author: RAWLS, Judge. McCORD, Judge

text:
    ANDOVER DEVELOPMENT CORPORATION, Appellant, v. CITY OF NEW SMYRNA BEACH et al., Appellees.
    Nos. W-332 and W-342.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rehearing Denied March 29, 1976.

      George E. Adams, Adams, Gilman & Cooper, Orlando, for appellant.
    Noah C. McKinnon and Dale K. Bohner, Coble, McKinnon, Reynolds & Rothert, Daytona Beach, and Charles A. Hall, New Smyrna Beach, for appellees.
    Swann & Glass, Coral Gables, for ami-cus curiae.
   RAWLS, Judge.

Zoning is the subject of this imbroglio. Plaintiff-appellant Andover has struggled for years to procure a building permit for a condominium apartment development on a large parcel of land (between 47 and 54 acres) in New Smyrna Beach. A condensed history will subsequently be related, but for the present suffice it to say that for a period of time Andover and New Smyrna Beach officials were in accord, while a group of citizens were strenuously-opposed to Andover’s proposed development. Ultimately through the procedure of initiative and referendum, the zoning ordinance applicable to Andover’s property was repealed and an ordinance severely restricting density of buildings was enacted. Andover then filed two suits against the City of New Smyrna Beach and its individual commissioners: the first being a petition for writ of mandamus seeking to require issuance of building permits; the second sought injunctive relief upon the theory of equitable estoppel to require the city to approve certain plans submitted by Andover and to issue the necessary permits to allow it to commence construction. The trial court found that Andover had failed to prove its entitlement to equitable estoppel and quashed the alternative writ of mandamus. Hence these consolidated appeals.

The two dispositive points on appeal are: 1) that the initiative election under the facts herein related was unconstitutional in that it violated the due process clauses of the Constitutions of the State of Florida and the United States of America, and 2) the City of New Smyrna Beach was es-topped by its conduct and Andover’s reliance thereon from changing the zoning on its property. Both points are meritorious, therefore, we reverse.

Prior to the summer of 1970, the tract of land involved in this dispute was zoned R-l which permitted construction of single family residences only. On May 12, 1970, the city passed Zoning Ordinance No. 797 which established a zoning classification to be used in the city oif RR-PUD, or Residential Resort-Planned Unit Development. The PUD ordinance provided in part that multiple-story developments were permitted and that the development could be used for multi-family, certain retail and business uses, along with provisions for golf courses, tennis courts, marinas, etc. The ordinance also set forth requirements as to density per acre, height limitations, required square footage per development unit, open spaces, waterfront uses, etc. Sections 30 and 31 in Article III of the ordinance set forth in detail the procedure for procuring RR-PUD zoning. This procedure basically is that a landowner shall submit either an outlined development plan or a preliminary plan to the city’s zoning board and the city commission for approval. Upon approval by both the zoning board and the city commission, the property is rezoned RR-PUD. On November 10, 1970, the city via Ordinance No. 808 rezoned the subject property to RR-PUD. At this time the property was owned by Andover’s predecessor in title, Indiatlantic Corporation, of which Mr. Wayne D. Boyette was its president.

A group of citizens who termed themselves as “North Beach Property Owners Association, an unincorporated association, for itself and all persons similarly situated” filed suit subsequent to the city’s rezoning of the subject property from low density single family residential zoning classification to residential resort-planned unit development classification. The suit was dismissed by the trial court on February 1, 1972, for lack of standing, and North Beach Property Owners appealed to this court. We affirmed the trial court’s judgment in a per curiam opinion rendered on April 12, 1973. It is significant that the city successfully defended its RR-PUD Ordinance No. 797 and its Ordinance No. 808 rezoning the subject property in the trial court and in this court as late as April 12, 1973.

On November 30, 1971, subsequent to the property being rezoned RR-PUD and after Mr. Boyette received final approval from the city for his master plan and development of Phase I, Mr. Boyette, on behalf of Indiatlantic Corporation, signed a contract with Andover to sell the subject property for $1,000,701.00. The contract was conditioned upon the land remaining zoned RR-PUD and upon Andover obtaining satisfactory financing arrangements. An attorney for Andover testified that the corporation would not have purchased the property if the citizens’ suit had not been dismissed on February 1, 1972. Prior to final closing, representatives of Andover, Mr. Boyette, and several attorneys met with various citizens who were opposed to the proposed development, but no accord was reached. On February 8, 1972, a petition was presented to the city commission containing 1,065 signatures of -persons requesting that an election be scheduled, so that the city could present to the electorate a proposed ordinance which would prohibit any buildings in New Smyrna Beach which exceeded three stories in height. On February 11, 1972, Andover procured from Continental Mortgage Investors Corporation (amicus curiae) a development loan in the sum of $2.6 million dollars, and on February 18, 1972, the sale of the property from Indiatlantic to Andover was consummated.

Prior to closing and for several months thereafter, principals of Andover worked with the city manager, the head of the building department, the chairman of the planning and zoning board, and other representatives of the city on various aspects of developing the subject property. Ando-ver and the “city people” felt that a better development plan than the Boyette plan (which had previously been submitted and approved as to the master plan and development of Phase I) could be devised. During the remainder of 1972, Andover worked with the city’s representatives, architects, engineers, land developers, surveyors, sewer and drainage experts, environmental experts, and others in devising an amended development plan for the land. The city finally advised Andover that since it was substantially amending the Boyette plan, it would be necessary to start the whole process over for obtaining the city’s approval for development pursuant to the PUD zoning. On February 12, 1973, Andover presented its preliminary development plans to the planning board and approval was given. On March 27, 1973, the city commission considered the preliminary plans. Certain citizens appeared before the commission and voiced their opposition against allowing any multifamily development on the proposed site. Nevertheless, the city approved the preliminary plans.

Meanwhile, the opposition was laboring. On November 21, 1972, a referendum was held whereby the citizens of New Smyrna Beach decided that any future charter amendments to the city’s charter would be submitted to the electorate for referendum. On March 20, 1973, a petition allegedly signed by more than 20 percent of the citizens of the city requested that a referendum be held on the following questions :

“Question No. 1: Shall Chapter 22408, Special Acts, Laws of Florida, 1943, be amended so as to add the following section:
“The density of all future development shall be restricted to a maximum of twelve (12) dwelling units per acre in all present and future multi-family zoning classifications.
“Question No. 2: Shall Chapter 22408, Special Acts, Laws of Florida, 1943, be amended so as to add the following section :
“The density of all future development shall be restricted to a maximum of twenty-four (24) dwelling units per acre in all present and future hotel-motel zoning classifications.
“Question No. 3: Shall Chapter 22408, Special Acts, Laws of Florida, 1943, be amended so as to add the following section:
“Ordinance No. 797, being the existing RR-PUD (Resort Residential Planned Unit Development) Ordinance be and the same is hereby rescinded and repealed and all undeveloped properties now carrying this classification shall hereby revert to that zoning classification which applied to said properties immediately prior to the properties being zoned RR-PUD or to the most similar classification thereto now in existence in the City’s zoning ordinance.”

The city scheduled June 19, 1973, as referendum day. On June 4, 1973, the city’s planning board approved Andover’s final development plans. The city commission had scheduled final consideration of Ando-ver’s development plans for June 12, 1973. Due to the pending referendum, Andover and apparently some of the city fathers were of the view that it would be most practical for Andover to withdraw from the June 12 agenda. On June 19, 1973, the citizens of New Smyrna Beach voted favorably as to each question.

Andover took the position that the referendum did not affect its project. Various officials of the city, the city attorney, and Andover, accompanied by its attorney, negotiated at length in attempting to determine the impact of the referendum on the plans for development of Andover’s property. The city attorney finally decided that the subject property would revert back to its original zoning of R-l, single family. Thereafter on August 14, 1973, the city commission passed Ordinance No. 902 whereby it adopted an official zoning map which showed, among other things, Andover’s property as being zoned R-l. Andover then proceeded to file the instant suits alleging therein, inter alia, that in reliance upon the RR-PUD zoning of its land and representations of city officials, it had expended large sums of money for engineering, architectural, and attorney’s fees, and to acquire the appropriate financing of the subject project.

Unquestionably, the citizens of the City of New Smyrna Beach utilized the process of initiative and referendum to accomplish a rezoning of Andover’s tract of land. Such a procedure does not meet the elemental requisites of constitutional due process. In reaching this conclusion we are not unmindful that the City of Coral Gables v. Carmichael decision is the only Florida case that we have found which considered the question of zoning by the procedure of referendum. Although some factual distinction may be gleaned, the basic issue there and in the instant case is the sainé. Our sister court, in finding that the referendum procedure outlined in City of Coral Gables v. Carmichael comported with due process requirements, relied heavily upon appellate decisions of the State of California. In recent opinions, the California courts have, as a whole, rejected the rationale of City of Coral Gables v. Carmichael. Insofar as the Carmichael case applies to the facts in the instant case, we reject the holding therein.

