response to demand for discovery, stated that the defendant made no statement.

In the absence of a stipulation and upon objection, the results of a lie detector test are inadmissible. Codie v. State, 313 So.2d 754 (Fla.1975). In the case before us, there was no stipulation and the state objected.

Unless the counts of an information are inconsistent and repugnant to each other, and unless the defendant cannot be convicted under both counts, the state is not required to make an election, but may prosecute each of the counts. Tidwell v. State; 143 Fla. 397, 196 So. 837 (1970). The defendant was charged with two separate crimes which were neither inconsistent nor repugnant to each other, and the defendant could have been and was convicted under both counts.

In the case before us, assault with the intent to commit first degree murder and assault with the intent to commit rape are not facets of the same criminal transaction, but are separate and distinct acts, therefore, are punishable separately. See Amerson v. State, 303 So.2d 377 (Fla.App. 1st, 1974). The victim was forcibly required to undress and to submit to defendant’s efforts to have intercourse with her. When unsuccessful in consummating the act, defendant made the victim dress, and after walking some distance from the scene of the first act, suddenly stabbed her in the left side and neck with a knife.

Violation of a criminal rule of procedure does not require the reversal of a conviction unless the record discloses that noncompliance with the rule resulted in prejudice or harm to the defendant. Richardson v. State, 246 So.2d 771 (Fla. 1971). In response to defendant’s Rule 3.-220(a) (1) (iii) demand that it furnish him with the substance of any oral statements made by him, together with the names and addresses of the witnesses to the statements, the state replied that no statements were made. At trial the state produced two witnesses who testified, over defendant’s objections and motions for mistrial, to oral statements made by the defendant. Although the state failed to comply with Rule 3.220(a)(1) (iii) or Rule 3.220(f), the trial court permitted the witnesses to testify because it determined that the state had furnished the defendant with the names and addresses of the witnesses, and defendant had taken their depositions prior to trial. The record reflects the testimony given by these witnesses was corroborative of the testimony subsequently given by the defendant. Although the state violated two discovery rules, and the trial court did not make the inquiry into the surrounding circumstances as suggested by the Richardson case, nevertheless, the error was harmless. The defendant received a fair trial.

Although we are not compelled to reverse this case, we do not condone the lack of candor and fair play of the state in failing to comply with the Rules of Criminal Procedure. These rules apply to the state just as much as they apply to defendants. If all citizens are to have confidence in the judicial branch of government, the state must at all times fully and completely, with candor and truthfulness, comply with all Rules of Criminal Procedure.

Affirmed.

RAWLS, Acting C. J., and SACK, MARTIN, Associate Judge, concur.


author: OWEN, Judge.

text:
    Constance D. COE et al., Appellants, v. BROWARD COUNTY, Florida, et al., Appellees.
    No. 75-235.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 9, 1976.

      Barry Scott Richard, of Snyder, Young, Stern & Tannenbaum, P.A., North Miami Beach, for appellants.
    John U. Lloyd, Gen. Counsel, and Edward J. Williams, Asst. Gen. Counsel, Betty Lynn Lee,. Fort Lauderdale, for appellee, Broward County, Florida.
    Gaylord A. Wood, Jr., of Wood & Cohen, Fort Lauderdale, for appellee, William G. Markham.
   OWEN, Judge.

Appellants filed an action for declaratory relief alleging that appellee Broward County had violated Ch. 74-434, Laws of Fla., Special Acts (1974), by exceeding the tax millage rate authorized therein. Bro-ward County filed a counterclaim alleging that Ch. 74 — 434 violated Fla.Const. Art. Ill, § 11(a)(2)

Ch. 74-434 provided that when the general level of assessed value was increased over the preceding year, the County Commission and other Broward County taxing authorities were required to reduce the millage to be levied from what it was the preceding year proportionate to the increase of the general level of assessed value. The act required the tax assessor to certify to the taxing authority the reduced millage Uecessary to comply with this chapter. The. Broward County assessor Certified to the County Commission a 1974 millage of 2.939 mills (hereinafter referred to as the certified millage). Ch. 74 — 434 permitted the taxing authority to raise the certified millage by 10% after a public hearing. The Broward County Commission did so, thereby increasing the millage to 3.233 mills. The act further permitted an additional- 5% increase if necessary to avoid an impairment of the taxing authority’s ability to meet its obligations. The County did not seek the additional 5% increase.

Ch. 74 — 434 provided one further exception, the construction of which is at issue here. Section 1(1) of the act required the above described millage reduction, “unless otherwise required by law to maintain a higher millage level in order to participate in state revenue sharing, or any other matching formula for funding of state or local government programs or projects.” Similarly, Section 6 of the act provided: The Broward County Commission interpreted these provisions to apply to all matching fund programs in which the County participated and. to permit such funds to be treated as an “add-on”. The total funding of all such programs equalled .3481 mills which the County added to the millage (on top of the 10% increase) for a total of 3.581 mills. This was an increase over the certified millage of 21.84%. Appellants’ complaint alleged that the add-on of .3481 mills for all matching fund programs was a violation of Ch. 74-434.

“Local taxing authorities may maintain a millage level necessary to participate in state revenue sharing, maintain the local required effort under the state minimum foundation program or any other matching formula for funding of state or local governmental programs or projects.”

Both parties moved for summary judgment. The circuit court granted defendant-Broward County’s motion and entered final judgment for the County on the grounds that Ch. 74 — 434 authorized the add-on of .3481 mills. This appeal followed.

Although appellees had raised in the trial court the issue of the constitutionality of Ch. 74-434, the final judgment does not expressly pass upon that issue. None of the parties raised the question of this court’s jurisdiction to consider the appeal; however, at the time of oral argument, the court on its own motion raised the question of whether the trial court had passed dijectly upon the validity of a state statute, thereby placing appellate jurisdiction in the Supreme Court under Fla.Const. Art. V, § 3(b)(1). Upon further consideration of that subject, we have concluded that in entering judgment for the appellee Broward County the trial court did not necessarily pass upon the validity of the statute in order to arrive at its judgment, as would have been the case had the judgment been entered favorable to appellants’ position. See, Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959). We therefore have appellate jurisdiction.

The obvious legislative intent of Ch. 74-434 is to put a 10% ceiling on increased property taxes, with the proviso that a taxing authority may exceed the ceiling if “necessary to participate in state revenue sharing, [and] maintain the local required effort under the state minimum foundation program or any other matching formula for funding of state or local governmental programs or projects.” The act specifically enumerates two particular matching formula programs — state revenue sharing and the state minimum foundation programs — both of which require a governmental unit to levy a certain minimum millage in order to participate. Applying the rule of ejusdem generis, it is apparent that this proviso was intended simply to avoid a situation where the millage ceiling would prevent the governmental unit from participating in such programs because it failed to meet a required minimum millage. No such problem existed in the case at bar. Rather, Broward County added up its contribution to every matching fund program in which it participated and treated the total as an “add-on” on top of the certified millage plus 10%. None of the programs had a required minimum millage levy in order to qualify the County for participation. The additional millage was not “required by law” or “necessary to participate” in these programs.

Appellees’ position requires an interpretation of the “necessary to participate” phrase as meaning “necessary to participate without having to reduce other budget items which the County Commission doesn’t care to reduce.” Such an interpretation is, contrary to the obvious intent of the act, results in a millage increase of over 21% — more than double the statutory ceiling' — and ignores the rule of statutory construction that an exception or proviso in a statute is to be strictly construed. Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957).

We conclude that Ch. 74-434 did not authorize the Broward County Commission to “add-on” the .3481 mills described herein and the court erred in so ruling. We find that Ch. 74^-34 is not constitutionally invalid, and we reject ap-pellees’ argument to the contrary, thereby initially and' directly passing on the validity of this state statute. Fla.Const. Art. V, § 3(b)(1).

The judgment is reversed and this cause remanded for further proceedings consistent herewith.

DOWNEY, J. and NESBITT, JOSEPH, Associate Judge, concur.

      . Fla.Const. Art. III, § 11(a)(2) provides as follows:
      “§ 11. Prohibited special laws.—
      “(a) There shall be no special law or general law of local application pertaining to:

      “(2) assessment or collection of taxes for state or county purposes, including extension of time therefor, relief of tax officers from due performance of their duties, and relief of their sureties from liability; * * * ”

      . Fla. S tat. § 218.23 (1973) ; Fla.Stat. § 236.081(5) (1973).


author: BOYER, Chief Judge. SACK, MARTIN, Associate Judge

text:
    Samuel Curry SNEDAKER, Appellant, v. Karen Ramey SNEDAKER, Appellee.
    No. Y-16.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.
    Rehearing Denied March 9, 1976.

      Selig I. Goldin of Goldin & Turner, Gainesville, for appellant.
    Nath C. Doughtie, of Canto, Salter, West, Doughtie & Feiber, Gainesville, for appellee.
   BOYER, Chief Judge.

This appeal emanates from a final judgment entered by the learned trial judge awarding to the appellee (mother) custody of the three-year-old minor child of the parties. The facts are such that no useful purpose will be accomplished by a lengthy recitation thereof. Suffice to say that our reading of the record reveals no evidence in support of appellee’s contention that it is for the “best interest” of the minor child for custody to be awarded to her. It is settled law that although a trial court has broad discretion in child custody proceedings, nevertheless his final judgment must have a foundation in the evidence adduced before him. Sub judice the record reveals that the evidence did not afford a basis for the able trial judge’s conclusion when considered in the light of the principles announced in the cases hereinafter cited. We find therefore, in the absence of such evidence, that the learned judge abused his discretion. (Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So.2d 22, opinion filed August 14, 1975)

As opposed to the void of evidence in support of the position of appellee, the record is replete with evidence that the best interest of the child will be accomplished by awarding custody to the child’s father, appellant here.

