source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Allie N. DUKES, Petitioner, v. Stephen L. DUKES, Sadie Dukes, and Barbara A. Albritton, Respondents.
    No. 50439.
    Supreme Court of Florida.
    Nov. 3, 1977.
    Ronald H. Cole and Frank M. Gafford, Lake City, for petitioner.
    Martin S. Page, of Darby, Peele, Page & Bowdoin, and Marlin M. Feagle, Lake City, for respondents.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. The Writ was issued, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

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

ENGLAND, SUNDBERG and KARL, JJ., dissent.


author: BASKIN, NATALIE, Associate Judge.

text:
    Alan P. DEVIN and Beverly A. Parrott, Appellants, v. The CITY OF HOLLYWOOD, Florida et al., Appellees.
    No. 75-570.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Oct. 8, 1976.
    Salvatore V. Fiore of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauder-dale, for appellants.
    J. Bart Budetti, Hollywood, for appellees.
   BASKIN, NATALIE, Associate Judge.

This is an appeal by two City of Hollywood police officers alleging discrimination by the City of Hollywood Chief of Police in failing to promote them.

Plaintiffs-Appellants contend that Civil Service requires promotion of police department employees to be on the basis of merit and fitness only, as determined by competitive examination and resulting ranked eligibility lists provided by the Civil Service Board. They urge that no discretion exists in making promotions within the police department, but state that even if some discretion should be found to exist, it was abused when Plaintiffs-Appellants Parrott and Devin were bypassed and persons ranked below them were appointed.

Plaintiffs-Appellants amended complaint for declaratory relief, injunctive relief and damages filed against the City of Hollywood, the Civil Service Board of the City of Hollywood, Board members, the Chief of Police of the City of Hollywood and the Acting City Manager of the City of Hollywood was dismissed with prejudice after hearing.

Appellant Devin is a sergeant employed by the City of Hollywood Police Department. Appellant Devin was number one on the eligibility list for promotion to lieutenant but was not promoted because he did not receive any recommendations for promotion from the lieutenants called upon by Defendant-Appellee Martin, Chief of Police, to make such recommendations. Chief Martin utilized recommendations of lieutenants to assist him in determining which officer on the eligibility list should be promoted. Appellant Devin had already received outstanding comments and ratings by lieutenants and captains during the course of his nine years employment. He was advised by members of the Civil Service Board that he was not promoted in 1974 nor in the past, despite outstanding-ratings, because he was not a member of the “club”.

Appellant Parrott has been a police officer with the City of Hollywood for seven years. She was tenth on the eligibility list for promotion to sergeant when promotions of the individuals listed as numbers 1, 2, 3, 4, 6, 7, 8, 12,13, 20 and 24 were made. She was not promoted. She was advised on a prior occasion that although she had received recommendations from other officers, the Chief of Police did not feel that there was a slot for a female and that her assignment to the patrol division would not be fair to the men, but without patrol experience Officer Parrott would not receive recommendations for promotion. There is no testimony that service in the patrol division is a prerequisite to promotion to the rank of sergeant.

Although Appellant Parrott had received above average evaluation reports during her employment, the reports were not contained in her personnel file when it was circulated among the captains and lieutenants who were to make recommendations for promotion and with whom she had not worked.

This appeal questions whether the Civil Service Act affords discretion to the Chief of Police in making promotions within the police department and if so to what degree.

The problem facing the court is to determine, in the absence of a statement by the legislature or by the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida, from what portion of the list of eligibles certified by the Civil Service Board promotions may be made. Is the promoting authority required to select the individual at the top of the list or may the selection be made from the top three, four or more persons?

Because the legislature has failed to announce a standard to guide in the selection of applicants on the eligible list and to define the limits of discretion of the appointing authority in making promotions, the legislative intent must be examined.

The primary guide to statutory interpretation is to determine the purpose of the legislature. Tyson v. Lanier, 156 So.2d 833 (Fla.1963). Uncertainty should be resolved by an interpretation that best accords with the public benefits. Sunshine State News Company v. State, 121 So.2d 705 (Fla.App.1960). It is not the function of the judicial branch to supply omissions of the legislature. Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. App.1963).

In order to determine the legislative intent, an examination of the Civil Service Act and Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida becomes necessary.

The stated purpose of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida is:

“ . . . that the City and its employees may have assurance that personnel will be dealt with on an equitable basis and that the citizens of Hollywood, Florida, may derive the benefits and advantages which can be expected to result from a competent staff of City employees.”

The Civil Service Act of the City of Hollywood, Section 6, states:

“Advancement by competitive examination. Employees coming within the provisions of this chapter shall be employed and retained in employment and advance to any higher grade on merit and fitness only, and the merit and fitness of any applicant for said departments, or for advancement therein, shall be determined by competitive examination, as hereinafter provided.”

Merit and fitness are defined by Rule 5 of the Rules and Regulations for Municipal Civil Service of the City of Hollywood, Florida to be ascertained by examination prepared by or under the direction of the Civil Service Board.

“All examinations shall be impartial and shall relate to those matters which will test fairly the capacity and fitness of the candidates to discharge efficiently the duties of the position to be filled. Examinations may be assembled or non-assembled, and may include written, oral, physical test, performance tests, ratings of training and experience or any combination of these. They may take into consideration such factors as education, experience, aptitude, knowledge, character, physical fitness or any qualifications or attributes which, in the judgment of the Civil Service Board, enter into a determination of the relative fitness of applicants. Promotional examinations shall take into consideration the quality and length of employment in addition to any or all of the above factors.”

Rule 9 provides that persons shall be placed upon the eligible lists as candidates in order of their relative excellence as determined by examination. All promotional appointments include a probationary period under Rule 11.

Rule 19 provides:

“The term ‘Promotional Examination’ signifies a fitness test to determine the relative standing of applicants for positions in a specified class and open only to employees in the classified service.”

Rule 8, Section 2, permits the appointing authority the privilege of examining the papers of applicants, if desired, in connection with determining the relative fitness of persons under consideration for appointment.

References in the above mentioned Rules to relative merit, when considered in the light of the standards of the Civil Service Act, indicate a legislative intent to obtain the best persons available to perform duties under Civil Service. The competitive examinations rank applicants on a wide variety of factors, including personality traits, before they are placed on the list.

It is apparent that the legislature sought to limit the discretion to be exercised by the promoting authority. The use of a “rule of one”, coupled with a probationary period during which unfit persons might be rejected for valid reasons, best fulfills the legislative purpose.

Appellees have cited authorities upholding a “rule of three”. Those authorities are distinguishable from the case at bar.

The decision of the District Court of Appeal, Third District, in Bowlin v. County of Dade, 296 So.2d 602 (Fla.App.1974) is distinguishable from the situation in the case at bar. In Bowlin, a “rule of four” was contained in the Dade County Rules giving discretion to the Department of Public Safety to promote from the highest of four candidates. The District Court of Appeal, Third District, upheld the “rule of four” as constitutional finding that it was reasonable to afford the Director of Public Safety discretion in the right of selection when promotion based entirely upon written examination would be unduly rigid. In the case at bar, however, no discretion is provided the appointing authority other than to review the papers of individual applicants to determine their relative fitness. The case at bar involves more than a written examination (Rule 5, supra) and includes recommendations obtained during the course of employment and based upon past performance as well as oral examinations.

Also distinguishable is the Opinion of the Attorney General, 073-225, dealing with a Civil Service Board established under prior Florida Statute 174. The Opinion involved a situation where the Civil Service Rules had announced a “rule of three”.

Other jurisdictions have placed limitations on the discretion of the promoting authority. State ex rel. Wolcott v. Celebrezze, 141 Ohio St. 627, 49 N.E.2d 945 (1943); City of Denver v. Rinker, 148 Colo. 441, 366 P.2d 548 (1961).

By specifying in Section 6 of Rule 9 that initial appointments may be chosen from the entire list, the legislature has implied an intention to limit the discretion to select individuals for promotion. The mention of one thing implies the exclusion of another. Bergh v. Stephens, 175 So.2d 787 (Fla.App.1965).

Although this court could apply a standard of “reasonableness” and permit the use of a “rule of three” or a “rule of four”, such action by this court would constitute judicial legislation and would be based upon an arbitrary determination. That determination should emanate from the legislature if it sees fit to provide greater discretion to the promoting authority.

We therefore hold that the Rules and Regulations for Municipal Civil Service for the City of Hollywood and the Hollywood Civil Service Act do not authorize promotions other than of the individual at the top of the certified list.

We further hold that the procedure employed in making promotions constituted an abuse of discretion by the promoting authority and permitted the abuses sought to be corrected by the Civil Service Act to continue.

In the event the legislature chooses to conduct the City of Hollywood Civil Service promotions by some other method, it may express itself accordingly.

We also hold that the trial court erred in relying upon expert testimony to determine the meaning of terms which were questions of law to be decided by the trial court. Consolidated Mutual Insurance Company v. Ramy, 238 So.2d 431 (Fla.App. 1970).

Since the trial judge stated on the record that he had examined the exhibits to his satisfaction, Appellants’ allegation of error on this point is without merit.

Based upon foregoing considerations, we find that the trial court committed error in dismissing Appellants’ amended complaint. We reverse and remand.

MAGER, C. J., and DOWNEY, J., concur.

      . The trial court found that the Chief of Police of the City of Hollywood had the authority pursuant to the Civil Service Act to exercise reasonable discretion in the choice of persons to be promoted from the certified list supplied him by the Civil Service Board and further found that Plaintiffs had not sustained their burden of providing sufficient evidence that the police chief abused his discretion, discriminated against Plaintiffs, acted in an arbitrary or capricious manner, or otherwise acted illegally in selection of persons to be promoted.