An excellent analysis of this question, which summarizes the modern view of this matter, is found in Taschner v. City Council of Laguna Beach. There the citizens of Laguna Beach, by the procedure of initiative and referendum, adopted an ordinance restricting building height to three stories not more than 36 feet above the highest point in grade. As a public health and safety predicate, the initiative measure recited that:

. . The people of the City of Laguna Beach hereby find and declare that geologic conditions in the City of Laguna Beach are relatively unstable, that building within the City may be affected by seismic disturbances along the Newport-Inglewood fault, and that the ecology of the City of Laguna Beach is unique and dependent upon the preservation of the natural contours of the hills and the integrity of the shoreline.”

The court in striking down the ordinance reasoned:

“It is urged that interested persons can suffer no substantial injury because the election process itsel'f provides the equivalent safeguards afforded by state zoning law procedures. We are unpersuaded. The kind of public debate on the merits of a proposed zoning measure afforded by the election process, including the limited opportunity for the submission of written arguments to the voters, cannot be equated with a dispassionate study, evaluation and report upon the proposal by a staff of planning experts (§ 65804), notice and hearing before the planning commission (§ 65854), written recommendation by the planning commission with reasons for its recommendation (§ 65855), and notice and hearing before the legislative body (§ 65856)
. . . Moreover the election offers the voters but a single choice, to accept or reject the proposal in its entirety. The legislative body, however, is empowered to modify (as well as approve or reject) a recommendation otf the planning commission thereby enabling it to consider and take into account in its actions the legitimate claims and suggestions of those who would be affected by the proposal even though they may represent but a small segment of the electorate.
“Our courts have repeatedly declared that due process requires that affected property owners be afforded notice and opportunity to be heard before a local ordinance which substantially affects land use is adopted. . . . the due process basis of the Hurst decision not only retains its original vigor, our high court has recently given it new emphasis and dimension.” (emphasis supplied)

Analogous to the facts in this case are the facts in State v. Donohue, There, the Supreme Court of Missouri reviewed an initiative petition signed by 11,700 citizens and taxpayers seeking to change the boundaries of a parcel of land from heavy industrial to residential. Vigus Quarries alleged that it was the owner of a 225-acre tract in which it had invested $525,000 in developing a quarry business. Vigus acquired the tract in January, 1962. On May 16, 1962, the city council rezoned the tract from single family residence to heavy industrial and granted Vigus a special use to maintain a quarry thereon. Shortly thereafter, respondent procured and filed initiative petitions. The effect of the proposed ordinance was to rezone from heavy industrial to single family residence. The Supreme Court of Missouri, in rejecting the initiative petition, stated:

“The provisions of the St. Louis County charter and ordinances enacted pursuant thereto expressly provide that zoning ordinances may be enacted by the city council, after a public hearing, following public notice published in newspapers and posted signs, consideration of and report by the Planning Commission. The purpose and unequivocal legal import of these provisions are obvious. The ordinance here sought to he enacted by initiative procedure is a zoning ordinance repealing, in effect, the provisions of an amendatory zoning ordinance enacted in accordance with the provisions of the charter. Certainly, hearing and other procedures required and followed in adopting the original amendment cannot be accepted as constituting compliance with a proposed ordinance which would repeal the original amendment.” (emphasis supplied)

Forest City Enterprises, Inc. v. City of Eastlake is in point. That case involved the approval by referendum of an amendment to the zoning ordinance. The Ohio Supreme Court, in rejecting the referendum under the facts there recited, stated:

“Due process of law requires that procedures for the exercise of municipal power be structured such that fundamental choices among competing municipal policies are resolved by a responsible organ of government. It also requires that a municipality protect individuals against the arbitrary exercise of municipal power, by assuring that fundamental policy choices underlying the exercise of that power are articulated by some responsible organ of municipal government. McGautha v. California (1971), 402 U.S. 183, 256, 270, 91 S.Ct. 1454, 28 L.Ed.2d 711. The Eastlake charter provision ignored these concepts and blatantly delegated legislative authority, with no assurance that the result reached thereby would be reasonable or rational. For these reasons, the provision clearly violates the due process clause of the Fourteenth Amendment.”

Decisions of other states rej ecting zoning by the procedure of initiative and referendum emphasize state statutes requiring notice and public hearing to an individual landowner. Those statutes primarily enunciate procedural requirements that meet elemental due process standards mandated by the Constitutions of the State of Florida and the United States of America. We quote with approval the following excerpts from the opinion of the Supreme Court of Oregon in Fasano v. Board of County Com’rs of Washington Cty.:

“At this juncture we feel we would be ignoring reality to rigidly view all zoning decisions by local governing bodies as legislative acts to be accorded a full presumption of validity and shielded from less than constitutional scrutiny by the theory of separation of powers. Local and small decision groups are simply not the equivalent in all respects of state and national legislatures. There is a growing judicial recognition of this fact of life:
‘It is not a part of the legislative function to grant permits, make special exceptions, or decide particular cases. Such activities are not legislative but administrative, quasi-judicial, or judicial in character. To place them in the hands of legislative bodies, whose acts as such are not judicially reviewable, is to open the door completely to arbitrary government.’ Ward v. Village of Skokie, 26 Ill.2d 415, 186 N.E. 2d 529, 533 (1962) (Klingbiel, J., specially concurring).
“The Supreme Court of Washington, in reviewing a rezoning decision, recently stated:
‘Whatever descriptive characterization may be otherwise attached to the role or function of the planning commission in zoning procedures, e. g., advisory, recommendatory, investigatory, administrative or legislative, it is manifest * * * that it is a public agency, * * * a principle [sic] and statutory duty of which is to conduct public hearings in specified planning and zoning matters, enter findings of fact —often on the basis of disputed facts — and make recommendations with reasons assigned thereto. Certainly, in its role as a hearing and fact-finding tribunal, the planning commission’s function more nearly than not partakes of the nature of an administrative, quasi-judicial proceeding, * * Chrobuck v. Snohomish County, 78 Wash.2d 884, 480 P.2d 489, 495-496 (1971).”

The instant zoning ordinance initiated by the citizens of New Smyrna Beach was in substantial part motivated and directed to the tract of land owned by And-over. The objective was to overrule the fact-finding of the planning commission and its function, and the administrative decision of the city commission. As to Andover’s tract, the purported action of the citizens of New Smyrna Beach by the procedure of initiative and referendum violates the basic requisites of constitutional due process and thus is void.

We also conclude that the trial court erred in finding that Andover failed to prove its allegation that the city is equitably estopped from denying it a building permit. The trial court recited in its final judgment extensive findings of fact that Andover had knowledge prior to and at the time it purchased the subject property of substantial opposition to the proposed RR-PUD zoning. Such findings do not vitiate the doctrine of equitable estoppel under the facts of this case. Earlier zoning cases of this jurisdiction created and applied the “red flag doctrine”; that is, if a landowner had good reason to believe that the official mind would change, he could not invoke the doctrine of equitable estoppel. The doctrine is not here .applicable for two reasons: 1) the official mind not only did not change, but continuously negotiated with Andover to amend and revise its plans subsequent to approval by the official mind to ameliorate objections of individual citizens, and 2) in Sakolsky v. City of Coral Gables, the the Florida Supreme Court candidly receded from the “red flag doctrine”. This court in City of Gainesville v. Bishop applied the doctrine of equitable estoppel even though red flags were soaring. The overwhelming evidence in this case clearly shows that Andover, in relying upon a valid zoning ordinance, expended a large sum of money in purchasing land, planning the use thereof, and with the cooperation of the “official mind” exerted commendable effort to pacify the public protests. The city officials did not yield to the “clamor of the crowd” and, in their efforts to protect the interests of its citizens and the vested rights of Andover, sought to reach a realistic use of the property involved. Deprivation of the legitimate use of a citizen’s property is not the proper subject of a town hall meeting. The purported initiative and referendum action was arbitrary and capricious. In addition, the city is estopped from denying Andover a building permit of Phase I pursuant to the city’s valid RR-PUD zoning.

Reversed.

