author: PARHAM, Associate Judge.

text:
    SOBIK’S SANDWICH SHOPS, INC., et al., Appellants, v. Janice S. DAVIS et ux., et al., Appellees. Patricia Buchanan DUNN and Allstate Insurance Company, Appellants, v. Janice S. DAVIS et ux., Appellees.
    Nos. 75-693 and 75-751.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    Rehearing Denied May 5, 1976.

      James O. Driscoll, Driscoll, Conrad, Langston & Layton, P.A., Orlando, for appellants-Sobik’s Sandwich Shops, Inc., and State Farm Mut. Auto. Ins. Co.
    Harry K. Anderson, Howell, Kirby, Montgomery, D’Aiuto & Dean, P.A., Orlando, for appellants-Bennie Rome Jackson and Cavalier Ins. Corp.
    John Edwin Fisher, Akerman, Senterfitt, Edison & Wharton, Orlando, for appellants-Patricia Buchanan Dunn and Allstate Ins. Co.
    John C. Briggs, Robertson, Williams, Duane & Lewis, P.A., Orlando, for appel-lees-Janice Davis and Kenneth Davis.
   PARHAM, Associate Judge.

These consolidated appeals are taken from a final judgment entered below in favor of the Plaintiffs-Appellees, Janice S. Davis and Kenneth Davis. Judgment was entered pursuant to a jury verdict against Defendants, Dunn (and Allstate, her carrier), Jackson (and Cavalier, his carrier), and Sobik’s (and State Farm, its carrier). The jury verdict was in favor of a fourth defendant, School Board of Seminole County (and Travelers, its carrier). Timely motions for new trial were heard and denied.

Suit in the trial court was filed by Plaintiffs, Janice and Kenneth Davis, against Dunn, Jackson, Sobik’s and the School Board, together with their respective insurance carriers. The complaint alleged a multiple car collision involving vehicles of Jackson, Sobik’s and Dunn. A school bus was allegedly parked on or near the highway and was alleged to have been a contributing cause of the accident. The plaintiff was in the Dunn vehicle.

This litigation resulted from a three vehicle collision occurring on February 12, 1973, at approximately 9:00 a.m. on State Road 436. At the point of the accident, State Road 436 was a four-lane divided highway and all three vehicles involved were travelling at the same direction at the time of the accident.

A substantial time prior to any collision occurring, a school bus of Defendant, School Board, had stopped for an injured dog on the roadway.

There was testimony at the time of the collisions that the school bus was off the road surface but there was also testimony to the contrary.

The first vehicle involved in the collision was a Buick operated by Defendant, Jackson. Jackson testified that the school bus was stopped partially on the roadway with a stop arm out and lights flashing and that he, therefore, brought his vehicle to a gradual stop behind the school bus in the inside west-bound lane. He further testified that he heard two impacts then occur behind him but that he felt the second impact to his car which knocked him forward a substantial distance. The investigating officer, Trooper Sullivan, testified that it was his “opinion” that Jackson’s Buick was moving slowly at the time it was hit from the rear.

Testimony was unavailable from the driver of the Sobik’s truck, but the Sobik’s truck struck the rear of Jackson’s Buick at a point approximately in the inside lane next to the school bus.

The third vehicle involved was a Mustang operated by the Defendant, Dunn, and in which the Plaintiff, Janice Davis, was a passenger.

Defendant, Dunn, and the third passenger in her vehicle, Ruth Brooks, both testified that as their Mustang approached the point where the accident was to occur, they were passed by a Sobik’s truck on the inside lane going somewhat faster than they. Both Mrs. Dunn and Mrs. Brooks testified that their speed was 45 to 50. After the Sobik’s truck passed, Mrs. Dunn pulled into the inside lane behind the Sobik’s truck because she could see ahead that the school bus was “either in or partly in the right lane”.

A few seconds later, with the Sobik’s truck approximately three car lengths ahead of her, she realized that the Sobik’s truck had stopped or was stopping, slammed on her brakes and cut to the left. She skidded but was unable to stop and impacted with the rear of the Sobik’s truck.

The principal point on appeal is whether the Circuit Court erred in granting Plaintiff’s motion for directed verdict against one or all of the defendants when the evidence would not justify a directed verdict against any one of the defendants separately.

At trial, Plaintiff moved for a directed verdict against all Defendants at the close of the testimony. Although the trial judge initially denied this motion, prior to closing argument and instructions to the jury, the trial judge reversed himself. The court granted Plaintiffs’ Motion for Directed Verdict not against any individual Defendant but by ruling that Plaintiff had a right to recover against somebody, to wit, one or more of the Defendants. The trial judge at the time acknowledged that had the Defendants been sued individually, he did not believe that he could have granted the directed verdict.

In order to direct a verdict for the Plaintiff, it must be apparent to the judge that no sufficient evidence has been submitted on which the jury could legally find for the Defendant against whom a verdict has been directed. 32 Fla.Jur., Trials, Section 83-84. Authority to direct a verdict should be exercised with caution. 32 Fla.Jur., Trials, Section 84.

In this case, the trial judge directed the verdict, not against any particular Defendant, but for the Plaintiff. This is violative of the general rule on directed verdicts and that each Defendant presented evidence that tended to show their individual lack of fault. When a directed verdict is in favor of one party it must by necessity and logic be directed against some other party. In this case each Defendant’s defense should have been a jury question.

“It is error for a trial court to direct a verdict unless there is no evidence nor any reasonable inference which may be drawn from the evidence which would support a jury verdict in favor of the party moved against (emphasis supplied).” Kelly v. Millers of Orlando, (Fla.App.4th, 1974) 294 So.2d 704.

“In other words, his judgment is grounded on the proposition that viewing the evidence and its aspects most favorably to the party against whom the verdict is directed, it necessarily follows that as a matter of law that such party could not be successful if the evidence were submitted to the jury.” Furr v. Golf Exhibition Corp., (Fla.App.1st, 1959) 114 So. 2d 27.

Primary reliance before the trial court was on the First District Court of Appeal decision of Sheehan v. Allred, (Fla.App. 1st 1962) 146 So.2d 760. The case directly in opposition thereto and in support of Appellant’s argument is the Third District Court of Appeals decision of Blakely v. Pahler, (Fla.App.3d, 1971) 253 So.2d 140. Blakely specifically disapproved and rejected the logic of the Sheehan case if the Sheehan case is interpreted as relied upon by Plaintiff-Appellee.

Both the Sheehan case, Supra, and the Blakely case, Supra, involved multiple Defendants in similar factual situations to those at bar with a motion by Plaintiffs’ counsel for directed verdict as to one or more of the Defendants, the jury to determine which ones.

Careful analysis of the Sheehan case does not lend direct support to Plaintiff-Appellee’s proposition. Plaintiff in the Sheehan case made the motion for directed verdict, which was denied and there was, in fact, a reversal. However, the trial court in Sheehan submitted to the jury the question of Plaintiffs’ contributory negligence and Appellant submits that Sheehan in fact is a holding only on the contributory negligence question. The court in Sheehan stated in part as follows:

“Where . . . the evidence affirmatively establishes that Plaintiff is free of any negligence which could be held to have been the proximate cause of or contributed to the collision out of which her damages arose, there is no reason why this issue should be submitted to the jury to be considered in light of the defenses of contributory negligence and general denial. In response to Plaintiff’s motion the trial judge should properly have granted it on the issue of liability insofar as any claimed or alleged negligence on the part of plaintiff was concerned. The court could not, however, properly direct the verdict against either or both of the Defendants under the evidence revealed by this record.” (At 764)

Sheehan therefore was authority only to the effect that the court should have granted a directed verdict as to the affirmative defenses raised. To further clarify, Judge Sturgis dissented with an opinion. He stated therein that Motion for Directed Verdict such as that granted by the trial court at bar was inappropriate, noting:

“I entertain the view that a Motion for Directed Verdict in a tort action involving multiple Plaintiffs or Defendants must necessarily test the evidentiary situation as it relates to a particular party
“The general rule governing a directed verdict for Plaintiffs where there’s a number of Defendants, is that where there is a case made out for Defendants against any Plaintiff or Plaintiffs, a direction for Plaintiffs jointly, or generally against the Defendant or Defendants, is improper, and a refusal to direct is proper (citations omitted).”

The identical issue was faced much more recently by the third district in Blakely, Supra. In a per curiam opinion therein the third district affirmed denial of a Motion for Directed Verdict such as that which was granted at bar. Plaintiff in Blakely, Supra, had moved at the close of all evidence for a directed verdict “as to liability of one or both of the defendants”. Therein, as a bar, there was no evidence of Plaintiff’s negligence. The Plaintiff, Blakely, had been a passenger in a bus operated by one Defendant which was involved in a collision with a vehicle driven by the other Defendant.

In Blakely, Supra, as a bar, Plaintiff’s primary reliance was on the Sheehan decision. Blakely specifically rejected that opinion of the two majority judges in Sheehan:

“Assuming that Sheehan may be argued as authority for reversal we, although giving it great weight and respect, decline to follow the majority opinion, (citations omitted)”

The court committed reversible error in entering the directed verdict in favor of the Plaintiff, where the factual situation obviously precluded directed verdict against any Defendant individually.

Reversed and remanded for a new trial.

CROSS, J., concurs m conclusion only.