      . The selection of the first individual on the list is referred to as a “rule of one”. A “rule of three” refers to selection from the three highest scores, etc.

      . Special Act of the legislature of the State of Florida, House Bill 1265, enacted May 19, 1965.

      . For this reason, the obtaining of additional recommendations furnished by officers with knowledge they would be in a position to influence promotions exceeded the bounds of objectivity contemplated by the Civil Service Act and reverts to a personal preference system sought to be eliminated by the Act. This is particularly poor practice when the file of Officer Parrott failed to contain recommendations she had earned during the course of her employ.

      .Recommendations furnished during a course of employment based upon past performance appear to be more in keeping with the Act than the recommendations specifically requested by the Chief of Police for the purpose of determining promotion, as follows:
      “In lieu of a vacancy for lieutenant and two for sergeant, the following is a letter sent by my office to all captains and lieutenants. Attached is a list of eligibles for promotion to the rank of police lieutenant and sergeant, as submitted to me by the Civil Service Board. You are hereby instructed to recommend one individual from the attached list, to be promoted to the rank of lieutenant, and two individuals, to be promoted to the rank of sergeant. The recommendations submitted by the captains and lieutenants, will be the determining factor in this selection process." (Emphasis added.)

      . The court will refuse to tack additional words on a statute in a situation where uncertainty prevails as to the intent of the legislature. Re Estate of Jeffcott, 186 So.2d 80 (Fla.App. 1966); Armstrong v. Edgewater, 157 So.2d 422 (Fla.1963).

      . If a “rule of one” is not followed, it appears that under existing practice Appellants could remain at the top of the list and never be promoted.


author: PER CURIAM. WALDEN, Judge

text:
    David KERLIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1765.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Rehearing Denied Aug. 31, 1976.
    Joe M. Mitchell, Jr., and Kenneth A. Studstill, Titusville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Gates v. State, 201 So.2d 786 (3d D.C.A.Fla.1967) and Ross v. State, 202 So.2d 582 (1st D.C.A.Fla. 1967). See Porter v. State, 160 So.2d 104 (Fla.1963). But cf. Mercer v. State, 40 Fla. 216, 24 So. 154 (1898).

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Judge

(dissenting):

Defendant was tried and found guilty of murder in the second degree. He appeals. I would reverse and remand for a new trial.

Eliminating much detail, the defendant’s wife was granted immunity and became the State’s chief witness. It is clear that defendant would not have been convicted except for her testimony. The defendant, his wife, and the victim were alone in the victim’s apartment, according to the wife. The wife testified (among other critically damaging items) that the defendant loaded a rifle, entered the victim’s bedroom and that she heard a shot. The defendant came back in her presence, re-loaded the rifle, returned to the victim’s bedroom, and she heard another shot. The defendant returned to her presence and said, “Let’s go.” They ran from the house and she saw that defendant had the victim’s wallet and checkbook and there were bloodstains on the defendant’s face. Suffice to say, the victim was later found in the bedroom shot to death by a .22 calibre rifle.

The trial court admitted the wife’s testimony as to these events and in so doing construed the marital privilege as applying solely and only to communications — not to the defendant’s acts.

The critical point is correctly stated by the defendant:

“Whether the lower court erred in permitting the appellant’s wife to testify as to her husband’s conduct which fell within the scope of privileged communications as being acts clearly intended to be confidential communications, viz, the confidentiality between them was an actual inducing factor of appellant’s conduct and clearly interwoven and contemporaneous with the oral privileged communications between the spouses.”

I would hold that acts are encompassed within the marital communication privilege. The better rule and weight of authority is that the privilege of confidential communications between spouses includes acts as well as merely verbal communications. 97 C.J.S. Witnesses § 266 (1957); Wharton’s Crim.Evid. 13th Ed. § 568:

“§ 568. Knowledge obtained by observation of spouse.
“The husband-wife privilege extends, not only to a spouse’s communication, oral or written, but also to an act which is confidential in nature or which would not have been performed in the witness’ presence but for the marital relation. The privilege applies even though the observed spouse’s act amounted to or evidenced the commission of a crime.”

This general rule would be subject to the caveat that the acts be of such a confidential nature that they would not have been done in front of the witness-spouse except for the marital relation, Annot. 10 A.L.R.2d 1389 (1950):

“Most of the decisions as to whether a husband or wife may testify, under the marital communications privilege, to knowledge obtained by observation of the acts of the other spouse have turned upon whether the particular matter testified to, in view of the circumstances of the case, was learned by the witness through a ‘confidential communication,’ or ‘as a result of the marital relation.’ ”

What is the jurisprudence of Florida with reference to this question? The answer is “confused.” However, as I shall attempt to document, this is needlessly so.

Mercer v. State, 40 Fla. 216, 24 So. 154 (1898), is clear and controlling authority for the proposition that Florida embraces the majority view. It would not restrict the confidentiality rule to mere statements by one spouse to the other. Mercer stands for the proposition that the law prohibits a spouse from testifying as to any information and all knowledge gained from the other during and by reason of the existence of the marriage relation. This, of course, would include acts. Mercer, therefore, mandates a reversal in the instant appeal, cf. Anderson v. State, 297 So.2d 871 (2nd DCA Fla.1974).

For background and specificity, Mercer provides:

“Such confidential communications between husband and wife have always been regarded as privileged, and, when attempted to be detailed or divulged by either of the parties to whom the communication has been intrusted, the law not only forbids, and will not permit it to be done, but regards it as a character of testimony that such witnesses are not competent to depose, and upon the same ground that it prohibits the violation by an attorney of the confidence reposed in him by his client, — that of public policy. Society has a deeply-rooted interest in the preservation of the peace of families, and in the maintenance of the sacred institution of marriage; and its strongest safeguard is to preserve with jealous care any violation of those hallowed confidences inherent in, and inseparable from, the marital status. Therefore the law places the ban of its prohibition upon any breach of the confidence between husband and wife, by declaring all confidential communications between them to be incompetent matter for either of them to expose as witnesses. The reason of the old rule for rendering interested witnesses incompetent to testify at all in any case to which they were parties was because their interest was supposed to be such a strong incentive to perjury, and, where husband or wife was interested in a cause, both of them were excluded as incompetent witnesses for any purpose, because of their unity of interest; they, in the eye of the law, being regarded as one person, and whenever either was interested both were considered to be equally interested, and the incentive to perjury from such interest was considered to be as strongly operative upon the one as upon the other. But the reason of the rule for excluding the confidences between husband and wife as incompetent matter to be deposed by either of them, though they may be competent witnesses to testify to other facts, is found to rest in that public policy that seeks to preserve inviolate the peace, good order, and limitless confidence between the heads of the family circle so necessary to every well-ordered civilized society. The matter that the law prohibits either the husband or wife from testifying to as witnesses includes any information obtained by either during the marriage, and by reason of its existence. It should not be confined to mere statements by one to the other, but embraces all knowledge upon the part of either obtained by reason of the marriage relation, and which, but for the confidence growing out of it, would not have been known.” (Emphasis supplied.) Id., 24 So. at 157.

And now to block out a matter which is totally irrelevant to the instant issue, but which seems to have caused some confusion. Fla.Stat. 90.04 (1975) and 914.07 (1975), and their predecessor statutes, have nothing to do with the rule concerning confidential communications between spouses and hence such statutes have nothing to do with the instant case. Mercer v. State, supra; Porter v. State, 160 So.2d 104 (Fla.1963); Ross v. State, 202 So.2d 582 (1st DCA FLa.1967).

The majority decision cites Gates v. State, 201 So.2d 786 (3d DCA Fla.1967); Ross v. State, supra; Porter v. State, supra, and Mercer v. State, supra, as a basis for affirmance and so a discussion of them is in order.

The Mercer holding has already been outlined and it obviously would require a reversal — not affirmance. Porter v. State, supra, has nothing whatever to do with the matter of confidential communications between husband and wife. It deals simply with Fla.Stat. 90.04 and 932.31, which statutes, as above mentioned, are irrelevant to the instant issue. I fail to see why Porter was cited.

Now, as to Gates v. State, supra, and Ross v. State, supra, I, with all respect to my colleagues on the First and Third District Courts of Appeal, submit that the decisions are unsound and in conflict with Mercer. In both cases the appellate court approved the trial court action in permitting a spouse to testify as to acts done by the other — over the defendant’s objection as to confidentiality.

It is further interesting — as a student of appellate court craft and draft — to note that in both cases it was said no error was committed. However, each opinion then redundantly and in contradiction thereto ended with the observation that such testimony was merely cumulative so that the admission was harmless and not sufficient to reverse.

More specifically, the entire Gates v. State, supra, holding is:

“The appellant contends that the trial court erred in permitting his wife to testify concerning a prior act of violence committed by him against the deceased child, on the ground that said testimony is inadmissible into evidence, falling within the husband and wife privilege. We disagree upon the authority of Porter v. State, Fla.1964, 160 So.2d 104.” Id. at 787.

As we have said and said, Porter has no bearing, and is not support for the Gates holding. Hence the Gates decision is without decisional support.

Ross v. State, supra, while agreeing that Fla.Stat. §§ 90.04 and 932.31 have no bearing, goes on to hold that the confidentiality rule does not apply to physical acts. In so doing it relies upon Gates (already discussed) and Porter. The treatment and support gained from Porter is curious. The Ross court agrees that confidential communication was not an issue in Porter and was not even mentioned. However, the Ross court reasoned that the Supreme Court would have reversed in Porter on its own motion as a matter of fundamental error, if it had intended for physical acts to constitute a confidential communication. Ross then startingly reasons that, since the Supreme Court did not so rule in Porter, that Porter stands for the proposition that physical acts do not constitute confidential communications.

