text:
    Jeanelle Varnado WEBB, et al. v. Elizabeth H. BROWN.
    No. 52806
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Rehearing Denied Nov. 4, 1981.

      Parsons & Matthews, Jack Parsons, Eddy Parsons, Wiggins, for appellant.
    Newton & Newton, Robert S. Newton, James M. Hall, Wiggins, for appellee.
    Before PATTERSON, C. J., and SUGG and BROOM, JJ.
   PATTERSON, Chief Justice, for the Court:

In the Chancery Court of Stone County, Jeanelle Varnado Webb, Jerry Shorder, Durwood McGuffie, Carolyn McGuffie, and Peggy Wiggins filed a bill for reformation of a warranty deed conveying property to Elizabeth H. Brown. In her cross-bill, Brown sought confirmation of title to the disputed property, removal of any clouds from her title, and also alleged no mutual mistake which would require reformation.

The chancellor found no mutual mistake to warrant reformation of the deed, thus confirming title in Brown and setting aside the quitclaim deed from the Varnado heirs to Jeanelle Varnado Webb and Jerry Shorder as a cloud on Mrs. Brown’s title.

Being aggrieved, Webb, et al, appeal, assigning seven errors, namely:

I.The Court erred in not considering intention as an element of knowledge of the parties as relevant and admissible as to proof of mutual mistake.

II. The Court erred in not considering equity because the parties have incorporated the description they intended to incorporate into the deed.

III. The evidence adduced at trial in no way supports the claim of “Estoppel by Deed” in the instant case.

IV. Equity has the inherent power to reform a deed to make it express the intention of the parties.

V. The Appellee has not shown herself to be a bona fide purchaser for value without notice.

VI. The parol evidence rule is not applicable in cases involving bills to reform instruments between the original parties or their privies.

VII. The evidence adduced at trial demonstrated beyond a reasonable doubt that the Ainsworth building was not intended to be conveyed.

This controversy stems from a series of conveyances of property located in Wiggins which consists of three or possibly four business buildings which were leased to business tenants. The warranty deed sought to be reformed describes the property as follows:

Begin at the Southeast corner of Lot 1, Block 2, Mattox Addition to the City of Wiggins, according to the Plat thereof on file and of record in the Stone County Chancery Clerk’s office at Wiggins, Mississippi, in Plat Book 1, Page 34, reference to which said Plat is hereby made in aid of and as a part of the description; thence run North 60 feet; thence West 75 feet; thence run South 60 feet; thence East 75 feet back to the point of beginning.

Three conveyances by warranty deed with similar descriptions, in chronological order and now in question, were as follows:

(1) Mrs. Annie K. Varnado to Peggy Wiggins and Durwood McGuffie on November 16, 1976;
(2) Peggy Wiggins to Durwood McGuffie on March 24, 1977; and
(3) Durwood McGuffie to Elizabeth H. Brown on May 5, 1977.

Also a quitclaim conveyance from the Annie K. Varnado heirs to Webb and Shorder occurred on March 22, 1979, of the property described as follows:

Begin at the Southeast corner of Lot No. 1, Block No. 2, of the Mattox Addition to the Town (now City) of Wiggins, Mississippi, and then run North 60 feet, thence run West 48 and 4", thence run South 60 feet, thence run East 48 feet and 4", back to the point of beginning. All as per attached survey “Exhibit A.”

Charles Wiggins negotiated the purchase of the property from Mrs. Varnado, now deceased. He testified, that Varnado wanted to sell the old cleaners building, the beauty shop, and the antique shop; and that Varnado did not offer to sell the Ains-worth building (presently in dispute) nor did she want to sell it. When Varnado delivered Wiggins and Hall, the appellee’s attorney, the deed, she had two, one of which she picked up and said, “No, this is the Ainsworth building, I can’t get rid of it,” put it down and delivered the other one. According to Wiggins, she expressly said the Ainsworth building was not to be conveyed. He offered her $15,000 for two parcels, which included the Ainsworth building in dispute, but she refused to sell both parcels and accepted $5000 for the cleaners, the beauty shop, and the antique shop. Pri- or to purchase, Durwood McGuffie and Charles Wiggins viewed three buildings: the cleaners, the beauty shop, and the antique shop. They did not inspect the disputed property; moreover, a survey was not done before the purchase, the grantees relying upon a general description given by the grantor. According to Wiggins, the 75 feet in the deed description did not include the Ainsworth jewelry store but extended from the east side of the drainage ditch to the east side of the Ainsworth building where it ended.