BOYER, C. J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

It is my view that equitable estoppel will not apply unless a building permit has been issued or the applicant has been assured by the city that a building permit will be issued upon compliance with certain prescribed conditions, such as existed in City of Naples v. Crans, Fla.App.2d, 292 So.2d 58 (1974), and City of Miami v. Margulies, Fla.App.3d, 289 So.2d 424 (1974). When that point is reached, an applicant has received authority or an assurance from the city upon which he should be able to rely. In the absence thereof, he proceeds at his peril. Appellant not having reached the stage of final approval for a building permit or approval upon its complying with certain conditions, equitable estoppel in my opinion does not apply.

In addition, I do not agree with the ruling of the majority that zoning may not be accomplished by initiative or referendum. In this respect I agree with City of Coral Gables v. Carmichael, Fla.App.3d, 256 So.2d 404 (1972). There, the court cited with approval the following statement of the Supreme Court in Barnes v. City of Miami, Fla., 47 So.2d 3 (1950) :

“ ‘The power of the initiative may be conferred by the state upon a municipal corporation in respect to any matter, legislative or administrative, within the realm of municipal affairs. Where the power of initiative, is given by the legislature it will be generally held to extend to all matters of local concern, unless some matters are expressly or impliedly excluded from its operation by exceptions contained in the charter, the general statutes of the state, or constitutional provisions. See McQuillin, Municipal Corporations, 3rd Ed. pp. 251, 252, Sec. 16.54; * * *’”

The District Court of’ Appeal, Third District, then went on to point out as follows regarding referendum:

“Although in the above statement in the Barnes case the Court spoke with reference to ‘initiative’, the section of Mc-Quillin on Municipal Corporations, which the Supreme Court cited there as authority had applied the proposition pronounced to ‘referendum’ as well as to ‘initiative’, viz: ‘The power of initiative or referendum may be conferred by the sovereignty upon a municipality with respect to any matter legislative or administrative, within the realm of local affairs; and often the power, as conferred, is extensive, including all ordinances and resolutions and practically all actions that might be taken by a municipal council.’ ”

A zoning change accomplished by initiative and referendum after issuance of a building permit or conditional building permit would, however, be subject to the doctrine of equitable estoppel to the same extent as in a case where such change had been made by the city elected body. Here, however, I do not consider that the facts support equitable estoppel. Also, in my view such an ordinance could be attacked on constitutional grounds.

      . The land has as its eastern boundary the Atlantic Ocean and its western boundary the Halifax River (several of the 54 acres lie between the city’s bulkhead line and the old mean high water line and are not susceptible to having a building situated on them). To the north of Andover’s land is a parcel owned by the U. S. Government which is unimproved except for the U. S. Coast Guard Station which is situated on the Indian River. Along the southwestern boundary of the subject property is a tract of land zoned R-4 permitting multi-family residences. Proceeding along the southern boundary of the disputed property in an easterly direction from this R-4 property is a 13-acre parcel of land zoned single family development which is owned by appellant. Again proceeding easterly along the southern boundary of the disputed land is a series of residential lots which run to the Atlantic Ocean. The residential lot which is immediately adjacent to the southeastern boundary of the subject property is undeveloped.

      . North Beach Property Owners Association v. City of New Smyrna Beach, 276 So.2d 73 (1 Fla.App.1973).

      . In support of its present position, the city advises that the North Beach Property Owners Association filed suit as individuals against the city to declare the instant rezoning invalid and that this suit was voluntarily dismissed when they intervened in the present suit.

      . Andover attacks the validity of the referendums; however, in view of our holding it is unnecessary to pass upon these points.

      . City of Coral Gables v. Carmichael, 256 So.2d 404 (3 Fla.App.1972).

      . Taschner v. City Council of City of Laguna Beach, 31 Cal.App.3d 48, 107 Cal.Rptr. 214 (1973).

      . Citing numerous California cases. The California decisions are primarily founded upon the opinion of the California Supreme Court in Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308 (1929).

      . State v. Donohue, 368 S.W.2d 432 (Mo. 1963).

      . Forest City Enterprises, Inc. v. City of Eastlake, 41 Ohio St.2d 187, 324 N.E.2d 740 (1975).

      . City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968) ; Forman v. Eagle Thrifty Drugs & Markets, Inc., 516 P.2d 1234 (Nev.1973).

        . Fasano v. Board of County Com’rs of Washington Cty., 507 P.2d 23 (Or.1973).

      . Saholshy v. City of Coral Cables, 151 So. 2d 433 (Fla.1963). There the court stated: “The opinion in the case of Miami Shores Village v. Wm. N. Broehway Post, 156 Fla. 673, 24 So.2d 33, which respondent regards as controlling in its favor, does state that one act at his peril in relying upon a building permit when he is warned by the “red flags” of a political contest in which the success of certain candidates may alter the voting pattern of the governing municipal body. While that case might be distinguished from the one at bar and its conclusion justified on the basis of a number of factual differences, we believe that the rule therepro-nounced, that an impending change of municipal officers can prevent reliance on an act of the current governing body, is in error and inconsistent with precedent condemning arbitrary action by these public bodies.”

      . City of Gainesville v. Bishop, 174 So.2d 100 (1 Fla.App.1965).


source: Caselaw Access Project

author: BOYER, Chief Judge.

license: Public Domain

text:
    FLORIDA FISH DISTRIBUTORS, INC., Appellant, v. NORWEGIAN CARIBBEAN LINES, INC., a Florida Corporation, Appellee.
    No. Y-141.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Hal Castillo and David R. Lewis, Bla-lock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Gary A. Bubb, Toole, Taylor, Moseley & Milton, Jacksonville, for appellee.
   BOYER, Chief Judge.

In appealing the order of the Circuit Court directing a verdict in favor of appel-lee, appellant raises the following question: Must a response to a request for admission made pursuant to Rule 1.370, RCP, be signed and sworn to by the responding party, or is the unsworn signature of the responding party’s attorney sufficient ?

The record indicates that prior to trial, appellant, plaintiff below, served two requests for admission. In response to those requests, appellee filed two separate responses which, except for one minor admission, denied all the requests. The responses were signed by appellee’s attorney of record and were unsworn. At trial, appellant began its case by claiming that the responses signed by appellee’s attorney were nullities and that, therefore, the admissions were all admitted because of appellant’s non-compliance with Rule 1.370. After the trial court ruled adversely to that contention, appellant rested its case whereupon the trial court directed a verdict for appellee.

In support of his position that a party (as distinguished from the attorney for the party) must sign his responses to requests for admission, appellant cites Wider v. Carraway, Fla.App. 2nd 1958, 101 So.2d 13, as being directly on point. However, the Wider decision was based on Rule 1.30 of the 1954 Rules of Civil Procedure which is substantially different from the present rule relating to admissions. Former Rule 1.30 specifically provided that a response to a request for admission be signed and sworn to by the party. The primary reason for requiring the party to sign the response lies in the further requirement that the party swear to his responses. Obviously, only the party himself by his own signature could swear to his statements.

The new rule concerning admissions eliminates the swearing requirement, and, by implication, eliminates the necessity of the party’s signature. Rule 1.370, RCP, provides, in pertinent part:

“Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request or such shorter or longer time as the court may allow

Our conclusion is buttressed by the provisions of Rule 1.030, RCP. Section (a) of that rule permits every pleading and other paper of a party represented by an attorney to be signed by the party’s attorney. Section (a) additionally removes the requirement that pleadings be verified or accompanied by affidavit, unless specifically provided otherwise by rule or statute.

Consistency also militates against appellant’s position. Appellant’s primary argument is that since the rule requires the response to requests for admission to be signed by the party, then a response signed by the party’s attorney is a nullity. If the foregoing argument is accepted, then every request for admission must also be signed by the party rather than the party’s attorney. In referring to both requests for admission and responses thereto, Rule 1.370 uses identical language: “A party may serve upon any other party a written request for the admission of the truth of any matters . . “The matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection . . .” Both of appellant’s requests for admission were signed not by him, but by his attorney. By his own logic, the two requests should be declared nullities. Fortunately, we decline to accept appellant’s argument, which would lead to absurd results.

Finally, we note a potential practical ramification of our holding. We recognize that an attorney who has propounded requests for admission, the answers to which have been signed by the responding party’s attorney rather than the party, might be apprehensive that at trial the responding party may attempt to recede from the admissions which his attorney has signed. Such a situation would raise ethical considerations which should receive appropriate treatment from the trial court, including, but not necessarily limited to, referral of the matter to the Professional Ethics Committee of the Florida Bar. Since we are not here faced with such ethical considerations we do not address same.

For the reasons expressed above, the decision of the trial court is

Affirmed.

RAWLS and SMITH, TT., concur.

      . Although appellant cited Rule 1.470, RCP in his requests for admission, it is clear to us as it was to the parties and the trial court that appellant intended to refer to Rule 1.370, RCP.