In any child custody proceeding, the welfare of the child is the prime consideration. (Brust v. Brust, Fla.App. 1st 1972, 266 So.2d 400, certiorari denied Sup. Ct.Fla.1972, 271 So.2d 142; Dinkel v. Dinkel, supra, and cases therein cited)

Other things being equal, prime consideration should be given to the mother of a child of tender years in custody proceedings. (Brust v. Brust, supra; Dinkel v. Dinkel, supra)

However, when the evidence reveals that “other things” are not equal then the primary consideration accorded the mother is subservient to the best interests and welfare of the child.

There is a clear distinction between fitness of parents and the best interests of a child. Both parents may be fit but “other factors” may determine with which of the fit parents a child’s interests and welfare will be best served.

When, as here, there is a dearth of evidence in support of the position of the mother, as opposed to overwhelming evidence indicating that it is for the best interests of the child for its custody to be awarded to its father, any “presumption”, “prime consideration”, or “natural edge”, abiding with the mother is overcome and custody should be awarded to that parent in whose custody the best interests of the child will be served, in the light of the evidence adduced.

Accordingly, that portion of the final judgment here appealed by which custody of the parties’ minor child was awarded to appellee is reversed and this cause is remanded with directions that said child’s custody be awarded to appellant, Samuel Curry Snedaker.

It is so ordered.

MILLS, J., concurs.

SACK, MARTIN, Associate Judge, dissents. .

SACK, MARTIN, Associate Judge

(dissenting) .

I dissent.


author: BOYER, Chief Judge.

text:
    Edward Joseph DWYER, Appellant, v. Betty Jean DWYER, Appellee.
    No. Z-33.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    Lacy Mahon, Jr., Mahon, Farley & Vick-ers, Jacksonville, for appellant.
    Elliot Zisser, Jacksonville, for appellee.
   BOYER, Chief Judge.

The parties, formerly husband and wife, were divorced by final judgment dated October 21, 1968. Custody of the two minor children of the parties was awarded to their mother, appellee here. The children’s father, appellant here, was required to make semi-monthly support payments. No termination date for the child support payments was contained in the final judgment. Chapter 73-21, Laws of Florida, removing the disability of non-age of persons 18 years of age, became effective July 1, 1973. Upon the older of the offspring of the parties becoming self-supporting and the younger attaining 18 years of age appellant petitioned for modification of the final judgment seeking, inter alia, termination of the child support payments. By the order here appealed, which is dated May 28, 197S, the learned trial judge terminated support for the older offspring whom the parties stipulated to be self-supporting but required continued support for the younger one although admittedly over the age of 18 years and not found by the trial judge to have been dependent.

In Finn v. Finn, supra, the Supreme Court of Florida held that since Chapter 73-21 is prospective in application, child supports which had been ordered prior to the effective date of the act did not necessarily terminate on the “child” attaining 18 years of age and that a person over the age of 18 years might nevertheless be “a dependent person” although not physically nor mentally incompetent. The writer of that opinion laboriously considered the concept of dependency but there is nothing in the opinion to suggest that a person over the age of 18 but under the age of 21 who is physically and mentally competent is presumed to be “a dependent person”. Indeed, it is quite clear that Finn v. Finn and Chapter 73-21, Laws of Florida, anticipate that court-ordered support of a person over the age of 18 years must be conditioned upon a determination and finding of dependency.

The mere fact that a person is attending a university or college does not render him or her dependent. Notwithstanding the dictum found in Finn v. Finn to the effect that a parent has the obligation “to nurture, support, educate and protect his minor children” we are cited to no authority, and independent research has failed to reveal any, for the proposition that sui juris offspring of parents living in domestic tranquility and harmony have a legal right to require parental support while attaining a college education. Neither are we acquainted with any authority for affording to offspring of a dissolved marriage any greater rights than would have been enjoyed in a family of domestic tranquility. Indeed, such an anomalous dichotomy would appear to be against public policy; because were such to be the case it would be for the benefit of the offspring of happily married parents to sow seeds of discord in order to be assured of parental support in pursuing a college education. As this Court said in White v. White,

* * * It is certainly desirable and laudable for parents to encourage their offspring to get a college education, if he or she is college material. However, there are many parents who enjoy complete domestic tranquility but who do not, either from personal choice or inability or otherwise, give their children a college education. The fact that domestic whirlwinds cause a severance of the marriage does not enhance the rights of the children nor alter the obligations of the parents. Certainly if the parents were still married and enjoying domestic harmony a suit would not lie by the child or either parent to require parental support for a college education. Neither may such be accomplished in a dissolution of marriage forum.” (296 So.2d at pages 623 and 624)

In summary, it being apparent that an independent adult person is not entitled to court-ordered parental support and the record on appeal being devoid of any evidence of dependency and the learned trial judge having failed to make any determination or finding of dependency, the order here appealed which requires appellant to continue paying to appellee support payments for their adult offspring is

Reversed.

RAWLS, J., and MELVIN, WOODROW M., Associate Judge, concur.

      . See White v. White, Fla.App.1st 1974, 296 So.2d 619 in which Chapter 73-21, Laws of Florida, is quoted in toto.

      . The order here appealed recites that “The remaining minor child, namely: John Edward Dwyer, is presently 18 years of age and is expected to secure employment for the summer months of the present year and enter a college or university in the fall.” The record reveals no finding either in the order here appealed nor elsewhere of dependency. Such a finding, or the absence thereof would appear to be important in the light of Finn v. Finn, Sup.Ct.Fla.1975, 312 So.2d 726 and Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So. 2d 22. It will be noted that in the latter case the opinion of the District Court which was being reviewed by the Supreme Court was quashed, apparently because the District Court failed to recite a specific finding. In its opinion, the Supreme Court said:
      “ * * * Without even finding an abuse of discretion, the District Court substituted its opinion for that of the trial judge as to which parent would best satisfy the welfare of the child. * * * ” (322 So.2d at page 24; emphasis added)

      . Supra. See also Crumpton v. Crumpton, Fla.App.1st 1975, 314 So.2d 233.

      . Rule 3.6l, FAR provides in material part: “Unless the record shows to the contrary, it shall he presumed, upon appellate proceedings, that the record transmitted to the Court contains all proceedings in the lower court material to the points presented for decision in the Court.” (emphasis added)


author: SMITH, Judge.

text:
    FARMHAND, INC., a Delaware Corporation, Appellant, v. Gene S. BRANDIES, Jr. and Gene S. Brandies, Sr., Appellees.
    No. Y-4.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Rehearing Denied Feb. 18, 1976.
    William M. Howell, of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for appellant.
    Hugh M. Davenport, of Smith, Davenport & Peek, Jacksonville, for appellees.
   SMITH, Judge.

This case severely tests the doctrine that there is no actionable negligence in manufacturing, nor any implied warranty of general fitness in selling, a machine whose formidable dangers, negligently created, are open and obvious. Farmhand invokes that rule on this appeal from money judgments awarded appellees for personal injury sustained by Brandies, Jr.

Gene Brandies, an 18-year old farmboy, worked daily with a Farmhand Feedmaster model F81-C drop feeder at Carter’s dairy. He knew well how it operates. Taking power from a tractor, it receives, mixes and discharges feed by means of augers which rotate at high speed in cylindrical housings. Feed is thus received, propelled into a mixing tank, mixed and forced up to a drop point where it falls through a chute into a hopper welded to a discharge sleeve several feet long. A discharge auger rotates within that hopper and sleeve.

The hopper is box-shaped, 10 inches or so wide, about 20 inches long, and open at the top to receive falling feed. Just inches below the top of the hopper, the discharge auger whirls at 380 rpm to force feed through a hole in the hopper, cut round in the circumference of the auger, and thence through the discharge sleeve to its destination at a sack or trough several feet away. The hopper is waist high to an operator standing near the clutch handle which engages the discharge auger. To one standing in that position, the auger is exposed in the hopper; it is readily visible and, in operation, openly and obviously dangerous. Gene Brandies, who grew up on a farm, had “seen enough of it,” in his words, to know that it was dangerous. He knew “not to put my hand in there.”

One day, however, that is what he did. He and Carl Smith were sacking cornmeal for sows in the farrow barn. Smith was in the barn filling sacks with meal which flowed from the discharge sleeve. Brandies stood outside, his back to the Feed-master. With his right hand on the clutch handle he regulated the flow of cornmeal as the sacks were filled by Smith; with his left he steadied the shanking discharge assembly. His left hand dropped into the hopper. In a split second, the whirling blade of the auger pulled his fingers, then his hand and forearm through the pinch point at the end of the hopper and tightly into the discharge sleeve. The auger mangled Brandies’ hand before Smith could run out of the barn and throw the clutch handle.

The Brandies claims against Farmhand, predicated on the absence of a simple guard plate which could have partially closed the hopper and deflected a hand being drawn to the pinch point, were submitted to a jury on counts of negligence and implied warranty of merchantability. The trial judge eliminated a count predicated on § 402A, Restatement (Second) of Torts. Farmhand appeals judgments entered on substantial verdicts for the plaintiffs, who cross-assign error in the trial court’s dismissal of their count based on Restatement § 402A.

