author: CUTRER, Judge.

text:
    Gene WEAVER, Plaintiff-Appellee, v. FLEETWOOD HOMES OF MISSISSIPPI, INC., et al., Defendants-Appellants.
    No. 5370.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      Lunn, Irion, Switzer, Carlisle & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellants.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Edwin Dunahoe, Natchi-toches, for plaintiff-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiff, Gene Weaver, sued defendants, Fleetwood Homes of Mississippi, Inc. and Bacon Mobile Home Sales, Inc., to rescind the sale of a mobile home purchased by plaintiff. Numerous defects were alleged as the basis for rescission.' Judgment was rendered in favor of plaintiff. Defendants have appealed from that judgment, and plaintiff has answered the appeal requesting additional attorneys’ fees for the services performed in connection with the appeal of the case. We affirm.

On November 13, 1972, plaintiff purchased from Bacon Mobile Home Sales, Inc. (hereinafter sometimes referred to as “Bacon”) a 1973 Fleetwood double wide mobile home. At the time of the purchase, neither plaintiff nor his wife had an opportunity to inspect or observe the mobile home; at the time it was being constructed by Fleetwood Homes of Mississippi, Inc. (hereinafter sometimes referred to as “Fleetwood”). The purchase price for the home was $13,001.07. This price included all charges for delivery and installation of the mobile home on the Weaver property near Fairview Alpha, Louisiana. The home was delivered to plaintiff’s property within one week after execution of the sale. Upon delivery of the home to the property the two halves of the double wide mobile home had to be attached to each other, and the mobile home had to be set up and leveled. During this assembly and installation, plaintiff’s wife noticed several imperfections which she pointed out to the crew from Bacon that was setting up the home. She was informed that any problems in the home would be corrected. Subsequent attempts to make the necessary corrections were not successful and this litigation ensued.

Suit was filed in this matter on May 28, 1974. Plaintiff alleged the following vices and defects in the mobile home:

(1) The unit is unlevel.
(2) The two halves which make up the unit are not matched so that they will fit together, and one side is 1J4 inch or more out of line with the other side.
(3) The unit leaks.
(4) The roof is deteriorated.
(5) The metal skirting around the unit is unsightly and was damaged when installed, and also caused damage to the sides of the mobile home.
(6) The skirting around the unit was placed without any vents.
(7) The unit is pulling apart in the master bedroom.
(8) Air from the air conditioning goes through the heating unit.
(9) The air conditioning ducts need to be replaced and are falling apart.
(10) Carpet in the master bedroom does not fit and was not installed correctly.
(11) Knobs and pulls were left off of the furniture.
(12) Curtain rods were broken when the unit was set up.
(13) The front screen door does not fit and will not latch.
(14) The cabinet doors in the kitchen are not properly fitted.
(15) Trim work on the inside of the unit is not matched and some is missing.
(16) The eaves of the unit are sagging and are crooked.

Plaintiff prayed for a rescission of the sale setting it aside and granting plaintiff judgment against the defendants, in solido, for the sum of $13,001.07, together with legal interest thereon from the date of the sale until paid, and for all costs. Plaintiff further prayed for damages in the amount of $5,000.00, together with legal interest thereon. Alternatively, plaintiff prayed for a diminution of the price of the home by the sum of $10,000.00. An answef and third party demand was filed by Fleetwood on September 27, 1974, denying the allegations of plaintiff’s petition. Alternatively, Fleetwood alleged that plaintiff was con-tributorily negligent in maintaining the mobile home, thus contributing to the defects present in the home. The allegation of the third party demand was that if the mobile home were damaged in any way, it was the agents or employees of Bacon who had caused the damage by improper installation after the unit was received from the factory. In the event Fleetwood was held liable to plaintiff for the defects alleged in the original petition, Fleetwood prayed for judgment in an equal amount against Bacon, or for contribution.

Bacon answered the main and third party demands with a general denial. An amended answer filed by Bacon alleged that, in the event the sale of the home was rescinded, it was entitled to a reasonable value for the use of the mobile home in an amount not less than $200.00 per month. A third party demand was also filed by Bacon against Fleetwood praying for judgment in its favor against Fleetwood in the event that plaintiff’s main demand against Bacon was granted. A request for attorneys’ fees in the amount of $2,500.00 was also made a part of this third party demand.

A supplemental petition was filed by plaintiff alleging further defects, as follows :

(1) The floor in the hallway is weak and giving way.
(2) The floor covering which has been repaired is coming up again.
(3) The two trailer units, where joined, are pulling apart.
(4) The carpet in the living room is wet, holding moisture under the carpet.
(5) The walls through out the entire unit are not aligned properly.
(6) The floor in the living room at the. front entrance is weak and loose, making a creaking sound when walked on.
(7) The floor under the hot water heater is giving way and the heater is falling through.
(8) The back door does not shut properly.
(9) The window on the back door is broken. Unsuccessful attempts to repair this have been made twice.
(10) The heating ducts underneath the two trailer units are bent and out of place, causing a lengthy delay in heating properly.
(11) The air conditioning ducts are coming apart and leaking, causing a lengthy delay in cooling properly.
(12) The siding on the exterior of the unit, especially on the corners, will not stay connected.

An additional amount of $5,000.00 for attorneys’ fees was also requested. An amended answer was filed by Fleetwood requesting a credit for the reasonable value of the use of the unit in an amount not less than $225.00 per month, should the sale be rescinded. Pleas of prescription by Fleetwood and Bacon were referred to the merits. Following a trial on the merits, the trial judge rendered an opinion which stated that he accepted the testimony of Mr. and Mrs. Weaver and Mr. T. J. Stephens, and that the evidence as a whole supported plaintiff’s claim in redhibition. He determined that plaintiff was entitled to rescission of the sale and a return of the purchase price, subject to a credit of $60.00 per month rental value. The pleas of prescription by Fleetwood and Bacon were overruled and judgment was rendered against both Fleetwood and Bacon, in soli-do, for the purchase price of the mobile home. In addition, plaintiff was awarded attorneys’ fees against both defendants, in solido, in the amount of $2,500.00. Both defendants have appealed from that judgment, and the plaintiff has answered the appeals seeking an increase in the attorneys’ fees to compensate his attorney for the services performed in connection with the appeal.

The first allegation of error on the part of the trial judge is with reference to the pleas of prescription by Fleet-wood and Bacon. We find no error on the part of the trial court in this respect. With reference to Fleetwood, the manufacturer of the mobile home, there is a presumption of knowledge of a defect in the thing made. Radalec, Inc. v. Automatic Firing Corp., 228 La. 116, 81 So.2d 830 (1955); Tuminello v. Mawby, 220 La. 733, 57 So.2d 666 (1952). Under LSA-C.C. article 2534, the one year prescriptive period provided for in redhibitory actions does not apply where the seller has knowledge of the vice and neglects to declare it to the purchaser. Since the manufacturer is presumed to know of the defects in the product he manufactures, prescription does not commence to run in his favor if he fails to declare to the purchaser the defects in the product. In the present case, prescription never commenced to run in favor of Fleet-wood.

Under the jurisprudence of this state, the prescriptive period provided in article 2534 does not begin to run until the seller abandons his attempts to repair the defect in the product he has sold. Williams v. Ford Motor Co., 307 So.2d 159 La.App. 1 Cir. 1974); Dominque v. Whirl pool Corp., 303 So.2d 813 (La.App. 3 Cir. 1974); de la Houssaye v. Star Chrysler, Inc., 284 So.2d 63 (La.App. 4 Cir. 1973); Kennedy v. Vidalia Home Service, Inc., 256 So.2d 827 (La.App. 3 Cir. 1972). The record in this case indicates that the mobile home was acquired by the Weavers on November 13, 1972. The testimony of the Weavers is to the effect that almost immediately they began having problems with the mobile home and requested' both the vendor and the manufacturer to repair these defects. John Bacon, of Bacon Mobile Home Sales, Inc., testified that his employees made numerous service calls to the Weaver home in an attempt to repair the problems. On October 2, 1973, less than one year after the date of purchase, plaintiff mailed a letter to Bacon and Fleetwood specifying the defects still present in the home. John Bacon testified that he received the letter and contacted the Weavers informing them that all the problems would he remedied. Fleetwood answered the letter by a letter dated October 8, 1973, in which the Weavers were informed that Fleetwood intended to send a crew to correct any defects in the mobile home. This letter requested that plaintiff and his wife ascertain whether all of the defects were mentioned in the letter of October 2, “because our crew will only be able to work on the items that you have sent us information on.”

The evidence presented in this case indicates that the Weavers were led to believe that all defects which they found in the mobile home would be remedied to their satisfaction. Their suit was filed on May 28, 1974, within one year following these communications with reference to the defects and the assertions by defendants that these would be corrected. We find that prescription had not run on plaintiff’s claim against Bacon. For these reasons, the trial judge’s rejection of the pleas of prescription by Fleetwood and Bacon was proper.

The next allegations of error on the part of defendants revolve around plaintiff’s burden of proving that the vices and defects in the mobile home rendered its use so inconvenient and imperfect that it is supposed that the buyer would not have purchased it had he known of the defects. LSA-C.C. article 2520. Defendants contend that the record does not support the judgment for rescission of the sale. At most, they contend that plaintiff is entitled to a reduction of $300.00 in the purchase price. This is based on the testimony of one of their witnesses, which testimony indicated that the work required to correct the defects would cost in the neighborhood of $300.00.

Our review of the record indicates that the testimony of the various witnesses presented at the trial is in conflict as to the defects that existed and the relative difficulty in correcting the defects. Mrs. Weaver testified that at the time of delivery she noticed several defects in the mobile home. She stated that she brought these defects to the attention of Mr. Grover Wiley, who was sent out by Bacon to set up the mobile home. She stated that Mr. Wiley returned every day for several days following delivery to work on the unit in an effort to make necessary adjustments. It was two or three weeks, however, before any of these defects were reported to Mr. Bacon. Her testimony substantiated the allegations of defects listed in the original and supplemental petitions. Her testimony was corroborated by the testimony of her husband, as well as the testimony of Mr. Gary K. Carlson, who was accepted by the court as an expert in repair and maintenance of mobile homes, and Mr. T. J. Stephens, who inspected plaintiff’s mobile home on several occasions and who testified as to the defects that he discovered during his inspections.