      . Rule 1.30, RCP (1954) provides, in pertinent part: “Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after serv-iee thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections . . .”


author: BOYER, Chief Judge. SMITH, Judge

text:
    Odell STALEY, Appellant, v. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
    No. Y-260.
    District Court of Appeal of Florida, First District.
    March 10, 1976.

      Jackson G. Beatty of Gregory, Towles, Beatty & Hood, Tallahassee, for appellant.
    Michael L. Granger and E. Harper Field of Keen, O’Kelley & Spitz, Tallahassee, for appellee.
   BOYER, Chief Judge.

Appellant, the owner of an automobile required to be registered and licensed in Florida, failed to obtain an insurance policy or otherwise maintain the security required in respect to that automobile by the Florida Automobile Reparations Reform Act, § 627.733 et seq., F.S. 1973. While riding as a passenger in an automobile owned and operated by one George Caldwell, appellant was injured in a collision in which his uninsured automobile was not involved. Caldwell had insured his car, as required by the Act, with appellee Florida Farm Bureau Mutual Insurance Company (“the Company”), which denied appellant’s claim for personal injury protection benefits under Caldwell’s policy on the ground that the passenger (appellant), as the owner of an automobile in respect to which security was required, was made ineligible for benefits under Caldwell’s policy by operation of § 627.736(4) (d) 4 a, F.S.1973. That subsection provides, in relevant part:

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
“4. Accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle . . ., provided the injured person is not himself:
“a. The owner of a motor vehicle with respect to which security is required under [this Act] . . .”

The trial court dismissed with prejudice appellant’s complaint against the Company for personal injury protection benefits, holding that the statute excludes appellant from participation in the benefits afforded under Caldwell’s policy. Appellant, who declined an opportunity to amend, now appeals from the final judgment entered on the dismissal of his complaint.

The law is well settled that in ruling upon a motion to dismiss a complaint the trial court is confined to the allegations of the complaint. (Dawson v. Blue Cross Association, Fla.App.1st 1974, 293 So.2d 90; and Thomas v. Rollins, Fla.App. 1st 1974, 298 So.2d 186) Sub judice, appellant alleged that at the time of the subject accident he was the “owner” of an automobile which was not insured, which automobile “was not being operated at the time of the accident nor was it in anyway connected with or related to the occurrence of the aforesaid accident.” Had appellant alleged that said automobile was not “operable” as distinguished from “not being operated”, an entirely different situation would have been presented. In order to arrive at the conclusion reached by the learned trial judge, it is imperative that: (a) Appellant’s vehicle shall have been one “required to be registered and licensed in Florida” (see F.S. 320.35), and (b) appellant shall have been the owner of a motor vehicle “with respect to which security is required under [this Act]” (see F.S. 627.-736(4) (d) 4 a.)

Had appellant’s motor vehicle been inoperable or had it been in storage it would not have been a vehicle required to be registered and licensed in Florida. Even if it had in fact been licensed but inoperable or stored it would not have been a motor vehicle with respect to which security is required under the Act. Further, had appellant’s motor vehicle been one operated exclusively on private property (as distinguished from “over the public streets or highways of this state”) it would not have come within the definitional requirement of F.S. 320.35 as being required to be registered and licensed in the State.

However, F.S. 627.736(4) (d) 4 a unambiguously denies to an injured passenger in an insured car the personal injury protection benefits otherwise afforded by the owner’s policy if the injured passenger himself owns a motor vehicle which is required to be registered and licensed in Florida. The Act remits the injured passenger to benefits afforded by the policy which he necessarily obtained to satisfy Act requirements in respect to his own motor vehicle. Sec. 627.736(4) (d) 1, F.S.1973. If the injured passenger has omitted to provide the required security, he is without recourse for personal injury protection benefits.

Farley v. Gateway Ins. Co., Fla.App.2d 1974, 302 So.2d 177, relied on by appellant, interpreted a materially different provision of the Act and cannot be applied to govern the decision in this case. There, the injured passenger to whom the owner’s insurer wished to deny personal injury protection benefits by virtue of § 627.-736(4) (d) 4 b was held entitled to the payment of such benefits by the owner’s insurer notwithstanding that the passenger was conceivably “entitled to collect personal injury benefits from” his stepfather, who owned an uninsured motor vehicle and therefore became a self insurer. Sec. 627.-733(4), F.S.1971) The court there held that the policy of the Act was to shift the burden of Farley’s injury not to his stepfather but to a compensated seller of automobile insurance.

Under the facts of this case, as alleged in appellant’s complaint, and as herein-above recited, the able trial judge did not err.

Affirmed.

SACK, MARTIN, Associate Judge, concurs.

SMITH, J., concurring with opinion.

SMITH, Judge

(concurring):

Because appellant does not contest that his automobile was one required to be registered and licensed in Florida under § 320.35, F.S., and is therefore a vehicle in respect to which security is required by § 627.733(1); F.S., I agree to the conclusion and with much that is said in the majority opinion. I do not necessarily agree with the obiter dicta in that opinion to the effect that appellant’s vehicle would not have required registration and licensing had it been inoperable or in storage. I can readily conceive of circumstances in which a motor vehicle may be temporarily inoperable or in storage and yet still be subject to registration and licensing. I would await cases presenting those questions before deciding them.


author: PER CURIAM.

text:
    Kathleen L. STRICKLAND, Appellant, v. Julian L. LEWIS and Joyce Lewis, his wife, et al., Appellees.
    No. Y-220.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Ben W. Thompson, Jr., and G. Kenneth Gilleland of Thompson & Gilleland, Tallahassee, for appellant.
    Robert E. Gibson, Tallahassee, for appel-lees.
   PER CURIAM.

This appeal seeks our review of the Final Judgment rendered in the trial court. Within the framework of the subject Final Judgment the able trial judge made specific findings, “ . '. . from the facts and evidence before the court . . . ”, and arrived at conclusions of law.

We cannot review legal conclusions unless all the facts upon which they are based are presented to us.

The record on appeal does not contain the testimony adduced and considered at the final hearing. Accordingly, the decision of the trial court is affirmed. See Jackson v. Granger Lumber Company, Inc., 275 So.2d 555 (Fla.App. 1st 1973); and Haller v. Santona Land Corp., 275 So.2d 591 (Fla.App. 1st 1973).

Affirmed.

McCORD, Acting C. J., SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


author: MILLS, Judge.

text:
    Everett BILLMAN, Appellant (Plaintiff), v. NOVA PRODUCTS, INC., a corporation, Appellee (Defendant-Manufacturer).
    No. Y-325.
    District Court of Appeal of Florida, First District.
    March 10, 1976.

      David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    E. Robert Williams, of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   MILLS, Judge.

The plaintiff appeals from a final summary judgment rendered in favor of the defendant-manufacturer in a products liability suit which was based on the breach of an implied warranty. The primary issue before us is whether the plaintiff is precluded from pursuing this suit because a judgment was rendered in his favor in a prior suit that he brought against the retailer, which was based on the same issues, and in which the manufacturer actively participated as a third party defendant.

In his earlier suit against the retailer, the plaintiff alleged that the retailer breached its implied warranty to him when it sold to him a defective boat winch rope and hook which caused an injury to his left hand. By a third party suit, the retailer sought indemnification from the manufacturer. The manufacturer answered the retailer’s third party complaint and affirmatively alleged that the plaintiff was negligent in his use of the rope and hook which either barred or reduced proportionately his damages. Thereafter, the plaintiff propounded interrogatories to the manufacturer, directed a motion to produce to the manufacturer, and filed a motion for summary judgment against the manufacturer, all of which were actively pursued. In addition, the manufacturer actively participated in the defense of the suit. The trial court directed a verdict in favor of the retailer in its third party suit for indemnification, and the jury returned a verdict of $26,000.00 in favor of the plaintiff in his suit against the retailer. The trial court rendered a judgment for plaintiff in the amount of $26,000.00, and rendered a judgment for the retailer in the same amount. The plaintiff appealed his judgment to this court, and the manufacturer actively participated in the appeal. The judgment was affirmed. Billman v. National Merchandise Co., 311 So.2d 403 (Fla.App. 1st, 1975).

Following the above action, the plaintiff refused to accept satisfaction of his judgment against the retailer, and sued the manufacturer. This suit was based on the same theory, raised the same issues, and sought the same damages for the same injuries as his suit against the retailer. The manufacturer answered and affirmatively pled that the plaintiff was precluded from maintaining the suit against it, because the judgment rendered for plaintiff in his suit against the retailer finally determined all of the issues raised in the suit against it. The trial court agreed and rendered summary judgment for the manufacturer.