MAGER, J., concurs.


source: Caselaw Access Project

author: OWEN, Judge.

license: Public Domain

text:
    WALTHAM A. CONDOMINIUM ASSOCIATION et al., Appellants, v. VILLAGE MANAGEMENT, INC., et al., Appellees.
    No. 75-1380.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied May 5, 1976.

      Michael B. Small, Small, Ciklin & Jacobson, West Palm Beach, for appellants.
    John B. McCracken, Jones, Paine & Foster, West Palm Beach, for appellee-Village Management, Inc.
   OWEN, Judge.

Appellants were held in contempt of court for their willful failure to comply with a previous interlocutory order entered in this cause. Appealing from the contempt order, their first point is that the trial court was without jurisdiction to hold them in contempt for violation of the earlier interlocutory order because they had timely perfected an interlocutory appeal from that order, thereby withdrawing from the trial court the subject matter thereof. The earlier order had not been superseded, and therefore appellants’ position is unsound. Nonetheless, this point presents us with the opportunity to clarify an area of the law as to which there has been a great deal of confusion: the power of the lower court to proceed in a cause while an interlocutory appeal is pending.

While there is some confusion even in those cases in which the appealed interlocutory order has been superseded or stayed, by far the greatest area of confusion is found in those cases in which the appealed interlocutory order has not been superseded or stayed, the confusion arising out of the contradictory language used and inconsistent results reached in the various reported decisions discussed hereafter. Some of the apparent contradictions and inconsistencies can be satisfactorily reconciled or distinguished, but others cannot. We therefore conclude, that if the law on this particular issue is to be clarified, we must of necessity state the proper rule of law as we perceive it to be, and, in all deference, declare erroneous those decisions which cannot be satisfactorily distinguished and which have set forth a view contrary to that which we believe to be the proper rule of law.

The leading Florida case on the rule pertaining to the authority of the lower court to proceed pending an interlocutory appeal without supersedeas is Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126 (1925). That case, interestingly enough, was concerned with defining appellate rather than trial court jurisdiction. Plaintiffs appealed without supersedeas from an interlocutory order sustaining defendants’ demurrer to the complaint. While this interlocutory appeal was pending, the trial court entered a final decree dismissing the complaint. When no appeal was taken from the final decree, defendants moved to have the interlocutory appeal dismissed as moot in light of the final, unappealed disposition of the case. It was this motion which precipitated the Supreme Court’s oft cited opinion. The Court denied defendants’ motion to dismiss the appeal, setting forth the following, eminently logical reasons for its decision:

“The nature of a cause and of the order or decree appealed from might be such that, subject to the appeal, the trial court may properly take further judicial proceedings in the cause (Waring v. Bass, 76 Fla. 583, 80 So. 514), or the order or decree appealed from may be executed or enforced, unless a supersedeas is duly obtained and made effective as an incident to the appeal taken (3 C.J. 1258; Henry v. Whitehurst, 66 Fla. 567, 64 So. 233); but where an appeal is duly taken, whether with or without a super-sedeas, so as to transfer the cause to the appellate court, the trial court is without power to finally dispose of the cause by dismissal or otherwise so as to in form or effect interfere with the power and authority of the appellate court, under the Constitution, to make its jurisdiction and orders or decrees effective in the cause to which its organic appellate jurisdiction has attached by due course of appellate procedure.
In this case the question whether a su-persedeas was obtained is not material. An appeal was duly taken from an order sustaining a demurrer to a bill of complaint on the ground that there is no equity in the bill. No supersedeas was obtained, and even though in the absence of a supersedeas the trial court had the power to permit or require other proceedings in the cause that would not tend to impair or to interfere with the appellate jurisdiction and power of the Supreme Court, or to defeat the efficacy of the appellate proceedings already duly taken, yet the dismissal of the bill of complaint by the lower court was subject to the result of the interlocutory appeal theretofore duly taken, otherwise the trial court would by such dismissal finally determine the merits of the cause which is the only matter involved in the appeal taken and then pending in the Supreme Court.
When the appellate court acquires jurisdiction of a cause, no order of the trial court can legally impair or interfere with the power of the appellate court to make its jurisdiction in the premises effective. An order of the trial court dismissing a bill of complaint, made after the appeal was duly taken, does not affect the jurisdiction of the appellate court. See Holland v. State, 15 Fla. 549. Should an interlocutory order appealed from be reversed, the decree and mandate of the appellate court is effectual to restore the dismissed case to the docket of the trial court. If an interlocutory order appealed from is affirmed, the dismissal of the cause in the trial court is not of material consequence.”
“To dismiss this appeal, under the circumstances shown by the record, would be to constitute the circuit court the sole and final arbiter of the sufficiency of the bill of complaint and divest this court of its constitutional jurisdiction to review such determination.” (emphasis supplied) (105 So. at 128-9).

Shortly thereafter, Moody v. Volusia County, 90 Fla. 864, 107 So. 185 (1925), presenting an entirely analogous situation, was decided on the authority of the Willey case.

Six years later, in Thursby v. Stewart, 103 Fla. 990, 138 So. 742 (1931), the rule was first applied with respect to and as a limitation upon the jurisdiction of a trial court. In Thursby, plaintiff had filed for and been granted a temporary injunction. Defendants filed an interlocutory appeal from the order granting the injunction, but at the same time moved the lower court to dissolve the injunction. While the interlocutory appeal was pending, the lower court granted defendants’ motion to dissolve the injunction and plaintiff appealed from that order. The two appeals were consolidated in the Supreme Court. Citing the “general rule” that:

“. . . when an appeal is perfected, the cause becomes one for the cognizance of the appellate court, and for that court alone. The authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal, until the appeal is heard and determined. 3 C.J. 1252, 1255; 2 Enc.P. & Pr. 332. See, also, Holland v. State, 15 Fla. 549.”

the Supreme Court held that the lower court was without authority to enter the order dissolving the injunction. The Court therefore reversed that order and proceeded to consider the merits of the original order granting the injunction.

Later cases (to be discussed, infra) have relied upon the above-quoted language in Thursby v. Stewart as the statement of the rule governing lower court proceedings pending interlocutory appeal. While this language is certainly susceptible of an interpretation consistent with the rule as it was more clearly stated in the Willey case, it is, at the very least, ambiguous and we surmise that this language is at least partially responsible for the present confusion surrounding the subject.

Despite the likelihood that the language of Thursby v. Stewart has injected some ambiguity and confusion into the law, the actual resolution of that case exemplifies the proper operation and application of the rule. The situation involved in Thursby typifies that which was intended to be covered by the rule limiting trial court jurisdiction during the pendency of an interlocutory appeal without supersedeas. There, the lower court’s rescission of the injunction, interfered in form and effect with the appellate court’s jurisdiction, because any decision by the appellate court would then have been rendered meaningless.

The next significant decision involving this subject was Crichlow v. Equitable Life Assur. Soc., 113 Fla. 668, 152 So. 849 (1933). There, an interlocutory appeal without supersedeas was taken from an order overruling defendants’ demurrer to the complaint. While the appeal was pending, the trial court entered a decree pro confes-so against the demurring defendants and proceeded to enter a final decree in plaintiff’s favor from which defendants took a second appeal. Deciding this latter appeal, the court stated, at 850:

“The point in the second appeal is that the first appeal transferred to the Supreme Court jurisdiction of the cause and therefore the circuit court had no power to proceed with the determination of the cause on the merits having lost jurisdiction of it by the first appeal. That contention is unsound, as has many times been decided by this court. See Hartman v. Pool, 103 Fla. 858, 139 So. 589; Willey v. Hoggson, 89 Fla. 446, 105 So. 126; Moody v. Volusia County, 90 Fla. 864, 107 So. 185; Lucerne Properties, Inc., v. Hobbs, 98 Fla. 162, 123 So. 571.
The jurisdiction of the Supreme Court is exclusive only as to the subject covered by the appeal. Willey v. Hoggson, supra.
Where there is no supersedeas taken in an appeal from an interlocutory order, the lower court may proceed further after the appeal, but such proceedings are subject to the orders or decrees of the appellate court in the cause on the appeal.
The limitation upon this rule extends only to the point of depriving the lower court of the power to finally dispose of the cause by dismissal or otherwise so as °to in form or effect interfere with the power and authority of the appellate court under the Constitution to make its jurisdiction and orders effective in the cause to which the organic appellate jurisdiction has attached by due course of appellate procedure. Moody v. Volusia County, supra.”

Crichlow v. Maryland Casualty Co., 116 Fla. 226, 156 So. 440 (1933), involved a factual situation nearly identical to that in Crichlow v. Equitable Life Assur. Soc., supra. Defendants’ demurrer to the complaint was overruled and defendants took an interlocutory appeal without superse-deas, declining to file an answer to the complaint. While the appeal was pending, the time for filing an answer expired and the trial court entered a decree pro confes-so. The Supreme Court held that the trial court did have the power to continue in the cause and to enter the decree pro confesso and final decree while the appeal was pending, all subject, of course, to the outcome of the interlocutory appeal.

Thus it can be seen that the Willey case, supra, the Moody case, supra, and both Crichlow cases, supra, stood for two propositions : one, that the trial court had power to proceed in the cause while there was pending an interlocutory appeal taken without supersedeas; two, that the trial court could proceed even to final disposition of the cause, so long as such final disposition did not in form or effect interfere with the power and authority of the appellate court to make its jurisdiction effective.