Defendants attempted to counter this evidence with testimony calculated to diminish the degree of severity of the defects testified to by plaintiff’s witnesses. The trial judge indicated in his written reasons for judgment that he disbelieved the testimony introduced by defendants in this connection because he stated that he accepted the testimony of plaintiff, his wife and Mr. Stephens. Defendants further attempted to counter plaintiff’s evidence by arguing that it had been agreed to by plaintiff and Bacon that plaintiff would prepare a concrete slab as a foundation for the mobile home unit. Defendants introduced testimony that indicated that the land on which the mobile home was placed was not suitable for installation of a mobile home without a concrete slab for a foundation. Defendants contend that without a slab, the mobile home would settle in the soft and wet ground on which it was placed. Mr. Bacon’s testimony is to the effect that he advised plaintiff that it would be wise for him to pour a concrete slab, or alternatively use concrete runners, to prevent the mobile home from settling after being placed on plaintiff’s property. Plaintff and his wife testified that Mr. Bacon only suggested that a slab or runners be placed on the home site. They testified that Bacon indicated that the slab was only optional. They further testified that Mr. Bacon indicated that he would make sure the home was properly leveled and stable, as part of the installation procedure. This testimony by plaintiff and his wife was believed by the trial judge over that of Mr. Bacon. In addition, the evidence indicates that when the mobile home unit was delivered by Bacon’s employees, instead of waiting for the pouring of a slab or the installation of concrete runners to support the unit, Bacon’s employees installed the unit using standard blocking techniques. This evidence was introduced during the examination of Mr. Wiley.

Defendants’ contention that any defects in the home could be repaired at a fraction of the original cost of the unit is based on the testimony of Mr. Everett Oliver, who was . called by Bacon and qualified as an expert in the maintenance and repair of mobile homes. He testified that he inspected the unit in detail and found only minor problems, such as adjustments needed on cabinet doors, small water spots on the ceiling and evidence of leakage around a window. He testified that the unit could be placed in “like new shape” for about $300.00. This testimony was in direct conflict with that of Mr. Carlson, which was to the effect that considering the cost of the home, and what had to be done to it, it was not economically practical to attempt to repair all the defects. It is clear from the record that the trial judge accepted the testimony of Mr. Carlson over that of Mr. Oliver.

We note in reviewing this record that where evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s findings, the appellate court should not disturb the factual findings in the absence of manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La. 1973). We find no manifest error in the trial court’s factual determination in the present case. Defendants’ contention that plaintiff failed to sustain his burden lof proof is without merit.

Fleetwood has alleged in its appeal that the defects about which plaintiff complains are not the result of improper manufacture but rather are the result of improper installation on the part of Bacon, the dealer. Fleetwood alleges error on the part of the trial court in failing to grant its third party demand against Bacon. We find no merit to this argument. The record reflects that the defects complained of by plaintiff have their origins both in the manufacture and the installation of the mobile home unit. The testimony of plaintiff, his wife, Mr. Carlson and Mr. Stephens indicates that the roof of the unit was deteriorating, the air conditioning ducts were falling apart, the carpet in the master bedroom did not fit properly and was not installed properly, the curtain rods were broken, the cabinet ' doors in the kitchen were not properly fitted and the eaves of the unit were sagging and crooked. These, among other defects, were the result of improper manufacture. Other defects had their origin in the installation of the unit by Bacon. These included the un-leveled condition of the unit, the damaged metal skirting around the unit and the pulling apart of the two halves of the unit. Since both Fleetwood and Bacon are responsible for the various defects found in the mobile home sold to plaintiff, neither is entitled to indemnification from the other. For the same reason, Bacon’s third party demand against Fleetwood was properly denied, and Bacon’s appeal from that portion of the judgment is without merit.

Defendants allege as error the trial judge’s refusal to grant them a credit of $200.00 per month for the rental value of the unit. The amount granted by the trial judge was $60.00 per month. Defendants base their contention of error on the testimony of Bacon’s witness, Mrs. Cele Cook, a Natchitoches real estate woman, who was accepted by the court as an expert in rental appraisals. She stated that a fair rental value for the mobile home in the Natchitoches area was $200.00. Defendants argue that this testimony was not contradicted and therefore must be accepted as the figure for the court to use in setting the credit due defendants. We do not agree with this argument. The record reflects the unpleasant conditions in which plaintiff and his family lived as a result of the defects in the mobile home. A reduction in the fair rental value established by the evidence was appropriate in view of the many defects with which the plaintiff and his family were confronted daily while living in the mobile home. We find no abuse of discretion in the trial court’s award in this connection; therefore, it will remain undisturbed.

Defendants’ final allegation of error is in the awarding of attorneys’ fees. Fleetwood argues that it was not in bad faith, and that bad faith is required for the assessment of attorneys’ fees against it. As discussed above, the manufacturer of a defective product is presumed to know of the defects. Radalec, Inc. v. Automatic Firing Corp., supra; Tuminello v. Mawby, supra. LSA-C.C. article 2545 states that if the seller knows of the vice and omits to declare it, he will be required not only to restore the price and the expenses but also be responsible for reasonable attorneys’ fees. Since Fleetwood was imputed with knowledge of the defects and failed to declare them, the manufacturer is answerable for reasonable attorneys’ fees.

Bacon argues that it was a good faith retailer, and as such not liable to plaintiff for reasonable attorneys’ fees. We disagree. The trial judge, who listened to the witness and determined their credibility, found the testimony of plaintiff and his wife to be the more accurate account of the circumstances surrounding the sale of the mobile home. Mr. Bacon’s testimony that he had informed plaintiff of the need to pour a concrete slab for a foundation because of the weight of the unit and the soft and wet ground on which the unit would be iocated was not accepted by the trial judge. He accepted the testimony of plaintiff and his wife that they were told the slab was only optional and that Bacon would make sure the unit was properly leveled and stable. The failure to declare the necessity for pouring a slab as a foundation resulted in numerous defects, and constitutes an omission within the purview of LSA-C.C. article 2545; therefore, Bacon is liable for reasonable attorneys’ fees.

Plaintiff has answered the appeal asking for an increase in attorneys’ fees to compensate for the additional work done in preparation for this appeal. We find that a reasonable fee in connection with the preparation of this appeal is $500.00.

For the reasons assigned the judgment of the trial court is affirmed. In addition, it is hereby, ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Gene Weaver, and against defendants, Fleetwood Homes of Mississippi, Inc. and Bacon Mobile Home Sales, Inc., in solido, for reasonable attorneys’ fees in connection with the appeal of this case in the amount of Five Hundred and No/100 ($500.00) Dollars. All costs are assessed against defendants-appellants.

Amended and affirmed.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Carroll CONQUES et al., Plaintiffs-Appellants, v. Charles FUSELIER, Defendant-Appellee.
    No. 5353.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 1976.

      Landry, Poteet & Landry by Walter J. Landry, Lafayette, for plaintiffs-appellants.
    Durrett, Hardin, Hunter, Dameron & Fritchie by Michael Cooper and H. Evans Scobee, Baton Rouge, for defendant-appel-lee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Plaintiffs, Sgt. and Mrs. Carroll Conques, individually, and on behalf of their nine-year-old son, Edward Lincoln Conques, filed this suit against defendant, Charles Fuselier, Sheriff of the Parish of St. Martin, claiming damages for false arrest and imprisonment of the minor.

An exception of no right and no cause of action as to the claims of Sgt. and Mrs. Conques, individually, was sustained by the trial court.

After trial on the merits, the trial court dismissed plaintiffs’ suit as to the claims asserted on behalf of the minor. From the latter judgment, plaintiffs have appealed. We affirm.

The facts developed at trial were as follows :

A warrant of arrest was issued by the Honorable John M. Hardy, Justice of the Peace of the Ward Four Court of St. Martin Parish, to Sheriff Charles Fuselier on August 29, 1973, commanding the Sheriff to apprehend Edward Conques. Deputy Sheriff Sanford Langlinais, juvenile officer of the St. Martin Parish Sheriff’s office, went to the home of Mr. and Mrs. Conques on September S, 1973. Edward was in school and Mr. and Mrs. Conques were asked to bring their son in when he returned. Edward was brought in by his parents and released in the custody of his father. The minor spent 14 minutes in the radio room of the jail, being booked by one J. C. Bienvenu. Edward was not fingerprinted and no photographs were taken.

Carroll Conques, a sergeant with the Lafayette Police Department, said that his son Edward came home from school on August 24, .1973, with a large lump on his head as the result of a fight. Sergeant Conques filed a complaint about the incident against a nine-year-old named Benoit, and a complaint was subsequently filed by the senior Benoit against young Conques. The District Attorney later contacted Mr. and Mrs. Conques and advised them that no further action was indicated on the complaint against their son.

Edward, a student at Breaux Bridge Elementary School, said he was knocked down at school on August 24, 1973, and received a bump on his head before a teacher stopped the scuffle. Edward said that when he went with his parents to be booked he saw the jail cells and was frightened.

Mrs. Conques said that her son came home from school August 24 with a bump on his forehead and his father filed a complaint with Deputy John Wiltz. Edward rode home on the school bus on September 5 and was taken by his parents to the city hall and jail. All the conversation at the booking was between Mr. and Mrs. Conques and Deputy Langlinais. Edward was not questioned. Mrs. Conques described her son as petrified by the experience. She took him to Dr. Bourque; butazol was prescribed for Edward’s nerves and he took the medication for six to twelve months. His grades in school were adversely affected, according to his mother.

Deputy Sanford Langlinais testified that the booking sheet was prepared for the benefit of the Sheriff and the District Attorney and was not publicized in any way.

John M. Hardy, sales representative for Cole Manufacturing Company of New Orleans, testified that he was Justice of the Peace of the Ward Four Court of St. Martin Parish in August, 1973. Hardy executed the document directing the Sheriff to arrest Edward Conques on the basis of an affidavit by Harold Benoit. Previously a complaint had been made by Carroll Conques against Joseph Benoit, Harold’s son, as a result of which Joseph Benoit had been arrested.