McGuffie testified it was his understanding he purchased the property east of the ditch up to but not including the Ains-worth building. McGuffie opened a furniture store in one building and rented the other two buildings to Redmond and Elizabeth Brown, respectively. McGuffie and Wiggins did not pay utilities on the Ains-worth building after their purchase nor did they collect rent from the business tenant occupying it.

McGuffie testified that after he and Peggy Wiggins received their deed from Varna-do that he and his wife subsequently purchased the Wiggins’ interest and later sold the identical property to Brown. Mrs. Brown, the purchaser, had operated Brown’s Beauty Shop in one of the buildings under a lease agreement for more than 35 years and was totally familiar with the area. The deed to Brown used the same description as the prior conveyance from Wiggins to McGuffie and wife but did not include the Ainsworth building.

McGuffie made no representations that he was selling the Ainsworth building to Brown. He was in a hurry to sell at the time and again no survey was done before conveying the property to Brown. He testified he intended to convey to Brown only that which he had previously purchased. Brown paid him $10,000 for the conveyance, but had he known the Ainsworth building was included in the description, McGuffie stated he would have requested $18,000 to $20,000 based on the added value of the Ainsworth building. O. B. Brown, who negotiated the last sale for his wife, viewed two of the buildings, but did not inspect the Ainsworth building and did not examine the beauty shop where his wife maintained her shop.

It is not necessary to consider all assignments of error for we are of the opinion the evidence unmistakenly demonstrates it was the clear intention of the original grantor, Mrs. Annie K. Varnado, not to convey the Ainsworth building. Neither did the original grantees, Peggy Wiggins and Durwood McGuffie, intend to purchase the property in dispute nor did McGuffie intend to subsequently convey it to Elizabeth Brown. Even though the deed description after survey included part of the Ainsworth building, it is not the description they intended to write which controls, but the property the parties intended to include in the description used. In Brimm v. McGee, 119 Miss. 52, 57, 80 So. 379, 381 (1919), a reformation of deed suit wherein a mistake as to the description intended to be conveyed occurred, this Court held “[i]t is not what description the parties intended to write but what property the parties intended to have embraced in the description they used.” Moreover, we are of the opinion the evidence demonstrates beyond a reasonable doubt a mutual mistake on the part of the original grantor and grantees. See Perrien v. Mapp, 374 So.2d 794 (Miss.1979). Thus, we are of the opinion the mistake in description in the deed should be reformed to coincide with the description of the property intended to be conveyed.

Turning to the appellee’s assertion the grantee, Elizabeth Brown, was a bona fide purchaser for value without notice, we think Mrs. Brown, who had operated a business in the Brown Beauty Shop for 35 years, was cognizant of the fact she was not purchasing the Ainsworth building and that McGuffie did not intend to convey it to her. Up to the day she purchased the property and even afterwards, Ainsworth and subsequent . business tenants of the disputed property paid rent to Mrs. Varnado and, following her death, continued to pay rent to her estate. This served to put Brown on notice of the Varnado claim to the Ains-worth building so that a reformation of the deed would be equitable as to all parties. See Sunnybrook Children’s Home, Inc. v. Dahlem, 265 So.2d 921 (Miss.1972); Russell, et al v. Scarborough, et al, 155 Miss. 508, 124 So. 648 (1929).

It follows, we think, that no title was vested in Mrs. Brown to the Ainsworth building; and therefore, she would have no interest in the title between the Varnado heirs or their grantees to such property.

REVERSED AND JUDGMENT ENTERED FOR APPELLANTS.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Reid PORTER v. Faye Massey PORTER (Williams).
    No. 52916.
    Supreme Court of Mississippi.
    Oct. 7, 1981.
    Rehearing Denied Nov. 4, 1981.
    Dan R. Wise, Hattiesburg, for appellant.
    Bryan, Nelson, Allen, Schroeder & Randolph, Michael K. Randolph, Hattiesburg, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


author: LEE, Justice, for the Court:

text:
    Jere Richmond HOAR v. Betty J. HOAR.
    No. 52858.
    Supreme Court of Mississippi.
    Oct. 14, 1981.
    Rehearing Denied Nov. 4, 1981.

      Darden, Sumners, Carter & Trout, Lester F. Sumners, New Albany, for appellant.
    Dwight N. Ball, Oxford, for appellee.
    Before PATTERSON, SUGG and LEE, JJ.
   LEE, Justice, for the Court:

Jere Richmond Hoar filed a petition in the Chancery Court of Lafayette County, Honorable Anthony T. Farese presiding, against Betty J. Hoar for enforcement of the provisions of a divorce decree pertaining to a property settlement. Mrs. Hoar denied the averments of the petition and also filed a petition for modification of the decree. The chancellor heard the petitions together and entered a decree adverse to Mr. Hoar in most respects, and he appeals.