This second aspect of the rule, i. e., the power of the trial court to proceed to final disposition of the cause while an interlocutory appeal without supersedeas remains pending, was apparently missapprehended in Mandrachia v. Ravenswood Marine, Inc., 118 So.2d 817 (Fla.App.2nd 1960), and apparently recently changed by the Supreme Court in De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974). In the latter case the court held, ostensibly on the authority of the Willey case, supra, and the Moody case, supra, that when an [interlocutory] appeal is taken, whether with or without supersedeas, the trial court is without power to finally dispose of the cause by dismissal or otherwise. This holding, which also viewed the trial court’s final hearing on the merits as having been improperly held, represents a departure from the prior existing law on the subject, as illustrated by our discussion of the earlier cases. Nonetheless, whatever effect the De La Portilla case, supra, may have on the second aspect of the Willey rule, i. e., the power of the trial court to proceed to final hearing and disposition on the merits while an interlocutory appeal without supersedeas is pending, it is clear that such decision does not limit or restrict the first aspect of the Willey rule, i. e., the power of the trial court to otherwise proceed in the cause short of final hearing and disposition on the merits.

Part of the confusion on the entire subject of the trial court’s power to proceed while an interlocutory appeal without su-persedeas is pending was generated by the opinion in Mandrachia v. Ravenswood Marine, Inc., supra. In that case plaintiff took an interlocutory appeal from an order dismissing his complaint for failure to state a cause of action. With this appeal pending, the fifteen days which plaintiff had been given to amend expired without his filing an amended complaint and the lower court entered an order dismissing the complaint with prejudice. Plaintiff thereupon dismissed his interlocutory appeal and in its stead took a plenary appeal from both the interlocutory and final orders. The appellate court affirmed the interlocutory order dismissing the complaint for failure to state a cause of action, but reversed the final order dismissing the complaint with prejudice, noting that if it were to affirm this final order plaintiff would be precluded from filing an amended complaint. The court based its decision upon the following ground:

“It is the general rule that when an appeal is perfected that [sic] the subject matter of the appeal is withdrawn from the lower court which terminates the authority of the lower court so that it cannot proceed in the cause at least as to the subject matter of the appeal until the appeal is heard and determined or unless authorized by the appellate court. See Thursby v. Stewart, 103 Fla. 990, 138 So. 742; and Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126.” (118 So.2d at 821).

In this attempted paraphrase of the rule announced in Willey v. W. J. Hoggson Corporation, supra (apparently taken nearly verbatim from Thursby v. Stewart) the Mandrachia court overlooked the critical element of the rule stated in the Willey case, namely, that the lower court is precluded from acting only if the form or effect of its action interferes with the jurisdiction of the appellate court. Thus the Mandrachia court, on facts analogous to those in Crichlow v. Equitable Life Assur. Soc., supra, reached a result contrary to the Crichlow court, either through misapprehension of the then applicable law, or by virtue of an extraordinary perspicacity of what the law would ultimately become fourteen years later by virtue of the De La Portilla decision.

As to the first aspect of the Willey rule, a recent case which has contributed to the confusion in this area of the law is our own Strauser v. Strauser, 303 So.2d 663 (Fla.App.4th 1974), upon which appellants rely. In that case, the husband was appealing an order holding him in contempt for failure to comply with a final default judgment of dissolution of marriage. This contempt order was entered after the husband had filed his interlocutory appeal from the lower court’s order denying his motion to vacate the default judgment on the grounds that the court had never obtained jurisdiction over his person. This court stated, at 664:

“When an appeal is perfected the subject matter of the appeal is withdrawn from the lower court thereby terminating the authority of the lower court to proceed in the cause, at least as to the subject matter of the appeal until the appeal is heard and determined or unless authorized by the Appellate Court. Mandrachia v. Ravenswood Marine, Inc., 118 So.2d 817 (Fla.App. 1960); see also Thursby v. Stewart, 103 Fla. 990, 138 So. 742 (1931); and Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126 (1925). By perfecting his interlocutory appeal contesting the issue of jurisdiction over his person the Appellant has effectively divested the trial court of the authority to proceed with contempt proceedings against him at least until the subject matter of the appeal has been heard and determined.”

It is apparent that in the Strauser case, supra, this court misconstrued the derivation and purpose of the rule it sought to apply and for that reason reached an incorrect result. In effect, our decision there granted appellant-husband an automatic superse-deas, thereby rendering meaningless Rule 5.1 F.A.R., which makes supersedeas discretionary in interlocutory appeals. We should keep in mind that the very purpose for making supersedeas discretionary is to avoid indefinite delay. Any concept that the taking of an interlocutory appeal without supersedeas would nonetheless deprive the trial court of power to proceed was long ago condemned by the Supreme Court in Crichlow v. Maryland Casualty Co., supra, in the following language, at 443 :

“ ‘To . . . say that by appealing from an interlocutory ruling a party may deprive the trial court of jurisdiction to take any farther step in the case until in the slow course of appellate procedure it is remanded, only to begin another round through the appellate tribunal from the next adverse ruling, would be to deprive courts of the power to administer substantial justice and prolong litigation until Jarndyce v. Jarndyce would cease to be any exaggeration of the law’s delays. Of course, the party who proceeds with a case after his adversary has taken an interlocutory appeal assumes the risk of the effect which an adverse decision by the appellate court may have upon his rights; but that risk is often preferable to waiting until time and change have deprived the main issue of significance and value. There is little to choose between indefinite delay and absolute denial of right.’ ”

We have thus far only considered cases involving the issue of whether the lower court has the authority to proceed in a cause while an interlocutory appeal is pending. A related, but separate, issue is whether the lower court is justified in not proceeding, pending the outcome of the interlocutory appeal. Buck Plumbing, Inc. v. Bel-Aire, Inc., 103 So.2d 670 (Fla.App.3rd 1958), deals with this question and makes clear the principle, initially recognized in the Willey case, that the facts and circumstances of each case determine whether the lower court does, in fact, have the authority to continue in the cause and further, that, even if it does have the authority to proceed, a court may exercise its discretion to await the outcome of an interlocutory appeal before doing so. In Buck, the trial court had declined to grant appellant’s motion to compel appellee’s attendance at a deposition. Stating that the rule that a lower court does not lose jurisdiction while an interlocutory appeal is pending is not absolute but must be applied “according to the nature of the cause and the order or decree appealed from,” the appellate court held that the trial court “was not unwarranted in concluding that a decision on appeal from the order denying temporary injunction could ultimately be determinative of the basic issue in the case.” 103 So.2d at 672. See also, Zuckerman-Vernon Corp. v. Zelikoff, 323 So.2d 585 (Fla.App.3rd 1975), in which the appellate court held that it was “inappropriate” for the trial court to go forward with the complaint in the action when the court was on notice that its order severing a third-party complaint was in the process of being reversed on interlocutory appeal.

The teaching of the cases we have above discussed is that when an appeal is taken from an interlocutory order which is not stayed or superseded, the trial court has full authority or jurisdiction to “proceed” while the appeal is pending, even as to the “subject matter” of the appeal, and short of final hearing and disposition on the merits such authority or jurisdiction is limited in one, and only one, very specific sense: the trial court may not alter, amend, rescind or act in such a way with respect to its previous ruling or order as will frustrate the exercise of the appellate court’s jurisdiction or render moot its labors.

Our analysis of the law on this subject is supported by the clear principles of law enunciated on the subject of lower court jurisdiction with supersedeas. In State ex rel. Martarano v. Robles, 109 Fla. 528, 532, 147 So. 910, 911-12 (1933), the Supreme Court stated:

“ . . . since a supersedeas is ordinarily to stay or suspend the execution of a decree already rendered, and not to suspend other proceedings in the cause further adjudicating the rights of the parties, unless to do so would, in effect, be carrying out the order of court that is superseded, . . . when an appeal is taken from an interlocutory order in an equity case, and an order is made by the circuit judge under section 4962, Comp. Gen.Laws, section 3170, Rev.Gen.St., providing in general terms that the appeal taken shall operate as a supersedeas in the cause, . . . the appeal taken operates only as a supersedeas of the in-’ terlocutory order appealed from, and does not necessarily bar the right of the parties to otherwise proceed with the litigation in the court below in so far as such litigation may be lawfully proceeded with in due course, without having to depend upon the superseded order appealed from in order to justify such further proceedings as being according to law and equity practice. Continental National Building & Loan Ass’n v. Scott, 41 Fla. 421, 26 So. 726. The real effect of an appeal with supersedeas is to suspend the power of the court below to make any order tending towards an extension or enforcement of the order appealed from. Carr v. Marion Mortgage Co., 99 Fla. 540, 128 So. 12. It does not interfere with the power of the court of original jurisdiction to make such further orders or decrees in the cause as do not tend toward an execution or enforcement of the order or decree appealed from, nor place the funds or property involved beyond the judgment or decree of the appellate court. McKinnon-Young Co. v. Stockton, 53 Fla. 734, 44 So. 237.” (emphasis supplied)

This statement of the law was recognized and adhered to in Sexton v. Panning Lumber Company, 260 So.2d 898 (Fla.App.4th 1972), and Sunrise Beach, Inc. v. Phillips, 181 So.2d 169 (Fla.App.2nd 1965). Thus, even with supersedeas the trial court may continue in the cause. The only effect of supersedeas is to suspend the lower court’s jurisdiction to make any order tending to extend or enforce the order appealed. Certainly, the restrictions upon a trial court’s proceeding in a cause involving an unsuperseded interlocutory order may not be any greater than the restrictions upon its proceeding in a cause involving a superseded interlocutory order.