Farmhand' urges that, on the evidence and under the court’s charge, the jury could not properly have found that “the specific danger to be avoided” was not “obvious to all,” nor that “the particular dangerous condition” was not “open and obvious” to one exercising reasonable care for his safety, nor that “the alleged defect” was not “discoverable by simple observation,” nor that “the alleged danger” was not “an open and obvious condition.” The court’s charge on the critical question was:

“The manufacturer of a product has a duty to use reasonable care. Thus if a manufacturer of a chattel makes a machine or design which causes it to be dangerous for the uses for which it is manufactured, he is subject to liability to others whom he should expect to use the chattel lawfully or be in the vicinity of its probable use for bodily harm caused by defendant’s failure, if any, to exercise reasonable care in the adoption of a safe plan or design.
“In order to recover damages for alleged negligent design of a product, the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge in the community as to its characteristics.
“It is not in itself a breach of duty to supply a product which is reasonably safe [as] customarily used even though it might conceivably be made more safe. Nor must a manufacturer make his product more safe when the specific danger to be avoided is obvious to all.
“You are further instructed with regard to the plaintiff’s claim of alleged inadequate warning that notice of warning is not required where the particular dangerous condition is open and obvious to the person who is exercising reasonable care for his own safety. One who fails to pay any attention to what he is doing is not relieved of his duty to exercise due care for his own safety under the circumstances. The manufacture and sale of a product creates . [by] operation of the law an implied warranty by the manufacturer that the product is reasonably safe for the uses for which it is manufactured and sold.
“If the product is defective in design or manufacture so as to render it dangerous or unfit for its intended use, the manufacturer may be liable for bodily harm to persons who would reasonably be expected to use the product where such harm is . proximate [ly] cause [d] by the defective design or manufacture while the product is being properly put to its intended use.
“If the alleged defect is discoverable by simple observation then the law will imply no warranty against the existence. There can be no liability on the part of the manufacturer of a product for injuries sustained by a person who was aware of the operating characteristics of a machine or where the alleged danger was an open and obvious condition or where the plaintiff had actual knowledge or in the exercise of reasonable care, should have had knowledge of the alleged dangerous condition.” (Emphasis added.)

The concepts expressed in the trial court’s charge are those which Florida appellate courts have melded, beginning with Matthews v. Lawnlite Co., 88 So.2d 299, 301 (Fla.1956), into a practically indivisible concept of liability involving both negligence and implied warranty. The Supreme Court stated in Matthews:

“An implied warranty does not protect against hazards apparent to the plaintiff . It does not protect against injury imposed while carelessly using a dangerous mechanism.” 88 So.2d at 301.

While the Court expressed itself as approving the Restatement of Torts § 398 formulation that a manufacturer is responsible to a foreseeably injured person for failing to use “reasonable care in the adoption of a safe plan or design,” the Court inverted the Restatement’s apparent purpose to make knowing use of a dangerous machine a matter of affirmative defense. Although the Matthews opinion thus spoke by dictum, the Court unmistakably made plaintiff’s knowing exposure to open hazards an exception to defendant’s liability, as in the case of an owner of land where a dangerous condition exists openly and obviously.

In Green v. Tobacco Co., 154 So.2d 169, 172 (Fla.1963), the Supreme Court emphasized the same concept when answering a certified question concerning the state of Florida law on implied warranties of merchantability or general fitness:

“If the defect is discoverable by simple observation then the law will imply no warranty against its existence.”

The same theme was repeated in Royal v. Black and Decker Mfg. Co., 205 So.2d 307, 309-10 (Fla.App.3d, 1968), cert. den. 211 So.2d 214 (1968), involving alternate theories of negligence and warranty:

“The primary concern is to protect the user from the unreasonably dangerous product or from one fraught with unexpected dangers ....
“ . . . No allegations of any latent characteristics are made. . . . There are similarly no allegations that the plug . ■ . . contained a latent functional defect.
“ . . . [N]or must the manufacturer make his product ‘more’ safe when the danger to be avoided is obvious to all. See Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir. 1966); Campo v. Scofield, 301 N.Y. 468, 95 N. E.2d 802 (1950).” [Emphasis.in original.]

This Court approved Circuit Judge Taylor’s similar expressions in a case involving asserted warranty and negligence liability for personal injuries resulting from fire in a Bobcat front-end loader. Fletcher Co. v. Melrose Mfg. Co., 238 So.2d 142, 147 (Fla.App.1st, 1970):

“ ‘When a buyer examines the goods . before buying there is no implied warranty against defects which an examination ought to reveal. The alleged defects in the design of the Bobcat were obvious upon the most casual observation of the engine. The location of the fuel line takeoff from the gasoline tank and the nature and location of the fuel line were readily apparent. . . . [Plaintiff] cannot now be heard to assert ... an implied warranty against alleged defects in such obvious features of the Bobcat.’ ”

And the District Court of Appeal, Third District, found the same doctrine dispositive of Reyes v. Zbin, 217 So.2d 150, 151 (Fla.App.2d, 1969), apps. dism. 225 So.2d 530 (1969), involving asserted negligence by a retail lessor of a pulverizing machine in failing to warn plaintiff “that when the machine was turned off the rotating blades would continue to operate for a period of time.” The court held that the complaint was properly dismissed:

“Nowhere is it suggested that plaintiff was unaware of the operating characteristics of the machine. Nowhere is it suggested that the feature of the machine in question was latent. Nowhere is it suggested that the rotating blades were not in plain sight. Nowhere is it indicated that plaintiff did not have actual or constructive knowledge of the dangerous condition of which he now complains.”

While one of these decisions might be distinguished as not involving manufacturer’s liability and others may be minimized as containing only dicta on the point in issue here, Brandies must reckon with precedents that so clearly and persistently repeat the theme of nonliability for injuries resulting from obvious dangers.

Resourcefully, Brandies’ counsel argues that the boy merely knew of the source of the danger, not of the danger itself, and that his admitted consciousness of the danger of the whirling auger was not a particular, discriminating awareness that the auger blade would draw his hand into the pinch point where the hopper and sleeve joined. The extent of Brandies’ appreciation of the danger was therefore a jury question, he argues, as are similarly close questions involving a landowner’s liability or assumption of risk. 1661 Corp. v. Snyder, 267 So.2d 362, 364 (Fla.App.1st, 1972) (new trial for a plaintiff against a landowner when there was conflicting evidence of whether the water pipe over which she stumbled was “patent, obvious, visible, and open to ordinary observation by anyone”); Lora v. Maule Industries, Inc., 235 So.2d 743 (Fla.App.3rd, 1970) (assumption of risk requires appreciation of the nature, character and extent of the danger); Watson v. Drew, 197 So.2d 53 (Fla.App.4th, 1967) (assumption of risk defense requires showing that plaintiff knew of the “very hazard” and appreciated its danger); Atlantic Coastline Ry. v. Gary, 57 So.2d 10 (Fla.1952) (knowledge that a rack would descend in forty seconds was not equivalent to knowledge and appreciation that it would plummet); Landry v. Sterling Apts., Inc., 231 So.2d 225 (Fla. App.4th 1970), cert. den. 238 So.2d 107 (1970) (plaintiff’s knowledge of trash and ice in the vicinity was not specific knowledge of the slippery substance on which he was about to fall); Williston v. Cribbs, 82 So.2d 150 (Fla.1955) (a jury question whether the decedent appreciated the danger of electrocution when he knew and took steps to avoid wires lying across the roof).

Notwithstanding some similarities with the cases cited, we cannot slice the evidence here finely enough to sustain Brandies’ judgment on the theory under which it was obtained. An auger whirling at high speed in a steel, hopper is self-evidently dangerous. Merely seeing it, or even reading about it, provokes an ominous apprehension of its threat to stray fingers. If young Brandies did not particularly envision that the auger was capable of propelling his hand laterally into the pinch point, he certainly could imagine, the mauling that would result from dropping his hand between the auger blade and the side of the hopper. We cannot sensibly hold that Brandies was required to protect himself from the latter danger but not from the former.

With the thorough assistance of counsel we have surveyed case reports and the literature for vindication of the trial court’s decision to let the jury decide whether the danger of that auger was somehow veiled. We have found none. Campo v. Scofield, 301 N.Y. 468, 95 N.E. 2d 802, 804 (1950) is the classic and much-discussed statement of the rule that

“ . . . the manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.”

Campo dismissed the complaint of a worker whose hands were caught in the revolving steel rollers of an onion-topping machine manufactured by the defendants. Despite allegations that defendants were negligent in failing to supply a wholly feasible and practicable guard that would prevent workers from coming in contact with the rollers, the court held that the danger complained of was obvious and therefore not actionable.

Krugh v. Miehle Co., 503 F.2d 121, 127 (6th Cir. 1974), supplies the most finely drawn rationale we have found for letting a jury decide whether the danger to Brandies was latent or obvious. Krugh’s hand was crushed while he was cleaning two counter-rotating printing drums. A button was supplied to rotate the drums slightly for cleaning purposes, but the drums tended to coast after the button was released. The court concluded that a jury might properly find that:

“ . . . although Krugh was aware that injury could result if his hand were caught in the ‘pinch point’, he was unaware of the propensity of the transfer drums to coast to the extent that they did. Accordingly, [the jury] could have determined that a warning or safety device was required.”