In cases involving the relationship of indemnitor and indemnitee, liability of more than one party is dependent upon identical issues. In such situations, when the complaining party has a full opportunity to litigate those issues against one of the parties, and has obtained a favorable judgment, he is not permitted to relitigate the same issues in a new action against the other party. He has had his day in court on the issues, and against the party of his choosing who was closely related to the other party. Under the doctrine of collateral estoppel, he is precluded from reliti-gating the same issues. There must be an end to litigation. Eisel v. Columbia Packing Co., 181 F.Supp. 298 (D.Mass., 1960).

The plaintiff contends that the retailer and manufacturer are joint tort-feasors, and because he has not satisfied his judgment against the retailer, he may pursue his claim against the manufacturer. This contention is without merit, because the retailer and manufacturer are not joint tortfeasors. Phillips v. Hall, 297 So.2d 136 (Fla.App. 1st, 1974).

We affirm the final summary judgment.

BOYER, C. J., and McCORD, J., concur.


text:
    Dennis Edwin MATTSON, Appellant, v. STATE of Florida, Appellee.
    No. Z-252.
    District Court of Appeal of Florida, First District.
    March 10, 1976.

      J. B. Murphy, of Murphy & Beroset, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

This appeal presents us with another aspect of the search and seizure issue. Defendant claims that the impoundment of his automobile by the Fort Walton Beach Police Department was unnecessary and resulted in an unconstitutional search and seizure.

On March 31, 1975, shortly after midnight, defendant was driving an automobile which contained two passengers. Officer Williams, observing that the automobile was being operated in a reckless manner, stopped appellant’s vehicle and arrested appellant for driving under the influence of intoxicating beverages. After a brief conversation with Officer Williams, appellant’s two companions departed the area. Before taking appellant to the police station, Officer Williams locked appellant’s automobile which was, according to the official police report, off the roadway and legally parked. At the police station, defendant was given a breathalyzer test and was subjected to a search which revealed two roach clips on his person. Officer Williams, accompanied by another officer, then returned to appellant’s automobile in order to drive it to the police department’s parking lot for safekeeping. After unlocking the car, Officer Williams entered the automobile and detected the smell of marijuana. He also discovered some marijuana seeds on the floorboard. Upon arriving at the police department parking lot, Officer Williams continued the search, finding over $1500 in the glove compartment and approximately six and one-half pounds of marijuana which was in a large suitcase in the trunk.

Appellant’s primary contention is that the arresting officer had no legitimate reason for returning to appellant’s automobile and unlocking the doors of his car which was legally parked. Appellant’s secondary argument is that even assuming that the arresting officer was justified in returning to the parked vehicle, he had no reason for failing to secure a search warrant before engaging in a full scale search of the automobile at the police station parking lot. Appellant concedes that Officer Williams had probable cause to initially stop and arrest him for driving while under the influence of intoxicating beverages.

We agree with appellant that under certain circumstances, a search should be invalidated where police have impounded the vehicle in question but the record reveals no necessity for the impoundment. See State v. Volk, Fla.App. 2nd 1974, 291 So.2d 643. In the Volk case, the trial court found that there was no necessity for impounding the vehicle in question. In the instant case, there was no such finding. Moreover, the Volk decision recognized that the police may necessarily impound a vehicle where its sole occupant is, because of intoxication, unfit to drive. Sub judice, the police were correct in moving appellant’s automobile to the police parking lot after appellant’s valid arrest for driving while intoxicated. Even though the automobile was properly parked, the police acted reasonably in their effort to safeguard appellant’s vehicle. The location of the automobile is pertinent: Had the vehicle been parked in the driveway of appellant’s home or even parked on the street in front of appellant’s home, a different situation might well have been presented. However, the record reveals that the vehicle was parked on the side of the road, across from a local night spot. Under such conditions, it was entirely reasonable to take the car into custody to protect it from potential theft or damages. We further note that the police are not required in impounding a vehicle to have it towed, rather than driven, to the police station.

Having lawfully impounded appellant s vehicle, the police officers proceeded to conduct a warrantless search of the vehicle, including the trunk, after Officer Williams detected the smell of marijuana within the automobile. This Court has previously held that the smell of marijuana is sufficient to provide instant probable cause to search for marijuana. (Berry v. State, Fla.App. 1st 1975, 316 So.2d 72) On that basis this case is distinguishable from Miller v. State, Fla.App. 2nd 1962, 137 So.2d 21, wherein the reviewing court found that the suspicions of the investigating officers were not sufficient to constitute probable cause. Nor does this case involve an inventory search of a validly impounded automobile. Thus, the remaining question is whether the police may search a validly impounded automobile where there exists probable cause but where no attempt has been made to secure a search warrant. The United States Supreme Court has answered the question in the affirmative. That Court reasoned:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. * * * The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” (Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970))

We, therefore, conclude that the im-poundment of appellant’s vehicle was reasonable as was the resulting search. Appellant’s conviction is affirmed.

AFFIRMED.

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


author: PER CURIAM. RAWLS, Judge

text:
    Elvis Tyrone KING, Appellant, v. STATE of Florida, Appellee.
    No. Z-443.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

As to appellant’s attack upon the constitutionality of F.S. 39.02(5) (c), we affirm on authority of Johnson v. State, Sup.Ct. Fla.1974, 314 So.2d 573 and Davis v. State, Sup.Ct.Fla. 1974, 297 So.2d 289.

Appellant’s second point is an attack upon the taped confession. We find that point to be without merit, finding that the authorities substantially met the requirements of Miranda v. Arizona, 384 U.S. 436, 469, 470, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Affirmed.

BOYER, C. J., and McCORD, J., concur.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

It is my view that the constitutionality of Florida Statute 39.02(5)(c) was facially challenged and the trial judge held same to be constitutional; thus, pursuant to Article V of the Florida Constitution, this case should be transferred to the Supreme Court of Florida.


author: MAGER, Judge. DOWNEY, Judge

text:
    FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Appellant, v. Doris A. LAWRENCE, a widow, Appellee.
    Nos. 74-1408, 74-1409.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Rehearing Denied March 30, 1976.
    Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Welcher, P. A., Miami, for appellant.
    Arnold R. Ginsberg, of Horton, Perse & Ginsberg and Beckham & McAliley, Miami, for appellee.
   MAGER, Judge.

This is an appeal by Florida East Coast Railway Company, defendant below, from a final judgment rendered pursuant to a jury verdict in a consolidated action maintained by Doris A. Lawrence, plaintiff below, as widow and personal representative for the death of her husband resulting from a car-train accident in Brevard County.

Plaintiff sought damages both for wrongful death and under the survival statute asserting that the defendant, among other things, was negligent in the operation and control of its train and in its failure to furnish proper signals and adequate warning of the train’s approach to the crossing. The accident occurred at the King Street crossing in Cocoa. The testimony was conflicting with regard to whether the gates at the railroad crossing were in a down position at the time decedent drove his car across the tracks, whether the lights were flashing and whether the train blew its whistle prior to entering into the intersection. The testimony was equally conflicting with respect to whether decedent drove around the gate arm or struck the gate arm as he proceeded to cross the tracks causing the gate to bounce.

The railroad denied any negligence and asserted the defense of contributory negligence. The jury was instructed on the doctrine of comparative negligence. The defendant requested that special verdict interrogatories should be submitted to the jury so that their verdict would reflect the percentages of negligence (thereby reducing the damages in proportion to the amount of the negligence attributable to the decedent). The trial court refused to submit special verdicts to the jury and instead used the general verdict form.

During the course of the presentation of her case the plaintiff called as an adverse witness the superintendent of signals and communications for the defendant railroad. On direction examination of this witness and over the objection of defendant plaintiff introduced into evidence three reported instances of alleged gate malfunctions at crossings other than the King Street crossing within a 90-day period prior to the accident in question avowedly for the purpose of impeachment. Prior to the colloquy leading up to the introduction of these reports, testimony was elicited to reflect that the gate mechanism system at the King Street crossing (and its triggering devices) was fairly standard at each of the crossings within the FEC system, i.e. the gate mechanism system at the King Street crossing would operate in the same manner as at other crossings such mechanism being activated by a train passing a certain point on the track rails. Plaintiff posed the following question to the adverse witness:

“Q All right. With reference to this system of circuitry, can you tell me whether it is possible for a train to come through there and not have any gates, lights, or bell activity until it his the positive circuit?
“A Crossing signal circuits are designed fail-safe, as far as humanly possible. They are maintained to be fail-safe, as far as humanly possible. Anything could happen.” (Emphasis added.)

The reports subsequently utilized and objected to by the defendant had been prepared by a signal maintainer for the defendant and related to reported gate malfunctioning some miles distant from the King Street crossing.