To summarize, the granting of a supersedeas in interlocutory appeals is not automatic; it is discretionary with the trial court. The granting of supersedeas, unless otherwise provided, suspends the jurisdiction of the lower court to make any order tending towards an extension or enforcement of the order appealed; the lower court may otherwise proceed in the cause. If supersedeas is not granted, the lower court may proceed in the cause, even as to the subject matter on appeal. In either case, the subsequent proceedings in the lower court may not interfere with the power of the appellate court to make its jurisdiction effective with respect to the interlocutory order on appeal.

Applying these rules to the case at bar, we hold that it was perfectly proper, absent a supersedeas, for the trial court to proceed with the enforcement by contempt of the interlocutory order under appeal. To proceed in this way did not frustrate or interfere with the jurisdiction of this court; appellee simply ran the risk of having the enforced compliance with the interlocutory order undone if we determined that such order had to be reversed. In a recent case analogous to that at bar, the Florida Supreme Court held that the trial court had the authority to enter, pending an interlocutory appeal, an order holding the parties in contempt for failing to obey the appealed order. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975). The interlocutory order there under appeal was a mandatory injunction, but the Supreme Court noted that Rule 5.1 F.A.R., making the granting of supersedeas discretionary, applied, and that the taking of the interlocutory appeal did not operate as an automatic stay of the mandatory injunction and did not preclude the lower court’s enforcing it. The Third District Court of Appeal reached the same conclusion in Ganem v. de Issa, 236 So.2d 153 (Fla.App.3rd 1970). An unsuperseded interlocutory order was there held to support an order of contempt while the former was being challenged on appeal. The Ganem court stated, at 154:

“It [the interlocutory order being appealed] was an order entered by a court having jurisdiction over the cause and the parties and was valid and enforceable until superseded, stayed, or reversed on appeal.” (emphasis supplied)

Appellants’ remaining points are also without merit and do not require discussion. The contempt order herein appealed is

AFFIRMED.

DOWNEY, J., and LEE, J. CAIL, Associate Judge, concur.

      . This order was ultimately sustained in Waltham A. Condominium Association v. Village Management, 321 So.2d 625 (Fla. App.4th 1975).

      . Such an interpretation requires that the language “at least as to the subject-matter of the appeal” be emphasized, that “subject-matter of the appeal” be construed to mean the precise order or ruling being appealed, and that the prohibition against the trial court’s further proceeding in the cause be construed to mean a prohibition against further proceeding so as to alter, amend, rescind or act in such, a way with respect to its previous ruling or order as would interfere with the appellate court’s jurisdiction or render moot its labors. This is a somewhat strained construction.

      . A similar case, which omitted discussion of the governing rule of law, is Florida Dry Cleaning and Laundry Board v. Everglades Laundry, Inc., 138 Fla. 646, 190 So., 33 (1939). That case held that it was error for the trial court to modify an order after the perfection of an interlocutory order therefrom.

      . A similar observation was made by the court in Hirsch v. Sirsch, 309 So.2d 47, 60 (Fla.App.3rd 1975).


author: BOARDMAN, Judge.

text:
    Ralph YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 75-349.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Rehearing Denied May 5, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant, Ralph Young, was apprehended by police during a break-in and, subsequently, escaped from lawful custody, when he was recaptured he was carrying a pistol in a pants pocket. He was tried separately for escape and the firearm counts: possession of a firearm by a convicted felon and carrying a concealed firearm. On November 18, 1974, he was tried for escape. Appellant chose to represent himself. After the state' rested the court addressed appellant in the presence of the jury.

THE COURT: At this time, Mr. Young, you can put on your case. If you would like to get under oath and explain you can do that at this time. You don’t want to tell the jury anything?
MR. YOUNG: No.
THE COURT: At this time the defendant chooses not to put on any testimony so at this time we will have the arguments of counsel. . . .

The court gave the following instruction without objection:

A defendant may become a witness and testify in his own behalf; and in considering his testimony and the weight and credibility which should be given it, you should consider it just as you would the testimony of any other witness.

Appellant argues that the court’s statements were comments on his failure to testify and, as such, constituted reversible error. While it would have been more appropriate for the statements addressed to the defendant to have been made out of the hearing of the jury, we do not believe that, considered alone, they would constitute reversible error. We do hold, however, that the court’s inappropriate instruction, coupled with these statements, does constitute reversible error. There can be little question that the remarks made by the judge in a jury trial are given great weight by the jury — greater than the remarks of other participants in the trial. In our judgment, the said instruction only served to emphasize and focus the jury’s attention on the statements made by the judge. Undoubtedly these statements were a well-intentioned attempt to insure the defendant’s understanding of his constitutional rights and trial procedures. However, under these particular circumstances the complained-of instruction coupled with the trial judge’s statements were tantamount to a judicial comment on the failure of the defendant to testify. See Diecidue v. State, Fla.1961, 131 So.2d 7.

In a second jury trial appellant was convicted of possession of a firearm by a convicted felon and carrying a concealed firearm; He received a 15-year sentence for possession of a firearm by a felon and a consecutive 5-year sentence for carrying a concealed firearm. Appellant contends separate sentences were improper since the acts were facets of a single crime. We agree. McPhall v. State, Fla.App. 4th, 1975, 320 So.2d 867, is controlling.

Accordingly, we reverse the judgment and sentence on the escape conviction and remand for new trial. We affirm the judgment as to the convictions of possession of a firearm by a convicted felon and carrying a concealed firearm, but vacate the sentence for carrying a concealed firearm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED for further proceedings consistent with this opinion.

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

      . Florida Standard Jury Instructions in Criminal Cases, 2.12(g).


author: RAWLS, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a corporation, Appellant, v. Jesse FARMER et al., Appellees.
    No. AA-375.
    District Court of Appeal of Florida, First District.
    April 13, 1976.

      H. Franklin, Perritt, Jr., Marks, Gray, Conroy & Gibbs, and Jeffrey D. Dunn, Jacksonville, for appellant.
    William C. Gentry, Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellees.
   RAWLS, Judge.

Once again Government Employees Insurance Company (GEICO) challenges the concept of stacking of uninsured motorist coverage. The specific issue here presented relates to “under insured motorist coverage”.

Appellee-plaintiff Jesse Farmer purchased uninsured motorist coverage from GEICO upon three vehicles. One policy covered two vehicles which provided coverage with limits of $20,000 per person and $40,000 per occurrence. A second policy purchased from GEICO by Farmer provided uninsured motorist coverage on the third vehicle with limits of $10,000 per person and $20,000 per occurrence. Farmer paid a premium for each coverage. Farmer was injured as a result of being struck by an automobile insured under a $10,000 per person liability limit. Suit was filed by Farmer against the alleged tort-feasor and joining GEICO as an excess insurance carrier pursuant to his uninsured motorist coverage with GEICO. The trial court granted Farmer’s motion for summary judgment holding that:

“ . . . Jesse Farmer is entitled to recover of defendant Government Employees Insurance Company sums of money up to $40,000 excess over the $10,000 liability insurance available to defendant David L. Norton, to the full extent of plaintiff’s damages, is granted.”

In 1961 the legislature, in furtherance of the public policy of this state, enacted Chapter 61-175, Laws of Florida 1961 (Florida Statute 627.0851), requiring that each automobile liability policy (except where expressly rejected) delivered in this state with respect to any motor vehicle registered or garaged in this state provide uninsured motorist coverage. Of significance is the language of subsection (2) of Florida Statute 627.0851 (1961), viz:

“For the purpose of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency.” (emphasis supplied)

The legislature amended the foregoing statute (now Florida Statute 627.727) effective October 1, 1973, to provide “under insured motorist coverage”. Applicable provisions of the statute as so amended are:

“(2) For the purpose of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
“(a) Is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; or
“(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.”

GEICO contends that the verbiage “subject to the terms and conditions of such coverage” constitutes legislative approval for it to limit “stacking” in the terms of its policy. We disagree.

Judge Wigginton, speaking for this court in Sellers v. Government Employees Insurance Co., stated the controlling principle of law, viz:

“ ‘The uninsured motorist statute has been the subject matter of prodigious litigation of which there seems to be no foreseeable termination. In Davis v. United, States Fidelity & Guaranty Co., [172 So.2d 485,] this court first expressed the public policy contemplated by the Legislature by the enactment of Section 627.0851, Florida Statutes, F.S.A., when it stated, “The cited statute * * * established the public policy of this state to be that every insured, within the definition of that term as defined in the policy, is entitled to recover under the policy for the damages he or she would have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance.” Numerous decisions construing various provisions of insurance contracts have held that this public policy is violated by any restrictive language inserted in an insurance policy having the effect of defeating the purpose and intent of the statute, and such provisions must be considered nugatory and void.’ ”

The “subject to the terms and conditions of such coverage” language has been a part of the uninsured motorist coverage from its inception. The 1973 provision expanded the coverage of uninsured motorist insurance to include “under insured vehicles”, while leaving the coverage subject to the general provision of the insurance policy. The 1973 amendment did not grant to GEICO the unilateral right to insert provisions in the policy to reduce the liability coverage. The law is well settled that:

“An insured under uninsured motorist coverage is entitled by the statute to the full bodily injury protection that he purchases and for which he pays premiums. It is useless and meaningless and uneconomic to pay for additional bodily injury insurance and simultaneously have this coverage cancelled by an insurer’s exclusion.”
Interlocutory Appeal dismissed.