I shall say only that I reject this approach. First, I am not so sanguine as to believe that an appellate court unfailingly treats each and every legal point whether raised or not and that its perfect silence on an issue not raised means that the unspoken issue has been considered and decided even though not mentioned in its opinion.

Assuming the desirability of the confidentiality rule, an assumption we must make since such rule has been approved by the Supreme Court, I can not find or make a reasonable distinction between acts and word communications.

So without laboring further, I would reverse on authority of Mercer. I would reject Ross and Gates, which conflict. Finally, there is no basis for finding waiver on the part of the defendant, Wharton’s Crim. Evid. 13th Ed. § 570.

For these reasons I respectfully dissent.

      . Fla.Stat. § 914.07, which was previously 932.-31, provides:

        “914.07 Competency of evidence. — Except as otherwise provided, the law regarding competency of evidence and witnesses in civil cases shall apply in criminal cases.”
      Fla.Stat. § 90.04 provides:

        “90.04 Witnesses; competency of wife or husband. — In the trial of civil actions in this state, neither the husband nor the wife shall be excluded as witnesses, where either the said husband or wife is an interested party to the suit pending.”


author: PER CURIAM. PER CURIAM.

text:
    Margaret M. WILSON, Appellant, v. Henry A. WILSON, Appellee.
    No. 75-2096.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.
    On Rehearing Aug. 27, 1976.

      Robert S. Levy, West Palm Beach, for appellant.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the briefs and record on appeal we are of the opinion that the order of October 24, 1975 increasing the amount of temporary alimony and providing attorney’s fees and costs should be vacated and set aside. The nature and conduct of the proceedings below were such as to prevent a full and complete consideration of all evidence relevant to the issues under consideration. Moreover, the application for temporary alimony, including temporary attorney’s fees, was not accompanied by the financial statement required by Rule 1.611, Fla.R.Civ.P., nor supported by competent substantial evidence. Provus v. Provus, 44 So.2d 656 (Fla.1950); Baruch v. Giblin, 122 Fla. 59, 164 So. 831 (1936). Additionally, the award of attorney’s fees for substituted counsel was not made in accordance with the procedure prescribed in Chaachou v. Chaachou, 122 So.2d 24 (Fla.3d DCA 1960). Accordingly, the order of October 24, 1975 is vacated and set aside and the cause remanded to the trial court for further proceedings consistent herewith.

MAGER, C. J., and WALDEN and DOW-NEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Upon due consideration of appellee’s petition for rehearing and/or clarification this court’s opinion of July 30, 1976 is modified only to the extent of deleting the following sentence:

“. . . Additionally, the award of attorney’s fees for substituted counsel was not made in accordance with the procedure prescribed in Chaachou v. Chaachou, 122 So.2d 24 (Fla. 3d DCA 1960).”

Notwithstanding the deletion of the foregoing this court reaffirms its original opinion vacating and setting aside the order of October 24, 1975 in its entirety.

MAGER, C. J., and WALDEN and DOW-NEY, JJ. concur.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Roy Alfred HUNT and John A. Hunt, Appellants, v. Terry P. NOWICKI d/b/a Terry’s Texaco Service Station et al., Appellees.
    No. 75-831.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Rehearing Denied Aug. 31, 1976.

      Joseph H. Williams, of Troutman & Parrish, P. A., Winter Park, for appellants.
    Monroe E. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for ap-pellee, Ford Motor Co.
   PER CURIAM.

AFFIRMED.

DOWNEY, J., and ULMER, RAY E., Jr., Associate Judge, concur.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting):

Plaintiffs appeal from a judgment dismissing their complaint with prejudice. I would reverse.

The guidelines for determining whether a complaint states a cause of action are certainly well known and will not be repeated. Poulos v. Vordemeier, 327 So.2d 245 (4th DCA Fla.1976).

The complaint was in eight counts, containing forty-one numbered paragraphs, covering twelve pages.

The minor plaintiff was working upon a twenty year old tractor manufactured and sold by Defendant, Ford. The basic facts were correctly distilled in plaintiffs’ brief:

“The tractor was designed with its gasoline tank in the cowl of the tractor, which cowl was customarily removed when extended repairs or other work was performed on the tractor’s engine. Plaintiff, Roy Alfred Hunt, was making adjustments to the engine when it was running; which, with the cowl and gasoline tank removed, required that he use an alternate gasoline supply. This supply was in a gallon can resting on the air breather of the engine with a flexible rubber tube running from the can to the tractor’s carburetor. In the process of this work, Plaintiff, Roy Alfred Hunt’s, employer overturned the can of gasoline which ignited and severely burned Plaintiff, Roy Alfred Hunt.
“Plaintiffs alleged that Ford was generally negligent in the design of the tractor, negligent in failing to warn members of the public of the potential danger in using an alternate gasoline supply such as the one employed here, in failing to market a ‘kit’ to provide a safe alternate gasoline supply for repairs of the type being performed at the time of the accident, and in creating and marketing an inherently dangerous design where alternate safe designs were readily available.” (Record references omitted.)

In my opinion a cause of action can be gleaned at least upon the issues of negligence and breach of warranty. I would reverse with instructions to reinstate the complaint. Favors v. Firestone Tire & Rubber Company, 309 So.2d 69 (4th DCA Fla.1975); Marrillia v. Lyn Craft Boat Company, 271 So.2d 204 (2d DCA Fla.1973); Keller v. Eagle Army-Navy Department Stores, Inc., 256 So.2d 248 (4th DCA Fla.1971); Noonan v. Buick Company, 211 So.2d 54 (3rd DCA Fla.1968).

I do, therefore, dissent.


author: CROSS, Judge.

text:
    Jessie Lee GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1008.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1976.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Ira N. Loewy, Asst. Atty. Gen., Miami, for appellee.
   CROSS, Judge.

Appellant-defendant, Jessie Lee Greene, appeals a judgment of guilty and imposition of sentence for the offense of robbery.

Appellant-Greene was indicted by the Grand Jury of Broward County with robbery. Appellant thereafter moved to suppress a confession made by appellant to one Officer Czekanski of the Fort Lauderdale Police Department. Said motion alleged that the appellant’s confession had not been voluntarily given. A hearing was held on the motion to suppress. At the hearing appellant testified to various coercive measures used by Officer Czekanski to elicit appellant’s confession. The trial court denied the motion to suppress with the simple statement, “I am going to deny your motion to suppress. I think you can argue all that to the jury.” Trial was by jury. The jury found the appellant guilty of the robbery charged in the indictment. Judgment was entered accordingly, and appellant was sentenced. It is from this judgment and sentence that appellant appeals.

The primary question for our determination in this appeal is whether the trial court erred in denying appellant’s motion to suppress without an unequivocal and explicit finding that the appellant’s confession was freely and voluntarily given.

We determine McDole v. State, 283 So.2d 553 (Fla.1973), to be controlling. In McDole, the Florida Supreme Court quotes Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), which held that a trial judge need not make a formal finding of fact or write an opinion with respect to the voluntariness of a confession, but his conclusion that a confession is voluntary must appear from the record with unmistakable clarity. Thereupon the court determined that such “unmistakable clarity” requirement has not been met when the trial judge states merely that the motion to suppress is denied, as was done in the instant case.

Accordingly, we relinquish jurisdiction and remand the case to the trial judge to consider and then rule explicitly on the voluntariness of the appellant’s confession. Promptly after an order is entered on the issue of voluntariness, counsel for appellant shall file a certified copy of the order in this court. Such further proceedings shall be taken by this court as are appropriate, depending upon the order submitted.

It is so ordered.

MAGER, C. J., CROSS, J., and SMITH, D. C., Associate Judge, concur.


author: ALDERMAN, Judge.

text:
    STATE of Florida, Appellant-Cross-Appellee, v. Wesley Anthony HOSTZCLAW, Appellee-Cross-Appellant.
    No. 76-761.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 1976.
    Rehearing Denied Sept. 21, 1976.
    David H. Bludworth, State Atty., and Stephen R. Koons, Asst. State Atty., and Steven L. Sommers, Legal Intern, West Palm Beach, for appellant-cross-appellee.
    J. Michael Burman of Levy, Plisco, Perry, Reiter & Shapiro, Palm Beach, for appellee-cross-appellant.
   ALDERMAN, Judge.

The appellant, State of Florida, brings this interlocutory appeal from an order of the trial court in a criminal case granting in part appellee’s motion to suppress statements. In turn the appellee-cross-appel-lant, the defendant below, has cross assigned as error the trial court's denial of part of his motion to suppress statements and his request for immunity.