In the present case, on the other hand, no warning by way of decal or otherwise could have added to Brandies’ complete consciousness of the danger. That Brandies or any of us may in our preoccupation momentarily forget a known danger does not, under Florida law, shift the risk of our distraction to another. Deane v. Johnston, 104 So.2d 3 (Fla.1958); Bashaw v. Dyke, 122 So.2d 507 (Fla.App.1st, 1960); Allied Business Ass’n Inc. v. Saling, 227 So.2d 712 (Fla.App.4th, 1969).

' Section 402A of the Restatement (Second) of Torts, supra n. 1, holds that a product in a defective condition, if unreasonably dangerous, is actionable. In courts to whom the Restatement rule seems a more rational expression of the common law, the obviousness of a dangerous condition to a machine operator is one but not the only factor determining whether the machine was in a defective condition unreasonably dangerous to the user.” The Restatement rule suggests that some conditions are so unreasonably dangerous that they cannot be safely encountered even with full, appreciation of the risk. 2 Harper and James, supra n. 4, § 27.13; 1 Frumer and Friedman, supra n. 4, 118.8(16); Davis v. Fox River Tractor Co., 518 F.2d 481 (10th Cir. 1975).

Substantial evidence supported the Brandies claims that an almost insignificant investment of effort and money by Farmhand could have produced a guard for the Feedmaster which would have shielded the discharge end of the hopper for several inches up to the pinch point. The jury could have found that such a guard would have blocked access to the pinch point and deflected stray fingers from the auger’s swath. The guard would not have interfered with the flow of feed into and through the hopper, the mobility of the discharge arm or any other function of the Feedmaster. Farmhand adduced evidence that no other similarly-designed machine on the market when this model was manufactured had such a shielding device. There was also evidence, however, of contemporary design standards recommended by the American Society of Agricultural Engineers, that dangerous parts of feed conveyors and similar farm instruments be shielded to the extent consistent with the intended function of the machine. All of this evidence, though undoubtedly persuasive to the jury, is rendered irrelevant by the rule of law which requires us to reverse this judgment.

We may assume that the jury’s verdict, though unresponsive to the court’s charge and to Florida law as we understand it, was a statement that manufacturers should not be permitted to design, produce and market unreasonably dangerous machines with impunity. If industry standards require a. guard or shield, or if design standards respected outside the industry do so, or if the risk is great that there will be many small injuries or a few horrible ones as a result of some gaping danger in the machine’s design, or if the cost in money or utility of eliminating an obvious danger is insignificant, then it should not seem surprising that a jury would regard the risk created as unreasonable and therefore actionable notwithstanding that predictable human carelessness on the part of a worker was also a causal event.

Whether the patent danger rule we here apply must give way to a different standard of manufacturers’ responsibility is a question of great public interest. It and related questions concerning § 402A have been raised repeatedly in the district courts of appeal. See Royal, supra, 205 So.2d at 309; Barfield v. U.S. Rubber Co., 234 So. 2d 374 (Fla.App.2d, 1970); Mattes v. Coca Cola Bottling Co. of Miami, 311 So.2d 417, 418 et seq. (Fla.App.4th, 1974) (dissenting opinion); Favors v. Firestone Tire & Rubber Co., 309 So.2d 69, 73-74 (Fla.App.4th, 1975) (dissenting opinion). Questions concerning § 402A are now under consideration by our Supreme Court (No. 46,709), on certification from the United States Court of Appeals for the Fifth Circuit. West v. Caterpillar Tractor Co., Inc., 504 F.2d 967 (5th Cir. 1974). To those questions we add the following, certified pursuant to Art. V, sec. 3(b)(3), Florida Constitution :

May the manufacturer of a machine in a defective condition unreasonably dangerous to the user be held liable to an injured user notwithstanding that the condition was obviously dangerous ?

Subject to our certification of the controlling question thus stated, we reverse the judgments below and remand the case so that judgment may be entered for appellant Farmhand.

Reversed.

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

      . “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      “(a) the seller is engaged in the business of selling such a product, and
      “(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”

      . Comment b to § 398, Restatement (First and Second) of Torts states: “If the dangerous character of the plan or design is known to the user of the chattel, he may be in contributory fault if the risk involved in using it is unreasonably great or if he fails to take those special precautions which the known dangerous character of the chattel requires.” (Emphasis added).

      . Hickory House, Inc. v. Brown, 77 So. 2d 249 (Fla.1955) ; Hall v. Holland, 47 So. 2d 889 (Fla.1950) ; Mai Kai, Inc. v. Coined, 205 So.2d 291 (Fla.1968) ; Quinnelly v. Southern Maid Syrup Co., 164 So.2d 240 (Fla.App.3d, 1964) ; Hist v. Fla. Power & Light Co., 254 So.2d 540 (Fla.1971).

      . Campo was cited with evident approval by the District Court of Appeal in Royal, 205 So.2d at 310. It has also been roundly criticized. 2 Harper and James, Law of Torts, 1542 (1956) ; 1 Frumer and Friedman, Products Liability, § 7.02 (1975) ; See also Noel, Manufacturer’s Negligence of Design or Directions for Use of a Product, 71 Yale L.J. 816, 837-39 (1962). Significantly, the Judicial Conference which recommended to the New York legislature the comparative negligence statute which became effective September 1, 1975, stated that the “patent danger” rule of Campo “should be considered . as a factor to be weighed by the trier of fact in determining whether to diminish damages.” It remains to be seen whether New York courts will accept this transformation of the Campo rule from an exception to liability to a mitigating affirmative defense. 1 Frumer and Friedman, supra at 118.8(16).


author: SMITH, Judge. BOYER, Chief Judge

text:
    LIBERTY MUTUAL INSURANCE COMPANY, a corporation, Appellant, v. Hugh C. CURTISS et al., Appellees.
    No. W-524.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1976.

      Ellis E. Neder, Jr., Jacksonville, for appellant.
    C. T. Boyd, Jr., Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellees.
   SMITH, Judge.

Melvin, while driving a truck near the St. Mary’s River in Georgia on May 17, 1972, crashed it into the rear of an automobile and injured passengers Adkins, Mobley and Robinson. Liberty Mutual, Melvin’s liability insurer, paid the passengers settlements aggregating almost $34,000 and now seeks contribution from Curtiss, driver of a truck and trailer who Liberty Mutual avers was also negligent in the incident, L & S Boat Transportation Co., which employed Curtiss and owned the trailer Curtiss towed, and their insurer. The trial court entered summary judgment against Liberty Mutual on grounds, first, that at the time of the wreck Georgia law required a joint tortfeasor seeking contribution to litigate with the injured party to an adverse judgment, instead of settling under threat of litigation, and, second, that Curtiss’ nonliability for passenger Adkins’ injury had been determined in Adkins’ prior action in Florida’s Fourth Judicial Circuit against Curtiss, Melvin and Liberty Mutual. In that action the court entered summary judgment for Curtiss on Adkins’ claim, whereupon Melvin and Liberty Mutual paid Adkins a settlement. Liberty Mutual appeals from the judgment excusing appellees from contribution.

The parties agree that Georgia law determines whether and on what terms a right of contribution arose in Liberty Mutual’s favor. Annot., 95 A.L.R.2d 1096, 1102 (1964). We find that the Georgia legislature’s 1972 act amending § 105-2012, Ga.Code, became effective by its terms when the Governor approved it on March 7, 1972, rather than, as the trial court apparently held, on July 1, 1972. Previously, the rule of Hangar Cab Co., Inc. v. City of Atlanta, 122 Ga.App. 661, 178 S.E.2d 292, 293 (1970), disapproved on other grounds, McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974), applied:

“. . .no right of contribution exists in favor of one tort-feasor against another, when the first had made settlement with one having a claim for damages against both.”

Now, the Georgia act provides:

“Without the necessity of being charged by suit or judgment, the right of contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement

That Liberty Mutual settled the passengers’ claims short of judgment did not therefore, affect its right under Georgia law to contribution.

Although the passengers’ causes of action and Liberty Mutual’s contribution claim were both created by Georgia law, the effect on the contribution claim of the Florida judgment exonerating Curtiss of liability to Adkins is to be determined by Florida law. Restatement (Second) of Conflicts §§ 94, 95 (1971). There apparently is no Florida decision directly addressing the issue, and there is no contention here that Florida’s new Contribution Among Tortfeasors Act, ch. 75-108, Fla. Laws, is directly applicable.

The question is typically approached as one of res judicata, concerning which there is ample Florida precedent that the determination of an issue in prior litigation is not conclusive against persons who were not parties personally or by privies. See, e. g., Seaboard Coast Line R. R. Co. v. Industrial Contr. Co., 260 So.2d 860 (Fla. App. 4th, 1972). Those who have undertaken to answer the present contribution question strictly in terms of res judicata have generally held that a prior judgment exonerating one of two codefendants does not foreclose the liable defendant from claiming contribution if he and the code-fendant did not litigate as adversaries the issue of the codefendant’s liability. Restatement of Judgments § 106, comment c (1942); 18 Am.Jur.2d Contribution § 63 (1965); Annots., 101 A.L.R. 104 (1936), 142 A.L.R. 727 (1943). See also 50 C.J.S. Judgments § 819 (1947).