The trial court concluded on the basis of the above evidence that the incident was not one for which Mr. and Mrs. Conques could recover damages, since Deputy Lan-glinais acted in good faith on the basis of a warrant.

Article 7, § 48, of the Louisiana Constitution of 1921 provides that Justices of the Peace:

“. . . shall have criminal jurisdiction, as committing magistrates only, and shall have power to bail or discharge, in cases not capital or necessarily punishable at hard labor,, and may require bonds to keep the peace.”

LSA-R.S. 13:1569 and 13:1570 enumerate the courts and judges having jurisdiction over juveniles. Justices of the Peace are not included.

LSA-C.Cr.P. art. 931 provides that the term “magistrate” includes a Justice of the Peace, and LSA-C.Cr.P. art. 202 says:

“A warrant of arrest may be issued by any magistrate, . . . ”

LSA-C.Cr.P. art. 205 states:

“A warrant of arrest remains in effect until executed.”

and LSA-C.Cr.P. art. 206 continues:

“A warrant of arrest shall not be quashed or abated, and a person in custody for an offense shall not be discharged from custody, because of any informality or defect in the warrant, but the warrant may be amended, so as to remedy the informality or defect.”

Although Justice of the Peace Hardy improperly issued a warrant for young Conques’ arrest without jurisdiction over the minor, the warrant of arrest was valid on its face, and Deputy Langlinais had no choice but to attempt its execution. Deputy Langlinais did not see the boy when he went to his home and can not be charged with knowledge of the minor’s age.

LSA-R.S. 13:1577 provides:

“Whenever a child is taken into custody, . he shall be released to the care of a parent, . . .”

This is what was done in Edward’s case.

LSA-R.S. 13:1586.3 concerns the “Booking of arrested juveniles”, who:

“. . . shall not be booked at a police station or jail if there is a juvenile detention center in the parish. . . . ”

Apparently, there is not a juvenile detention center in St. Martin Parish, but Edward was brought to the jail by his parents rather than a peace officer. Edward was at no time confined or taken from the custody of his parents. After going to the courthouse with his parents, Edward was-not separated from them, but remained only a few minutes following which they went home. There was no imprisonment, false or otherwise.

We distinguish the recent Supreme Court case of Clark v. I. H. Rubenstein, Inc., 326 So.2d 497 (La., 1976). In that case, Mrs. Clark was detained by Rub-enstein’s employees who did not have reasonable grounds to believe that she had stolen goods in her possession. Mrs. Clark had no alternative other than submitting to a search of her packages and was thus unlawfully restrained. Here, Deputy Langli-nais was acting on the basis of a warrant of arrest valid on its face. Tillman v. Holsum Bakeries, Inc., 244 So.2d 681 (La. App. 4 Cir. 1971) writ denied, 258 La. 352, 246 So.2d 199. A law enforcement officer acting without malice is not liable for damages for doing his duty in good faith. Hughes v. Standidge, 219 So.2d 6 (La.App. 4 Cir. 1969); writ denied 254 La. 4, 222 So.2d 63; writ refused 254 La. 6, 222 So. 2d 64; cert. den., 396 U.S. 887, 90 S.Ct. 177, 24 L.Ed.2d 162. A warrant is complete protection to the constable or other officer acting under it in executing the warrant. Maguire v. Hughes, 13 La.Ann. 281 (1858).

The question of malicious prosecution has reference to Benoit’s action in having the warrant issued, rather than to that of the Sheriff’s office in executing it. De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496 (1933). Justice of the Peace Hardy may have been in error in issuing the warrant of arrest but he is not a defendant, and his error cannot be attributed to the Sheriff. A magistrate is not responsible for a mere error in judgment and a justice of the peace is protected in the honest discharge of his duties. Maguire v. Hughes, supra.

While it may be unfortunate that Edward Conques was subjected to a brief visit to the jail in the company of his parents, it must be remembered that the chain of events causing his visit was set in motion by his father’s action in filing a complaint against his nine-year-old schoolmate. Edward’s account of the incident at school indicated that he was without fault, but we do not have the benefit of young Benoit’s version of the incident.

We find Sheriff Fuselier and his deputies to be entirely without fault in this matter; the Sheriff and his deputies were doing their duty, according to law. There is no evidence whatsoever of any improper or unlawful conduct by the Sheriff or his deputies.

For the foregoing reasons, the judgment of the trial court is affirmed at plaintiffs’ cost.

Affirmed.


author: BOUTALL, Judge.

text:
    AETNA CASUALTY & SURETY COMPANY et al. v. Charles L. BRAUD.
    No. 7269.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Daniel E. Becnel, Jr., Reserve, for Charles L. Braud, defendant-appellant.
    Stephen J. Hornyak, Dominick Savona, Jr., Gretna, for Aetna Cas. & Sur. Co. and Thomas McMurry, plaintiffs-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This case is a suit by Aetna Casualty & Surety Company and Thomas McMurry, plaintiffs, against defendant, Charles Braud, arising from property damage to the McMurry vehicle in a collision with the Braud vehicle on Airline Highway. The trial court rendered judgment for Aet-na in the amount of $401.72 (which was the sum it paid to its insured under the terms of an insurance policy between them) and for Thomas McMurry in the amount of $100.00 (the deductible which he paid). Defendant has appealed this judgment and we affirm.

The facts show that Mrs. McMurry was driving the family car on Airline Highway in the direction of New Orleans. In the car with Mrs. McMurry were her four children. Mr. Braud was driving on Airline in the direction of Baton Rouge. Mr. Braud intended to turn left across Airline and onto Atlanta Street. He contends that he made his turn on a red light in conformity with a traffic sign allowing left turns on red lights. Mrs. McMurry contends that she was driving in the left lane of Airline in the opposite direction going about 40 miles per hour. The traffic signal facing her at the intersection of Airline and Atlanta was green. When her car was about 40 feet from the intersection Mr. Braud turned left into her path. She applied her brakes but could not stop in time. The front of the McMurry vehicle struck the right rear of the Braud vehicle.

Defendant has raised six specifications of error allegedly committed by the trial court. We shall discuss each one.

1.THE AMENDED PETITION

This issue arises from the fact that plaintiffs filed a petition in which they erroneously pleaded the facts of the accident. In their petition plaintiffs allege that Mrs. McMurry was the driver making a left turn and Mr. Braud was the driver traveling straight ahead. To this petition defendant filed a general denial. At the trial the court pointed out the discrepancy in the pleadings and plaintiffs asked leave of court to orally amend their petition. Defendant objected to this on the basis of prejudice and asked IS days to meet the oral amendment. The trial court overruled the objection, allowed the amendment and the case continued.

Defendant’s claim of prejudice rests upon the grounds that had the pleadings been properly drawn then his answer would have included certain affirmative defenses, such as, last clear chance and contributory negligence. The trial court was impressed by the fact that the defendant and his counsel actually knew that the true contention of plaintiffs was opposite to the petition allegations long before the trial and was well aware of what plaintiffs intended to prove as a result of prior procedural devices. Contained in the record are a set of interrogatories propounded by the attorney for defendant to Mrs. Mc-Murry. These interrogatories clearly set forth the manner in which the accident occurred. Also in the record is a pre-trial order and response in which defendant was to set forth a concise summary of the facts of the accident. This summary, prepared by defense counsel, as well as the summary furnished by plaintiffs, shows quite clearly that he labored under no misapprehension as to the facts of the accident. There is nothing in the record to show he was prevented from filing special defenses either prior to trial or at the time of the amendment of the petition.

We hold that the record evidences that defendant was not prejudiced by the oral amendment and the trial court, in its discretion, properly overruled the objection.

2.THE SUPERVISORY WRITS

Immediately following the trial court’s ruling on the oral amendment defendant moved for a continuance in order to take supervisory writs. The trial court refused to grant a continuance.

The law is clear that the matter of granting a continuance in order to take writs to a higher court is within the sound discretion of the trial court. Vincent v. Grain Dealers Mutual Ins. Co., 134 So.2d 415 (La.App. 3rd Cir. 1961). We find no abuse of that discretion.

3.THE ACCIDENT REPORT

Defendant assigns as error the viewing of the police accident report by the trial court and its allowance into evidence. The record shows that the defendant did not object to the introduction of the police report into evidence. Defense counsel did make a statement that he felt the police officer was testifying strictly from the report and not from his own memory. This type of evidence is allowed under the doctrine of Past Recollection Recorded, if a proper foundation is laid. The record discloses not only that a proper foundation was laid, but, that most of the foundation was extracted from the witness during defense counsel’s cross-examination. As to the trial court viewing the diagram on the police accident report this is certainly not error if the report itself is later admitted into evidence.

4.THE PLAINTIFFS’ FAILURE TO CALL ALL SUBPOENAED WITNESSES

Defendant objects to the fact that plaintiffs failed to call all of their subpoenaed witnesses. Defendant would wish this court to apply the presumption that the witnesses would have testified adversely to plaintiffs’ cause.

The record shows that the witnesses not called by plaintiffs were Thomas Mc-Murry, husband of Mrs. McMurry, and Mark McMurry, her son. Obviously the presumption cannot apply as to Thomas McMurry since he was not a passenger in the car and has no independent knowledge of the accident. His testimony was only to be elicited as to the vehicle damages and they were stipulated. Mark McMurry was a passenger, however plaintiff did not call him due to his tender years at the time of the accident. The evidence of plaintiffs shows that Mark was seated in the back seat when the accident occurred and it is questionable that he saw the relevant facts as to cause of collision. Other than defendant’s assertion in brief as to Mark seeing the accident, defendant brought forth no evidence that Mark did see the accident and thus was a required witness. We find that the case as a whole does not lend itself to the imposition of the adverse presumption.

5.THE VIOLATION OF THE SEQUESTRATION RULE

Defendant asked witness Timothy Mc-Murry if he had discussed the case with his mother or any other witnesses prior to testifying. Timothy admitted that he had discussed the case and facts of the accident prior to taking the stand. Defendant asked to have his testimony disregarded and the trial court denied this motion.