The trial court’s findings of fact and conclusions of law were fully set out in the order which is the subject of this appeal. We thank the trial judge for this assistance. A clear understanding of the issues involved may be obtained from the text of the order which is set out below:

“This cause came on to be heard on motion of defendant Hostzclaw to suppress statements of defendant. The Court heard the testimony of the witnesses, received evidence presented by the parties and briefs of the parties and reserved ruling to enter this written order.
The statements sought to be suppressed are:
(a) All statements or testimony given by the defendant, Wesley Anthony Hostz-claw, to the Palm Beach County Grand Jury investigating the alleged homicide of Patrolman John D. Kennedy. Upon information and belief it is alleged that the defendant testified to the Grand Jury on three separate occasions during the period of September 15, 1975 to November 6, 1975.
(b) All written, oral, transcribed or tape recorded statements given by the defendant, Wesley Anthony Hostzclaw, to agents of the Palm Beach County Sheriff’s Office, Delray Beach Police Department, West Palm Beach Police Department and Office of the State Attorney for the Fifteenth Judicial Circuit, including but not limited to a tape recorded statement taken by the chief investigator of the State Attorney’s Office on September 29, 1975, during the Grand Jury investigation above described.
From the very beginning, starting with the January 30, 1975 statement, Hostz-claw freely and voluntarily implicated, in varying degrees, Simpson but carefully and consistently to every statement, including the statement given to A. H. Gold while under hypnosis, concealed his own implication as a principal in the murder of Officer Kennedy. The first statement on January 30, 1975, when he first implicated Simpson, was given freely and voluntarily without any threats, promises or coercion. Thereafter, after he knew Hunt had made a statement, he freely and voluntarily changed his story concerning the events of that fatal evening to more clearly implicate Simpson but still carefully withholding the admission of the facts that would incriminate himself as an aider and abettor. He accepted the promises and assistance of the police officers in his involvement in two robberies but he had implicated Simpson before such promises and assistance were given and after the promises made in exchange for his co-operation he merely furnished more details as to the involvement of Simpson but did not in the statement of February 3, 1975, or either statement made by him on February 8, 1975, make any admission of facts which would incriminate himself. Indeed, he does not even seek to suppress the statements given on January 30th, February 3rd or either statement given on February 8th.
When he first appeared to testify before the Grand Jury he was advised very strongly by Judge Hurley (then Assistant State Attorney) that he should have the advice of counsel and after counsel was appointed for him he told counsel he did not want to testify before the Grand Jury because Hunt was not going to testify and he did not want to implicate himself. Thereupon, after he learned Hunt was going to testify, a conference was had with Assistant State Attorney Bryant Sims and he freely and voluntarily in the presence of his attorney told Mr. Sims the substance of what his testimony before the Grand Jury would be. What he told Mr. Sims was a summary of what he had previously told Mr. A. H. Gold and Sgt. Sheridan on February 8th. He did not tell Mr. Sims any facts or make any admissions that would incriminate himself as a principal in the murder. After hearing this summary of what Hostzclaw intended to testify to, if he did testify, Mr. Sims stated that the most Hostzclaw could be indicted for would be accessory after the fact and that he (Sims) would “guarantee” he (Hostzclaw) would not go to jail for that. In this conference, Hostzclaw wilfully and carefully concealed facts which he did not intend to testify to before the Grand Jury, but which he later admitted to Officer Mariano and Ralph Wiles, Jr., investigator for the State Attorney.
Ingram v. Prescott, 111 Fla. 320, 149 So. 369, is authority for the proposition that a prosecuting attorney may grant contractual immunity to a defendant “if he shall honestly and fairly make a full disclosure of the crime.” (Underscore added.) In the instant case, it is apparent that the defendant never intended to make a “full disclosure” of the crime but intended to hide from the Grand Jury facts which may show his own involvement as an aider and abettor. Under these circumstances he is estopped to claim contractual immunity and the defendant who otherwise testified before the Grand Jury voluntarily did so at his own risk. Therefore, the motion to suppress the statements of the defendant before the Grand Jury on September 17, 1975 and September 22, 1975, should be denied.
On September 22, 1975, Hostzclaw testified that the gun Simpson used to shoot Kennedy was an automatic. It became evident that Hostzclaw was mistaken or lying because of other information that the bullet that killed Kennedy was fired from a revolver. Hostzclaw demonstrated that he knew the difference between a revolver and an automatic. Thereupon, it was arranged for Hostzclaw to be given a polygraph test. The results of this test, even though Hostzclaw freely and voluntarily participated in the test, are not admissible and must be suppressed. State v. Cunningham, 324 So.2d 173.
While Hostzclaw freely and voluntarily discussed the involvement of Simpson in the murder of Kennedy, he did not tell even his own attorney of his own involvement but, rather, he consistently sought to withhold any self-incriminating admissions by lying to the police officers and to the Grand Jury. It was not until after the polygraph tests that he made admissions to Mr. Ralph T. Wiles, Jr. (investigator for the State Attorney’s office), which would implicate himself as an aider and abettor. The admissions to Wiles and Sheridan on September 29, 1975, were made at a time when Hostzclaw was to some degree under the influence of drugs and were procured as a result of abusive and psychological coercion. They were not freely and voluntarily given and the statement and tape recording thereof given to Mr. Wiles and Sgt. Sheridan on September 29, 1975, must be suppressed.
The statements given to the officers on the canal bank on September 29, 1975, and the Grand Jury statement of September 30,1975, are fruits of the tainted tree (the statement given to Mr. Wiles and Sgt. Sheridan on September 29, 1975) and likewise must be suppressed. Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
It is upon consideration
ORDERED AND ADJUDGED that the motion to suppress the statements of the defendant Hostzclaw before the Grand Jury on September 17,1975, and September 22, 1975 be and the same is hereby denied, and that the motion to suppress the statements given to the polygraph operator, the statements and the tape recording thereof given to Mr. Wiles and Sgt. Sheridan on September 29,1975, the statements made to the officers following that statement on September 29, 1975, and the statement given to the Grand Jury on September 30, 1975, is hereby granted and the same are hereby suppressed.”

The State first contends that the trial court erred in suppressing the statements given to Mr. Wiles and Sgt. Sheridan on September 29, 1975. The trial judge found that these statements were made at a time when appellee was to some degree under the influence of drugs and were procured “as a result of abusive and psychological coercion” and therefore were not freely and voluntarily given. We have reviewed the record and although we might have reached a contrary conclusion if we were sitting as the finder of fact, as an appellate court we cannot say that the trial judge was wrong in the factual determinations that he made. The same is true of the statement given to the officers on the canal bank on September 29, 1975. This portion of the order is affirmed.

The State next contends that even if the statements given on September 29,1975 were inadmissible, appellee’s testimony before the grand jury on September 30, 1975 was not “fruit of the poisonous tree”, but was the direct result of appellee’s free and voluntary desire to purge his prior false testimony before the grand jury. We agree and reverse this portion of the order. A review of the transcript of appellee’s appearance before the grand jury on September 30, 1975 shows that he was voluntarily appearing under a waiver of immunity. His testimony clearly shows that he appeared because he wanted to clear up the false testimony that he had given previously-

The last point raised by the State relates to the trial court’s suppression of appellee’s admissions to the polygraph operator. The State contends that admissions made to the polygraph operator after the polygraph examination had been concluded are not the results of the examination and are admissible just as any free and voluntary admission. The trial court suppressed all statements made by the defendant to the polygraph operator on the authority of State v. Cunningham, 324 So.2d 173 (Fla.3d DCA 1975). The Third District in Cunningham held that the trial judge properly suppressed any information obtained during the giving of the polygraph test by the operator. Judge Pearson dissented on the basis of Johnson v. State, 166 So.2d 798 (Fla.2d DCA 1964). To the extent that Cunningham and Johnson, supra, are in conflict, we agree with Judge Pearson. We see no difference between an incriminating statement made to a polygraph operator after completion of the polygraph examination and an incriminating statement freely and voluntarily made to any other officer. That portion of the trial court’s order suppressing defendant’s voluntary admissions made to the polygraph operator after completion of the polygraph examination is reversed.

We have considered the points raised by appellee on his cross-appeal and find them to be without merit. The record supports the trial judge’s denial of appellee’s motion to suppress his statements before the grand jury on September 17, 1975 and September 22, 1975. The record also supports the trial court’s finding that appellee was not granted contractual immunity because he never intended to make a full disclosure of the crime but wilfully concealed facts which he did not intend to testify to before the grand jury. Ingram v. Prescott, 111 Fla. 320, 149 So. 369 (1933).

The order which is the subject of this appeal is affirmed in part, reversed in part and the case remanded for further proceedings consistent with this opinion.

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


author: CARLTON, Associate Judge.

text:
    Mildred P. JACOBS et al., Appellants, v. Patrick A. PETRINO et al., Appellees.
    No. 75-1536.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    Rehearing Denied Oct. 28, 1976.

      Joel Miller, of Miller & Squire, Fort Lauderdale, for appellant McLaughlin.
    John A. Friedman, Fort Lauderdale, for appellant Jacobs.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   CARLTON, Associate Judge.

Appellants Mildred P. Jacobs and Wendell E. Jacobs, defendants in the trial court appeal a Final Judgment in favor of the Plaintiffs, Appellees here. McLaughlin Engineering Company, Appellant, Cross-defendant in the trial court, joined in the appeal.

Patrick A. Petrino and Olympia E. Petri-no, his wife and Christine Romanello, the appellees, sued Mildred P. Jacobs and Wendell E. Jacobs, her husband for damages, allegedly resulting from a breach of warranty in a contract for sale of land in Bro-ward County, Florida. Appellant, McLaughlin Engineering Company’s Motion for a Separate Trial was granted and a trial between Petrino and Jacobs was held. A Final Judgment was entered in behalf of Plaintiff, Petrino and Jacobs appealed. Appellant, McLaughlin filed its joinder in the appeal.