On September 23, 1977, appellant and appellee were granted a divorce on the ground of irreconcilable differences. They had negotiated a settlement agreement providing for support and custody for the parties’ three children, and disposition of property rights, real and personal. The provisions of the agreement were incorporated in the court decree.

Appellant contended that appellee violated the terms of the court decree in refusing to grant him access to the home in order to gain possession of his personal effects; that appellee declined to divide personal property which was agreed upon and ordered by the court; and that she declined to pay one-half of the appraisal cost of the personal property.

Appellee principally contended that appellant terminated support payments for Thomas Hoar, the eldest child of the parties, when he attained his twenty-first birthday; that there had been a material change in the circumstances of the parties; that the court should require appellant to pay one-half of the expenses of repairing the home of the parties; that the court should increase the monthly support for the children and should require the appellant to pay certain medical bills incurred on behalf of the children.

The chancellor held that appellee was not in contempt of the court for not performing the provisions of the decree. He ordered the appellee to pay unto appellant $125 on the appraisal fee of personal property and that appellant pay $200 per month for the support of Thomas Hoar until he attained the age of twenty-two years. He further ordered the appellant to pay one-half of all medical expenses incurred by the children in excess of the coverage provided by medical insurance, and to pay one-half of repairs and maintenance costs to the residence, in excess of $100 per individual repair.

I.

Did the chancellor err in overruling the appellant’s motion to dismiss at the close of appellee’s proof in support of modification because there was no material change in circumstances surrounding the parties and did the chancellor err in amending the settlement agreement made by the parties and approved by the court?

Appellant contends that the chancellor erred (1) in ordering him to pay the college tuition (support) and maintenance for Thomas Hoar through his college attendance, after he attained the age of twenty-one years and (2) in ordering him to pay one-half of the cost of repairs and maintenance to the home of the parties above $100. The pertinent part of the settlement agreement follows:

6. Child support.
(a) Husband shall pay to the Wife the sum of Two Hundred Dollars ($200.00) per month as child support for Benjamin Jere Hoar, the minor child of the parties.
(b) To assist in defraying the cost of college for Thomas Jonathan Hoar, Husband agrees that so long as Thomas Jonathan Hoar maintains his residence with Wife, Husband shall pay Wife $100.00 per month directly to Wife to assist with the maintenance of Thomas Jonathan Hoar and $100.00 directly to Thomas Jonathan Hoar. These payments shall continue so long as Thomas Jonathan Hoar is in college or until he reaches his 21st birthday. If Thomas Jonathan Hoar moves from the residence of Wife while still in college, the $200.00 per month shall be paid directly to Thomas Jonathan Hoar or used for fees, books, board or other similar expenses paid directly by Husband. Any remainder of the $200.00 per month support shall be disbursed to Thomas Jonathan Hoar or placed in a bank account for withdrawal by Thomas Jonathan Hoar. If Husband shall cease to be employed by the University of Mississippi, he then agrees to furnish the cost of tuition, on a best effort basis unless Wife shall be entitled to same by virtue of her employment by the University of Mississippi.
* * * * # *
(e) As additional child support, Wife shall have the use of the residence of the parties so long as the youngest child has not completed college or has not otherwise terminated his right to support as hereinafter set out whichever event shall be last. In no event shall Wife’s use of the house extend beyond June 1, 1985. During this period of use and occupancy by the Wife and children, Husband shall make the monthly payment of principal and interest and escrow deposits for insurance and taxes as additional child support. During this period of use and occupancy, the Wife agrees to keep the house in good repair and maintenance.
(f) As to either son, Husband’s obligations for support and college assistance shall terminate upon the earliest of any of the following events:
1. Death of the child;
2. Marriage of the child;
3. Completion of High School or the attainment of the age 18 with the permanent intent not to complete college;
4. Suspension of college education for any reason other than illness for more than a three-month period (the normal summer period being between regular semesters);
5. Completion of college or the normal four-year undergraduate course;
6. Four years past High School graduation.
(g) Husband shall carry both sons on his group hospital and medical insurance provided by the University of Mississippi and will, so long as no additional premium cost is incurred, carry the Wife also. It is understood that should the premium for the two sons and the Wife exceed $30.00 per month that the Wife shall have the option of paying Husband the excess cost or she shall be entitled to $30.00 additional child support and Husband will not be relieved of carrying the two sons on the hospital and medical insurance coverage at the University of Mississippi. If Wife elects to receive $30.00 she shall carry the two sons on a hospitalization insurance policy equal to that provided for employees of the University of Mississippi.
(h) Husband shall be entitled to claim both boys as dependents for income tax purposes. (Emphasis added.)