Initially we note that the trial court’s sequestration order did not include the warning about discussing testimony with other witnesses or parties. The law on sequestration is found mostly in the criminal law; see C.Cr.P. article 764. The law is that a witness’ testimony can be heard or stricken within the sound discretion of the trial court. State v. Kelly, 237 La. 991, 112 So.2d 687 (S.Ct.1959). If the trial court decides to hear the testimony and consider it he must take the violation of his sequestration order into account when assessing the weight of that testimony. The trial court in this case has done exactly that:

“Mr. Becnel:
Your Honor, I move to invoke the rule of sequestration and ask that the Court disregard this witness’ testimony.
“The Court:
I am not going to disregard his testimony, but I will take all of the facts into consideration.”

In viewing the evidence in this record we feel safe in stating that even had the trial court disregarded Timothy McMurry’s testimony there would still exist a preponderance of evidence in plaintiffs’ favor.

6.THE NEGLIGENCE OF DEFENDANT

The record supports the negligence of defendant. Mrs. McMurry’s testimony is quite clear. She was driving in the left lane and defendant’s car pulled out right in front of her. She applied her brakes, as evidenced by the 30 feet of skid marks at the scene, but could not stop in time to avoid the accident.

Defendant’s testimony is very confusing. He seemed unsure as to whether the intersection was controlled by a sign permitting a left turn on red or a green arrow light. He contradicted himself in several places and generally gave testimony less worthy of belief.

The factual question is whether Mrs. McMurry had a red or green light ' when she entered the intersection. The trial court specifically found that she had a green light and thus the right of way. We find no error in that determination which is based strictly on the credibility of the witnesses.'

For the foregoing reasons the judgment of the trial court is affirmed. Defendant is to pay all costs.

Affirmed.


author: MARVIN, Judge.

text:
    Florence Manasco EASON et ux. v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
    No. 12812.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 9, 1976.

      Gahagan & Gahagan by Henry C. Gahagan, Jr., Natchitoches, Wilkinson, Carmody & Peatross by Samuel W. Caver-lee, Shreveport, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellee Houston Fire & Cas. Ins. Co.
    Mayer, Smith & Roberts by Paul R. Mayer, Shreveport, for defendants-appel-lees Chevis H. Webb and Hartford Acc. & Indem. Co.
    Before BOLIN, MARVIN and SMITH, JJ-
   MARVIN, Judge.

Plaintiffs Eason, husband and wife, sued for personal injury to Mrs. Eason, related expenses and property damage arising out of a two-vehicle accident while Mrs. Eason was a guest passenger in her husband’s pickup. Suit was filed against the owner of the other vehicle involved (Mr. Webb) which was being driven by the owner’s wife, and against the liability insurer of each vehicle. Judgment below rejected the demands of each plaintiff and only the plaintiff wife appeals.

The accident occurred about 3:30 p. m. on a weekday in Bossier City on Barksdale Blvd. This is a four-lane thoroughfare at and near the accident scene with two lanes for southbound traffic. Before and at the time of the accident it was raining. Water had accumulated, but to no substantial depth, on the westernmost edge of the outside southbound lane. Both vehicles were southbound at a rate of speed less than the 35 mph speed limit. The Eason pickup was in the southbound outside lane while the Webb vehicle, a four-door conventional type station wagon was in the southbound inside lane. Mrs. Webb was accompanied by her two sons. Mark Webb, age 10, was in the right front seat. Kirk Webb, age 11 Vá» was on the seat immediately behind the front seat.

In her allegations, Mrs. Eason contended that Mrs. Webb was attempting to pass when she negligently and carelessly drove her station wagon into the Eason pickup, alleging that the doctrine of res ipsa loquitur “should apply” to place the burden of proving “freedom from negligence” on defendant. In the alternative, Mrs. Eason alleged specific acts of negligence against Mrs. Webb. Thereafter and in the alternative, Mrs. Eason alleged “. , . and only if [the] court should hold . . . [Mr. Eason] . . . negligent in any manner, which negligence is specifically denied .” that the Eason liability insurer should be held for damages. Specific acts of negligence were then alleged against Mr. Eason by supplemental petition of Mrs. Eason.

Mrs. Eason testified that she saw the station wagon for the first time when she glanced through the rear window of the truck to observe dark rain clouds behind the truck. At that time “she [the station wagon] was in her [the inside southbound] lane,” according to Mrs. Eason. She then said she was looking out of the driver’s side window of the pickup to see the station wagon “. . . coming over closer on us . . . and the car [station wagon] looked like it was going to try to pass us and then . . . the front of her [Mrs. Webb’s] car hung our [front] bumper.”

Mr. Eason testified, “. . . all I know, she just come up beside me and my bumper hung her” while he was in his lane. He says he did not see the station wagon “. . . not until it hit.” He estimated the speed at “probably” 15 mph. The two vehicles separated before they stopped in the southbound lanes, eventually to be driven off the roadway to a parking area in front of adjacent commercial establishments before the police arrived to investigate.

Mrs. Webb testified that they were in “heavy traffic” and that there were vehicles ahead of and behind her in each southbound lane. She said she first heard “this crashing sound ... it was a tearing sound, metal, that’s what it was” and that she asked “. . . the boys to look and see what was causing that . . .” at a time when she was entirely within the left or inside lane. Mrs. Webb testified: “I became aware of Mr. Eason’s truck after I heard the scraping sound and I looked over and he was on the side

As shown by photographs and other evidence, the front bumper of the truck was bent forward at its configuration with the immediate left corner of the truck. There was slight damage to the left headlight rim of the truck. There was no damage to the right front of the station wagon or to its right front side or quarter panel. There was damage at the front seam of the right front door where it meets the quarter panel, and extending from this point down the two right doors of the station wagon to the rearwardmost seam of the right rear door. This damage is on the approximate level of the front bumper of the truck. The molding strip on the side of the station wagon at approximately the level of the headlight rim of the truck was pushed and bent approximately three feet towards the rear of the station wagon. Only that part of the molding strip on the rear door was damaged. There was no apparent damage to this molding strip on the right rear quarter panel, the front door or the right front quarter panel.

There was no debris or other evidence to indicate to the investigating officer where on the highway the impact or side swipe occurred. Mr. Webb, who arrived after the accident, testified that he inspected the damage to the vehicle and observed blue paint (the color of the station wagon) on the left front of the truck bumper. He said he pointed this out to the investigating policeman. The policeman made no written memoranda and did not remember this. Mrs. Eason remained in the truck after the accident. Mr. Eason stated that he did not know anything about blue paint on the left front of the truck bumper. Mrs. Webb did not look at the front of the bumper.

The Webb boys generally corroborated their mother’s version as to the “scraping sound” and where the truck was, at or shortly after the time the sound occurred. Mark Webb additionally testified that before and at the time the scraping sound occurred he was looking downward through the right front window and vent window of the station wagon at the dashed line separating the two southbound lanes. He said he had been watching in this fashion for some distance as the station wagon moved along, attempting to get the effect or illusion that the dashed lines were or appeared to be a solid line. He said at no time did the station wagon cross the dashed line. No other witness testified as to the relation of the lane line to the vehicles, although each driver insisted that his or her vehicle was in its proper lane.

The trial court did not place the burden on the drivers to show freedom from fault as Mrs. Eason’s pleadings primarily contended, and held in a very brief opinion that “. . . the burden is upon him who alleges the fault of another to prove it by a reasonable preponderance of the evidence.” The court found “as a fact” that Mrs. Eason “. . . failed absolutely to offer any evidence as to the liability of the alternative defendant [the liability insurer of the truck] and has failed . . . [the] burden of proving that this accident was caused by the fault [of Mrs.] Webb.”

MRS. EASON’S CONTENTION ON APPEAL

In Mrs. Eason’s appellate brief, confirmed in oral argument, these statements are made:

“A review of the record shows that the Webb version (Eason moved into the Webb lane of travel) is supported by the preponderance of the evidence. The only specific fact indicating one vehicle crossed the lane of travel was the testimony of Mark Webb, that the collision occurred while his mother’s station wagon was in its proper lane. * * *
“ * * * We read the record as preponderating that Eulas Eason crossed the center lane (of the two southbound lanes) ... we analyze here that neither appellant nor her husband testified about seeing the dividing line and relating the vehicle to it. Only young Webb offered such testimony and it is supported by the standing water explanation for Mr. Eason moving to his left providing evidence for finding Mr. Eason negligent.”

She contends here that the lower court was in error in not attempting to reconcile the conflicting testimony and assess fault on her alternative allegations of negligence against her husband. Among the cases she cites as supporting her contentions are Nelson v. Zurich Ins. Co., 247 La. 438, 172 So.2d 70 (1965) and Brown v. Southern Farm Bureau Casualty Ins. Co., 248 La. 943, 183 So.2d 313 (1966).

In the recent case of Michel v. State Farm, 314 So.2d 535 (La.App. 1st Cir. 1975) our brothers of the 1st Circuit, through Yelverton, J., expounded with great clarity as to the existence and application in Louisiana of the principle asserted by the appellant. The rule is stated there in these words:

When an innocent party is injured through the concurrent acts of two parties under circumstances where one or the other must be at fault, the burden is upon these parties to exculpate themselves from negligence. 314 So.2d 538.

In Michel, the rule was said to be one of evidence, not of substantive law, and that it does not exempt a plaintiff from the ultimate responsibility of proving his or her case. We held as much in McDonald v. Osborne, 279 So.2d 263 (La.App. 2d Cir. 1973). In Wheeler v. Simonton, 215 So.2d 359, 360 (La.App. 2d Cir. 1968) we recognized the principle of Nelson v. Zurich Ins. Co., supra, that courts must determine fault to protect the rights of innocent guest passengers in two-car collision cases.

In Michel, the lower court held that neither driver had exculpated himself from negligence and rendered judgment for the guest passenger against the drivers of both vehicles. The 1st Circuit said this was error because the lower court did not perform its duty to make a determination of fact with regard to the specific negligence, vel non, of each defendant.

“Just as the adjudicative function is not fulfilled when the trier of fact calls the case a draw and lets neither party win, under circumstances where it is obvious that somebody has to be at fault, neither is the adjudicative function fulfilled when the trier of fact applies the presumption involved in this case for the benefit of the plaintiff but fails to complete the fact finding process and make specific findings of negligence for the benefit of the two defendants. One defendant could be innocent. We conclude that the trial court’s duty to reconcile requires it to make specific findings of fact with regard to each defendant in the case, as to that defendant’s negligence . . . ” Michel, 314 So.2d 541.