The Appellant, Mildred P. Jacobs and Wendell E. Jacobs, her husband, entered into a contract to sell certain property for $425,000.00 located at Pompano Beach, Bro-ward County, Florida, described as follows:

“Lots 1, 2 and 3, Block 1, MORANG AND PARKS SUBDIVISION in Pompano Beach, Florida, according to the Plat thereof as recorded in Plat Book 2, Page 28, of the Public Records of Broward County, Florida; and all of Block A, POMPANO BEACH BLOUNT BROS. SUBDIVISION, according to the Plat thereof as recorded in Plat Book 2, Page 43, of the Public Records of Broward County, Florida; together with a two-story apartment building, a two-story attached garage, a two-bedroom house, and a three-bedroom house located thereon; and including furnishings and furniture as per inventory attached hereto and made part hereof by reference.” (emphasis supplied)

The deposit receipt contract in paragraph three states:

“3. Buyer agrees that he has seen the real estate which is the subject of this agreement and, in addition thereto, has seen a survey furnished to him by seller, which survey is dated 1952. The buyer, by signing hereinbelow, confirms that the real estate described hereinabove is the subject of this agreement, but that the original plats of the subject real estate may show a land size or area larger than that land presently owned by seller because of the erosion of the Atlantic Ocean. Accordingly, the parties do mutually agree, the seller and the buyer, that seller will deed to buyer according to the land description contained herein-above but that seller makes no representation of ownership or use or otherwise pertaining to land so eroded. Sellers agree to attach hereto as part hereof the two surveys, each dated 1952, pertaining to the subject real estate and, although seller does not hereby intend to limit in any way the land being conveyed hereby, the intention of this paragraph of this agreement is that no representation as to eroded lands or accretion of lands is hereby made by seller to buyer, and seller agrees to convey all that seller owns of the subject real estate, subject to said erosion or accretion. Seller warrants that the concrete retaining wall shown on the two aforementioned surveys is the same one now on the property and that the dimensions from the westerly lot limits of said lots to said concrete retaining wall, as shown on the 1952 surveys, are approximately the same today.” (emphasis supplied)

The deposit receipt contract in paragraph eleven further states:

“Seller agrees to furnish to buyer an updated survey, at seller’s expense, showing the location of improvements on the subject real estate. Seller agrees to furnish same prior to the closing of this transaction and agrees that in event the said survey shows any encroachment, the same shall be treated as a title defect by the buyer. And in this connection, see Paragraph 1 hereinabove pertaining to the legal description of the land to be conveyed.”

Pursuant to paragraph eleven an updated survey was made by Appellant, McLaughlin. This was the same engineering firm which had made the previous 1952 surveys. The surveys prepared in 1952 by Appellant, McLaughlin, did not indicate the length of the south boundary line. However, if the line is measured by scale it would be one hundred and thirty-eight feet. In the updated survey prepared prior to closing by Appellant, McLaughlin, it showed the dimension of the south boundary line at one hundred and eighty-three feet. Appellant, McLaughlin, had made an error in the latest survey by transposing the figures from 138 feet to 183 feet. Appellees discovered this error six months after closing and then filed for damages alleging breach of warranty. The discrepancy in the length of the south boundary line accounts for an over all difference of 4,915 square feet. On the basis of an expert appraisal of $25.00 per foot of vacant land the Court entered a Final Judgment for Appellees in the amount of $61,438 plus court costs. The trial court held the Appellant, Jacobs, warranted the dimensions of the property under paragraph three of the deposit receipt contract.

We find that the trial court erred in finding that the Appellant, Jacobs, warranted the dimensions of the property conveyed, when no express warranty to that extent was contained in paragraph three of the deposit receipt contract. In paragraph three of the deposit receipt contract the appellant specifically warranted, “the concrete retaining wall shown on the two aforementioned surveys is the same one now on the property and that the dimensions from the westerly lot limits of said lot to said concrete retaining wall as shown on the 1952 surveys, are approximately the same today.” The surveys which are referred to in that portion of paragraph three are the surveys which were attached to the deposit receipt contract and entered into evidence. There was no ambiguity as to which surveys were being referred to as the surveys were attached to the contract and initialed by the parties at the time of the execution of the contract.

This was the sale of “Lots 1, 2, and 3, Block 1, Morang and Parks Subdivision.” It was not a sale by acreage or by a metes and bounds description. The Appellee viewed the property prior to execution of the deposit receipt contract.

The only purpose for providing subsequent surveys was stated in paragraph eleven of the contract. The sole purpose of the updated surveys were to furnish a new survey to show the location of improvements and to show any encroachments on the property being conveyed.

The principal portions of paragraph three apd paragraph eleven of the deposit receipt are clear and unequivocal and do not warrant the dimensions of the property in question. The Appellee got what he bargained for, to wit; “Lots 1, 2, and 3, Block 1, Morang and Parks Subdivision.”

“Courts may not rewrite, alter, or add to the terms of a written agreement between the parties and [they] may not substitute their judgment for that of the parties in order to relieve one from the alleged hardship of an improvident bargain.” International Expositions, Inc. v. City of Miami Beach, 274 So.2d 29 (Fla.App.3 1973). In the present case the trial court has in fact altered and added to the terms of the deposit receipt contract between appellant and appellee in providing for an express warranty as to the area of the property to be conveyed. The language contained in the deposit receipt contract is quite explicit as to what in fact was being warranted. “The words found in a contract are to have a meaning attributed to them, and are the best possible evidence of the intent and meaning of the contracting parties.” Wilcox v. Atkins, 213 So.2d 879 (Fla.App.2 1968).

As a general rule a contract once entered into may not be unilaterally modified. Tropicana Pools, Inc. v. Boysen, 296 So.2d 104 (Fla.App.1 1974). Here appellee would have the deposit receipt modified by providing that the surveys subsequent to the execution of the deposit receipt contract would modify or change the warranty contained in paragraph three. “Where a contract is simply silent as to a particular matter, that is, its language neither expressly nor by reasonable implication indicates that the parties intended to contract with respect to the matter, the court should not, under the guise of construction, impose contractual rights and duties on the parties which they themselves omitted.” Gulf Cities Gas Corporation v. Tángelo Park Service Company, 253 So.2d 744 (Fla.App.4 1971).

Accordingly, the final judgment entered in favor of appellees-plaintiffs, Patrick A. Petrino, Olympia E. Petrino and Christine Romanello, is reversed and the cause remanded to the trial court with directions to enter final judgment in favor of appellants-defendants, Mildred P. Jacobs and Wendell E. Jacobs, and against the appellees-plain-tiffs.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS and ALDERMAN, JJ., concur.


author: DOWNEY, Judge.

text:
    KHEM-TROLL, INC., a Florida Corporation; and Murray H. Michael, Individually, Appellants, v. Gilbert M. EDELMAN, Appellee.
    No. 76-1440.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 1976.
    Tanya M. Plaut, Orlando, for appellants.
    Wallace F. Stalnaker, Jr., of Stephenson, Stalnaker & Beane, P. A., Casselberry, for appellee.
   DOWNEY, Judge.

ON MOTION TO DISMISS APPEAL

Appellants’ motion to vacate a final judgment pursuant to Fla.R.Civ.P. 1.540, was denied by order dated April 15, 1976. Appellants served a petition for rehearing within ten days; it was denied by order dated June 7, 1976. Notice of appeal was filed on July 6, 1976, to review the foregoing orders of April 15th and June 7th.

Appellee has moved to dismiss the appeal contending that the appeal should be directed to the final judgment. In opposition to said motion to dismiss appellants contend that this is an interlocutory appeal pursuant to Florida Appellate Rule 4.2, citing Bland v. Mitchell, 245 So.2d 47 (Fla.1970).

If appellants’ contention that the orders in question are interlocutory in nature and may be reviewed pursuant to Florida Appellate Rule 4.2 is correct, then the appeal is untimely because there is no provision in the rules for a petition for rehearing directed to an interlocutory order. Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); Home News Publishing Co. v. U-M Publishing, Inc., 246 So.2d 117 (Fla.1st DCA 1971). Prior to publication of Clearwater Federal Savings & Loan Assn. v. Sampson, 336 So.2d 78 (Fla.1976), we would have supposed the orders in question were interlocutory and subject to review pursuant to Rule 4.2, and with good authority. That is what the Supreme Court said in Bland v. Mitchell, supra. We would have dismissed this appeal as untimely since the petition for rehearing would not have extended the time for filing notice of appeal. See Southwest Electric Supply v. Banfield, 302 So.2d 810 (Fla.2d DCA 1974). However, in the Sampson case the Supreme Court has drawn a distinction between orders entered before and after final judgment. Therein the court states:

“An interlocutory order entered after judgment, post decretal order, is not to be confused with one entered during the pendency of the proceedings before final judgment. Cf. Wagner v. Bieley, supra. Post decretal orders are not true interlocutory orders, and perhaps the term ‘interlocutory’ is a misnomer. Where an order after judgment is dispositive of any question, it becomes a final post decretal order. To the extent that it completes the judicial labor on that portion of the cause after judgment,- it becomes final as to that portion and should be treated as a final judgment, and, therefore, a petition for rehearing could be properly directed to such a post decretal order which constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment.”

We are here dealing with a “post decretal order” which is dispositive of the question of whether or not the final judgment may be vacated under Fla.R.Civ.P. 1.540. Therefore, because of the holding in the Sampson case, the order denying appellants’ motion to vacate is a “final post decretal order” subject to a plenary appeal. It follows therefore that appellants’ petition for rehearing was proper and that it extended the time for appealing from the “final post decretal order.”

For the foregoing reasons the appellee’s motion to dismiss this appeal is denied, and appellants are directed to prosecute this appeal in accordance with Part III of the Florida Appellate Rules.

It is so ordered.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    Tommy Lee BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 75-624.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON REHEARING

PER CURIAM.