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

      . See Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973), wherein the Supreme Court stated: “We must not confuse uninsured motorist protection as inuring to a particular motor vehicle as in the case of automobile liability insurance. It is bodily injury insurance which protects against such injury inflicted by the negligence of any uninsured motorist.”

        .Sellers v. Government Employees Insurance Co., 214 So.2d 879 (1 Fla.App.1968), quoting from Travelers Indemnity Company v. Powell, 206 So.2d 244 (1 Fla.App.1968).

      . Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971).

      . Tucker v. Government Employees Insurance Co., supra, at 242.


author: PER CURIAM.

text:
    R. W. and L. P., juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1003.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Phillip A. Hubbart, Public Defender and Elliot Scherker, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., and Ivan K. Chesler, Legal Intern, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellants, respondents below, appeal orders of the circuit court, juvenile division, waiving its jurisdiction over them pursuant to appellee’s, petitioner below, motions.

On May 1, 1975, appellee filed petitions for delinquency against appellants in the circuit court, juvenile division, charging them with fourteen counts, including the alleged crimes of robbery, display of a firearm during a felony, and assault with intent to commit first degree murder.

On the same date, appellee filed motions for orders for the court to waive jurisdiction over appellants and to transfer their cases to the circuit court, criminal division. After a hearing, on May 23, 1975, orders were entered by the court granting appel-lee’s motions. From these orders, appellants appeal.

Appellants contend that the court erred in entering the orders because the evidence presented at the hearing did not establish probable cause to believe that appellants committed the crimes as charged. Appellants further contend the evidence clearly established that reasonable prospects for appellants’ rehabilitation existed. Appel-lee contends to the contrary.

We have carefully considered the record, all points in the briefs, and arguments of counsel in light of the controlling principles, and have concluded that no reversible error has been demonstrated. Pursuant to § 39.02, Fla.Stat, F.S.A., the record shows adequate support for the court’s entries of the orders appealed. See W. B. v. State, Fla.1975, 313 So.2d 711; Davis v. State, Fla.1974, 297 So.2d 289; Gagliano v. State, Fla.App.1970, 234 So.2d 159; and B. P. W. v. State, Fla.App.1968, 214 So.2d 365. Therefore, for the reasons stated and upon the authorities cited, the orders appealed are affirmed.

Affirmed.


author: SMITH, Judge.

text:
    STATE of Florida ex rel. FLORIDA PETROLEUM MARKETERS ASSOCIATION, INC., Appellant, v. The Honorable Charles D. McCLURE, as Judge of the County Court in and for Leon County, Florida, Appellee.
    No. BB-48.
    District Court of Appeal of Florida, First District.
    April 15, 1976.

      Joseph C. Jacobs, E. C. Deeno Kitchen and Robert J. Angerer of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellant.
    No appearance for appellee.
    T. Edward Austin, Assigned State’s Atty., and Robert Stuart Willis, Asst. State’s Atty., Jacksonville, for State of Florida, real party in interest.
   SMITH, Judge.

Appellant, Florida Petroleum Marketers Association, Inc., appeals from a circuit court judgment denying a writ prohibiting the county court from prosecuting appellant on a charge which appellant insists is barred by the two-year statute of limitations, § 932.465(2), F.S.1973. The information charges that appellant attempted to offer a bribe to Thomas D. O’Malley, a State official, throughout a period ending November 17, 1972. The information filed May 16, 1975, charged the same offense which was initially charged by an indictment filed on October 18, 1974, within two years of the alleged offense, but which the court dismissed on the State’s motion for the reason that assistant state attorneys of Duval County had assisted in advising the Leon County grand jury under circumstances later disapproved. Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975); Rudd v. State ex rel. Christian, 310 So.2d 295 (Fla.1975). The information was filed within three months after the indictment was dismissed.

Sec. 932.465(2), F.S.1973, provided:
“Prosecution for offenses not punishable by death must be commenced within two years after commission, but if an indictment, information, or affidavit has been filed within two years after commission of the offense and the indictment, information, or affidavit is dismissed or set aside because of a defect in its content or form after the two year period has elapsed, the period for commencing prosecution shall be extended three months from the time the indictment, information, or affidavit is dismissed or set aside.”

The indictment filed October 18, 1974, was in proper form in the sense that there was nothing irregular about the instrument itself. Nor were its contents defective, if by that is meant the words it spoke were insufficient. A strict reading of the statutory phrase, “defect in its content or form,” would therefore suggest that appellant’s indictment was not dismissed for such a cause. It was defective in content or form only in the broader sense that, due to irregularities in the grand jury proceeding from which it emanated, the charging instrument was not what it purported to be; it was vulnerable as an ineffective indictment. A restrictive view of the statutory phrase would no doubt serve the general rubric that limitation statutes are to be construed liberally in favor of the accused, State v. King, 275 So.2d 274, 276 (Fla.App.3d, 1973), aff’d 282 So.2d 162 (Fla. 1973), but to adopt it, we find, would disregard the overriding statutory purpose of prosecutions being “commenced within two years after commission” of the offense, which was done in this case.

At common law there was no limitation on the time for prosecution of criminal offenses. 21 Am.Jur.2d Criminal Law § 154, at 222 (1965); 22 C.J.S. Criminal Law § 223, at 572 (1961); 1 Wharton’s Criminal Law and Proc. § 179, at 417 (Anderson ed. 1957).' Typical statutes imposing such limitations either provide specifically that an indictment or information must be filed within a stated time after the offense, or generally that prosecution must be “commenced” within that time. See 1 Wharton, supra § 184, at 426. Until 1975, when amendments not here applicable became effective, Florida’s statutes uniformly provided in general terms that offenses “shall be prosecuted” or that “prosecution . must be commenced” within the stated time. No. 55, § 78, Acts of Feb. 10, 1832; § 2357, R.S.1892; § 3181, G.S.1906; § 5011, R.G.S.1920; § 7113, C.G.L.1927; § 932.05, F.S.1941-1969; § 932.465(2), F.S. 1971, 1973. That distinctive characteristic of the Florida statute significantly influences our interpretation of the clause, first added in 1935, which continues a prosecution, timely commenced; in which the timely indictment or information is dismissed for “a defect in its content or form.”

In States whose limitation statutes explicitly require the filing of an indictment or information to toll the statutory period, it is held with near unanimity that “the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not operate to stop the running of the statute of limitations pending the return or filing of another indictment' or information, in the absence of a statute expressly so providing.” 1 Wharton, supra at 427-28; Annot., 90 A.L.R. 452, 456 et seq. (1934). The Iowa statute, for example, required that an indictment be timely filed and made no provision to save prosecutions irregularly begun. The court said, of a timely filed indictment which was dismissed for procedural irregularities: “Such an indictment is no indictment. It is a nullity. . . . ” State v. Disbrow, 130 Iowa 19, 29, 106 N. W. 263, 266 (1906). The Maryland court held that whether the timely but dismissed indictment was void or merely voidable was of no consequence when the accused seasonably selected to attack it. State v. Michael, 2 Md.App. 750, 237 A.2d 782, 785 (1968). Oregon, Idaho, Iowa, Arizona, Georgia, North Carolina and Pennsylvania, among other States, have limitation statutes which must be tolled by the filing of an indictment or information, and they correspondingly hold that the timely filing of a vulnerable charging instrument will not stop the running of the limitation period “in the absence of a statute expressly so providing.” Commonwealth v. Cardonick, 448 Pa. 322, 330, 292 A.2d 402, 406-07 (1972), and cases cited. In such a context, a statute saving prosecutions commenced by a timely indictment or information which is later set aside for a “defect in its content or form” might well be strictly construed as referring exclusively to defects appearing on its face. Such a construction would be the natural consequence of a statutory scheme in which the limitation period is not tolled except by an indictment or information.

In Florida, however, the limitations period may be tolled not only by the filing of an information or indictment but also by any other act constituting commencement of a prosecution. DiStefano v. Langston, 274 So.2d 533, 537 (Fla.1973). The timely issuance of a warrant constitutes commencement of a prosecution for purposes of tolling the statute, and an information filed beyond the statutory period is effective to continue a prosecution thus begun. Rouse v. State, 44 Fla. 148, 32 So. 784 (1902); Horton v. Mayo, 153 Fla. 611, 15 So.2d 327 (1943). A warrant commences the prosecution for limitations purposes, if it does not wholly fail to charge an offense, even though it may be inaccurate and imperfect. State v. Emanuel, 153 So.2d 839, 843 (Fla.App.2d, 1963). Such a warrant signifies the State’s commitment to prosecute and satisfies the statute’s purpose. State v. Hickman, 189 So.2d 254, 261 (Fla.App.2d, 1966), cert. den. Fla., 194 So.2d 618 (1966).

In States whose statutes do not explicitly require the filing of an indictment or information to toll the statute, but require only that prosecution be commenced within the period of limitation, there is no clear necessity for a statute saving prosecutions which are timely but imperfectly commenced within the prescribed period. There the pertinent question is only whether the prosecution continued or restored beyond the period of limitations is the same prosecution that was imperfectly begun before the time expired. Thus, in Hickey v. State, 131 Tenn. 112, 117-18, 174 S.W. 269, 270 (1915), concerning a statute which like Florida’s required only the timely commencement of prosecution, the court held:

“The question now arises whether in this state and in the absence of any statute on the subject, the prosecution under this second indictment may be considered such a continuation of the original prosecution that the statute of limitation cannot apply. We think there is no doubt but that it was the same prosecution under both indictments. While the first indictment was defective and invalid . yet it was a prosecution for the same offense as that embraced in the second indictment. . . . It is the ‘prosecution’ which must be commenced within 12 months, not the finding of the indictment.”