In disposing of Liberty Mutual’s claim against Curtiss and his insuror for contribution on account of Liberty Mutual’s $2,000 payment to Robinson and its $4,200 payment to Mobley, the authorities above cited are most persuasive. The liability of Melvin, Liberty Mutual, Curtiss and L & S to Robinson and Mobley was not directly litigated in or decided by the judgment in Adkins’ case, and in the absence of adversarial litigation between the codefendants on the issue of their respective responsibilities for the wreck, Liberty Mutual’s inchoate contribution claim on account of subsequent payments to Robinson and Mobley survived the judgment for Curtiss on Adkins’ claim. The judgment below must therefore be reversed to the extent it foreclosed the contribution claim on account of those payments.

In our view, however, the question of Liberty Mutual’s entitlement to contribution from Curtiss on account of its $27,686 payment to Adkins is more appropriately answered in terms of the unique nature of the right of contribution among tortfeasors. That right is a consequence of the claimant having discharged a common liability shared by the tortfeasor from whom contribution is claimed. As stated by our Supreme Court in Lincenberg v. Issen, 318 So.2d 386, 390 (Fla.1975), simple justice seems to require contribution by an obligor who is discharged of an obligation shared with but paid entirely or disproportionately by another. 1 Harper & James, Law of Torts § 10.2 at 718 (1956); Prosser, Law of Torts § 50 at 307, 309 (14th ed. 1971); 18 Am.Jur.2d Contribution § 33 (1965); 12 Uniform' Laws Annotated, prefatory notes to Uniform Contribution Among Tortfeasors Act at 59, 60 (Master ed. 1975). The Georgia act, whose general terms left many interstices for judicial bridging, has been interpreted by the Georgia Court of Appeals consistently with the same underlying principle. That court held, for example, that contribution cannot be required of a tortfeasor who, by reason of immunity of marriage or of workmen’s compensation legislation, is not liable to the injured plaintiff. Southern Ry. Co. v. Brewer, 122 Ga.App. 292, 176 S.E.2d 665 (1970); Central of Ga. Ry. Co. v. Lester, 118 Ga.App. 794, 165 S.E.2d 587 (1969). When there is such an immunity, it may be said that the contribution claimant who paid the injured party did not thereby discharge a common obligation shared by the injured party’s negligent spouse or employer. See also Baltimore Transit Co. v. Maryland, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460 (1955); Prosser, supra at 309, n. 75.

The necessary predicate, therefore, of Liberty Mutual’s claim against Curtiss on account of having paid Adkins is that, by paying Adkins, Liberty Mutual discharged a common liability to Adkins shared by Curtiss. Liberty Mutual cannot assert that or, asserting, cannot prove it. Curtiss was exonerated of liability to Adkins by the judgment of a competent court. Liberty Mutual can no more plausibly contend that Curtiss is or was liable to Adkins than Cur-tiss could urge, if Liberty Mutual’s payment to Adkins had resulted from a judgment of the same court, that Liberty Mutual was not liable. It is not a question of whether good judicial administration requires that all potential claims be resolved in a single action by the affected parties. With deference to other decisions troubled in this context by res judicata doctrines [e. g., Miraglia v. Miraglia, 106 N.J.Super. 266, 255 A.2d 762 (1969)], neither do we think the issue is whether Liberty Mutual has had its day in court on the issue of Curtiss’ liability. It is simpler than that. That Curtiss shared no common liability with Liberty Mutual to Adkins is, like the weather, only a. fact; but it is a fact, also like the weather, which Liberty Mutual cannot change by litigation.

Although Florida’s own Contribution Among Tortfeasors Act, ch. 75-108, is not directly applicable in this case, supra, n. 1, we believe the result reached here is entirely consistent with the Act. For it, too, is predicated on the basic principle emphasized here and in Lincenberg v. Issen. A contribution claim may be made under the Act only by “a tortfeasor who has paid more than his pro rata share of the common liability” and one who pays pursuant to settlement has no right of contribution “from another tortfeasor whose liability . is not extinguished by the settlement . . . .” Ch. 75-108, § 1(2) (b), (d) (emphasis added). Under § l(4)(b), enforcement of the right of contribution by one “judgment defendant” against another is “by motion upon notice to all parties to the action.” Plainly, the Act does not contemplate that, in the absence of cross-claims fought out in the main action, the “judgment defendants” are free to deny liability to each other for contribution. Further, the Act forecloses by both necessary implication and specific provision all potential contribution claims by a judgment defendant against codefendants who are exonerated by the judgment. That result is not made to depend upon cross-claims, adversarial positions or other indicators of res judicata:

“The judgment of the court in determining the liability of the several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in determining their right to contribution.” Sec. l(4)(f).

Finally, § 1 (5) (b) provides that the good faith release of a tortfeasor discharges him “from all liability for contribution to any other tortfeasor,” thus foreclosing any contention that a released tortfeasor could thereafter be discharged of a common liability by another’s payment.

The view we take of the matter is that which the Supreme Court of Minnesota intimated in 1934, adopted in 1942, limited in 1952, questioned once and reaffirmed twice in 1953 and questioned again in 1964. Hardware Mut. Cas. Co. v. Anderson, 191 Minn. 158, 162-63, 253 N.W. 374, 376 (1934) (dictum); American Motorists Ins. Co. v. Vigen, 213 Minn. 120, 5 N.W.2d 397, 142 A.L.R. 722 (1942); Bunge v. Yager, 236 Minn. 245, 52 N.W.2d 446 (1952); Bocchi v. Karnstedt, 238 Minn. 257, 56 N. W.2d 628 (1953); American Auto. Ins. Co. v. Molling, 239 Minn. 74, 57 N.W.2d 847 (1953); Muggenburg v. Leighton, 240 Minn. 21, 60 N.W.2d 9 (1953); Anderson v. Gabrielson, 267 Minn. 176, 126 N.W.2d 239 (1964). In applying the Vigen rule, we recognize that it has been criticized for foreclosing the trial of an issue which was not litigated by the parties to the contribution controversy. Note, 37 Minn.L.Rev. 470, 478-79 (1953). It is also true that the Minnesota rule has little currency elsewhere. Annot., 24 A.L.R.3d 318, 376 (1969). But see 1 Freeman, Judgments § 425 at 922-23 (5th ed. 1925); Livesay Ind., Inc. v. Livesay Window Co., 202 F.2d 378, 382 (5th Cir.1953). The Minnesota Court admits to having had “no little difficulty” deciding cases in terms of the Vigen rule. Radmacher v. Cardinal, 264 Minn. 72, 75, 117 N.W.2d 738, 741 (1962). But a doctrine hardy enough to survive forty Minnesota winters of criticism at home, ostracism elsewhere and discontent within the court which gave it birth must have substantial intrinsic virtues.

Those virtues, we think, are evident. If to speak of rights and liabilities under law is finally but a prediction that the sovereign will dispose of competing interests in a certain way, it is hardly possible to speak any longer of X discharging a common liability of X and Y to Z when the sovereign has said that Y is not and never was liable to Z. And when a judgment has discharged Y of potential liability to Z, it is nonsense for X to say that, by paying Z, he has conferred on Y the benefit of nonli-ability to Z. No policy of Florida law requires that the congested judicial system offer X an opportunity to prove something which is not a fact and which cannot, by any skill of advocacy, be made a fact.

The lessons of the Minnesota experience may prove useful as subsequent cases require us to interpret and apply the Florida Contribution Among Tortfeasors Act. If, as is apparent, both the Vigen rule and § 1 (4) (f) of the Florida Act foreclose a contribution claim by a defendant held liable to the plaintiff against a codefendant exonerated in the same action, it is pertinent that Minnesota has recognized the judgment defendant as a party aggrieved by the codefendant’s exoneration, and so entitled to appeal, notwithstanding the absence of cross-claims. Bocchi v. Karnstedt, supra. See also Muggenburg v. Leighton, supra, 60 N.W.2d at 10, n. 1, suggesting that the judgment defendant could appeal even in the absence of the Vi-gen rule, because the codefendant’s exoneration would deprive the judgment defendant of the benefits of a Minnesota statute providing, in the main action, a summary means of recovering contribution against other judgment defendants. Compare ch. 75-108, § 1(4) (b), Fla.Laws. A judgment against one defendant and in favor of a codefendant on an injured plaintiff’s claim was held, notwithstanding the Vigen rule, not to bar a subsequent action by the judgment defendant against the former code-fendant for damages other than those of contribution. Bunge v. Yager, supra. The Minnesota court seems to have assumed with some dismay, but has not yet directly decided, that under the Vigen rule a judgment for an alleged tortfeasor, rendered in an action by the injured person against him alone, forecloses a subsequent contribution claim by a tortfeasor whom the injured plaintiff pursued later, separately and successfully. Anderson v. Gabrielson, 267 Minn. 176, 126 N.W.2d 239, 242, n. 9. In Florida, the reverse implications of § 1 (4) (f) will no doubt bear on that issue.

Our disposition of Liberty Mutual’s claim against Curtiss and his insurer suffices for L & S also. Although L & S was not a party to the Adkins case, Liberty Mutual’s complaint for contribution asserts only that L & S was liable to Adkins and is now liable to Liberty Mutual because its servant Curtiss was liable to Adkins. That, as we have seen, cannot be. The case for contribution on account of the Robinson and Mobley payments may proceed against L & S for the same reason it may proceed against Curtiss and his insur- or.

Affirmed in part, reversed in part.

RAWLS, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially).

I concur in the decision and conclusion reached.