The Petition for Rehearing of the cause filed July 22, 1976, is hereby granted, and the decision of this Court filed on July 9, 1976, is hereby withdrawn and vacated.

Defendant appealed a conviction of robbery in violation of section 813.011, Florida Statutes, assigning as error the trial court’s failure to grant a mistrial after the arresting officer commented on the defendant standing mute while in custody. The arresting officer testified:

“Q. At any time during the time that you were transporting him, or booking him, did he offer you any explanation as to why he was carrying around that much play money, with a one dollar bill on the outside of it?
“A. No, he didn’t. He didn’t say anything.”

Although no objection was made, the trial court perceptively recognized the gravity of the matter and commendably proceeded to preserve defendant’s constitutional right to remain silent by admonishing the jurors in that respect. However, the arresting officer’s comment on defendant’s exercise of his right to remain silent was fundamental reversible error and of such constitutional proportion that neither objection nor admonition could correct. Bennett v. State, 316 So.2d 41 (Fla.1976); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Shannon v. State, 335 So.2d 5 (Fla.1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976).

Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

MAGER, C. J., CROSS, J., and GALE, JOHN, Associate Judge, concur.


text:
    Carl WILSON, Appellant, v. Harold R. ELLIOTT, Administrator of the Estate of Blanche Elliott Hall, Deceased, Appellee.
    No. 75-1829.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Stuart E. Kocha and Larry Klein, West Palm Beach, for appellant.
    Culver Smith III, of Dell & Smith, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Miller v. Murray, 68 So.2d 594 (Fla.1953).

ALDERMAN, J., SMITH, ROBERT P., and COBB, WARREN H., Associate Judges, concur.


text:
    Hope GIBSON, by her father and next friend, Robert J. Gibson, Appellant, v. Ben C. STOREY, M. D., Appellee.
    No. 75-2156.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1976.
    Harvey J. Garod, Law Offices of T. G. LaGrone, Orlando, for appellant.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED upon authority of Carter v. Sparkman, 335 So.2d 802 (Fla.1976).

MAGER, C. J., DOWNEY, J., and STEWART, JAMES R., Jr., Associate Judge, concur.


text:
    KENASTON CORPORATION et al., Appellants, v. Benjamin MANN and Rita Mann, his wife, Appellees.
    No. 76-91.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Allan M. Rubin and Hugh S. Glickstein, Hollywood, for appellants.
    Stan L. Riskin, of Savitt, Kotzen, Riskin & France, North Miami Beach, for appel-lees.
   PER CURIAM.

AFFIRMED.

MAGER, C. J., CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.


text:
    OCEAN MILE GALLERIES, INC., and Joseph B. Sirgany, Jr., Appellants, v. Lloyd B. HUGUENOR, Jr., and Winifred B. Huguenor, Appellees.
    No. 74-31.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1977.
    Richard W. Riddle of Coleman, Leonard, Morrison & Riddle, Fort Lauderdale, for appellants.
    Frank E. Maloney, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

UPON SUPREME COURT MANDATE

Appellees sued appellants for compensatory and punitive damages for fraud and misrepresentation in the sale of two pieces of jewelry. The jury returned a verdict for appellees for $2,000 compensatory damages and $18,000 punitive damages.

On December 13, 1974, we published an opinion reversing the judgment appealed from and remanding the cause for a new trial on damages only, on the grounds that appellees had failed to show appellant’s net worth as a foundation for the allowance of punitive damages. See Ocean Mile Galleries, Inc. v. Huguenor, 305 So.2d 787 (Fla. 4 DCA 1975). We relied upon our decision in International U. of Op. Eng., Local No. 675 v. Lassitter, 295 So.2d 634 (Fla. 4 DCA 1974). The latter decision was subsequently-quashed by the Supreme Court of Florida insofar as it was inconsistent with Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). See Lassitter v. Walton, 314 So.2d 761 (Fla.1975).

Our decision in this case, published December 13, 1974, has now been quashed by the Supreme Court of Florida and the cause has been remanded to this court for further proceedings not inconsistent with the Supreme Court decision in Rinaldi v. Aaron, supra. See Huguenor v. Ocean Mile Galleries, Inc., 332 So.2d 328 (Fla.1976).

Adverting to the briefs filed herein, we find the sole remaining point requiring our consideration to be whether a verdict for punitive damages must bear some reasonable relation to the award of compensatory damages. If so, is an award of $18,000 punitive damages so excessive as to shock the judicial conscience where the compensatory award is $2,000?

The recent cases seem to hold that there must be a reasonable relation between an award of compensatory and punitive damages. Airline Employees Assn. International v. Turner, 291 So.2d 670 (3d DCA Fla.1974); Lan-Chile Airlines, Inc. v. Rodriguez, 296 So.2d 498 (3d DCA Fla.1974); Canty v. Wackenhut, 311 So.2d 808 (3d DCA Fla.1975).

Thus, in Airline Employees Assn. International v. Turner, supra, the jury awarded $3,000 compensatory and $175,000 punitive damages. The District Court of Appeal reversed the award of punitive damages as bearing no relationship to the actual damages and directed a remittitur of $145,000 of the punitive award, thereby approving a punitive damage award ten times the compensatory award.

The same percentage differential was approved in Lan-Chile Airlines, Inc. v. Rodriguez, supra, wherein the appellate court held that a punitive damage award of $110,-000 was so excessive as to shock the judicial conscience and bore no reasonable relationship to a compensatory damage award of $2,500. The appellate court directed a re-mittitur of $85,000 of the punitive damage award or a new trial.

In Canty v. Wackenhut Corporation, supra, the same court reversed the trial court for ordering a remittitur of $50,000 on the punitive damage award or a new trial on damages only, when the jury awarded $50,-000 compensatory damages and $180,000 punitive damages, the District Court of Appeal holding that the disparity between those awards was not so gross as to shock the judicial conscience.

Finally, after the quashal of our original opinion in Lassitter, supra, to the extent it was inconsistent with Rinaldi, supra, we published a new opinion based upon the grounds which were contained in the original opinion, but not quashed by the Supreme Court decision, in which we held that the punitive damage award of $2,010,000 did not bear a reasonable relation to the compensatory award of $240,000. See International U. of Op. Eng., Local No. 675 v. Lassitter, 325 So.2d 408 (Fla. 4 DCA Fla.1975). The Supreme Court quashed that decision without stating any reason or grounds therefor. See Lassitter v. International U. of Op. Eng., Fla., 349 So.2d 622, opinion filed July 21, 1976. Accordingly, we must assume the Supreme Court approved the disparity between said awards.

In the present case, the plaintiffs-appel-lees charged the defendants-appellants with fraud and deceit. The jury found the appellants guilty and we can not say with any degree of certitude that the punitive damage award, less than ten times the compensatory award, was an Abuse of the jury’s discretion; particularly in the light of Lan-Chile Airlines, supra, and Airline Employees Ass’n, supra.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

CROSS, J., and LEE, THOMAS E., Associate Judge, concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Edward J. AUGUSTYNIAK, Appellant, v. Dorothy J. AUGUSTYNIAK, Appellee.
    No. 76-39.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Larry Klein, West Palm Beach, and Poe, Reinman & Harrell, P. A., Melbourne, for appellant.
    Robert T. Burger, Satellite Beach, for appellee.
   PER CURIAM.

Affirmed.

ALDERMAN, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I recognize the trial court has retained jurisdiction of this matter to reconsider and modify the judgment of permanent alimony but I feel an award of rehabilitative alimony would have been more proper in this case. It would provide some incentive to the wife which might not otherwise result. Therefore I respectfully dissent.


author: PER CURIAM. ALDERMAN, Judge,

text:
    CINCINNATI INSURANCE COMPANY, Appellant, v. Marjorie Rose GANGER, Appellee.
    No. 76-319.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellant.
    Stuart E. Kocha and Larry Klein, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DAUKSCH, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.

ALDERMAN, J., dissents with opinion.

ALDERMAN, Judge,

dissenting.

I believe the trial court erred in granting a new trial on the issue of damages only. To grant a new trial on the issue of damages alone, it must appear that on the evidence adduced at the trial the liability of the defendant was unequivocally established without substantial dispute and the inadequacy of the verdict was induced by a misconception of the law or the failure of the jury to consider all of the elements of damage submitted, and not as a result of a compromise by the jury on the issue of liability. 1661 Corp. v. Snyder, 267 So.2d 362 (Fla. 1st DCA 1972). In the present case it can not be said that the defendant’s liability in the trial below was unequivocally established without substantial dispute. The evidence was in conflict and a jury question was presented. Whether the jury award was indicative of the jury’s determination of liability on the part of the defendant or was the result of a compromise can only be a matter of speculation. In my opinion the ends of justice would best be served by a new trial on all issues.

Certiorari denied, Fla., 352 So.2d 169.


author: DAUKSCH, Judge.

text:
    EDWARD L. NEZELEK, INC., and the Travelers Indemnity Company, Appellants, v. CONCREFORM COMPANY, a Florida Corporation, and Highland Beach Ambassadors, a Florida Corporation, et al., Appellees. The TRAVELERS INDEMNITY COMPANY, Appellants, v. CONCREFORM COMPANY, a Florida Corporation, and Highland Beach Ambassadors, a Florida Corporation, et al., Appellees.
    Nos. 76-528, 76-552.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    On Rehearing May 6, 1977.
    John M. Downing, Jr., of Kelley, Tompkins, Frazier & Kelley, Fort Lauderdale, for appellant.
    Merle Litman of Litman, Muchnick & Wasserman, Hollywood, for appellee.
   DAUKSCH, Judge.