Appellant argues that the chancellor did not have authority to order him to pay for his son’s college education after the son reached the age of twenty-one years and relies upon Watkins v. Watkins, 337 So.2d 723 (Miss.1976), wherein the Court said:

The 1964 decree for support was entered pursuant to Mississippi Code Annotated section 93-5-23 (1972), which provides that when a divorce is decreed the court may “make all orders touching the care, custody, - and maintenance of the children of the marriage.” The statute does not by its terms limit the court’s power to children under twenty-one years of age. However, it is common knowledge that in the context of this statute the bench and bar have applied the term “children” to offspring who are less than twenty-one years of age. The Legislature enacted Chapter 268, Laws of 1960 (Mississippi Code Annotated section 93-11-65 [1972]), providing for remedies for the support, maintenance and custody of “minor” children “in addition” to the right to proceed under section 93-5-23, and “in addition” to the remedy of habeas corpus in proper cases. The limitation of the 1960 Act to minor children was a legislative recognition that in section 93-5-23 the term “children” was used to describe minor children. (337 So.2d at 724)

Appellee relies upon Pass v. Pass, 238 Miss. 449, 118 So.2d 769 (1960), and contends that Pass is authority for requiring a father to educate and maintain his child in college after that child attains majority. She urges that we extend the principle now so that it applies to an adult child in college. In view of our conclusion on the question of support for Thomas Hoar in the present case, we decline to address that question. See Duett v. Duett, 285 So.2d 140 (Miss.1973).

Sections 6(b) and (f) of the settlement agreement pertain to support for the children, particularly Thomas Hoar. The chancellor held that those provisions are ambiguous on the question of maintenance for that period that Thomas Hoar was in college (his tuition was granted by the college since appellant is a professor there). The chancellor heard evidence to explain or clear up the ambiguity and found that the parties intended that the appellant should pay support and maintenance for his son while in college. We cannot say that the chancellor was manifestly wrong in such finding and we affirm his interpretation of that part of the settlement agreement.

The appellant also contends that the chancellor erred in finding that there was a material change of circumstances surrounding the parties and in amending the settlement agreement, requiring appellant to pay one-half of the cost of keeping the home of the parties in good repair and maintenance. Use of the home was granted to appellee as additional child support and she agreed “during this period of use and occupancy, ... to keep the house in good repair and maintenance.” In Taylor v. Taylor, 392 So.2d 1145 (Miss.1981), the Court said:

This accords with the public policy of this state as heretofore expressed in divorce decrees wherein alimony is awarded. It continues the interest of the state in its citizens as expressed in Hughes [v. Hughes, 221 Miss. 264, 72 So.2d 677 (1954)]. We think we should add that the alimony terms of such decree be modified only upon a change of circumstances that are clear and substantial as expressed in McKee [v. McKee, 382 So.2d 287 (Miss.1980)]. (392 So.2d at 1149).

In his opinion, the chancellor stated:

Now, insofar as the modification for divorce is concerned, there is a serious question raised as to whether there has been a material change of circumstances.

We have carefully examined the record in this case, and, without commenting upon the evidence, we are of the opinion that the record does not support a material change in circumstances surrounding the parties, that the chancellor erred in so holding and in ordering appellant to pay one-half of repairs to the residence, contrary to the agreement of the parties. We, therefore, reverse the chancellor on that question and enter judgment for appellant.

II.

Did the chancellor err in requiring appellant to pay one-half of all medical expenses by the children of the parties in excess of that coverage by medical insurance?

An award of support for children covers ordinary medical expenses. We are of the opinion that the settlement agreement relating to medical insurance was a part of that support. However, the principle is well established that support does not cover extraordinary medical expenses and the parents are liable for same. We hold that the hospitalization insurance was for ordinary medical expenses and that expenses in excess of that provided by medical insurance coverage is an extraordinary expense, and we affirm the chancellor on that question. Castleberry v. Castleberry, 214 Miss. 94, 58 So.2d 67 (1952).