In this appeal the defendant contends that the trial court erred when it permitted evidence of prior incidents at other railroad crossings to be considered. Defendant also contends that the trial court erred in refusing to submit special verdicts to the jury on the percentage of fault of each party under the comparative negligence doctrine.

The admissibility of evidence of prior similar accidents was recently discussed in Friddle v. Seaboard Coast Line Railroad Company, Fla.1974, 306 So.2d 97, wherein the Supreme Court of Florida adopted the dissent in Seaboard Coast Line Railroad Company v. Friddle, Fla.App.1974, 290 So. 2d 85. In the latter Seaboard, supra, at page 89, the opinion pointed out the purpose to be served by such evidence as well as the circumstances surrounding its admissibility :

. . Evidence of prior similar accidents at the same place, or prior similar injuries resulting from the same appliance, as that of the accident or injury in suit, is generally admissible for the purpose of showing the existence of dangerous or defective premises or appliances, and notice or knowledge thereof, but generally not for the purpose of showing specific acts of negligence or the cause of the accident or injury. The admission of evidence of prior accidents or injuries is an exception to the general rule which ordinarily excludes evidence of independent events and occurrences not directly connected with the matter in dispute.’
“The foregoing authorities, and particularly the cases cited in the annotation and the supplement thereto, reflect that evidence of prior and subsequent accidents is admissible: (1) where the accidents occurred at the same place and under conditions which were at least substantially similar to the accident in dispute; (2) where the similar accident evidence has some tendency to establish a dangerous or defective condition at the place in question; (3) where the offer of evidence is to prove not negligence but notice of the dangerous character of the condition; (4) where the evidence of the similar accidents offered to establish the existence of a dangerous condition is not too remote in time to the accident or condition to which such other accidents are claimed to be similar.”

A prevalent and vital aspect of the admissibility of prior similar accidents has been the occurrence of such accidents “at the same place” particularly with respect to an accident at a railroad crossing. 46 A.L.R. 2d 935, annotation: Evidence — Railroad Crossing Accident; 70 A.L.R.2d 167, annotation : Evidence — Negligence—Prior Accidents. See also Davis v. Illinois Terminal Railroad Company, Mo.1956, 291 S.W.2d 891; Atchison, T. & S. F. Ry. Co. v. Aynes, Okl.1954, 271 P.2d 312; Seaboard Coast Line Railroad Company v. Friddle, supra; Southern Railway Company v. Lanham, 5 Cir. 1968, 403 F.2d 119. In the instant case, the prior similar accident evidence had reference to places other than the crossing where the subject accident occurred.

We fail to perceive the distinction drawn by the plaintiff between prior similar accidents and prior similar incidents insofar as the question of admissibility is concerned. In our view the criteria set forth in Seaboard, supra, would be equally applicable to prior similar incidents involving malfunctioning safety devices as it is to prior similar accidents. If the purpose of utilizing prior similar accident or incident evidence is to show the existence of a dangerous condition and notice or knowledge thereof the general guidelines set forth in Seaboard must be met.

The reports in question are not only deficient in this respect, i.e. a failure to show a malfunctioning at the place of the accident in question, but, additionally, these reports fail to reflect occurrences “under conditions which were at least substantially similar” to the accident in question. Seaboard v. Friddle, supra.

The annotation dealing with the admissibility of evidence involving railroad crossing accidents contains perhaps the best recitation of the rule and its application:

“The relatively few cases involving the present subject indicate that in a railroad crossing accident case, evidence of other functional failures of the warning signal located at the crossing in question when the accident occurred, occurring either before or after the accident in suit, may be admitted in a proper case for the purpose of showing the failure of the signal to operate at the time of the accident; or to show the defendant railroad’s knowledge of the disrepair of the signals; or to throw light on the contributory negligence of the plaintiff; or to rebut specific evidence of the defendant railroad, such as an inference to the effect that since the warning signal at the crossing where the accident occurred was inspected a short time before and after the accident in suit, and was found to be in perfect working order, the signal must have been working properly at the time of the accident.
“But the admissibility of such evidence is strongly affected by the similarity or dissimilarity between the conditions prevailing at the time of the accident in suit and the conditions prevailing with respect to the particular signal (whether that at the crossing involved or at some other crossing) to which the evidence as to other functional failures is directed. Thus, it has been held or recognized in a few cases that such evidence was not admissible because its was too remote in point of time, or because the conditions were dissimilar at the railroad crossing at the time of the accident in suit and that the time or with respect to the signal device referred to in the testimony. Admissibility may also be affected by the form in which the testimony is offered.” (46 A.L.R.2d 936)

While there is arguable merit to the plaintiff’s proposition that evidence of prior similar incidents (or accidents) involving safety appliances at other railroad crossings is admissible for impeachment purposes to diminish or discredit the “aura of infallibility” of the system, we are of the opinion that the particular factual circumstances surrounding the presentation of the objectionable reports do not support the application of the position suggested by the plaintiff. In particular, the adverse witness’s response conceded the fallibility of the system, i. e.:

“A Crossing signal circuits are designed fail-safe, as far as humanly possible. They are maintained to be fail-safe, as far as humanly possible. Anything could happen.” (Emphasis added.)

To that extent, therefore, the utilization of the reports appeared to be somewhat contradictory to the purpose for which such reports were sought to be used. Moreover, while not dispositive of the question of admissibility for the principle advocated by the plaintiff it is interesting to note that the reports were utilized for impeachment during the questioning by the plaintiff of his own “adverse” witness rather than as a rebuttal to or during cross-examination of a defense presentation. Cf. Foremost Dairies, Inc. of South v. Cutler, Fla.App. 1968, 212 So.2d 37.

The instant situation is strikingly similar to the circumstances present in At-chison, supra. There the plaintiff introduced evidence concerning the operating failure of the same type of signal device at a crossing other than where the accident occurred, presumably to diminish the “aura of infallibility”. In concluding that such evidence was inadmissible the Supreme Court of Oklahoma observed:

“We think it clear the admission in evidence of this testimony respecting the operating failure of a crossing signal at a different location, and at an indefinite time, was seriously prejudicial to defendant’s case. Although defendant conceded the possibility of such failure occurring, the jury readily could have been impressed by this testimony to the extent of concluding that the general unreliability of defendant’s warning signal was shown. In the guise of being admitted as rebuttal testimony even though upon an issue which had been conceded such evidence could, when carried to the extreme, be declared admissible even though concerned with similar occurrences so far removed from the scene of the alleged negligence, as to make any connection or comparison ridiculous. The defendant was charged with negligence in certain particulars at a specified point. In whatever respects defendant might have been guilty of negligence at other places and times, it remained for plaintiff to recover upon the strength of his evidence as concerned the particular event. Evidence of unrelated incidents could not establish plaintiff’s case, and no justification appears for requiring defendant to defend against them. This was a close case and the evidence upon the issue of failure of the warning signal appears evenly balanced. Submission of the objectionable evidence for the jury’s consideration undoubtedly permitted the jury to infer that since there was evidence of one failure it was probable this accident resulted from another failure of the warning signal. Acts or omissions which are claimed as negligence cannot be shown in such a manner.
“Judgment reversed and case remanded with directions to grant a new trial.”

As heretofore noted, evidence of the gate malfunction was conflicting and somewhat evenly balanced so that the evidence of malfunctions at other crossings conceivably could have tipped the scales in favor of the plaintiff. We have no way of knowing whether it actually did; but it does appear that such evidence was highly prejudicial to the defendant so as not to be characterized as “harmless error” thereby requiring a reversal and necessitating a new trial.

Although our reversal is predicated primarily upon the foregoing we are of the opinion that the remaining appellate issue ought to be resolved in favor of the defendant without necessarily concluding that reversible error has occurred with respect to such remaining issue. As heretofore stated, the defendant requested and the trial court refused to submit special verdicts to the jury on the question of the fault of each party. The defendant contends that this was error and we are inclined to agree.

The adoption of comparative negligence demonstrates a realization by this court and the Supreme Court of the need to establish and apply a more equitable system of recovery that would best achieve justice as between parties who are both at fault. Jones v. Hoffman, Fla.App.1973, 272 So.2d 529, and Hoffman v. Jones, Fla. 1973, 280 So.2d 431. At the very heart of the adoption of comparative negligence was the pragmatic recognition that juries invariably “balanced” the negligence of the parties to ultimately arrive at a fair result arid a reaffirmance of the principle that the jury system was capable of keeping pace with any such change. If, therefore, we have admonished the jury to continue to do that which it was doing anyway but to do so “in the open” as a recognized and standardized practice, assuredly the jury is capable of spelling out its verdict with percentile specificity, i.e. delineating the degree of negligence of each party in a percentage form.