This is a mechanic’s lien case wherein the Appellee was granted a Final Judgment against the Appellant the effect of which foreclosed a lien which had been transferred pursuant to Section 713.24, Florida Statutes (1975). The Appellant was the surety insuror on the bond at the time the lien was alleged to have matured. At all material times herein there was in existence a payment bond exempting the owner and his surety, the Appellant, pursuant to Section 713.23, Florida Statutes (1975). The Appellee was aware of this payment bond but chose not to go against it as required by the Statute and therefore he should be barred from recovery under the transfer bond posted pursuant to Section 713.24, Florida Statutes (1975). Although the result may seem harsh, we hold under the applicable law and the facts of this case that Appellant has no cause of action against the Section 713.24, Florida Statutes (1975), transfer bond. See Resnick et al. v. Clerici, Fla.App., 340 So.2d 1194, opinion issued. December 10, 1976.

This cause is REVERSED WITH DIRECTION to enter judgment for the Appellant.

ALDERMAN and ANSTEAD, JJ., concur.

ON PETITION FOR REHEARING

Upon rehearing our prior opinion in case 76-528 is withdrawn as it applies to Edward L, Nezelek, Inc., the contractor, and the Judgment below as pertains to that appellant is affirmed.

ALDERMAN and ANSTEAD, JJ., concur.


author: PER CURIAM. CROSS, J.,

text:
    Roosevelt PINKNEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-364.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 25, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Thomas S. Keith, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

A police officer at the trial of this criminal case, while testifying for the State, said that when he read the defendant his Miranda rights at the scene, “he (the defendant) didn’t make any statements at that time other than he had just bought it (the stolen automobile) for three hundred dollars and that he didn’t have the registration or anything like that to it.” If it were constitutionally possible we would apply the “harmless error” rule to the facts of this case and affirm. However, we feel compelled to reverse upon the authority of Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So.2d 41 (Fla.1975); Farese v. State, 328 So.2d 548 (Fla. 1st DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Lucas v. State, 335 So.2d 566 (Fla. 1st DCA 1976); Boyd v. State, 351 So.2d 1041 (Fla. 4th DCA, opinion filed November 26, 1976); Williams v. State, 340 So.2d 1191 (Fla. 4th DCA, opinion filed December 3, 1976); Collins v. State, 340 So.2d 516 (Fla. 4th DCA, opinion filed December 10, 1976); Spann v. State, 340 So.2d 1215 (Fla. 4th DCA, opinion filed December 17, 1976); Maness v. State, 341 So.2d 246 (Fla. 4th DCA, opinion filed December 24, 1976); Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA, opinion filed February 11, 1977).

REVERSED and REMANDED for a new trial.

DOWNEY and ALDERMAN, JJ., concur.

CROSS, J.,

dissents.

I respectfully dissent on the basis that the officers comment was in clarification of his statement. Furthermore there is no possibility that the answer contributed to the conviction of the defendant. Therefore, I would affirm. .


text:
    Frank DeLUCA, Appellant, v. I. M. MATHEWS et al., Appellees.
    No. 75-2140.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    On Rehearing May 13, 1977.
    Arthur J. Morburger of Weinstein & Bavly, P. A., Miami, for appellant.
    Janis M. Halker of Gurney, Gurney & Handley, P. A., Orlando, for appellees, I. M. Mathews and Hartford Acc. and Indem. Co.
    Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp & Childs, P. A., Jacksonville, for appellees Boudet and Employers’ Fire Ins. Co.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees Kennedy and St. Paul Fire & Marine Ins. Co.
   PER CURIAM.

Upon review of the briefs and oral argument and after due consideration of the record on appeal we are of the opinion that a genuine issue of material fact exists with respect to the applicability of the statute of limitations, particularly, when notice was acquired so as to commence the running of the limitation period. Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974); Nardone v. Reynolds, 333 So.2d 25 (Fla. 1976); Salvaggio v. Austin, 336 So.2d 1282 (Fla. 2d DCA 1976). Accordingly, the summary judgment is reversed and the cause remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

MAGER, C. J., ALDERMAN, J., and STETTIN, HERBERT, Associate Judge, concur.

ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing, we conclude, in reference to Appellees-I. M. Mathews and Hartford Accident and Indemnity Company, that no genuine issue of material fact exists with respect to the applicability of the statute of limitation and that the trial court correctly granted summary judgment in their favor. Therefore, our prior opinion is modified and we affirm the summary judgment in favor of Mathews and Hartford. As to all other parties the summary judgment is reversed and the cause remanded to the trial court for further proceedings.

MAGER, C. J., ALDERMAN, J., and STETTIN, HERBERT, Associate Judge, concur.


text:
    Thomas Joseph LAVALLEE, Appellant, v. STATE of Florida, Appellee.
    No. 76-848.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 1977.
    Rehearing Denied April 18, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Martha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Based upon this Court’s decision in Prince v. State, 333 So.2d 63 (Fla. 4th D.C.A. 1976), (which was not available to the trial court at the time the proceedings below transpired) the judgment of conviction and sentence of obtaining property by worthless check is reversed, with directions to grant defendant a new trial for failure of the trial court to charge the jury that intent to defraud is an indispensable element of the alleged crime.

REVERSED.

MAGER, C. J., and DOWNEY and AN-STEAD, JJ., concur.

Certiorari denied, Fla., 352 So.2d 175.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Alberto ALMEIDA and Sheryl Almeida, his wife, Appellants, v. Ted M. TRUSHIN et al., Appellees.
    No. 76-642.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.
    John R. Young, Hamilton, James, Merkle & Young, West Palm Beach, for appellants.
    Sam Daniels and Bruner, Moss, Cohen & Rodgers, Miami, for appellees-Harbor Lounge and Southern Caterers.
   PER CURIAM.

Affirmed.

CROSS, J., and DRIVER, B. J., Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

The appellants, plaintiffs below, suffered an adverse summary judgment in a cause of action predicated on the alleged negligence of the appellees in leaving an automobile unattended with the keys in the ignition. The automobile was subsequently stolen and involved in an accident with the appellants.

The cases in Florida have uniformly held that the intervening criminal act of theft breaks any causative chain between the original negligent act of leaving the keys in the car and the subsequent damages incurred in an accident. See Vining v. Avis Rent-A-Car Systems, Inc., 330 So.2d 550 (Fla. 3rd D.C.A.1976) and cases cited therein. Because the Florida Supreme Court has never passed on the issue, the Third District Court of Appeals certified the decision in Vining to the Supreme Court. The same issue now faces this Court and while we must affirm on the authorities cited above, I would also certify the issue to the Supreme Court.


author: PER CURIAM. CROSS, Judge,

text:
    Cecil E. PLATT and Edith H. Platt, his wife, Appellants, v. D. W. GROVER, Appellee.
    No. 76-1129.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Edward L. Trader, Melbourne, for appellants.
    Eric R. Jones, Hedman, Cossaboom & Jones, Melbourne, for appellee.
   PER CURIAM.

AFFIRMED.

MAGER, C. J., and DOWNEY, J., concur.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

I would dismiss the appeal as a non-ap-pealable order under Florida Appellate Rule 4.2.


author: PER CURIAM. LETTS, Judge,

text:
    FORD MOTOR COMPANY, a Foreign Corporation, doing business in the State of Florida, Appellant, v. Sandra HAVLICK et al., Appellees.
    Nos. 75-2046, 75-2071.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Rehearing Denied June 27, 1977.
    Adams, Sullivan, Coogler & Watson, West Palm Beach, and Sam Daniels, Miami, for appellant.
    William M. Hicks of Colson & Hicks, Miami, and Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, for appellees.
   PER CURIAM.

Affirmed.

DAUKSCH, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

LETTS, J., dissents.

LETTS, Judge,

dissenting.

This case resulted in a judgment for the plaintiff in the sum of $1,740,000.00, she being badly burned when her car erupted in flames after receiving a rear end collision in excess of forty miles per hour on 1-95.

I have no quarrel with any of the instructions to the jury, save one, which reads:

Implicit in the duty of a manufacturer of a potentially dangerous commodity to warn of the dangers in its use, is the duty to warn with a degree of intensity that would cause a reasonable man to exercise, for his own safety, precaution commensurate with the potential danger.

There can be only one interpretation of such an instruction, and that is, without regard to reasonableness or negligence, if a manufacturer produces (1) a potentially dangerous commodity and (2) fails to warn, then said manufacturer incurs absolute liability for injury. No one, not even an unreasonable man, would deny that an automobile is a “potentially dangerous commodity,” and in this case, the manufacturer issued no warning.

Said instruction cited as its source, Tampa Drug Company v. Wait, 103 So.2d 603 (Fla.1958); however, in said Tampa Drug decision, the court was dealing with a colorless floor cleaning fluid (unusually concentrated carbon tetrachloride) which the court correctly labeled “LATENTLY dangerous.” (emphasis supplied). By contrast, an automobile, with the lone exception of a firearm, is probably the most PATENTLY dangerous product in the marketplace.

Moreover, this instruction would have been improper in any event, even if the appellee’s injuries had been caused by carbon tetrachloride, because in the Tampa Drug case, the Supreme Court, while employing the precise wording used in the instruction now under discussion, surrounded it with explanations to the effect that the manufacturer’s duty was only to take “reasonable precautions” and “reasonabl[y] foresee injury.” No such qualifying language was included in the above quoted instruction and its absence was prejudicial.