We adopt the reasoning of Michel. The plaintiff guest passenger bears the burden of first proving his innocence as to involvement and secondly proving that the circumstances of the accident compel a finding that either one or both drivers in a two-car collision must be at fault. Once the plaintiff guest passenger fulfills this burden, each defendant driver then must attempt to exculpate himself, not by mere denials of negligence but by asserting facts ■and circumstances of affirmative force.

“ . . .As the trial develops in such a case, the only practical method by which a defendant may exculpate himself is to prove the negligence of the other defendant. At the conclusion of trial, if the doctrine has been applied in the proper case, the trier of fact is faced with one of two decisions: whether to find both defendants negligent or only one defendant negligent. In no case can a trial court find that both defendants exculpated themselves, because it is basic to an application of the rule that one or the other of the parties must have been at fault. If both parties were innocent, then the rule was not applicable in the first place.
“The assistance which the rule was intended to give to an innocent plaintiff in a proper case was never intended as a means whereby the plaintiff might circumvent the ordinary requirements of burden of proof and bring down two defendants with one shot; it was meant only to assure that the plaintiff would get the benefit of the rule for the purpose of showing at least one defendant was responsible. It was never intended, as between the two defendants in a case, to make it more difficult than in any ordinary lawsuit for a defendant to avoid a finding of his own negligence. The application of the rule lies only where common sense based on the apparent facts suggest no other alternative than that somebody was negligent as between the two defendants. • In short, where common sense and ordinary reason compel a finding on the basis of the ostensible facts that one or more of the multiple defendants in a case have to be guilty of negligence, the doctrine is available to the plaintiff. It then becomes the duty of the defendants to prove as among themselves which one was at fault, or stated another way, each must exculpate himself from fault.” Michel, 314 So.2d 538-9.

In the instant appeal, the circumstances of two vehicles, which are proceeding in the same direction in adjoining lanes, colliding with each other, mandate that one or both drivers must be at fault. Plaintiff has proved her innocence from fault, being a guest passenger in one vehicle without any degree of control over either driver.

The lower court here was under a duty to reconcile the testimony and physical evidence and make specific findings of fact with regard to each defendant in the case, as to that defendant’s negligence.

In Michel, the case was remanded with instructions that the lower court perform its duty and make specific findings of fact as to each defendant. As this is the first instance where we have expressly attempted to state the rule, we shall not remand in the interest of time, but shall exercise our discretion to perform the duty which rests primarily with the lower court.

From the circumstances presented here, including the physical damage to each vehicle, the affirmative testimony of Mr. Webb that there was blue paint of the color of the station wagon on the front of the truck bumper, the weather conditions, the testimony of all drivers and passengers, we believe the evidence preponderates that the front bumper of the truck crossed the lane line, struck the front door of the station wagon and scraped across the front door to its front seam where the back edge of the bumper temporarily caught when the truck slowed in reaction to this collision. The slowing of the truck and constant speed of the station wagon, with the truck bumper caught in the seam pushed forward the truck bumper. When the bumper was disentangled the headlight rim of the truck, as the station wagon was proceeding forward, caught and damaged the rear door and its molding. Mrs. Webb was not at fault in causing the collision. Mr. Eason was at fault and the alternative plea of plaintiff should have been upheld.

Plaintiff Mrs. Eason cannot recover the medical expenses charged to the community, which according to statements entered into evidence exceed $200. There is no medical payment coverage under the Eason liability insurance policy.

Mrs. Eason, nevertheless, is entitled to damages for her injuries.

Mrs. Eason’s treating orthopedic surgeon saw her three times over a three month period following the accident relative to her complaints of injury. He characterized her injuries as a mild strain of the cervical and thoracic area. He saw her at one time more than a year after the accident for complaints which he said were unrelated to the strain and he considered there were no permanent injuries to Mrs. Eason.

We consider an award of $900 to be adequate for the injuries sustained by Mrs. Eason. See Greene v. Allstate Ins. Co., 228 So.2d 151 (La.App. 2d Cir. 1969) and Foret v. United Services Automobile Association, 293 So.2d 671 (La.App. 1st Cir. 1974).

For reasons assigned the judgment below is reversed and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs. Florence M. Eason for $900 against defendant Houston Fire and Casualty Insurance Company, with legal interest thereon from judicial demand and for all costs of these proceedings including the cost of appeal.

It is further ordered, adjudged and decreed that the demands of plaintiffs as against all other defendants are hereby dismissed.

Reversed and rendered.


author: SUNDBERG, Justice: ENGLAND, Justice

text:
    Jimmy G. HUNT, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a Railroad Corporation, Respondent.
    No. 46294.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied March 15, 1976.

      Robert Orseck of Podhurst, Orseck & Parks, and Hastings, Goldman & Forman, Miami, for petitioner.
    Philip A. Webb, III, of Webb, Swain & Watson, Jacksonville, for respondent.
   SUNDBERG, Justice:

Petitioner recovered a $200,000 verdict and judgment in the Circuit Court in and for Duval County on a claim brought against respondent under the Federal Safety Appliance Act, Power Brake Law, and the Boiler Inspection Act (45 U.S.C.A. §§ 8, 9 and 23), and the Federal Employees’ Liability Act (45 U.S.C.A. § 51 et seq.). The District Court of Appeal, First District, reversed and remanded for new trial, one judge dissenting. We have jurisdiction through exercise of our power to hear cases under conflict certiorari. Art. V, § 3(b) (3), Florida Constitution.

Our summary of the facts from which the cause arises will be brief, because they are set out fully in the opinion by the able judge of the District Court, Fla.App., at 299 So.2d 84.

Petitioner was employed by respondent in an area adjacent to Durham, North Carolina, and was injured while working on a train crew that was pushing three railroad cars loaded with sand onto an above-grade trestle or chute. Petitioner had been riding on the lead end of the lead car. When the train did not stop at the proposed point, petitioner jumped off just as the lead car struck the butt block on the end of the chute and went past the end of the rails. In this manner petitioner sustained his injuries.

It was petitioner’s job to “spot” or place the cars on the chute, and, in performing his duties, he was to give signals to the engineer for spotting the cars in their proper places. At trial petitioner claimed he gave proper signals at the proper times and that the train’s failure to stop properly was due to defective brakes. Respondent contended that the lead car struck the butt block and went past the end of the rails because of petitioner’s failure to give the necessary and proper signals to the engineer; the contention was that petitioner waited until too late to give a “slow” signal and then gave a simultaneous "emergency stop” signal when the lead car was too close to the end of the chute to be stopped under any conditions.

The engineer, one Pergerson, a resident of Raleigh, North Carolina, did not come to Florida for the trial, but his deposition, which was previously taken on November 29, 1972, in Raleigh by the attorney for petitioner, was published in evidence by respondent. His testimony supported respondent’s contentions relative to the lack of signals given by petitioner. The deposition of a switchman, Alexander, was inconclusive on this matter.

At trial on December 15, 1972, petitioner took the stand in rebuttal to Pergerson’s deposition testimony. He testified, over objection of respondent, that on Sunday, December 3, 1972, (twelve days previously and four days after the deposition was taken) Pergerson left a telephone message for him while petitioner was out. Petitioner testified as follows regarding the telephone conversation between him and Per-gerson when the call was returned:

“A . . . He says, T haven’t been about to sleep since Wednesday night.' And this was Sunday.
“ ‘My conscience has been bothering me, because I told three or four lies.’
“Q And what did he tell you about that?
“A Onliest one he really elaborated on was the signals, and that he knew me and Louis both were giving signals.
“Q All right, sir. Now, did he mention anything in regard to himself and the railroad ?
“A Yes, he stated that they had just kept after him until he told them what they wanted to hear.
“Q All right, sir. Now did he go into any more of the statements that he said were not true other than the one about the signals ?
“A No, that’s the onliest one he got into.”

Petitioner further testified that he advised his attorney of the conversation immediately and that Pergerson wanted petitioner to call the latter’s counsel and that he did so.

On appeal, the District Court of Appeal determined that admission of the quoted testimony was prejudicial error and reversed the judgment for petitioner. That Court held that the testimony at issue went considerably beyond the showing of bias or animus and constituted direct impeachment of Pergerson’s previous testimony by hearsay and that no proper foundation had been laid. Cf. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927); Fla.Stat. § 90.10.

Our view of this matter accords more with the position taken by Judge Boyer in his dissenting opinion. 299 So.2d at 89-90. The evidence adduced from petitioner by petitioner’s counsel concerning the Pergerson telephone call went directly to the issue of bias or animus on the part of the witness for the defense. See McCormick, Evidence (Cleary ed. 2d ed.) § 40. A predicate for the introduction of such evidence need not be laid. Alford v. State, 47 Fla. 1, 36 So. 436 (1904) ; Telfair v. State, 56 Fla. 104, 47 So. 863 (1908). These cases, despite their age, still enunciate the correct law of this jurisdiction on this matter. As used, the subject testimony is not hearsay, because it is used to show the declarant’s state of mind, not the truth or falsity of the statement made. McCormick, supra, § 249. The perceived threat to future employment intimated to Pergerson provides a powerful source of bias or animus against the petitioner in the subject litigation. The fact that the statement would be inadmissible hearsay for purposes of impeachment because of failure to satisfy the conditions of Fla.Stat. § 90.10 regarding the existence of a predicate is irrelevant. Merely because the statement would not be admissible for one purpose does not mean it is not admissible for another. Barnett v. Butler, 112 So.2d 907 (2d D.C.A.Fla.1959); McCormick, supra, § 59.