Presently, where the evidence reflects the existence of contributory negligence the jury is charged on the comparative negligence principle and is directed to “apportion fault as it sees fit between negligent parties” and to “apportion the total damages resulting from the loss or injury according to the proportion of fault of each party”, Hoffman v. Jones, supra, at 439. By adopting a system of special verdicts we can ascertain whether the comparative negligence principle is actually being applied. We can determine with some degree of reliability whether comparative negligence is a living and practicing doctrine or merely a lofty concept without pragmatic results.

Our review of the case law in Florida does not reflect any definitive determination by any court on this precise issue. The particular point involved in this appeal has never been squarely presented to any court; there have been expressions by the Supreme Court in Hoffman v. Jones, supra, and recently in Lincenberg v. Issen, Fla.1975, 318 So.2d 386, concerning the utilization of special verdicts which must be characterized as dicta inasmuch as those expressions had no bearing upon the issue involved in those decisions.

In Hoffman v. Jones, supra, the Supreme Court astutely recognized the necessity to gauge the jury’s proper application of the comparative negligence rule and made the following general observation:

“In accomplishing these purposes, the trial court is authorized to require special verdicts to be returned by the jury and to enter such judgment or judgments as may truly reflect the intent of the jury as expressed in any verdict or verdicts which may be returned.” (280 So. 2d at 439)

In Lincenberg, the Supreme Court was concerned with the “no contribution” principle and concluded that its application lost its viability “in light of Hoffman and public policy” and that henceforth “payment should in justice be shared by another who shared the responsibility for the injury”. The trial court in Lincenberg utilized a special interrogatory verdict on a horizontal basis, i. e. the plaintiff was not guilty of any negligence and the special interrogatories sought to require the jury to apportion the percentage of negligence between the multiple defendants.

The Supreme Court, however, observed that in light of the newly adopted Uniform Contribution Among Joint Tortfeasors Act (768.31, F.S.) the relative degrees of fault of the defendants for the purpose of contribution among and between themselves may not be considered because the act provided for contribution on a pro rata basis. The court, however, made the following observations with regard to special verdicts :

“While special verdicts such as that utilized by the trial court, sub judice, on the degrees of fault are not dispositive of the issue of contribution in view of Section 3(a), such special verdicts may be desired and of assistance to the trial judge in performing his equity responsibility under Section 3(c). To that end and for that purpose only, the trial judge may in his discretion request special verdicts on the degrees of fault. These special verdicts if- employed for equity considerations under Section 3(c) would be a determination on a vertical basis of the liability as between plaintiff and the several defendants and horizontally among the multi-party defendants. Vertical apportionment to be determined by the jury is explained in Hoffman, supra, as follows:
‘If plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant. For example, where it is found that the plaintiff’s negligence is at least equal to that of the defendant, the amount awarded to the plaintiff should be reduced by one-half from what it otherwise would have been.’
“The plaintiff is entitled to a measurement of his full damages and the liability for these damages should be apportioned in accordance with the percentage of negligence as it relates to the total of all the defendants. The negligence attributed to the defendants will then be apportioned on a pro rata basis without considering relative degrees of fault although the multi-party . defendants will remain jointly and severally liable for the entire amount.”

However, both Hoffman and Lincenberg were not presented with the specific proposition as to whether the court was required to submit special verdicts to the jury to determine vertical apportionment (as between plaintiff and defendant) where a party specifically requests the trial judge to submit special verdicts.

A discussion of the necessity for the use of special verdicts is contained in Maloney, From Contributory to Comparative Negligence; a Needed Reform, 11 U.Fla.L.Rev. 135, 170-3 (1958); Timmons and Silvis, Pure Comparative Negligence in Florida, 28 U.Miami L.Rev. 737, 800 (1974); Prosser, Comparative Negligence, 51 Mich.L. Rev. 465 (1953); see also Schwartz, Comparative Negligence (1974), sec. 174; 32 A.L.R.3d 463, 492, annotation: Negligence-Comparative — Contributory. All of the treatises recognize that the special verdict will serve to insure that the comparative negligence law achieves its desired goal of apportioning damages on the basis of fault. The treatises also recognize that in addition to the equitable considerations there is a practical need for special verdicts, e. g. it puts the mathematical computations in the hands of the judge rather than a jury and provides a means for appellate review of these computations. As additionally pointed out in the University of Miami Law Review article at page 802:

“Prosser observed three main reasons for the adoption of special verdicts in conjunction with the adoption of comparative negligence: (1) it allows for the correction of jury error (a remittitur may save a new trial); (2) it forces detailed consideration by the jury rather than allowing it to jump to a conclusion on a ‘gut reaction’; and (3) it enables the court to avoid the necessity of using long, complicated jury instructions which would open the door to reversible error.” (28 U.Miami L.R. at 802)

It is particularly interesting to note the observations made by one textwriter that of the ten states following comparative negligence wherein special verdicts are specifically provided for, four of the states require a special verdict in every case where contributory negligence is an issue; in the other six, a special verdict may be required in the discretion of the court and must be required upon timely request made by any party. See Schwartz, Comparative Negligence, supra.

Since Florida and now California (Nga Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975)) have adopted comparative negligence by judicial decree we perceive no impediment to judicial implementation of the required use of special verdicts where contributory negligence is an issue either in the discretion of the court or where timely requested by any party.

Although we are of the view that our determination is consistent with the comparative negligence principle as set forth in the Hoffman and Lincenberg cases and we perceive no conflict with the aforementioned decisions, it is nevertheless our intention to certify the special verdict question to the Supreme Court as one involving a question of great public interest so that the bench and bar may have the benefit of an authoritative decision of statewide application. Cf. Beta Eta House Corporation v. Gregory, Fla.App.1970, 230 So.2d 495. The question to be certified is

Whether the adoption and application of the principle of comparative negligence requires the submission of special verdicts to the jury on the percentage of fault of each party (plaintiff and defendant) where either party requests the submission of special verdicts.

Reversed.

CROSS, J., concurs.

DOWNEY, J., concurs in part and dissents in part, with opinion.

DOWNEY, Judge

(concurring in part, dissenting in part).

I concur generally with the position taken by the majority relative to the admissibility of evidence of system malfunctions at railroad crossings other than the crossing involved in the accident in question. However, I deem it advisable to make it clear that in a proper case such evidence could become admissible if the circuitry, lights, gates, and other equipment were virtually identical to the circuitry and equipment at the crossing in question, and the railroad asserts the system will not malfunction. This would be the most relevant kind of impeachment. Here we have crossings with similar circuitry, but each crossing has separate and distinct circuits, and some crossings have circuits with varied modifications. In addition, the witness to be impeached did not testify the system was infallible. He asserted it was designed and maintained to be “fail-safe” but acknowledged that anything could happen. Thus, there was no predicate for the evidence of malfunctions at other crossings.

I also agree with the majority that special verdicts are desirable, particularly today in view of the recent evolution of tort law in this state. However, I would be most reluctant to reverse a trial judge for failing or refusing to require special verdicts in view of the current status of the law on that question.

As far back as 1909 the Supreme Court of Florida said: “The court is not justified in directing the jury to find a special verdict, though it may, in its discretion, in a proper case recommend one.” Florida East Coast Ry. Co. v. Lassiter, 58 Fla. 234, 50 So. 428, 430 (1909). Then in Hoffman v. Jones, Fla. 1973, 280 So.2d 431, the Supreme Court suggested the trial court had the discretion to require the jury to return special verdicts when it said “the court is authorized to require special verdicts to be returned.” 280 So.2d at 439 (emphasis added). More recently in Lincenberg v. Issen, Fla.1975, 318 So.2d 386, that court said “the trial judge may in his discretion request special verdicts on the degree of fault.” 318 So.2d at 393. (emphasis added). So, one might ask what is the trial judge to do ?

It seems clear to me the use of special verdicts in tort cases should be standard practice in Florida. But standardization throughout the state should emanate from the legislature or the Supreme Court, as may be appropriate to the subject matter involved.

I further agree that the question should be certified.

      . Interestingly, Davis v. Illinois Terminal, supra, relied upon by the plaintiff for the proposition of rebutting infallibility involved and was concerned with the malfunctioning of signal devices at the same crossing at which the accident occurred. See also Southern Railway Company v. Lanham, supra.

      . The typical special verdict would require the jury to state: (1) the amount of damages which would have been recoverable if there had been no contributory negligence; and (2) the degree of negligence of each party, expressed as a percentage.


author: DOWNEY, Judge.

text:
    Robert HAYUTIN and Marie Hayutin, his wife, Appellants, v. COCHRAN CONSTRUCTION COMPANY, INCORPORATED, Appellee.
    No. 75-1424.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.