We have carefully considered the other questions raised by the assignment of errors and are of the opinion that there is no merit in them.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


text:
    AVERY, SHANKS & WALTMAN, INC. v. GIORDANO-KIRBY INSURANCE AGENCY, INC.
    No. 52813.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Barnett, Alagia & Pyle, William A. Pyle, Jackson, for appellant.
    Rainer & Toney, John B. Toney, Brandon, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   SMITH, Presiding Justice, for the Court:

This is an appeal from a decree of the Chancery Court of Rankin County rendered in a suit by Avery, Shanks and Waltman, a corporation, against Giordano-Kirby Insurance Agency, a corporation. ASW’s complaint charged a breach by Giordano-Kirby of an oral contract allegedly made with ASW and sought damages on account thereof.

The provisions of the- alleged contract of October 17, 1978, is summarized as follows: ASW, a corporation, transferred all of its assets, accounts and corporate stock to Gior-dano-Kirby, all of the ASW corporate stock having been owned by two individuals, Douglas W. Shanks and Larry Waltman. The consideration therefor was the payment by Giordano-Kirby to ASW of certain commissions and the employment of the said two individuals by Giordano-Kirby as agents in its said insurance business. The contract provided that, in the event the said employment of the two individuals should be involuntarily terminated prior to October 31,1983, Giordano-Kirby would immediately pay to ASW 2V2 times the “annualized commissions” on the accounts which had been transferred to it under the contract by ASW, the value of the accounts which had been so transferred alleged to be $80,000. It was alleged in the complaint that employment of the two individuals was involuntarily terminated by Giordano-Kirby on July 29, 1979, and that thereupon said 2V2 times the annualized commissions became due ASW as alternative consideration for the transfer of its assets but that Giordano-Kirby refuses to pay it. Other allegations in the bill seek recovery on the basis of unjust enrichment of Giordano-Kirby, saying, in effect that Giordano-Kirby has received its property without compensation therefor.

The bill of complaint was filed on August 14, 1980, less than three years before the cause of action arose, but more than one year after it arose. A special demurrer was filed to the complaint by Giordano-Kirby, setting up the bar of the statute of limitations dealing with oral contracts of employment as set forth in Mississippi Code Annotated section 15-1-29 (Supp. 1981):

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

The chancellor sustained the demurrer, there was no offer to amend, the bill was dismissed and this appeal by ASW ensued.

We have concluded that it was error to sustain the demurrer. The contract upon which the suit was brought by ASW, a corporation, provided for what amounted to a transfer of its assets to Giordano-Kirby. In compliance therewith, ASW had made the transfer. The consideration for the transfer was the payment by Giordano-Kir-by of certain commissions and either (1) employment by Giordano-Kirby of two individuals who owned the ASW corporate stock, or, in the event the employment of these two individuals should be involuntarily terminated prior to October 31, 1983, Giordano-Kirby would pay for the assets of ASW which had been transferred to it under the contract 2lh times the “annualized” commissions on the accounts which had been transferred to it by ASW. This was not a suit by employees to obtain reinstatement, or damages for wrongful termination of employment. It is, in essence, a suit by one corporation against another for compliance with a contract made between the two corporations. The contract has been fully executed by ASW and its assets transferred to Giordano-Kirby. The latter had a choice as to payment therefor: (1) Employment of the two individuals should not be involuntarily terminated prior to October 31, 1983, or (2) in the event that they should be involuntarily terminated prior to that date, (and it was alleged that they were) to pay in the alternative an amount equal to 2V2 times the annualized commissions on the accounts ASW had transferred to Giordano-Kirby under the contract, alleged worth $80,000. Giordano-Kirby may be said to have elected the latter by failure to comply with the former.

The action of the chancellor in sustaining the demurrer and dismissing the bill to recover an amount equal to 2V2 times the annualized commissions on the accounts ASW had transferred to Giordano-Kirby under the contract, or, in the alternative, the amount of unjust enrichment, is reversed and the case is remanded for trial upon its merits.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Herman G. BANKS v. CITY OF GREENWOOD, Acting By and Through the CITY COUNCIL and the Civil Service Commission.
    No. 52860.
    Supreme Court of Mississippi.
    Oct. 14, 1981.

      Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    Brewer, Deaton, Evans & Bowman, Billy B. Bowman, Greenwood, for appellees.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   PATTERSON, Chief Justice, for the Court:

Herman G. Banks appeals from an order of the Circuit Court of Leflore County which affirmed an order of the Civil Service Commission of the City of Greenwood, modifying Banks’ dismissal. In lieu of dismissal, Banks was given: (1) a 90 day suspension without pay; (2) demotion in rank from Captain to Sergeant; (3) three years’ probation with automatic dismissal from service for the violation of any of the rules and regulations of the City of Greenwood Fire Department, the personnel rules and regulations of the City of Greenwood, or the Civil Service rules and regulations of the City of Greenwood; and (4) required to submit a written letter of apology to Mayor Louis E. Fancher, Jr., Commissioner E. M. Ambrose, and Fire Chief Jimmy Lord.