We would also observe, alternatively, that the challenged testimony was admissible as an admission by a party-opponent. See McCormick, supra, § 267, page 641. The “modern view”, as discussed therein, would seem to favor admission of the subject remarks under this exception to the hearsay rule. Of course, based on this premise, the testimony would be admissible to show the truth of the engineer’s statements and not for the limited purpose of showing bias. Florida courts have consistently admitted into evidence statements by employees concerning matters arising from the course of their employment under the doctrine of admissions. Myrick v. Lloyd, 158 Fla. 47, 27 So.2d 615 (1946); Montgomery Ward & Co. v. Rosenquist, 112 So.2d 885 (2d D.C.A.Fla. 1959); Gordon v. Hotel Seville, 105 So.2d 175 (3d D.C.A.Fla. 1958), cert. denied 109 So.2d 767 (Fla.1959). It is important to note that such statements are admissible because they are the admissions of a party-opponent or adverse party and not because they are declarations against interest. The differences between these two well-recognized exceptions to the hearsay rule are: an admission is made by a party to the litigation, while a declaration against interest is made by a non-party; an admission comes into evidence despite the presence at trial of its author, while the general hearsay rule concerning unavailability of the declarant applies in the case of declarations against interest. The statement sought to be introduced as an admission need not have been consciously against the interest of its maker at the time it occurred, while the declarant in the case of the other hearsay exception must have been aware of a risk of harm to his own interests at the time he spoke. See McCormick, supra, §276; 5 Wigmore, Evidence § 1475.

Accordingly, the judgment of the District Court of Appeal is quashed and the cause is remanded to the District Court of Appeal with instructions to affirm the judgment of the trial court.

It is so ordered.

ADKINS, C. J., and BOYD and OVER-TON, JJ., concur.

ROBERTS, J., dissents.

ENGLAND, J., dissents with an opinion, with which FERRIS, Circuit Judge, concurs.

ENGLAND, Justice

(dissenting).

I dissent. There is no direct conflict between the district court’s decision and the decision of any other Florida appellate court. Judge McCord’s opinion for the majority below carefully harmonized the decisions alleged by petitioner to require the exercise of our jurisdiction.

The majority here has now changed the result of this case, but it has not clarified or harmonized any point of law which was previously unclear or confusing. Florida Power & Light Co. v. Bell, 113 So.2d 697 (Fla.1959). I view our constitutional role as being more narrow than providing litigants with a second appeal in select cases. I would discharge the writ of certiorari.

FERRIS, Circuit Judge, concurs.


author: PER CURIAM. ROBERTS, Justice

text:
    BUCKEYE HOLDING CO., a corporation, and G. Harold Martin, Petitioners, v. Dorothy KELLY, Respondent.
    No. 46090.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Rehearing Denied March 16, 1976.
    Robert J. O’Toole, Fort Lauderdale, for petitioners.
    George L. Moxon and Bryson K. Love-joy, Fort Lauderdale, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further careful consideration of the matter, the briefs and record, we have determined that the cited decisions present no direct conflict as required by Article V, Section 3(b)(3), Florida Constitution (1973). Accordingly, the writ must be and is hereby discharged, Fla.App., 297 So.2d 869.

It is so ordered.

ADKINS, C. J., OVERTON, ENGLAND and SUNDBERG, JJ., SMITH, District Court Judge, and SHOLTS, Circuit Judge, concur.

ROBERTS, J., concurs specially with an opinion.

ROBERTS, Justice

(concurring specially).

I have concurred in the judgment discharging the writ of certiorari for lack of conflict jurisdiction in this Court. In this posture, the case will be remanded for trial, the outcome dependent largely upon the credibility of the witness, Dorothy Kelly. With the flagrant inconsistencies appearing in her testimony at different times, it is easy to see why the trial judge would have rejected her credibility. With that done, there would be little, if any, evidence left to support her charge and, frankly, on the record before us, I do not see where he committed error in dismissing her cause.


author: OVERTON, Justice. HATCHETT, Justice

text:
    STATE of Florida ex rel. FLORIDA PAROLE AND PROBATION COMMISSION, and J. M. Crevasse, Jr., as Sheriff in and for Alachua County, Florida, Appellants, v. Janies William LEE, Appellee.
    No. 44815.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Robert L. Shevm, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen'., for appellants.
    Robert A. Harper, Jr., Gainesville, for appellee.
   OVERTON, Justice.

This is an appeal from a circuit court order, in a habeas corpus proceeding, declaring unconstitutional Sections 949.10, 949.11, and 949.12, Florida Statutes (1973). These statutes relate to a probationer’s or parolee’s subsequent arrest for a felony, the evidentiary effect of such arrest, and revocation hearing procedure.

The appellee, Lee, was convicted and sentenced in March of 1971 for breaking and entering. He was paroled in February, 1973, but in November, 1973, he was arrested and charged with breaking and entering, and grand larceny. Appellee filed a petition for writ of habeas corpus in the circuit court, raising his detention under the aforementioned statutes as the sole issue. By the time of the hearing, ap-pellee was being held pursuant to a warrant for retaking a paroled prisoner under the provisions of Chapter 947, Florida Statutes. Consequently, the appellants asserted the constitutional issue was moot. The trial judge remanded the appellee to custody pursuant to the warrant for retaking a paroled prisoner. In his order, the trial judge also declared Sections 949.10, 949.11, and 949.12, Florida Statutes (1973), unconstitutional on the grounds that they violated the due process provisions of the state and federal constitutions. Further, the trial judge enjoined the Florida Parole and Probation Commission from applying these statutes to any proceedings brought pursuant to Chapter 947, Florida Statutes, and enjoined the application of these statutes to all cases "pending or hereafter instituted by the Florida Parole and Probation Commission” in the Eighth Judicial Circuit pending judicial review by a court of superior jurisdiction.

Subsequent to the trial court’s order in December, 1973, this Court specifically upheld the constitutionality of the subject statutes in Genung v. Nuckolls, 292 So.2d 587 (Fla.1974), and Bernhardt v. State, 288 So.2d 490 (Fla.1974). No new issues are presented here.

We reverse the holding of the trial judge declaring Sections 949.10, 949.11, and 949.12, Florida Statutes (1973), unconstitutional, and reaffirm our holdings in Genung v. Nuckolls and Bernhardt v. State, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and SUNDBERG, JJ., concur.

HATCHETT, J., concurs with opinion.

HATCHETT, Justice

(concurring).

With difficult constitutional questions in the background, I am reluctant to reach the merits, because I am convinced the order appealed here was improper, as a procedural matter. The petition for writ of habeas corpus alleged that appellee Lee was illegally detained “pursuant to the provisions of the unconstitutional Statute, F.S. § 949.10, et seq. . . . which provides that the subsequent arrest on a felony charge in this State of [a parolee] shall be prima facie evidence of the violation of the terms and conditions of . . . parole.” In denying the ha-beas petition on the ground that Lee’s detention was authorized on another basis, a conclusion which has not been questioned here, the trial court nonetheless declared Fla.Stat. §§ 949.10-12 (1973) unconstitutional and enjoined appellant commission from applying the statutes in any pending or future cause. This was not a class a'ction; Lee was the sole habeas petitioner, and he sought release from custody, plain and simple. The pleadings will not support this unsolicited grant of habeas and declaratory relief to non-litigants, in my opinion.

As for Lee himself, the question of the validity of the statutes is mooted by the uncontroverted finding of another, independent, lawful basis for his detention. The issue in the present case is one of pure custody. Since the lawfulness of that custody is not in dispute, only academic questions remain. (The rule is otherwise where a conviction assailed collaterally is only one of multiple bases for detention, Lawson v. State, 231 So.2d 205 (Fla.1970), but a judgment of conviction entails many indirect consequences, which mere custody does not involve.) The trial court did not need to pass upon the validity of the statutes, in order to dispose of the cause before it, and the “portion of the judgment of the trial court which purported to pass upon the validity of the cited statute [s] is obiter dictum and premature and unnecessary.” Williston Highlands Development Corporation v. Hogue, 277 So.2d 260, 262 (Fla. 1973).

      . We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.


author: BOYD, Justice.

text:
    Jamie Antonio TEREUL, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 46234.
    Supreme Court of Florida.
    Feb. 11, 1976.
    Jamie Antonio Tereul, in pro per.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for respondent.
   BOYD, Justice.

By this petition for writ of mandamus Petitioner seeks recomputation of his sentences to reflect “gain time” which Respondent is not presently allowing him. We issued our alternative writ of mandamus, to which Respondent filed his response and supplemental response.

The facts appear as follows.

Petitioner was convicted on February 24, 1954, of assault with intent to commit rape and was sentenced to serve 15 years in prison; on April 3, 1956, he was paroled for 14 years. While on parole, Petitioner was arrested on January 19, 1968, for non-support and was confined to jail; on February 27, 1968, his original parole was revoked. On March 11, 1969, Petitioner was again paroled, which parole was to last for 5 years. While released on his second parole, Petitioner was arrested on March 22, 1971, and was subsequently convicted of attempted breaking and entering with intent to commit a misdemeanor, to-wit: petit larceny. On June 25, 1971, Petitioner was sentenced to serve 2 \/2 years in prison. Thereafter, on August 9, 1971, Petitioner’s second parole was revoked for his failure to remain at liberty without violating any law; this order of revocation provided as follows:

“This revocation is to be effective upon expiration of the sentence which [Petitioner] is now serving in the State Prison . . namely, a sentence of 2 t/2 years in the State Prison by the Criminal Court of Record for Hillsborough County, Florida, on June 25, 1971.”

While serving this 2 i/^-year sentence, Petitioner was charged on February 13, 1972, with escaping from DCRP # 15, Largo, and on June 22, 1972, having been convicted of that charge, he was sentenced to serve 6 months to 2 years in Respondent’s custody.

In his petition for writ of mandamus Petitioner asserts that revocation of his second parole effective at a future date was improper and that, consequently, all three of his sentences should be treated as concurrent ones rather than consecutive ones. Alternatively, Petitioner argues that, if his sentences are to be treated as consecutive ones, his gain time for good conduct under Section 944.27, Florida Statutes, is being improperly computed.