Similarly, in language later echoed by our District Court of Appeal, Second District, in Emanuel, quoted supra n. 5, the Oklahoma court stated in Davenport v. State, 20 Okl.Cr. 253, 269, 202 P. 18, 24 (1921):

“It could hardly be said that a person, who had been arrested and compelled by the officers of the law to appear in court to answer an accusation against him, even though based upon a defective or insufficient complaint, information, or indictment, had not been prosecuted. We are aware of no other term to use in order to express what had been done in such a case.”

The same observations aptly describe the effect of the Florida limitation statute before 1935 legislation added the provisions, supra n. 3, with which we are here concerned. Before amendment the statute provided only that offenses “shall be prosecuted” within the prescribed time, § 7113, C.G.L.1927, and so permitted continuation of a prosecution timely commenced by the filing of a warrant, indictment or information later dismissed for any defect. Given that context, it is unreasonable to suppose that the 1935 amendment was designed to bar prosecutions theretofore permitted by restricting the availability of restorative indictments and informations to cases in which the defect in the prior instrument appeared on its face. We will not assume that the legislature intended to permit the continuance of a prosecution timely begun by an irregularly issued warrant and restored by an information filed beyond the period of limitations, but to foreclose an otherwise identical prosecution which was timely commenced, not by an irregularly issued warrant, but by an irregularly issued indictment or information. Yet the attribution of such an anomalous legislative purpose is a necessary consequence of the view, here urged by appellant, that § 932.-465(2), F.S.1973, does not permit a restorative information when the original indictment was defective for a cause not appearing on its face.

The primary purpose of the 1935 legislation was to place a three month limitation on the State’s power to restore and continue prosecutions irregularly begun within the limitation period. The legislature’s interest was akin to Mr. Justice Davis’ expressed concern in 1933, that the State not be permitted to defeat the spirit of the limitation statute by timely commencing prosecution and then, having satisfied the letter of the statute, permitting the prosecution to languish until it became convenient to proceed. State ex rel. Melson v. Peeler, 107 Fla. 615, 621-24, 146 So. 188, 191 (1933) (concurring opinion). Thus the 1935 legislation eliminated the prospect that, by continued or delayed amendments, a prosecution timely commenced could be interminably prolonged. State v. McCloud, 67 So.2d 242 (Fla. 1953).

We therefore hold that § 932.-465(2), F.S.1973, contemplates that a restorative indictment or information, filed within three months of one timely filed but dismissed, is effective to continue the prosecution whether the defect in the first instrument appears on its face or not. Expressed in terms of the case at hand, there was a defect in the “content or form” of the October 18, 1974, indictment because the indictment was the defective product of defective grand jury proceedings. The information which continued and restored the prosecution on May 16, 1975, satisfied the statute.

We have also considered, and found unavailing, appellant’s argument that the information does not state an offense proscribed by Florida law. The constitutional stay writ issued by us to preserve conditions during this appeal is dissolved and the judgment of the circuit court is

AFFIRMED.

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

      . Independently of the question of statutory construction, appellant argues that the., offense charged was completed, if at all, more than two years before the indictment was returned on October 18, 1974. ■ The proof may be otherwise, but at this stage we take at face value the allegation that > the offense continued to November 17, 1972.

      . By the revised criminal code effective July 1, 1975, tolling of the limitations period was made to depend for the first time on the filing of an indictment or information. Ch. 74-383, § 10, Fla.Laws; § 775.15(5), F.S. 1975. The new statute retains the phrase “a defect in its content or form” in the clause permitting the continuation of prosecutions timely commenced in that manner.

      .Ch. 16962, § 1, Fla.Laws 1935; § 7113, C.G.L.1927 (1935 Supp.) ; § 932.05, F.S. 1941-1969. The 1935 act referred to the dismissal of an indictment or information “because of any defect, omission or insufficiency in the contents or the form thereof.” The present language was substituted by ch. 70-339, § 109, Fla.Laws.

      . In Arizona, the statute requires filing of an indictment within a specified period after the offense and mates no provision for saving prosecutions timely begun by defective indictments. The court held in State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972), that the statute barred prosecution on twelve counts of a second indictment which had been filed to replace a timely indictment which was quashed “on the ground that the presentation of the evidence before the grand jury was done by a disqualified deputy county attorney.”

      . “The arrest warrant clearly set forth the nature of the offenses and was legally sufficient for the arrest of the defendant. If an arrest warrant is legally sufficient to deprive a person of his liberty and freedom of movement, it follows that it should be sufficient as a basis for commencing criminal prosecution and tolling the statute of limitations.”

      .Clearly a prosecution timely commenced by the filing of an information within the limitations period, but then abandoned, is no basis for a restored prosecution after the period has run. State v. O’Neal, 174 So.2d 564 (Ma.App.2d, 1965).

      . The 1974 legislation, effective July 1, 1975, supra n. 2, so altered the statute of limitations that the analysis of this decision is no longer applicable. It would appear that, as a result of the 1974 act, a prosecution may now be restored and continued only when the timely indictment or information was defective, in “content or form,” on its face.


author: HOBSON, Judge.

text:
    Dannie Lee BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-25.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Rehearing Denied May 7, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, E. C. Watkins, Jr., Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant was placed on probation after pleading guilty to breaking and entering with intent to commit a misdemeanor. Later he was tried and acquitted for rape. He was then charged with probation violations arising from the same incident. A probation revocation hearing was held and testimony was taken as to the violation. Appellant denied the allegations. The court revoked probation and sentenced appellant to five years imprisonment.

At this point appellant accused the court of railroading him, and called the judge an obscene name. When asked why he should not be held in contempt, appellant continued to vilify the court and suggested the court charge him with a second contempt. The court accepted his suggestion. Appellant continued his outburst, expanding his original description of the judge and offering to assault the judge if his handcuffs were removed. By the time appellant ceased his performance he had accumulated six counts of contempt. He was summarily convicted of six separate acts of contempt of court and sentenced to six months imprisonment for each offense. The sentences were to run consecutively for a total of 36 months.

Appellant contends it was improper to revoke his probation after his acquittal on the rape charge since the violations for which he was charged were related to that crime. The point is without merit. Russ v. State, Fla.1975, 313 So.2d 758.

Appellant also challenges the propriety of the trial judge, who was personally reviled, failing to disqualify himself from the contempt proceedings and of the failure of the trial judge to give appellant the opportunity for a jury trial. We do not reach the constitutional questions raised since an examination of the trial transcript reveals that appellant was guilty of but a single contempt. The six “con-tempts” were not individual acts but were a single outburst by the appellant that was interrupted only by the court interjecting itself long enough to inform the appellant that he had committed yet another act of contempt. While the outrageous conduct of the appellant cannot be allowed to go unpunished, it was error to convict him of six separate acts of contempt. Accordingly, we vacate five of the judgments and convictions for contempt. Summary judgment of direct contempt is permissible without a jury trial where a sentence of no more than six months is imposed. Codispoti v. Pennsylvania, 1974, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912; Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532. Appellant was adequately informed of the charge and given an opportunity to be heard. This was in substantial compliance with RCrP 3.830. See Saunders v. State, Fla.App. 1 St. 1975, 319 So.2d 118.

Accordingly, we affirm the revocation of probation, the judgment and sentence on the first contempt, and vacate the last five judgments and sentences of contempt.

McNULTY, C. J., and GRIMES, J., concur.


text:
    Roger Gall HELMIG, Appellant, v. STATE of Florida, Appellee.
    No. Y-133.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Robert B. Kane, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from judgment and sentence of appellant for selling personal property subject to a lien, without the consent of the lienholder, in violation of § 818.01, F.S., and transferring a motor vehicle without delivery of title, in violation of § 319.34, F.S. The first offense carries a maximum penalty of one year imprisonment, and the second offense carries a maximum penalty of six months imprisonment. Adjudication was withheld, and appellant was placed on five years probation. Appellant contends on appeal that the record fails to show that he had the requisite criminal intent to commit the offenses charged. Appellant further contends that the trial court lacked authority to place him on probation for a period of five years.

The appellant was the manager and part owner of a used car lot known as “Wholesale Motors.” In July, 1973, appellant agreed to sell a 1969 Ford Torino belonging to James Herring. Proceeds from the sale were to be used to satisfy a $900 lien to Chrysler Credit Corporation. On July 16, 1973, appellant sold the car to Vera Moten for cash and a trade-in totaling $1,083. Appellant did not advise Ms. Mo-ten that the car was encumbered by a lien nor did he advise the lienholder of the sale. Also, he did not deliver the certificate of title. The funds received from Mrs. Moten were deposited in Wholesale Motors’ general account. Appellant’s bookkeeper had no record of a lien on the car in question and could not recall any instructions to pay one. Appellant testified at trial that he initially delayed payment of the lien at the request of James Herring, and that he subsequently delayed payment because his business had become insolvent. Ms. Moten was advised of the unpaid lien by Chrysler Credit. The instant charges were filed against appellant in May, 1974. Shortly before trial, Chrysler Credit repossessed the car. Appellant finally discharged the lien and delivered the title to Ms. Moten on October 22, 1974, over IS months after the car was purchased.