From this decision, Banks appeals, assigning as error the court erred in affirming the Civil Service Commission’s modification because as a matter of law the decision is legally invalid and is in excess of the disciplinary action permitted under MCA § 21— 31-23 (1972).

The City of Greenwood and the Civil Service Commission cross-appeal, assigning as error the lower court erred in its failure to grant the motion to quash the writ of cer-tiorari.

It is not necessary to detail the events culminating in Captain Herman Banks’ dismissal from the Greenwood Fire Department since they are not dispositive of this appeal. The primary issue on Banks’ appeal is the construction of the following language found in MCA § 21-31-23 (1972) as follows:

The commission upon such investigation may, in lieu of affirming the removal, suspension, demotion or discharge, modify the order of removal, suspension, demotion or discharge by directing a suspension, without pay, for a given period and subsequent restoration of duty, or by directing a demotion in classification, grade, or pay. The findings of the commission shall be certified, in writing to the appointing power, and shall be forthwith enforced by such officer. [Emphasis added].

Banks contends § 21-31-23 should be construed to mean the Civil Service Commission can modify the disciplinary action of an employee by suspension or demotion, but not both. We are of the opinion the word “or” in § 21-31-23 should be construed as disjunctive rather than conjunctive. Therefore, the Civil Service Commission would have the statutory power to modify a dismissal to a demotion or suspension, but not both.

We are of the opinion this is the proper construction for several reasons. First, a perusal of the forerunners of § 21-31-23 reveals the same language used; thus, prior legislative enactments of this statute do not indicate “or” should be construed as “and.” Secondly, since there is no legislative intent which we can glean to the contrary, the word “or” must be accepted in its popular disjunctive form as meaning “an alternative between different or unlike things, states, or actions.” Webster’s Third New International Dictionary 1585 (1961). We stated in Mississippi Power Co. v. Jones, 369 So.2d 1381, 1388 (Miss.1979), the following rule of statutory construction:

Popular words in statutes must be accepted in their popular sense and the Court must attempt to glean from the statutes the legislative intent. Dennis v. Travelers Insurance Co., 234 So.2d 624 (Miss.1970); Mississippi State Tax Commission v. Hinton, 218 So.2d 740 (Miss.1969). Where the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion to resort to rules of statutory interpretation. Forman v. Carter, 269 So.2d 865 (Miss.1972); State v. Heard, 246 Miss. 774, 151 So.2d 417 (1963).

Present application of this rule brings us to the conclusion that the legislative intent was to use “or” in the disjunctive.

Finally, we note the Civil Service Commission’s powers are only such as are granted by the legislature and “where a statute enumerates the powers given, it must be held that it names all the powers dealt with therein, and that there is nothing implied.” Tepper Bros. v. Buttross, 178 Miss. 659, 664, 174 So. 556 (1937); see also 15A Am.Jur.2d, Civil Service § 10 (1976). Thus we conclude that “or” if construed in the conjunctive would grant a greater power than expressly given by statute to the Civil Service Commission. Therefore, we are of the opinion the Civil Service Commission had the power to modify Banks’ dismissal either by demotion or suspension, but not both; and we reverse and remand for proper modification in accordance with § 21-31-23.

We now consider the appellee’s cross-appeal concerning the motion to quash the writ of certiorari which it is contended should have been granted. A writ of certio-rari is granted to determine questions of law on the face of the record and proceedings. Here the Civil Service Commission’s quasi-judicial modification presented a question of law upon the construction to be given § 21-31 — 23. The circuit court may review the decision of an inferior tribunal acting in a judicial or quasi-judicial capacity on a writ of certiorari provided it is confined to questions of law. Glover v. City Council of Columbus, 132 Miss. 776, 96 So. 521 (1923); Board of Supervisors of Forrest County v. Melton, 123 Miss. 615, 86 So. 369 (1920); MCA §§ 11-51-93, 11-51-95 (1972). Therefore, we affirm the circuit court’s denial of appellee’s motion to quash the writ of certiorari.

REVERSED AND REMANDED ON DIRECT APPEAL; AFFIRMED ON CROSS-APPEAL.