      Joseph Teichman, Miami, for appellants.
    Stephen F. Kessler, of Moore, Kessler, Roth & Beckerman, Miami, for appellee.
   DOWNEY, Judge.

On August 8, 1974, appellee filed a claim of lien for $27,780.81 in which it stated that the work had commenced in July 1973 and had been completed on May 21, 19-On September 5, 1974, appellee filed an amended claim of lien for less money and stated that the work was completed on May 21, 1974.

Appellee’s complaint to foreclose a mechanic’s lien has both claims of lien attached, and the body of the complaint alleges the reason for filing the amended claim. A motion to dismiss the complaint on the grounds that the amended claim of lien was untimely and the original claim was incomplete was denied. Appellants seek review of the order denying their motion to dismiss.

Unquestionably the amended claim of lien filed some 107 days after the work was completed is void on its face. Stern v. Perma-Stress, Inc., Fla.App.1961, 134 So.2d 509. However, at least at this stage of the proceeding, the original claim of lien appears adequate to support the complaint. Accordingly, the trial court was correct in denying the motion to dismiss.

The order appealed from is affirmed.

CROSS, J., and SCHULZ, GEORGE E., Associate Judge, concur.


author: McCORD, Judge. SMITH, Judge,

text:
    STATE of Florida ex rel. Carey ENGLISH, Relator, v. The Honorable Robert L. McCRARY, Jr., Circuit Judge, Respondent.
    No. BB-200.
    District Court of Appeal of Florida, First District.
    March 4, 1976.

      C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
   McCORD, Judge.

The relator, Carey English, has filed in this court a Suggestion for Writ of Prohibition against respondent, the Honorable Robert L. McCrary, Jr., Circuit Judge. The Suggestion alleges that relator is a reporter for the Tallahassee Democrat, a newspaper of general circulation in several north Florida counties. Relator alleges that respondent refused to permit him to attend a hearing in a case styled In Re: The Marriage of Estelle M. Morrison and Harry Morrison, Case No. 75-2582, in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida. Relator further alleges that respondent has failed to give and refuses to give good and cogent reasons for the exclusion of the press from the hearing and in so doing has acted without and in excess of any inherent power of the court to protect rights of parties and witnesses or further the administration of justice; that the mere desire of the litigants, or the desire of the trial court at the suggestion of the litigants, to conduct a private hearing is not a sufficient predicate upon which the court may exclude the public and the press completely; that Harry Morrison is the State Attorney for the Second Judicial Circuit of the State of Florida and by virtue of his being an elected public official, the public has a real and genuine interest in any litigation involving such public official. Relator further alleges that respondent refused to entertain any legal arguments as to the right of the press to attend such hearing and by so doing respondent denied relator due process under the Fourteenth Amendment to the Constitution of the United States and Article I, Section 9, of the Constitution of the State of Florida; that such was in direct derogation of the fundamental right of the public and the press to access to all judicial proceedings.

We have considered the Suggestion for Writ and relator’s brief in support of same on the initial question of whether or not the Suggestion states a prima facie case for issuance of a rule nisi in prohibition which if issued would stay the dissolution proceeding until this prohibition action can be heard and determined. We have concluded that the Suggestion does not state a prima facie case for the issuance of the extraordinary Writ of Prohibition. The Supreme Court in State v. Petteway, 121 Fla. 822, 164 So. 872 (1935), pointed out the proper function of the extraordinary writ of prohibition as follows:

“The rule is settled in this state that prohibition may be employed to restrain an excess of jurisdiction as well as to prohibit the exercise of judicial power where none exists. It may also be used to confine a court within his power when he attempts to exercise jurisdiction beyond the legitimate scope of his powers.”

If the action of the lower tribunal is an exercise of judicial power where none exists, or if the lower tribunal is attempting to exercise jurisdiction beyond the legitimate scope of his powers, the writ may be employed. Otherwise, prohibition will not lie. Thus, the initial question before us is whether or not respondent’s refusal to allow the press to attend this marriage dissolution proceeding was an exercise of judicial power where none existed or was an exercise of jurisdiction beyond the legitimate scope of his powers.

The only authority cited by relator in its brief in support of its Suggestion for Writ is State ex rel. Gore Newspapers Company v. Tyson, Fla.App. (4th), 313 So.2d 777. This was an opinion by our sister court, the District Court of Appeal, Fourth District, which ruled that prohibition would lie at the behest of the presss which was denied admittance by the chancellor to a dissolution of marriage proceeding in the case of Jackie Gleason v. Beverly Gleason. There, one member of the three judge panel dissented. We have carefully examined the opinion of the court in that case and the authorities cited therein and are unable to agree that prohibition will lie in such a case. In his dissenting opinion, Judge Walden referred to a ruling of this court in State ex rel. Pope v. Joanas, Fla.App. (1st), 278 So.2d 305 (1973), where this court stated as follows:

“The cases are legion which hold that prohibition will not lie to test the correctness of a trial court ruling. It is an action which addresses itself to the lower court’s jurisdiction or power to act, not to the correctness of its rulings.”

In effect and substance the majority opinion in State ex rel. Gore Newspapers Company held that the chancellor’s ruling, which it considered to be erroneous, was somehow raised to the level of a lack of jurisdiction or power, thereby authorizing it to review such action by prohibition.

While the action of the chancellor in the case sub judice in denying the press admittance to the dissolution of marriage hearing may have been an abuse of the trial judge’s discretion (though we do not here rule that it was or was not an abuse of discretion) the fundamental initial question is whether or not a chancellor has jurisdiction in a dissolution of marriage proceeding to exercise his discretion to determine whether or not the public and press will be permitted to attend the hearing. If in all instances it is required that such a hearing be open to the public, then the chancellor had no discretion. Otherwise, the chancellor would clearly have the power, authority, and jurisdiction to make the ruling in a particular case. Although the ruling which he makes on the subject might constitute an abuse of discretion in a particular case, the extraordinary Writ of Prohibition would not be available to determine whether or not he correctly exercised his discretion.

An examination of the Constitution of the United States and the Constitution of the State of Florida reveals that those documents only grant the right to public trial in a criminal case, Sixth Amendment to the Constitution of the United States and Article 1, Section 16, of the Constitution of Florida.

Dissolution of marriage is a proceeding in equity and as is pointed out in 27 Am.Jur.2d Equity § 235, the term “hearing” is applied to the argument and consideration of an equity case at the several stages of its progress. There we find the following statement of the law:

“The hearing is commonly in open court, but the court in its discretion may, in the absence of a statute requiring causes to be heard publicly, order the case to be heard privately.”

In Coggan v. Coggan, Fla.App. (2d), 214 So.2d 368 (1968), a divorce case, the Second District Court of Appeal held:

“Appellant has not shown any prejudice resulting from the exclusion of spectators from the hearing.”

By the above ruling the Second District Court of Appeal necessarily held that the chancellor had jurisdiction and power to make his contested ruling.

We limit our ruling here specifically to the question of whether or not the remedy of prohibition will lie in this case. As so limited, we disagree with the majority opinion in State ex rel. Gore Newspapers Company. We, therefore, find that relator’s Suggestion does not state a prima facie case for issuance of rule nisi in prohibition. We find no lack of due process in the chancellor denying relator a hearing prior to his ruling, relator not being a party to that proceeding. The Suggestion for Writ of Prohibition is denied.

RAWLS, Acting C. J., concurs.

SMITH, J., concurring specially.

SMITH, Judge,

concurring specially:

I agree to the judgment of the court and with Judge McCord’s opinion. I would add only that relator’s suggestion for writ of prohibition, filed at 2:03 p. m. on March 2, 1976, requested that we issue that extraordinary writ to prohibit Judge Mc-Crary “from proceeding or attempting to proceed any further . . . without allowing the public and press to be present” at a hearing which was taking place when the suggestion was filed and continuing “throughout the afternoon of March 2, 1976.” To have issued a rule nisi in response to the suggestion in order to give Mr. and Mrs. Morrison and others affected an opportunity to present their views on the matter, we would have effectively shut down a unique judicial proceeding which makes extraordinary demands for compassion and sensitivity on the judge, the parties and the lawyers. To have done that in order to evaluate at leisure the competing interests of the public in witnessing the painful dismemberment of a marriage would invert the purpose of the discretionary writ, which is to alleviate, not to create, “great urgency, special emergency or absolute necessity.” State v. Grayson, 80 So.2d 679 (Fla. 1955); Chapman v. Rose, 295 So.2d 667, 669 (Fla.App.2d, 1974).