As to appellant’s having been found guilty of the misdemeanor, selling personal property under a lien without the consent of the lienholder, he contends that the record does not show that he had a criminal intent to commit this offense. This statutory offense, however, does not require proof of criminal intent. See Mills v. State, 58 Fla. 74, 51 So. 278 (1910), and State v. Dowling, Fla., 110 So. 522 (1926). The same is true of the misdemeanor, transferring a motor vehicle without delivery of a certificate of title thereto, of which appellant was also found guilty.

We turn now to appellant s contention that the trial court lacked authority to place him on probation for a period of five years. Appellant argues that § 948.04(1), Florida Statutes 1975, as amended by Chapter 74-112, Laws of Florida, fails to establish a maximum time period for probation, but that it should be construed as limited to the maximum time period of sentence for each particular offense. In this case, under such proposed construction, the probation would be limited to 18 months for the two offenses. We find no merit to this contention, however, since the amended probation limitation brought about by Chapter 74-112, Laws of Florida, does not have any applicability to appellant.

Appellant’s criminal acts occurred in 1973, at which time the applicable law barred probation for “more than two years beyond the maximum term for which the defendant might have been sentenced . . . ,” § 948.04, Florida Statutes 1973.

Article X, Section 9 of the 1968 Florida Constitution provides:

“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”

The Supreme Court in a recent opinion held that, in light of this provision, sentencing must be governed by the law applicable at the time of the criminal event. Castle v. State, Fla., 330 So.2d 10, opinion filed March 17,1976.

Appellant’s aggregate probation time is within the permissible limits of Section 948.04, Florida Statutes 1973. Two years added to each maximum sentence would aggregate five years and six months. Appellant asks us to review the propriety of the term of probation given the nature of the crimes for which he was convicted. We are unable to do so, as sentencing is peculiarly a function of the trial court.

We find no merit to appellant’s contention that placing him on five years probation violated the single transaction rule.

Affirmed.

McCORD, J., Acting C. J., ENGLAND, J., ARTHUR J., and LEE, THOMAS E., Associate Judges, concur.


text:
    Clara McGEHEE, Appellant, v. Francisco MATA and Dora Mata, Individually and d/b/a Cuba Wig Import, Appellees.
    No. 75-843.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Guillermo F. Mascaro, Coral Gables, for appellant.
    Lopez & Harris, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals an adverse final summary judgment in this action for an accounting and return of money invested in defendants’ wig business.

Upon the alleged representation of the defendants, Francisco and Dora Mata, that their wig business yielded a 30% net return and they would return her initial investment within seven months, plaintiff, Clara McGehee, paid the Matas $7,888.15 for a Yz partnership interest in Cuba Wig Imports. Later this business was changed from a partnership to a corporation and Ms. McGehee received 3,333 shares of stock. When her initial investment was not returned, Ms. McGehee demanded from the Matas the $7,888.15 and threatened to take legal action. The attorneys for the respective parties then entered into settlement negotiations which resulted in the Matas forwarding to Ms. McGehee’s attorney a $3,000 check enclosed in a letter (dated September 23, 1974) which reads in pertinent part:

“1. Enclosed I am forwarding check in the sum of $3,000.00 payable to Francisco Mata and Dora E. Mata, his wife, and endorsed over to your client, in full compliance with the terms of our agreement.
“2. I would expect to receive from you the original certificate evidencing Mrs. McGehee as being a stockholder of the corporation, duly assigned in the back thereof. I would like to have one witness to the aforesaid assignment.
“3. An executed release by Mrs. Mc-Gehee to the corporation and also to Mr. Francisco Mata and Dora E. Mata, his wife.
“4. Resignation of Mrs. McGehee as a director and officer of the corporation. I would like to have a witness, at least, attesting to the execution of the instrument of resignation.
“I believe that upon receipt of the foregoing, this matter has been effectively dealt with and to the satisfaction of everybody concerned. I look forward to receiving the above instruments, and in the meantime, I remain,”

Ms. McGehee cashed the check, endorsed her 3,333 shares of stock over to the Matas and signed a resignation as a director and officer of the corporation. Nevertheless, she refused to execute a release in favor of the Matas.

Ms. McGehee then filed the instant law suit seeking return of her $7,888.15 from the defendants on the ground of the alleged false and fraudulent representations made by them with respect to the percentage of net return; yielded and the time within which her investment would be returned. She also sought an accounting for the alleged secret misappropriation of profits for defendants’ own use. Defendants answered and pled the release as an affirmative defense. Subsequently, they filed a motion for summary judgment' which was granted. We affirm.

If an offeror clearly attaches to his offer the condition that the offer, if taken at all must be received in satisfaction of the claim in dispute, and the other party received it, he takes that offer subject to the conditions attached to it, and the offer operates as an accord and satisfaction. See U. S. Rubber Products v. Clark, 145 Fla. 631, 200 So. 385 (1941). Further, a tender made subject to a condition upon which the party has a right to insist is a valid tender. Plank v. Arban Fla.App.1970, 241 So.2d 198.

It is undisputed that as part of the offer to settle plaintiff’s claim defendants attached as one of the conditions (upon which they had the right to insist), the execution of a general release by the plaintiff. This condition was clearly communicated to the plaintiff and/or her attorney and upon cashing the $3,000 check, she was estopped from asserting the instant claim against the defendants. See 12 Fla.Jur. Estoppel and Waiver § 46 (1957).

Affirmed.


author: NATHAN, Judge. PEARSON, Judge

text:
    Endel ARE, and Fidelity and Deposit Company of Maryland, Appellants, v. BARNETT BANK OF MIAMI BEACH, N. A., Appellee.
    Nos. 75-549, 75-1324.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Edward B. Johnson, Jr., Key West, for Are.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, and Thomas E. Scott, Jr., Ft. Lauderdale, for Fidelity & Deposit Co.
    Feldman & Eden, Key West, Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee.

      Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

These are consolidated appeals by Endel Are, defendant in the trial court, and Fidelity and Deposit Company of Maryland, his bond surety, from a summary judgment against them in favor of the plaintiff, Barnett Bank, in a replevin action which repossessed Are’s motor home.

On July 27, 1972, Are, by installment contract, purchased an open road motor home to be used for business purposes, from Larry Costley Chevrolet, Inc. Shortly thereafter, the contract was assigned by Larry Costley Chevrolet, now a third party defendant in this lawsuit, to the Barnett Bank. Are made the installment payments required by the contract for almost a year. In September of 1973, Are failed and refused to make any further payment to the bank. In February of 1974, the bank accelerated the balance due on the contract and brought this suit in replevin. Are asserted as a defense to the suit that the motor home he purchased was a used, rather than a new motor home as represented and described in the contract, and that he repeatedly had to return the motor home to Larry Costley Chevrolet because of many defects which were never rectified. He contends that Barnett Bank is not a holder in due course of the contract between Larry Costley Chevrolet and himself; therefore, because the bank received the installment contract concurrently with its execution by himself and Larry Costley Chevrolet and was a part of the same transaction, his personal defenses may be interposed against the bank. Thus, it is Are’s contention that the court erred in entering the summary judgment because there was a genuine issue of material fact to be determined by the trial court as to personal defenses.

The installment sale contract here involved contains the following provision:

“Buyer hereby represents and warrants to the assignee of this contract that Buyer shall perform all of the covenants of this contract without regard to any set-off, defense, or claim that Buyer may have against the original Seller, and agrees that Buyer will look only to the original Seller for performance of any covenants or warranties or redress for representations made concerning the property. Seller’s assignee shall have all of the rights, powers and remedies of the original Seller, but shall be subject to none of the original Seller’s obligations.”

One question presented for our consideration is whether Are’s agreement not to assert his defenses against the bank is enforceable in this case. § 679.9-206, Fla. Stat., provides in pertinent part:

“(1) Subject to any statute or decision which establishes a different rule for buyers or lessees of consumer goods, an agreement by a buyer or lessee that he will not assert against an assignee any claim or defense which he may have against the seller or lessor is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the chapter on commercial paper (chapter 673)

The bank concedes that it is not a holder in due course for the reason that no negotiable instrument was involved, but it contends that this is immaterial as § 679.-9-206(1), Fla.Stat., quoted above, applies to assignees of installment contracts irrespective of their status as holders in due course and that Are, therefore, was entitled to assert as defenses to the bank’s re-plevin suit, defenses of a type which may be asserted against a holder in due course of a negotiable instrument. The bank argues, however, that there were no defenses before the trial court which were applicable to its transaction with Are. We agree. In this case there is no genuine issue of material fact that the bank took the assignment of the contract from Larry Costley Chevrolet in good faith, without notice of a claim or defenses, and that Are made payments on the contract for almost a year without notifying the bank of any defects in the motor home. The record further reflects that the bank, as financier, did not maintain a close relationship with Larry Costley Chevrolet (the seller) when the contract was purchased, and that the bank was not closely connected with, or an integral part of, the business operations of Larry Costley Chevrolet. Therefore, we find that the agreement not to assert defenses is binding on Are as buyer. Compare Rehurek v. Chrysler Credit Corporation, Fla.App. 1972, 262 So.2d 452; Mutual Finance Company v. Martin, Fla.1953, 63 So.2d 649; Industrial Credit Company v. Mike Bradford & Company, Fla.App. 1965, 177 So.2d 878.