SMITH, P. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Robin Black AITKEN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 52882.
    Supreme Court of Mississippi.
    Oct. 21, 1981.
    Rehearing Denied Nov. 4, 1981.

      W. O. Dillard, Scott Stuart, Jackson, for appellant.
    Steen, Reynolds Dalehite & Currie, Edward J. Currie, Jr., Jerome B. Steen, Whitman B. Johnson, III, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Robin Black Aitken sued State Farm Mutual Automobile Insurance Company, in the Circuit Court of the First Judicial District of Hinds County, to recover damages either under the personal injury liability provision or under the uninsured motorist clause of her insurance policy with State Farm for injuries suffered by her when her fiance, Thomas Aitken (whom she later married before filing suit) negligently drove her car into a telephone post. Aitken was driving her car with her permission, and she was seated on the passenger side of the front seat. In her policy, the named insured was “Robin Black” and the insured motor vehicle was her “1976 Sunbird”.

After plaintiff had rested, State Farm moved for a directed verdict on the grounds that: (1) under the provisions of her policy the term “uninsured motor vehicle” shall not include a vehicle defined in the policy as an “insured motor vehicle”, (2) neither the uninsured motorist statute [MCA §§ 83-11— 101 et seq. (Supp.1980)], nor the uninsured motorist provision of her policy covered such an action; and (3) because she married Aitken before filing suit, he would not be liable to her for damages under the doctrine of interspousal immunity, and therefore her insurer, who steps into her shoes by right of subrogation against the uninsured motorist, would not be liable.

The court sustained the motion for a directed verdict, and it is from that judgment that plaintiff, Robin Black (Aitken), appeals.

She makes these three assignments of error:

I.The trial court erred in sustaining the motion for a directed verdict on the grounds that the vehicle was excluded by the policy.
II.The trial court erred in sustaining a motion for a directed verdict on the grounds that the appellant could not recover because of interspousal immunity.
III.The trial court erred in sustaining the motion for a directed verdict and excluding the evidence of the appellant on punitive damages.

On the rainy night of September 14, 1978, around 11:00 p. m., Thomas Aitken was driving Robin Black’s 1976 Pontiac Sunbird north on Ridgewood Road in the City of Jackson about 100 yards south of its intersection with Old Canton Road. In her declaration against State Farm, plaintiff charged that Aitken was driving too fast under existing weather and road conditions, that he failed to use due care and his negligent driving caused him to lose control of her car and caused it to run into a telephone pole off of Ridgewood Road. She charged that his negligence was the sole cause of her injuries.

Thomas Aitken, a traveling salesman, had allowed his liability insurance to lapse by not paying the premiums. State Farm promptly paid plaintiff the $5,000 medical pay coverage and all damages due her under the collision coverage of her policy. Bodily injury liability coverage under her policy was denied, and also coverage under Section III (uninsured motor vehicle coverage) was denied. Plaintiff alleged in her declaration against State Farm that she was entitled to recover under either theory. Plaintiff’s insurance contract with State Farm contained these provisions:

SECTION III — UNINSURED MOTOR VEHICLE COVERAGE
INSURING AGREEMENTS
COVERAGE U — DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED MOTOR VEHICLES
To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle . ..

Under “Definitions — Section III” of the Uninsured Motor Vehicle Coverage are found these provisions:

Insured Motor Vehicle — means:
(1) an owned motor vehicle provided the use thereof is by such first named insured or resident spouse or any other person to whom such first named insured or resident spouse has given permission to use such vehicle if the use is within the scope of such permission,

Uninsured Motor Vehicle — means:

(1) a land motor vehicle with respect to the ownership, maintenance or use of which there is in at least the amounts specified by the financial responsibility law of the state in which the described motor vehicle is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is any coverage thereunder or is or becomes insolvent; or
(2) a hit-and-run motor vehicle as defined;

but the term uninsured motor vehicle shall not include:

(i)a vehicle defined herein as an insured motor vehicle;

Plaintiff-Appellant contends that these policy provisions are in conflict with the Uninsured Motorist Coverage statute which provides:

“[T]he term ‘uninsured motor vehicle’ means a motor vehicle as to which there is (1) no bodily injury liability insurance, or bodily injury liability insurance with limits less than the amounts specified in section 83-11-101, but it will be considered uninsured only for that amount between the limit carried and the limit required in section 83-11-101, (2) there is such insurance in existence but the insurance company writing the same has legally denied coverage thereunder or is unable, because of being insolvent at the time of or becoming insolvent during the twelve (12) months following the accident, to make payment with respect to the legal liability of its insured within the limits specified in said section 83-11-101, or (3) there is no bond or deposit of cash or securities in lieu of such bodily injury and property damage liability insurance or other compliance with the state financial responsibility law.” [MCA § 83-11-103 (1972)].