The appellee, in defending the instruction, points out that it was likewise surrounded by other qualifying instructions defining negligent conduct, reasonable fitness and the like; however, the appellee’s argument that to view it alone is to take it “out of context reading” is not acceptable to me. If my opinion that the jury must read this instruction alone, seems inconsistent with my preceding remarks about the Tampa Drug instruction, let me say that I am not unmindful of the general rule which provides that a charge is to be considered as a whole and that a judgment will not be reversed because one paragraph or phrase standing alone is defective, if the instruction, as a series, correctly states the law. Edwards v. Poe, 203 So.2d 188 (Fla. 2nd DCA 1967); however, such a general rule does not apply where two instructions are in conflict and one is clearly erroneous and prejudicial, that is, where the error consists, not of an omission of some material fact but, of an affirmative statement by the court which, when considered with the other instructions, might tend to confuse the jury. In such a situation, it will not be presumed that the jury only followed the correct instructions. Edwards v. Poe, supra. In the final analysis, the decision must turn on whether or not there was a reasonable possibility that the jury could have been misled. Ruiz v. Cold Storage and Insulation Contractors, Inc., 306 So.2d 153 (Fla. 1st DCA 1975).

In my view, it is more than likely that the jury was confused and misled in the case now before us. The instruction given, went further than it should have on the question of products liability and even far exceeded the doctrine of strict liability, which latter has not as yet even been accepted in so called second collision cases in Florida. The leading case in our state in Ford Motor Company v. Evancho, 327 So.2d 201 (Fla.1976), which laid down the rule that the liability of a manufacturer for negligent design, in second collision cases, is predicated on a duty of reasonable care based only on common law negligence and not on warranty or strict liability. In so holding, the court adopted the Larsen Rule set forth in Larsen v. General Motors Corporation, 391 F.2d 495 (8th Cir. 1968). It is significant that the Larsen case, so adopted by our Supreme Court, had this to say about any duty to warn:

The failure to use reasonable care in design or knowledge of a defective design, gives rise to the reasonable duty on the manufacturer to warn of this condition. Id. at 505.

This is a far cry from the instruction given in the case now before us, where the warning had to be given, no matter what.

Being of the opinion that the instruction was improper, it is appropriate to consider whether the negligence of Ford Motor Company was so apparent and the evidence so preponderant that with, or without, the erroneous instruction, the result would have been the same and the jury neither confused nor misled. I have done so, and the evidence of negligence is far from convincing.

The alleged negligence in this case centered on: (1) the fact that the state of the art in designing other economy compact cars had not been followed by Ford, (2) that the gas tank had been placed under the trunk and too near the rear bumper, instead of in the trunk, and (3) that Ford knew from conducted tests of the unreasonable danger from fire in a Pinto.

To illustrate the “state of the art” in other compact “economy” cars, the appel-lees chose the gas tank design for Mercedes Benz, Toyota, Volvo, Audi, Fiat, Capri, Peugeot, and Studebaker Avanti. From this choice, two factors are only too apparent to anyone. First, most of these are luxury expensive cars that, only in fuel consumption, compare with the “economy” Pinto. Second, all of them, save one expensive specialty model, represent a state of the art practiced outside the United States of America. One is left in considerable doubt, therefore, that the Ford Pinto’s economy design would, by comparison, constitute negligence in the mind of the jury.

Concerning the actual location of the gas tank, here again the evidence was not unequivocal, and became a typical battle of the experts, with Ford’s witnesses claiming the location suggested by the appellee’s witnesses would actually be more dangerous. What is clear from the record is that the graphically shocking photographs of the wrecked automobile show almost total destruction from the front seat backwards, and it is quite probable that a jury could have concluded it made no difference whether the tank was in the trunk or under it, in that there is, literally, no trunk remaining. As an ironic twist, the Fifth Circuit reversed a directed verdict in favor of Ford in which the opinion specifically cited testimony of an expert who claimed he would never design a car calling for the gas tank to be put in the trunk. Blitzstein v. Ford Motor Company, 288 F.2d 738 (5th Cir. 1961).

As to the tests, these were conducted by Ford in October of 1970, after the 1971 models were already on the market, so that a design defect, if indeed the tests were conclusive of such, might very well not be imputed to Ford by a jury, before the tests took place.

The appellee was horribly injured and, against such a solvent defendant, it is not hard to understand why the jury would find for her, given any opportunity, such as the erroneous instruction. Absent such an instruction, it would appear that any juror knows full well that he or she is more likely to be horribly injured or killed in any high speed collision while driving a small cheap car, rather than a Mercedes Benz, and that all seriohs accidents, involving the internal combustion engine, carry with them the sinister threat of fire. This variation in safety standard, depending on the vehicle, was discussed in Dreisonstok v. Volkswagenwerk, 489 F.2d 1066 (4th Cir. 1974) where the court ruled that a passenger in a Volkswagen had no right to expect the manufacturer to make it “crashworthy” at 40 miles per hour. The same case went on to say that one could expect a Cadillac to be more crashworthy than an economy car and also cited Dyson v. General Motors Corporation, 298 F.Supp. 1064 (D.C.Pa.1969), a case which followed the Larsen Rule that Florida has now adopted in Evancho, supra. In Dyson, the court emphasized that design safety must take into account differentiation between various models and such, in my opinion, is obvious. Indeed this varying degree of safety is even recognized in the Traffic and Motor Vehicle Safety Act which undertakes “to establish motor vehicle safety standards for motor vehicles”. 15 U.S.C. § 1381 et seq. In prescribing such standards, the Act directs the secretary to “consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle or item of motor vehicle equipment § 1392(f)(3).

This discourse must not be interpreted as an inappropriate dissent to Evancho, supra, in which my superiors, adopting the Larsen Rule, opined that the manufacturer has a reasonable duty to provide “safe transportation.” In Evancho, not only was any duty to warn not an issue, but the crash of a much larger, much more expensive, automobile was involved, and there is little doubt but that our Supreme Court would distinguish a case in which the injuries occurred as the result of a similar crash in a Volkswagen beetle or worse yet, a motorcycle, which latter has no crashworthiness whatever, and is comparable to riding around on a broomstick. Moreover, in Evancho, the Court’s conclusion that safe transportation must be furnished was qualified by the phrase “or as safe as is reasonably possible under the present state of the art.”

No one can argue but that manufacturers should make small economy vehicles crash-worthy, but doing so may not help the poor man if the price is increased as a result, and he, instead, is forced to resort to transportation much less protective than the present Pinto in order to go about the obviously dangerous business of driving on the highway.

As Professor Henderson noted in his exhaustive article in the Columbia Law Review, 73 Colum.L.Rev. 1531 (1973), the “courts are inherently unsuited to the task of establishing safety standards in cases involving the liability of manufacturers.” In his view, minimum design safety standards for various automobiles should be established from scientific tests and compilation of data conducted by informed arms of the legislature. At page 1559, he asks the crucial question: “How much design safety is enough?”

I cannot answer this question from the bench.

      . Second collisions, secondary collisions or secondary impacts are three interchangeable phrases used to define the situation where the alleged defect in the auto was not, in any way, the cause of the injury to the occupant of the automobile involved in the accident.


text:
    George A. DEMCHAK, Appellant, v. STATE of Florida, Appellee.
    No. 76-943.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.

      Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an Order revoking Appellant’s probation.

Appellant pleaded guilty to possession of LSD and was placed on probation on April 28,1975. The standard conditions of probation were imposed. In September, 1975, Appellant was indicted by a federal grand jury. He was charged with conspiracy and possession and distribution of various controlled substances. The indictment alleged that the overt acts in furtherance of the conspiracy occurred “on or about March 13, 1975, and continuing up to and including May 5, 1975 ...”

Appellant was convicted by a federal jury on March 3, 1976, on one count of conspiracy to distribute phencyclidine. Shortly thereafter, an affidavit of violation of probation was filed against him. Appellant was charged with violating that condition of his probation which required him to live and remain at liberty without violating any law “in that, in the United States District Court for the Southern District of Florida, he was convicted of Conspiracy to Distribute Phencyclidine on March 3, 1976.” The lower court found that Appellant violated this condition and revoked his probation.

A defendant’s probation may be revoked solely on the basis of a conviction for a subsequent crime. Egantoff v. State, 208 So.2d 843 (Fla. 2d DCA 1968). However, the illegal activity giving rise to the conviction must occur during the probationary period. O’Steen v. State, 261 So.2d 208 (Fla. 1st DCA 1972). Improper conduct occurring prior to entry of the probation order cannot be the basis for revocation even though the conviction resulting from such conduct occurs while the defendant is on probation. Id.

The only evidence that Appellant acted improperly while on probation was the hearsay testimony of the prosecutor of the federal case. Probation revocation cannot be based solely on hearsay evidence. Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); Sharp v. State, 303 So.2d 56 (Fla. 4th DCA 1974).

While the federal grand jury indictment, which was properly admitted into evidence, charged Appellant with criminal activity during a time period which included the date he was placed on probation (April 28, 1975), some competent evidence that Appellant engaged in improper conduct after April 28, 1975 is required. We also note in the transcript that there was some confusion at the revocation hearing as to the dates of the overt acts alleged in the indictment. The lower court’s copy of the indictment included a penciled in date of May 2,1975. Appellant’s copy of the indictment did not show this change.

We hold that there was insufficient evidence presented at the hearing to support the lower court’s Order revoking Appellant’s probation. This cause is reversed and remanded for a determination thru competent evidence whether or not the Defendant violated his probation after April 28, 1975 and before May 5, 1975.

REVERSED and REMANDED.

ALDERMAN and LETTS, JJ., concur.