      . The Contribution Act provides that it shall take effect on becoming law and apply to “all causes of aetion pending at the time of its passage” involving rights of contribution “and to cases thereafter filed.” Although the parties did not raise the question and we do not decide it, we have considered whether authorities such as Goodfriend v. Druck, 289 So.2d 710 (Fla.1974), require us to apply the Florida Act to this case because the Act is now effective. Irrespective, however, of whether Liberty Mutual’s “cause of action” for contribution persisted at the time of the “passage” of the Contribution Act, notwithstanding the prior existence of the adverse judgment here appealed, it would appear that the pertinent “cause of action” for purposes of § 1(4) (f) of the Act, which if applicable would foreclose Liberty Mutual, was Adkins’, not Liberty Mutual’s. It was the prior judgment against Adkins, not that against Liberty Mutual, which determined the nonliability, of Curtiss. Adkins’ cause of action ceased to be “pending” long before the passage of the Act.

      . See Reserve Ins. Co. v. Village of Big Lake, - Minn. -, 230 N.W.2d 47, 50 (1975), where, in another context, the court stated:
      “The equitable principle which under-girds contribution is that the party who seeks payment has conferred an advantage or benefit on the party from whom payment is sought. Where, as here, no benefit has been conferred, there is no entitlement to contribution.”


author: SMITH, Judge. SMITH, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Jack S. GRAFF and Angela Newcome Stokeley, Appellees.
    No. X-257.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
    Rehearing Denied March 10, 1976.

      Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
    James F. McKenzie, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   SMITH, Judge.

This litigation concerns the entitlement of appellant Government Employees Insurance Company (GEICO) to reimbursement of up to $10,000 in uninsured vehicle benefits paid by GEICO to its insured, appellee Stokeley. After receiving the uninsured vehicle benefits from GEICO in exchange for an executed release and trust agreement, appellee Stokeley, through the services of her lawyer, appellee Graff, negotiated and received a $25,000 settlement of her claim against the United States under the Federal Tort Claims Act based on a government employee’s negligent driving of an uninsured vehicle. When Stokeley and Graff declined to reimburse GEICO more than $8,000 from the settlement proceeds, GEICO filed this action for the entire $10,000. The Circuit Court held that GEICO is entitled to reimbursement of the $10,000 it paid in uninsured vehicle benefits, less $2,000 payable to lawyer Graff for his services in negotiating the settlement with the United States. GEICO asserts on appeal that it is entitled to full reimbursement of $10,000 and appellees by cross-assignments complain that the trial court ought not to have required any reimbursement to GEICO.

Stokeley was injured in a collision with an uninsured car driven by a soldier traveling on military orders within the scope of his employment by the United States. GEICO sought to delay paying Stokeley the uninsured vehicle benefits provided by her policy in the hope that she would first seek recovery from the United States. But lawyer Graff, acting for Stokeley, instead filed an action against GEICO for the policy benefits. GEICO then paid $10,000 to Stokeley and the trial court awarded her $1,500 as a fee for the services of lawyer Graff in collecting the uninsured vehicle benefits. Sec. 627.428, F.S.1973. Compare Dunmore v. Interstate Fire Ins. Co., 301 So.2d 502 (Fla.App. 1st, 1974).

Before, during and after the brief litigation in which GEICO paid Stokeley the policy limits of uninsured vehicle benefits and was required to pay a reasonable attorney’s fee as a penalty for not having remitted more promptly, GEICO’s lawyer wrote a series of letters to lawyer Graff stating that GEICO would promptly assert a claim for Stokeley and GEICO against the United States and would provide its own attorneys to protect its interests. GEICO’s lawyer inquired, in order to avoid duplication of effort, what steps lawyer Graff had taken or planned to take against the United States to effect a recovery for Stokeley. Graff’s response to these communications was that he would protect GEICO’s interest as well as Stoke-ley’s, that he felt Stokeley’s claim was worth between $20,000 and $30,000 and that he intended to proceed promptly against the United States. Lawyer Graff did not respond to GEICO’s inquiry about the progress of the case but notified GEI-CO’s lawyer when the $25,000 settlement was reached. At that point he offered to reimburse GEICO $8,000, planning to reimburse his client, at the expense of GEICO, $2,000 of the fee which he charged his client for his representation in the government claim. When GEICO declined that offer and instituted action to recover the full $10,000, appellees Stokeley and Graff resisted payment of the sum they theretofore had offered, on the ground that the uninsured vehicle benefits paid by GEICO were not reimbursable to GEICO except to the extent that the sum of the recovery from United States and the uninsured vehicle benefits received from GEICO exceeded the amount necessary to fully compensate Stokeley for her injuries, which according to lawyer Graff’s testimony were sufficiently severe to justify compensation of more than $35,000.

GEICO’s entitlement to reimbursement of the uninsured vehicle benefits paid Stokeley is governed by § 627.727(1), F.S. 1973, which requires GEICO to provide such coverage in Stokeley’s policy “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury . .” The benefits thus provided are designed to insure the recipient against uncompensated loss attributable to the financial irresponsibility of the party at fault:

“The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . . . from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.”

In White v. Reserve Ins. Co., 299 So.2d 661 (Fla.App. 1st, 1974), cert. den., 308 So.2d 113 (Fla.1975), this Court held that personal injury protection benefits paid by an insurer to its insured under the Florida Automobile Reparations Reform Act are reimbursable under § 627.736, F.S.1973, only “to the extent that the injured person has recovered said benefits”, that the compensation recovered from the party at fault is to be equitably distributed between the insurer and the injured insured, and that such equitable distribution must be influenced in part by “the extent, if any, to which plaintiff failed to obtain full recovery for his entire damages.” White, 299 So.2d at 665, 666.

Appellees Stokeley and Graff, citing White, argue that the same reasoning applies here. Their argument, however, overlooks the significant difference between the two types of benefits: personal injury protection benefits are payable under § 627.736 in amounts determinable irrespective of fault in order to compensate the recipient for losses formerly assessable only against the party at fault; on the other hand, disability benefits payable under § 627.727 are not insurance against all loss due to personal injury by an automobile but are insurance for only so much of the loss as is incompensable because of the financial irresponsibility of the party at fault. To apply the rule of White in this alien context would grant a windfall to every injured claimant who compromises with his solvent adversary because of debatable liability or other factors which are unrelated to the existence of insurance or other resources sufficient to pay the just amount of the claim. Moreover, that rule applied here would anomalously discriminate against him whose ill fortune it is to be hit by an insured vehicle: his compensation from the tortfeasor pursuant to judgment or settlement, though neither more nor less adequate than Stokeley’s for comparable injuries, would not be similarly augmented by unreimbursable uninsured vehicle benefits. It is inconceivable that, to favor those in Stokeley’s position, the legislature intended not only to fill but to overflow the insurance vacuum created by the tortfeasor’s failure to insure himself against liability. See note, 52 U.Va.L.Rev. 538, 555 (1966).

In this case, there is no suggestion in lawyer Graff’s testimony or in the arguments submitted by appellees Stokeley and Graff that the United States could not pay more than $25,000 in settlement or that the amount of the settlement was otherwise detrimentally affected by the unavailability to the United States of sufficient financial resources to evaluate and pay Stokeley’s claim as though full liability insurance had covered the offending automobile. The uninsured vehicle benefits paid by GEICO to Stokeley, therefore, duplicate to the extent of $10,000 the compensation “available to [Stokeley] . . . from the owner or operator of the uninsured motor vehicle” and from the United States, which was vicariously liable [§ 627.727(1), F.S.1973], and that sum is reimbursable to GEICO without “equitable distribution” of the character appropriate when personal injury protection benefits or medical expense benefits are involved, as in White and State Farm Mut. Ins. Co. v. Gordon, 319 So.2d 36 (Fla.App. 1st, 1975).

Our decision in Central Nat’l Ins. Group v. Hotte, 312 So.2d 235 (Fla.App. 1st, 1975), affirmed a judgment which partially reimbursed an insurer the uninsured vehicle benefits paid to an insured who subsequently settled his claim against the uninsured tortfeasors. In the absence of an applicable statute such as § 627.727(1), F. S.1973, which was' not effective when Central National paid Hotte, the court applied “general principles of subrogation” which were said, in the language of Corpus Juris Secundum, to require reimbursement to the insurer of “only the excess, which insured has received from the wrongdoer causing the loss, remaining after insured is fully compensated for his loss and the cost and expenses of the recovery thereof.” 312 So.2d at 237 (emphasis added).

We consider that a party injured by an uninsured vehicle has received full compensation for his loss, within the meaning and application of the general principles referred to in Hotte, when he has received full payment of a judgment or of an agreed settlement which was unaffected by concern for the defendant’s lack of insurance. The “general principles of subrogation” referred to in Hotte do not permit an injured party to collect uninsured vehicle benefits from his own insurer, negotiate an acceptable settlement with a tortfeasor whose noninsurance resources are equivalent to full liability protection, and then tender only partial reimbursement on the ground that, considering the severity of the injuries but not other factors which typically weigh in the evaluation of claims, the claim against the tortfeasor was more valuable than all sums received. To so hold in spite of the provisions of § 627.-727(1), which govern this case but not Hotte, would transform uninsured vehicle coverage into a kind of supplemental insurance for all loss by bodily injury. The true purpose of this coverage is to enable recovery, within statutory limits, of compensation which would have been available if the tortfeasor had been insured. Hodges v. National Union Indem. Co., 249 So.2d 679, 681 (Fla.1971); Salas v. Liberty Mut. Fire Ins. Co., 272 So.2d 1, 3 (Fla.1973).