In the Respondent’s original response to this Court’s Alternative Writ of Mandamus he admits that the present computation of Petitioner’s sentences is inconsistent with this Court’s rulings in Brumit v. Wainwright and Voulo v. Wainwright Respondent submits that this case is ruled by the recent opinion in Joseph v. State Division of Corrections in which this Court held that revocation of parole was effective on the date upon which it was entered, regardless of the effort to make it effective in futuro, and that the sentence for a subsequent offense would be served after completion of the original sentence. Respondent admits that under Joseph, supra, Petitioner’s time should be computed by crediting against his original sentence both the jail time he served in 1968 and in 1971, as well as the jail time which has previously been credited against his 1971 sentence of 214 years. In turn, Respondent maintains that Petitioner’s 1971 sentence of 2)4 years must now follow his original 1954 sentence and, similarly, that it must be followed by the 1972 sentence of 6 months-2 years. Respondent suggests that reversing the order of the serving of Petitioner’s sentences will not result in any reduction in the time which Petitioner must serve. Respondent agrees with Petitioner that for the purposes of Section 944.27(2), Florida Statutes, his sentences should be considered cumulative. Respondent concludes his response by agreeing to recompute Petitioner’s time and by agreeing to submit to this Court proof of his compliance. Thereafter, notwithstanding Petitioner’s Traverse, this Court agreed to withhold discharge of the Alternative Writ of Mandamus until Respondent should file his Supplemental Response; that document has now been filed.

In his Supplemental Response Respondent submits the following computation of Petitioner’s sentences and gain time:

20298 No. of days “A. The first sentence began on July 29, 1955 (from Jan. 1, 1900 [sic]
7118 “B. Terms of 15 years, 2)4 years, and 6 months to 2 years = 19)4 years term pursuant to Florida Statutes, § 944.27 (2) +
3150 “C. Statutory Gain Time on 19)4 years 1
95 “D. Credit for County Jail Time on 2)4 years sentence I
+ 4308 “E. Time out on First Parole, i.e. April 3, 1956 — January 19, 1968 (See Exhibits II and III, and Petitioner’s Petition, paragraphs 2 and 3)
+ 40 “F. First Revocation Penalty (Loss of Statutory Gain Time)
“G. Time out on Second Parole, i.e. March 11, 1969 — June 25, 1971 (See Exhibits IV — VI and Petition, paragraphs 5 and 6) VO CO CO +
“H. Second Revocation Penalty (Loss of Statutory Gain Time) 10 VO +
“I. Time out on Escape, i.e. February 13, 1972 — May 6, 1972 Penalty for Escape (Loss of Gain Time) CO O OO vo + +
29553” “Tentative Expiration Date-November 29, 1980

After reviewing this computation in light of Brumit, Voulo, and Joseph, supra, as well as the recent case of Segal v. Wainwright, Respondent submits that Petitioner is entitled to double credit for his county jail time prior to his 1971 sentence of 2 i/2 years. Since Petitioner has only been given credit for that jail time once in the above computation, Respondent is presently crediting him with an additional 95 days, which would place his tentative expiration date at August 26, 1980. Further, relying on Section 921.16, Florida States (1971), Segal and Joseph, supra, Respondent maintains that Petitioner’s second sentence must be served consecutively, rather than concurrently. We agree with this conclusion.

Based on Respondent’s affirmative showing of recomputation of Petitioner’s time, which we find to be correct, the peremptory writ of mandamus should not issue, and the alternative writ of mandamus previously granted should be, and hereby is, discharged.

It is so ordered.

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

      .Article V, Section 3(b)(5), Florida Constitution.

      . 290 So.2d 39 (Fla.1974).

      . 290 So.2d 58 (Fla.1974).

      . 301 So.2d 772 (Fla.1974).

      . 304 So.2d 446 (Fla.1974).

      . 921.16 'When sentences to he concurrent and when consecutive. — A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits, shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.


author: OVERTON, Justice. DREW (Retired) Justice,

text:
    FORD MOTOR COMPANY, Petitioner, v. Mary Jo EVANCHO, Respondent.
    No. 45844.
    Supreme Court of Florida.
    Feb. 11, 1976.
    A. Lee Bradford and Thomas E. Scott, Jr., of Bradford, Williams, McKay, Kim-brell, Hamann & Jennings, Miami, for petitioner.
    Arnold R. Ginsberg, of Horton, Perse & Ginsberg and Sams, Anderson, Alper & Post, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported as Evancho v. Thiel, 297 So.2d 40 (Fla.App.3d 1974), and its certification to us of a question of great public interest. We have jurisdiction.

The certified question concerns the liability of an automobile manufacturer for a defective design which enhances or causes injury but is not the cause of the accident. The certified question is as follows:

“WHETHER A MANUFACTURER OF AUTOMOBILES MAY BE LIABLE TO A USER OF THE AUTOMOBILE FOR A DEFECT IN MANUFACTURE WHICH CAUSES INJURY TO THE USER WHEN THE INJURY OCCURS AS THE RESULT OF A COLLISION AND THE DEFECT DID NOT CAUSE THE COLLISION?”

We hold that a manufacturer of automobiles may be liable under certain conditions for a design or manufacturing defect which causes injury but is not the cause of the primary collision.

In the instant case the appellee, Mary Jo Evancho, brought an action for damages resulting from the death of her husband from injuries sustained as a passenger in an automobile collision. The decedent husband was riding in the rear seat of a 1970 Mercury Montego automobile when it collided with a parked automobile. It was alleged that as a result of the collision the decedent was thrown forward where he struck the back of the front seat of the automobile in which he was a passenger. The mechanism designed to lock the front seat to its carrier rail allegedly failed and caused the right side of the front seat to be thrown forward, exposing sharp and pointed edges of the rail upon which the decedent fell, striking his head and sustaining injuries from which he died. The ap-pellee brought her action for damages against the driver of the parked vehicle, the driver-owner of the automobile in which the decedent was a passenger, and its manufacturer, the appellant, Ford Motor Company. She contended the appellant negligently designed and manufactured the track-and-rail mechanism in such a manner that it could not withstand the impact of a person being thrown forward from the back seat in the course of a collision. Ford Motor Company moved to dismiss the complaint on the grounds that the alleged defect did not proximately cause the injuries and death, it appearing that the vehicle was operated in a manner beyond its intended use, and therefore no legal duty existed between Ford Motor Company and the plaintiff. The trial judge granted the motion, dismissing the complaint as to Ford Motor Company. The Third District, in a thorough opinion by Judge Pearson, reversed the trial court and certified the above question to us as an issue of great public interest.

Authority is divided whether automobile manufacturers can be held liable for defects in their cars which, although playing no part in causation of the primary automobile collision, nevertheless increase or bring about injury to occupants through secondary impacts. Two widely cited cases illustrating the opposing viewpoints on this issue are Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir. 1966), and Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968).

In Evans, the plaintiff alleged that if the frame of his car had been designed differently, he would have sustained lesser injuries following a broadside collision. The majority opinion held that “A manufacturer is not under a duty to make his automobile accident-proof or foolproof,” and that the manufacturer had no duty to make the automobile “crashworthy.” The controlling issue in this cause was the breadth of the term “intended use.” The majority held:

“The intended purpose of an automobile does not include its participation in collisions with other objects, despite the manufacturer’s ability to foresee the possibility that such collisions may occur. As defendant argues, the defendant also knows that its automobiles may be driven into bodies of water, but it is not suggested that defendant has a duty to equip them with pontoons.”
359 F.2d at 825.

The Evans viewpoint has been followed by courts of several jurisdictions.

The majority of jurisdictions appear, however, to follow Larsen v. General Motors Corporation, supra. In Larsen, a headon collision impacting on the left front corner of plaintiff’s vehicle drove the steering shaft rearward into the plaintiff’s head, causing his death. The court rejected the assertion by the automobile manufacturer that accidents are not readily foreseeable, and held that a manufacturer could not close his. eyes to such eventualities. The Larsen court reasoned that the “intended use” of an automobile was “not just to provide a means of transportation” but held that the intended use of an automobile “is to provide a means of safe transportation.” In doing so, it recognized the frequency with which automobiles are involved in collisions, and held that the probability must be taken into account by designers and manufacturers. It established liability on the automobile manufacturer for injuries sustained in secondary collisions between occupants and components of the vehicle in which they were riding when the injury was caused or enhanced by some such design or manufacturing defect and was reasonably foreseeable and reasonably could have been avoided. This theory does not impose liability on a basis of warranty or strict tort liability; rather, it recognizes a duty of reasonable care on automobile manufacturers based on common law negligence. The Larsen court, in establishing this doctrine, said.:

“Accepting, therefore, the principle that a manufacturer’s duty of design and construction extends to producing a product that is reasonably fit for its intended use and free of hidden defects that could render it unsafe for such use, the issue narrows on the proper interpretation of ‘intended use’. Automobiles are made for use on the roads and highways in transporting persons and cargo to and from various points. This intended use cannot be carried out without encountering in varying degrees the statistically proved hazard of injury-producing impacts of various types. The manufacturer should not be heard to say that it does not intend its product to be involved in any accident when it can easily foresee and when it knows that the probability over the life of its product is high, that it will be involved in some type of injury-producing accident. .
“ . . . Where the manufacturer’s negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to exercise reasonable care in the design. These injuries are readily foreseeable as an incident to the normal and expected use of an automobile. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury-producing impacts. No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually, caused by the so-called ‘second collision’ of the passenger with the interior part of the ' automobile, all are foreseeable. Where the injuries or enhanced injuries are due to the manufacturer’s failure to use reasonable care to avoid subjecting the user of its products to an unreasonable risk of injury, general negligence principles should be applicable. The sole function of an automobile is not just to provide a means of transportation, it is to provide a means of safe transportation or as safe as is reasonably possible under the present state of the art.
* sfc * * * *
“This duty of reasonable care in design rests on common law negligence that a manufacturer of an article should use reasonable care in the design and manufacture of his product to eliminate any unreasonable risk of foreseeable injury. The duty of reasonable care in design should be viewed in light of the risk. While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many commonsense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.”

In so holding, however, the Larsen court recognized that manufacturers are not insurers and are under no duty to design a crashworthy, accident-proof, or foolproof vehicle.

We adopt the Larsen view, holding that the manufacturer must use reasonable care in design and manufacture of its product to eliminate unreasonable risk of foreseeable injury.

The opinion of the Third District Court is approved, and the certified question is answered affirmatively in accordance with our collective views. The petition for certiorari is discharged.

It is so ordered.

ADKINS, C. J., ENGLAND, J., and LEE, Circuit Judge, concur.

DREW (Retired) J., dissents with opinion.