Fidelity Deposit, as surety on the replevin forthcoming bond posted by Are in the sum of $9,000, appeals the summary judgment against it on the ground that it was never served with any notice of hearing, nor given any opportunity to be heard prior to entry of the judgment; that failure by the bank to give such notice violates due process of law and in particular 1.-080(a), RCP, which requires that all papers filed in an action be served on each party. We hold that a surety on a forthcoming bond, where the defendant has retained the goods, is not a party within the meaning of 1.080(a), RCP. This court’s task in reaching this determination has been alleviated to a great degree by the decision in Evans v. Kloeppel, 1916, 72 Fla. 267, 73 So. 180, 186-187, in which the Florida Supreme Court opined as follows with respect to the posture of a surety under a bond in a replevin suit:

. . the sureties having full knowledge of the consequences to them of a judgment against their principal. By becoming sureties upon the bond they submit themselves to the acts of the principal and to the judgment as itself a legal consequence falling within the surety-ship. They are represented in the proceedings by their principal, are bound by his acts, and are quasi parties to the suit. They thus have their day in court, being by their act conclusively bound by the judgment against their principal to the exclusion of all defenses that were or might have been set up by him. [citations omitted] * * * The statutes do not do violence to the due process clause of the fourteenth amendment, because the surety by signing the undertaking, the condition and consequences of which are fixed by statute, enters the court for the purpose of contesting or aiding his principal in contesting a question in an action pending in the court and is thus deemed to have submitted himself to the jurisdiction of the court for all purposes of the action.” [citations omitted, emphasis added]

Fidelity next contends that if they are not parties to the suit, an independent action should be brought against the surety on the bond. This is not so because § 78.-19, Fla.Stat., provides for a judgment against the principal and surety on a forthcoming bond where the defendant has retained the goods.

The summary judgment against Fidelity and Are is affirmed. However, since it was $374.30 in excess of the amount of the forthcoming bond, the judgment against Fidelity should be reduced in that amount.

Affirmed in part and reversed in part with directions.

PEARSON, Judge

(concurring in part, dissenting in part).

Although I recognize the law as stated in the majority opinion (see Evans v. Kloeppel, 1916, 72 Fla. 267, 73 So. 180; Capitol Indemnity Ins. Co. v. State, Fla. 1956, 86 So.2d 156; and Travelers Indemnity Co. v. Mercer, Fla.App.1971, 250 So.2d 283), I would hold that a judgment may not be entered against a surety in the absence of notice and an opportunity to defend. “In observing due process of law, the opportunity to be heard must be full and fair, not merely colorable or illusive.” Ryan’s Furniture Exchange v. McNair, 1935, 120 Fla. 109, 162 So. 483, 487.

      . § 673.3-305, Fla.Stat., provides in pertinent part:
      “To the extent that a holder is a holder in due course he takes the instrument free from:
      (2) All defenses of any party to the instrument with whom the holder has not dealt except;
      (b) Such other incapacity, or duress, or illegality of the transaction, as renders the obligation of the party a nullity; and (c) Such misrepresentation as has induced the party to sign the instrument with neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms; . . . ”


text:
    Marie TARWACKI and Wallace Tarwacki, her husband, Appellants, v. ROYAL CROWN BOTTLING COMPANY OF TAMPA, INC., a Florida Corporation, et al., Appellees.
    No. 74-1519.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.

      Douglas Barfield of Maher & Over-chuck, Orlando, for appellants.
    James F. Manderscheid, St. Petersburg, for appellees.
   BOARDMAN, Judge.

Appellants/plaintiffs, Marie Tarwacki and Wallace Tarwacki, timely appeal from the entry of a directed verdict in favor of the appellee, Pantry Pride (retailer), and a jury verdict entered in favor of the appel-lee, Royal Crown Bottling Company of Tampa, Inc. (manufacturer).

This products liability case was brought by appellants on the theories of negligence and breach of warranty. The appellants’ primary complaints with the trial court are that after hearing the testimony presented in their case, the judge granted a motion for directed verdict in favor of the retailer, and refused to give a requested instruction submitted by appellants on the law of negligence in the case against the manufacturer. The trial judge in refusing to instruct the jury on negligence stated:

. I feel that product liability case negligence is one of the theories that is incapsulated and included within the instruction on implied warranty.

The facts are as follows :

The appellant, Marie Tarwacki, prior to the incident that occurred on December 9, 1972, and out of which this action arose, purchased a carton of Diet-Rite Cola from the retailer that had been bottled by the manufacturer. On said day, she opened a bottle from the carton of soft drinks in the kitchen of her home, put ice in a glass and went into the living room. She poured the soft drink into the glass and drank the contents without incident. However, when she attempted to pour a second glass of the soft drink she noticed that no liquid flowed from the bottle. Upon closer examination, a bug was discovered stuck in the neck of the bottle. She testified that she immediately became ill and nauseated and, as a result of this experience, sought medical consultation and treatment. According to her testimony, she remained sick for about two or three months. Counsel for the respective parties stipulated that the amount of her doctor’s bill was $231. She also testified that she had an aversion to bugs and became ill at the sight of even a caricature of them on television. She was unable to determine if the bug was dead or alive when she first saw it.

We have carefully reviewed the record, briefs and oral arguments of counsel and conclude that the trial court properly instructed the jury as to the central issue that was to be considered by it. The instruction was as follows:

When this Diet-Rite cola was purchased there was an implied warranty that it was reasonably fit for human consumption. Food is not reasonably fit for human consumption when it contains a foreign substance that is not material to the drinking content concerned and as you have gathered from the comments and presentation of counsel this is the central issue that you are to try.’

This instruction was concise and succinct and it is clear to this court that the jury, by its verdict, found that the bug got into the bottle after it had been opened in appellants’ home.

The testimony of a witness for the manufacturer was that if there were a foreign object, such as a bug, in the bottle it would have boiled over and would not have fizzed when it was opened. Marie Tar-wacki testified that when she opened the bottle it did fizz. Counsel for appellees candidly admitted in his closing argument to the jury, and in his brief and oral argument before this court, that the bug was in the bottle. How, when and where the bug got into the bottle was the sole question for the jury.

The appellants raise three points for our consideration on this appeal. They contend in their first point that the trial judge erred in granting the motion for directed verdict in favor of the retailer and thereby denied the jury the opportunity to consider the cause against the retailer. This was error; but, for reasons hereinafter stated, we hold it to be harmless error. We are well aware that in products liability cases in our jurisdiction retailers may be held accountable. We reiterate, in view of the jury’s finding of fact, that it cannot be logically said that the retailer or manufacturer was liable to appellants, either under the theory of implied warranty or the theory of negligence, the bug not having been in the bottle at the time of the sale.

Appellants’ second point concerns itself with the failure of the trial court to give the requested negligence instruction. The trial court’s reason for refusing to grant that request was contrary to law for there is ample decisional law in our jurisdiction allowing one to sue on both theories of implied warranty and negligence. We hold that the failure to give the negligence instruction under the circumstances of this case was harmless error. The central issue to be tried was squarely before the jury and was decided adversely to appellants. As stated above, the jury found that the bug entered the bottle after it was opened by appellant, Marie Tarwacki, and, therefore, appellants are barred from recovering on any pleadable theory.

Finally, appellants contend in point three that the trial court erred in denying their motion for new trial. In the order denying said motion, the trial judge determined that the attorney for the manufacturer, in his summation to the jury, admitted responsibility “ . . . for the placing of the bug in the bottle. . . . ” We have very carefully read the complete record and cannot find a scintilla of evidence supporting that finding. With deference, we point out that if the trial judge was of that opinion, after both sides had rested their cases, he surely would have directed a verdict in favor of the appellants on liability. Moreover, his recollection at the time of denying the motion for new trial was obviously not his understanding at the time he instructed the jury, else the “central issue” in fact charged on would not have been as it indeed was.

AFFIRMED.

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

      . In Sencer v. Carl’s Markets, Inc., Fla.1950, 45 So.2d 671, the Supreme Court of Florida held that the defendant/retailer was liable for injuries caused by unwholesome food found in a sealed can of sardines. In Seneer, supra, the late Justice Hobson, in his well-reasoned special concurring opinion, stated, in essence, that an innocent purchaser may have no recourse against a foreign manufacturer and that the burden of responsibility should be placed upon the retailer in his business transaction with both domestic and foreign manufacturers from whom it purchases. As far as we can determine this is still good law. The case has been interpreted as giving a retailer, found liable in such cases, the right of subrogation against the manufacturer. The supreme court, in a later case, Food Fair Stores of Florida, Inc. v. Macurda, Fla.1957, 93 So.2d 860, citing Seneer, supra, with approval, held a retailer liable on the theory of breach of warranty in a case involving worms found in spinach cans.

      . It is a well-accepted principle that a litigant is entitled to have the jury instructed on his theories of recovery when substantial competent evidence has been adduced to support the allegation of the complaint. The remedies of negligence and implied warranty are not considered to be mutually exclusive theories. See 63 Am.Jur.2d, Products Liability, § 2, page 10. Usually, one may recover, provided he adequately proves his ease, under either or both of said theories. See Way v. Tampa Coca Cola Bottling Co., Fla. App.2d, 1972, 260 So.2d 288. In that case, which involved a foreign substance resembling a rat discovered in a soft drink bottle, this court, in the majority opinion written by then Judge Woodie Liles, held that the consumer was entitled to recover on the theories of negligence and of implied warranty against the manufacturer.