After correctly ruling that GEICO is entitled to be reimbursed the amount of uninsured vehicle benefits paid Stokeley, the trial court was also correct in deducting from the sum otherwise reimbursable the amount of a reasonable fee for the services of lawyer Graff in negotiating and collecting the government payment which made reimbursement of GEICO possible. Forsyth v. Southern Bell Tel. & Tel. Co., 162 So.2d 916 (Fla.App. 1st, 1964); Central Nat’l Ins. Co. Group v. Hotte, supra. The practicalities of settlement negotiations teach us that GEICO’s lawyer could not readily have shared equally with lawyer Graff the burden of negotiation with the government. Although the efforts of GEICO’s lawyer to participate in the presentation of Stokeley’s claim against the United States may have been as full as the circumstances permitted, his efforts in behalf of GEICO were not equivalent to direct intervention in and joint presentation of the insured’s action against the tortfeasor. Compare Morgan v. Central Ins. Co. of America, 181 So.2d 175 (Fla.App. 1st, 1966). GEICO is therefore not excused from paying a.reasonable fee on account of the services of Stoke-ley’s lawyer.

The trial court assessed costs in favor of appellees Stokeley and Graff and against GEICO notwithstanding that judgment was entered for GEICO in the amount of $8,000 on the principal matter in controversy. The assessment of costs against GEICO instead of in favor of GEICO was error. Sec. 57.041(1), F.S. 1973, makes costs attend the judgment even if, as here, the judgment is for the amount offered by the judgment defendant before trial.

The trial court declined to assess against GEICO an additional attorney’s fee for the services of appellees’ lawyers in the trial court. That ruling was in accordance with our decision in Forsyth v. Southern Bell Tel. & Tel. Co., 162 So.2d at 921-22, holding that such litigation as this is not “under a policy or contract” of insurance within the meaning and application of § 627.428(1), F.S.1973 — GEICO having long ago paid the benefits due under the policy —but is rather “in the nature of an action in rem against the fund of money.” For the same reason, we deny the motion by appellees Stokeley and Graff for the allowance of a fee for the services of their attorneys on this appeal. Contrast Unigard Ins. Co. v. Davis, 299 So.2d 667, 668 (Fla. App. 1st, 1974), in which a fee was awarded for legal services in defending an appeal the “primary thrust” of which was to contest liability for the policy benefits.

The judgment assessing costs against GEICO is reversed and the case is remanded for assessment of the trial costs in favor of GEICO. The judgment is otherwise affirmed, with appellate costs to be borne by the parties incurring them.

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

ON PETITION FOR REHEARING

SMITH, Judge.

Appellees urge reconsideration of our holding that the trial court correctly declined to award appellee Stokeley a fee for the services of her lawyers in the trial court. Appellees argue that such an award was made in Catches v. Government Employees Ins. Co., 318 So.2d 552 (Fla.App. 1st, 1975), in circumstances not significantly different from those in this case.

We believe that the circumstances here are materially different from those in Catches where, by demanding complete reimbursement of PIP benefits previously paid, the insurer in effect contested its liability for the payment of any such benefits and “denied a material obligation of coverage to its insured.” 318 So.2d at 553. In this case, by contrast, GEICO’s demand for total reimbursement was in effect a denial of its liability to pay a fee for the services of Stokeley’s lawyer who obtained a settlement fund for the benefit of both parties from the United .States. The trial court held, and we agreed, that GEICO is liable to pay a fee for legal services that thus benefited it, but the basis of GEICO’s liability is equity. See Forsyth v. Southern Bell Tel. & Tel. Co., 162 So.2d 916, 919 (Fla.App. 1st, 1964). Neither the policy nor § 627.428, F.S., requires GEICO to reimburse appellee Stokeley for the services of her lawyer in litigating with GEICO a contest not arising under the policy.

The prayer of the petition for rehearing is denied.

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


text:
    George E. RUSCOE, Appellant, v. Linda M. RUSCOE, Appellee.
    No. 75-773.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Jason G. Reynolds of Coble, McKinnon, Reynolds & Rothert, Daytona Beach, for appellant.
    Steven L. Sagrans, Jupiter, for appellee. OWEN, Judge.
   This case presents the issue: where should venue be laid in an action to establish a foreign divorce decree as a Florida judgment.

The parties were divorced in Mexico. The final divorce decree incorporated a separation and property settlement agreement previously executed in New York. Both parties now reside in Florida. Plaintiff/wife filed a “Complaint to Establish Foreign Decree as a Florida Judgment,” seeking the establishment and enforcement of the Mexican decree, particularly as it pertained to defendant’s duty to make child support payments. The complaint was filed in Palm Beach County where plaintiff resides. Defendant/husband filed a motion to dismiss for improper venue, asserting his privilege of being sued in Volusia County, Florida, in which he resides. This appeal is from the order denying that motion.

Appellant’s position is well founded. Fla.Stat. § 47.011 (1973), the general venue statute, provides:

“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”

The only venue alternative in the statute which is applicable to the instant case is “in the county where the defendant resides” and this is precisely where defendant contends venue should be laid.

Appellee, citing to Stewart v. Carr, 218 So.2d 525 (2nd DCA Fla.1969) contends that this general venue statute only controls actions brought under the common law or under statutes not containing a specific provision respecting venue, but that, in this case, the specific venue provision contained in Fla.Stat. § 61.14 (1973) applies. Fla.Stat. § 61.14 provides:

“61.14 Modification of alimony judgments; agreements, etc.—
(1) When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of,. support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or eithe'r of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances and the financial ability of the parties, decreasing, or. increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.” (emphasis supplied)

Clearly, this statute, providing that venue may be laid in either parties’ county of residence, only relates to actions for the modification of alimony judgments, agreements, etc. Appellee is not seeking relief under § 61.14, and it is therefore simply not applicable.

Stewart v. Carr, supra, involved a petition to establish a foreign decree and to modify that decree. That court stated, at 528:

“We therefore hold that F.S. § 61.14, F.S.A., the modification statute under which the instant proceeding was filed in Broward County, and which contains affirmative provisions with reference to venue, controls, and that the action was permissively instituted in that county, the residence of [petitioner/appellant], he having the choice within the confines of the statute.” (emphasis supplied)

Thus, the situation in that case is clearly distinguishable from the one at bar in that there the action was expressly brought under § 61.14.

The order appealed is reversed and this cause remanded with directions to enter an order transferring this cause to the Circuit Court of Volusia County pursuant to Rule 1.060(b) RCP.

Reversed and remanded.

WALDEN, C. J., and MAGER, J., concur.

      . The propriety of seeking both types of relief at the same time appears to have been questioned in Smith v. Smith, 197 So.2d 16 (3rd DCA Fla.1967), wherein it was held that the chancellor in an action to establish a foreign decree did not err in refusing to entertain a motion to modify that decree during the pendency of the case, “because at the time it [the motion] was presented the foreign decree had not been established in this State.” (197 So.2d at 17). But see, Lopez v. Avery, 66 So.2d 689 (Fla.1953) in which the Supreme Court held that an amended complaint which sought establishment of a foreign decree and thereafter modification of its terms stated a cause of action under the predecessor statute to § 61.14.


author: HOBSON, Judge.

text:
    Robert BURTON et al., Appellants, v. DIAMOND SAND AND STONE COMPANY and Continental Insurance Company, Appellees.
    No. 74-1091.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Patrick E. Geraghty, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants.
    G. Hunter Gibbons, of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellees.
   HOBSON, Judge.

The final judgment appealed was rendered after trial on the merits of the cross-claims of appellants and appellees against each other on the question of coverage under their respective insurance policies. The plaintiff’s suit for damages was a wrongful death action against the parties to this appeal. The crossclaims were severed from the wrongful death claim for a separate trial.

The final judgment found that Canal Insurance Company was estopped to deny coverage under its policy issued to Pete Miller and that the Canal policy provides primary coverage with regard to the accident which is the subject matter of the plaintiff’s complaint. The final judgment further found that Continental Insurance Company’s policy No. L4283964 provides secondary coverage; that Continental’s policy No. L4283964 provides coverage equal to the maximum amount set forth in said policy; and that no coverage was provided for this accident by a second Continental policy, No. L4293Ó71.

We affirm the final judgment in all respects with the exception of the premature finding that the Canal policy provides primary coverage and Continental’s policy No. L4283964 provides secondary coverage.

Appellant takes the position that the trial court committed error in failing to determine whether or not Robert Burton, the driver of the truck on the date of the accident, was an employee, statutory employee or borrowed servant of Diamond Sand and Stone Company. Robert Burton was hired and paid by Pete Miller and the truck involved in the accident was owned by Pete Miller. If Robert Burton was in fact a borrowed servant, employee, or statutory employee of Diamond Sand, Diamond Sand’s policy with Continental would provide primary coverage based on the doctrine of respondeat superior, while the policy of Pete Miller with Canal would provide secondary coverage based on the vicarious liability as owner of the truck. See Hutchins v. Campbell, Inc., Fla.App.2d 1960, 123 So.2d 273, and Hertz Corporation v. Ralph M. Parsons Company, 5th Cir., 419 F.2d 783 (1969).

Although Pete Miller hired Robert Burton and was paying his salary, the appellants contend that Robert Burton can still be a borrowed servant of Diamond Sand. The general rule is set out in 21 Fla.Jur., Master and Servant, § 69, as follows:

“It is competent for an employer to loan out one of his servants to a third party. If that third party has complete control over the servant and directs his conduct at all times, he will be held responsible for the servant’s derelictions even though the original employer is still paying his salary.”