DREW (Retired) Justice,

dissents:

I don’t think the “second impact” theory, as accepted by the Court today serves any purpose except to approve a theory that will in most serious accident cases, furnish an additional solvent defendant, viz. the manufacturer of the vehicle involved. It adds nothing to the injured plaintiff’s right to recover or his measure of damages. Most objectionable to me, it adopts a theory of foreseeability in tort actions that is palpably unfair and, in most — if not all cases — impossible to protect against. The types of collisions are infinite. How is it possible to “foresee” — or, as the majority put it, to “eliminate unreasonable risk of foreseeable injury” in collisions of motor vehicles ? Having approved this theory, however, it will now become the responsibility of the jury under appropriate instructions to make such determination under the facts in each case. This is liability without proper safeguard or limitations.

The books are replete with cases, Law Review articles and textbook views, as acknowledged and cited in the majority opinion on both sides, so it would serve no useful purpose to repeat them here. My views are those set forth in the cases cited in footnote 2 of the majority opinion. The contrary views adopted by the majority opinion may well follow the Court’s of a “majority of jurisdictions” but I think the better reasoned cases — particularly under our case law and statutes — are those of the 7th Circuit in Evans v. General Motors and the authorities relied on in that decision.

I,therefore, respectfully dissent.

      . Art. V, § 3(b)(3), Fla.Const.

      . Schemel v. General Motors, 384 F.2d 802 (7th Cir. 1967) (applying Ind. law) ; McClung v. Ford Motor Co., 472 F.2d 240 (4th Cir. 1973) (applying W.Va. law) ; Walton v. Chrysler Motor Corp., 229 So.2d 568 (Miss.1969) ; Alexander v. Seaboard Air Line Railroad Co., 346 F.Supp. 320 (W.D.N.C.1971) ; Shumard v. General Motors Corp., 270 F.Supp. 311 (S.D.Ohio 1967) (decided prior to Larsen, supra) ; But see Burkhard v. Short, 28 Ohio App.2d 141, 275 N.E.2d 632 (1971).

      . Arbet v. Gussarson, 66 Wis.2d 551, 225 N.W.2d 431 (1971) ; Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D.1974) ; Mickle v. Blackmon, 252 S.C. 202, 166 S.E.2d 173 (1969) ; Grundmanis v. British Motor Corp., 308 F.Supp. 303 (E.D.Wis. 1970) ; Engberg v. Ford Motor Co., 205 N.W.2d 104 (S.D.1973) ; Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973) ; Bolm v. Triumph Corp., 41 A.D.2d 54, 341 N.Y.S.2d 846 (1973), aff’d 33 N.Y.2d 151, 350 N.Y.S.2d 644, 305 N.E.2d 769 (1973) ; Turner v. General Motors Corp., 514 S.W.2d 497 (Tex. Civ.App.1974) (application for writ of error refused by S.Ct., there being no reversible error) ; Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (1974) ; Badorek v. General Motors Corp., 11 Cal. App.3d 902, 90 Cal.Rptr. 305 (1970) ; Perez v. Ford Motor Co., 497 F.2d 82 (5th Cir. 1974) (applying La. law) ; Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974) (applying R.I. law) ; Green v. Volkswagen of America, Inc., 485 F.2d 430 (6th Cir. 1973) (applying Mich. law) ; Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972) (applying Iowa law) ; Dyson v. General Motors Corp., 298 F.Supp. 1064 (E.D.Pa.1969) (applying Pa. law) ; Friend v. General Motors Corp., 118 Ga.App. 763, 165 S.E.2d 734 (1968) ; Baumgardner v. American Motors Corp., 83 Wash.2d 751, 522 P.2d 829 (1974) ; Mieher v. Brown, 54 Ill.2d 539, 301 N.E.2d 307 (1973).

      . We do not attempt to answer the question of whether the automobile manufacturer in this instance is a joint tortfeasor, nor have we considered the appropriateness of defenses concerning lack of use of safety devices within the vehicle. Neither has been properly raised or briefed in this proceeding.

      . See 118 U.Pa.L.Review (1969) 299 for additional comments and authorities.

      . 359 F.2d 822 (7th Cir. 1966).


author: PER CURIAM.

text:
    In re ESTATE of Michael R. BAKER, Deceased. Lois BAKER, Administratrix of the Estate of Michael R. Baker, Deceased, Petitioner, v. Kathy BAKER, Respondent.
    No. 45512.
    Supreme Court of Florida.
    Feb. 5, 1976.

      Howard M. Neu, North Miami, and Rudolph Browd, Miami, for petitioner.
    William E. Sadowski of Helliwell, Mel-rose & DeWolf, Miami, for respondent.
   PER CURIAM.

Conflict is apparent in the entry of the challenged order of the Third District Court of Appeal reported at 292 So.2d 627 (1974), dismissing an attempted appeal from the order of the probate judge removing petitioner-mother as administratrix and voiding letters of administration previously granted to her as being void oft ini-tio, in favor of her son’s 17-year-old alleged widow, Kathy Baker, who remained in intensive care from severe burns in the same accident from which the son had recently died. Oral argument was dispensed with as unnecessary.

The refusal of the Third District to consider the appeal cited Tyler v. Huggins 175 So.2d 239 (Fla.App.2d 1965), as shown on the copy of its order in the record before us; such dismissal was a misapplication of the rule in Tyler which is a classic ground of our conflict jurisdiction.

Tyler dealt with two points, the first being akin to the one involved before us: attempted letters of administration were held void ab initio but in Tyler it was for the express reason therein set forth that the non-resident administrator had twice failed to designate a resident agent as expressly required by statute so that the letters which had been issued lacked the essential predicate for their issuance and were declared void on the ground that letters “should not have been issued until the requirements of the statute had been complied with.” Such action left open to the Tyler administrator the opportunity to file for correct letters after perfecting the procedure as a basis for such letters; it was not a removal of the administrator and a termination of such right. The judicial labor was incomplete, in contrast to the situation sub judice where there was a total removal of the named administratrix, meeting the test for an appeal as it is set forth in Tyler: (p. 241)

“The finality of an Order, such as the one we are concerned with here, depends upon the party aggrieved; that is, whether the Order appealed from finally determined the particular question as to such party.”

The application of this test in Tyler was really to its second aspect, i. e., the filing of a claim there which was yet to be determined. In commenting upon the claim, however, Tyler pointed out that, conversely, an adverse order (as is the case sub ju-dice) “would have been a final determination of his rights and therefore would have been appealable.”

The other aspect of Tyler v. Huggins, supra, deals with the matter of a claim there attempted to be filed, and it was correctly pointed out that it could be filed at any time after petition for letters, even though letters have not been issued, and thus presented no basis for an appeal. It is in reference to this aspect of Tyler on the claim which was filed that the language urged by respondent in Tyler as precedent appears and states that the probate order “is not a final Order and is not appealablé.”

It is when there is a termination of the judicial labor on the issue involved as to that party that the right of appeal arises. Smoak v. Graham, 167 So.2d 559 (Fla.1964); In re Hamlin’s Estate, 157 So.2d 844 (Fla.App.2d 1963); In re Noland’s Estate, 114 So.2d 341 (Fla.App.3d 1959). The challenged order is also in conflict with these authorities, another ground for our jurisdiction here.

All rights of the mother, Lois Baker, as to the administration of her son’s estate were terminated by the lower court’s order; whether such rights were rightly or wrongly terminated remains for appropriate determination on the merits by the district court of appeal upon remand, together with the determination of other questions asserted there as to the merits of the probate order below; these were earlier stricken on motion in this court (Points II thru VII) as not properly before us in this review, since the district court had not yet passed upon such other issues.

Respondent’s position regarding the first aspect of Tyler is that it allegedly holds that any order against an administrator’s letters is not an appealable one, but this fails to take into account the particular circumstances on which it was based, namely, that the prerequisites upon which such letters were founded had not yet been met but could be upon compliance in the lower court and therefore all judicial labor had not yet been exhausted. Respondent also suggests that present PGR 5.100 setting forth the orders and judgments from which appeals may be taken refers to such orders as those “determining rights of any party in any particular proceeding in the administration of the estate of a decedent”, urging that this language allows the appeal only by a “party” which is the term therein used, arguing that this refers to “an interest — more in the nature of a claim, of a party in and to the assets of the estate.” We do not view the language of the rule to be so restrictive. Respondent is correct that it is a claimant who was the subject matter of the earlier cited Smoak v. Graham, supra, In re Hamlin’s Estate, supra, and In re Noland’s Estate, supra, but the principle is the same in considering the finality of the right which may be involved.

Neither do we agree that similar language referring to rights of any “party” in the second In Re Maxcy’s Estate, 165 So.2d 446 (Fla.App.2d 1964), limits the right of appeal to matters such as claims and estate assets. Such a narrow interpretation would be a denial of basic rights of review not contemplated by the rule. Certainly an administrator or executor is likewise a “party” considered within the scope of the rule as to whether or not an appeal will lie; the appeal turns rather upon the finality of the order on the issue involved and the person (“party”) as to that issue, albeit that person might have an interest in some other capacity in relation to the estate. Significantly, F.A.R. 5.3(b) makes express provision for supersedeas “for an appeal from an order appointing or removing an executor, administrator,” obviously anticipating such possible appeals consistent with the probate rule cited. In re Maxcy’s Estate, supra, involved denials of petitions for removal and related relief which were not such final judicial actions as would afford the bases for appeal. This is consistent with Tyler and with our view herein expressed.

The petition for certiorari is accordingly granted and the district court’s order of dismissal is hereby quashed and the cause is remanded to the Third District Court for consideration on all aspects of the appeal on the merits.

It is so ordered.

ADKINS, C. J., and ROBERTS, SUNDBERG and HATCHETT, JJ., concur.

OVERTON and ENGLAND, JJ., dissent:

      . F.A.R. 3.10(e).

      . Spivey v. Battaglia, 258 So.2d 815 (Fla. 1972) ; McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962) ; Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441 (Fla.1961).

      . Fla.Const. Art. V, § 3(b)(3).

      . DeLoache v. DeLoache, 274 So.2d 883 (Fla. 1973) ; Brown v. Winn Dixie Stores, Inc., 267 So.2d 78 (Fla.1972) ; Robins v. Cipes, 181 So.2d 521 (Fla.1966) ; Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1966).