It is appellants’ position that under the facts of this case Diamond Sand had complete control over the conduct of Robert Burton in regard to the operation of the truck. This, they say, can be established by the facts that on the date of the accident the truck was under lease to Diamond Sand, was being operated in the furtherance of Diamond Sand’s business, was operated pursuant to Diamond Sand’s Public Service Certificate, and Robert Burton was carrying out the instructions of the dispatcher for Diamond Sand who had told him where to deliver the load.

On the other side of the coin, the lease agreement between Pete Miller and Diamond Sand places all of the obligations and liabilities on Pete Miller. Appellants, however, argue that the lease is in contravention of the rules and regulations of the Florida Public Service Commission. The rules of the Florida Public Service Commission provide under Chapter 25-5.-17(2) (e) that each lease of a motor vehicle must comply with the following:

“All vehicle leases shall provide that the lessee-carrier assume full and complete responsibility and liability for the operation of the leased vehicle and for all cargo transported thereon during the term of the lease.”

In Simmons v. King, 5th Cir., 478 F.2d 857 (1973), the court held that the ICC regulations contained in 49 C.F.R., § 1057. 4(4) which provides that leases of equipment “shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement . . .” have supreme controlling significance. The lease involved in Simmons, supra, conformed to the mandate of the above-quoted regulations of the ICC, whereas in the instant case the lease was in contravention of the Florida Public Service rule.

The court in Simmons stated at page 865:

“The legislative-administrative travail behind the ICC regulations on trip leases reflects the importance attached by the Congress and ICC to the economic necessity for such short term leases and why it is critical that ICC regulations and the leases mandated by them have supreme, controlling significance. They grew out of the decade long ex parte proceeding No. MC-43 pursuant to the authority contained in Section 204, 49 Stat. 546, as amended, 49 U.S.C.A. 304. The arduous road has been often traced. Agricultural Transportation Assoc. of Texas v. King, 5 Cir., 1965, 349 F.2d 873. See, Agricultural Transportation Assoc. of Texas v. King, supra at 881, 882 and many others. Many factors were behind this legislative-administrative determination. Many were economic to avoid costly dead hauls. But many were to correct abuses that had arisen under often fly-by-night arrangements with consequent damage to the development and maintenance of a sound transportation system and to the public interest from a helter-skelter operation of thousands of unregulated vehicles on the highways as a menace to safety.
“One way to assure responsibility was to impose on the certificated carrier the full responsibility for the entire operation of temporarily leased equipment, whether owner-driver, or otherwise. The regulation . . . and the mandated lease provision are valid.”

The court went on to hold that the driver of the leased equipment became a statutory employee of the lessee.

As noted above, the trial court did not rule on whether or not Robert Burton on the date of the accident was an employee, statutory employee, or borrowed servant of Diamond Sand and Stone Company. This question must be answered prior to the determination of which crossclaimant was primarily liable for the alleged negligence of Robert Burton in the operation of the truck at the time of the accident.

The final judgment appealed is affirmed in part and reversed in part and remanded for further proceedings.

McNULTY, C. J., and SCHEB, J., concur.


text:
    Stefan KIPPERT, Appellant, v. June M. KIPPERT, Appellee.
    No. Y-337.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Clayton, Quincey, Ireland & Felder, Gainesville, for appellant.
    Gary C. Richards, Gainesville, for appel-lee.
   BARKDULL, THOMAS H., Jr., Associate Judge.

By this appeal, we are called upon to review the correctness of a final judgment dissolving a marriage of some nineteen years duration.

This record demonstrates that sometimes the financial situation in which married people find themselves will not lend itself to the dissolution of a marriage because there are insufficient funds to support two separate households. However, the parties herein sought and received a dissolution of marriage, and the trial judge did his best in making alimony and support awards under the limited financial ability of the husband. The parties had four children, three of whom were living with the mother and one who had already reached majority. She was awarded the possession of the marital premises for a limited time, pending the youngest child reaching majority or departing the premises. He awarded $375.00 a month child support and required the father to pay all optical and dental bills for the minor children. Upon the number two child reaching eighteen, which was to be shortly after the entry of the final judgment of dissolution, he reduced the support obligation of the father by $100.00.

The appellant has brought this appeal, contending that the financial aspects of the judgment were erroneous because of his limited income and assets. As indicated above, we can understand the plight of the appellant, but he brought the instant action and the trial judge did the best he could under the circumstances. We affirm the action of the trial judge, except as modified by striking from the final judgment that portion relating to the father’s obligation for ordinary optical and dental bills (of course if, during the minorty of the children there should be any extraordinary expenses of this nature, the trial court would always be open to consider this matter. See: § 61.14, Fla.Stat.). We also see no reason for the trial judge, after he had awarded support of $375.00 a month for the three children remaining at home, to reduce the award only $100.00 when the number two child reached majority. We therefore modify the final judgment to require a reduction of $125.00 in support obligation at the time the number two child reached majority.

Therefore, except as modified herein, the final judgment of dissolution here under review be and the same is hereby affirmed.

Affirmed.

RAWLS, Acting C. J., and MELVIN, WOODROW M., Associate Judge, concur.

      . This reduction shall be effective as of the date of the entry of the mandate on this opinion.


author: PER CURIAM.

text:
    Jane DOE a/k/a Cynthia Crane, Appellant, v. STATE of Florida, Appellee.
    No. 75-1084.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Dent, 322 So.2d 543 (Fla.1975).

WALDEN, C. J., DOWNEY, J., and SCHULZ, GEORGE E., Associate Judge, concur.


text:
    Robert Cecil WILSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-167.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1976.
    Rehearing Denied March 11, 1976.
    Barry Z. Rhodes, Stokes & Rhodes, John M. Davis, Fitzgerald & Davis, Milton, for appellant.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: MOE, LEROY H., Associate Judge.

text:
    G. Curtis STUART, Appellant, v. CATHER INDUSTRIES, INC., Appellee.
    No. 74-897.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearings Denied Feb. 24, 1976.
    James B. Byrne, Jr., and Richard J. R. Parkinson, Altamonte Springs, for appellant.
    Ernest J. Rice, Lowndes, Peirsol, Dros-dick & Doster, Orlando, for appellee.
   MOE, LEROY H., Associate Judge.

This is an appeal from an order vacating a judgment for the plaintiff-appellant entered pursuant to a jury verdict. The jury awarded damages to the appellant in the amount of $130,000.00 and damages to the defendant-appellee on its counterclaim in the amount of $55,621.00, resulting in an original judgment for the appellant in the amount of $74,379.00

The order being appealed caused the appellant to suffer a remittitur in the amount of $120,100.00, entered a new judgment for the appellee in the amount of $45,721.00 ($55,621.00 — $9,900.00), and awarded costs to the appellee in the amount of $650.00. However, the order being appealed did not give the appellant the option of accepting the remittitur and new judgment or granting him a new trial.

This cause of action was commenced in the trial court by the appellant, G. Curtis Stuart, filing a three-count complaint against the appellee, Cather Industries, Inc. The first two counts were based on a clain that Cather had agreed to pay withholding and F.I.C.A. wages on Stuart’s behalf and had failed to do so. The third count was a claim for damages from lost profits on various jobs that Stuart claimed that Cather agreed to pay it, but later repudiated. Cather filed a counterclaim seeking damages for overpayments made to Stuart for work done on jobs which Cather and Stuart performed together.

Ultimately, trial was held before a jury which reached a verdict on the complaint and counterclaim in the amounts mentioned above.

The appellee filed a motion for a judgment in accordance with his motion for a directed verdict, or in the alternative a motion for a new trial, and the trial court entered the order now being appealed. The order vacating the original judgment stated that the judgment was clearly erroneous because the jury verdict was contrary to the evidence, contrary to the weight of evidence, and shocked the judicial conscience of the court.

The appellant argues two points on appeal. The first point alleges that there was sufficient evidence to sustain the jury verdict and original judgment entered thereon. The second point attacks the validity of the trial court ordering a remitti-tur without permitting the appellant to have the option of a new trial.

We find merit in the second point raised by the appellant. We agree with and adhere to the rule of law set forth in the case of Dura Corporation v. Wallace, 297 So.2d 619 (Fla.App.1974). In that case the court held (page 621):

“. . .A trial judge is not permitted to reduce the verdict of a jury by ordering a remittitur, without permitting the plaintiff to have the option of a new trial. . . .” (Citations omitted)

The appellee does not disagree with the holding quoted above, but attempts to distinguish this case from Dura v. Wallace, supra, on the facts in the case. However, the attempt falls short of the mark.

Therefore, the order appealed entitled "Order Vacating Judgment and Entering New Judgment,” is vacated and set aside and this cause is remanded to the trial court with directions to allow the plaintiff to accept the provisions of that order, or in the alternative, be granted a new trial on the issues of damages.

Since this opinion is dispositive of this case, it is not necessary at this time to consider the appellant’s first point on appeal and we therefore decline to do so.

Reversed and remanded with directions.

WALDEN, C. J., and MAGER, J., concur.


text:
    Paul D. BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 73-872.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    James A. Gardner, Public Defender, and Richard W. Seymour, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See United States v. Gaines, 489 F.2d 690 (5th Cir. 1974).

McNULTY, C. J., and HOBSON and BOARDMAN, J J., concur.