Perhaps it would be helpful in answering this question to review the history and purpose of the uninsured motorist coverage statutes.

In two rather recent cases, this Court has discussed the basic purpose of the uninsured motorist statutes:

“In interpreting similar, if not identical statutes, the vast majority of jurisdictions have stated that the purpose of such uninsured motorist laws is to provide protection to innocent insured motorists and passengers injured as a result of the negligence of financially irresponsible drivers. . . .
... Its purpose is to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy.” Rampy v. State Farm Mutual Automobile Insurance Co., 278 So.2d 428, 432 (Miss.1973); Lowery v. State Farm Mutual Automobile Insurance Co., 285 So.2d 767, 770 (Miss.1973).

Actually the purpose of the UMC statute and Section III of the appellant’s insurance policy was to cover injuries caused by another and separate motor vehicle owned or operated by a person who did not have liability insurance coverage on his automobile or had such coverage in an insurance company that became insolvent or bankrupt.

MCA Section 83-11-103 (1972), makes Thomas Aitken an “insured” under appellant’s policy with this language:

“[T]he term ‘insured’ means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, ...” (Emphasis added).
“The definition of the term ‘insured’ given in this paragraph shall apply only to the uninsured motorist portion of the policy.”

These provisions of the UMC statute make plain the logic and reasonableness of the policy’s definitions of an “Insured Motor Vehicle” and an “Uninsured Motor Vehicle” and the provision that the vehicle cannot be both “Insured” and “Uninsured” in the same policy. Neither can Thomas Aitken be an “Insured” under the policy as driver of the “Named Insured’s” automobile with her permission, and at one and the same time be an “Uninsured Motorist” under the policy.

The trial court was correct in sustaining appellee’s motion for a directed verdict on another ground, that of interspousal immunity. The accident in the case at bar occurred on September 14, 1978. Appellant Robin Black married Thomas Aitken (the negligent driver of her car) on March 9, 1979. She filed her declaration against State Farm only on May 11, 1979.

In the early case of H. L. Austin v. Maryland Casualty Co., 105 So. 640 (Miss.1925), (not reported in Mississippi Reports), which also arose out of automobile accident injuries to the wife, this Court stated that “neither the husband nor the wife had any cause of action against the other for personal tort” and further, in finding the insurance company not liable, stated:

“The insurance policy in this case only undertook to indemnify the husband ‘against loss from liability imposed by law.’ The trouble with Mrs. Austin’s case is that there is no liability imposed by law upon her husband for the injury done her. The law gives her no cause of action, and it gives her none because under the law no legal wrong has been done her by her husband. Whatever wrong was done her, if any, was a moral wrong in the form of a tort. As between husband and wife, that was no ground of recovery.” 105 So. at 640.

The appellant argues that at the time of the accident she was a single person and not married to Thomas Aitken, the driver of her car, and therefore interspousal immunity would not apply. Her argument was answered by this Court adversely to her contention in Scales v. Scales, 168 Miss. 439, 151 So. 551 (1934). In Scales, we said:

“The appellant sued the appellee for damages resulting from a personal injury, alleged to have been caused by the negligence of the appellee. At the time of the injury, she was riding in an automobile driven by the appellee, which, as she alleges, because of the negligence of the appellee, skidded, turned over, and she was thereby injured. After this injury occurred, the appellant married the ap-pellee, and is now his wife. The appellee, by a special plea, set up the disabilities of coverture as a bar to the action.. ..
“... It is said by counsel for the appellant that her cause of action accrued pri- or to the marriage and continued to exist thereafter, and, therefore, even under the Austin Case, the appellant has the right here to sue. At common law, the ground on which no right of action accrues to one spouse against the other for the commission of a personal tort is the legal unity of their persons by virtue of the marriage. The reasons underlying this rule apply with equal force to the continuance of a cause of action which one spouse has against the other prior to their marriage; so that to be logical we must hold, in consonance with the weight of authority, that in the absence of a statute to the contrary, a right of action in one spouse against the other for the commission of a personal tort, existing prior to the marriage, is extinguished by the marriage. [Citing authorities]. 168 Miss. at 442-43, 151 So. at 551.

In Kathryn McNeal, Individually and as natural mother of Myrna Ann McNeal, a Minor, v. Administrator of the Estate of McNeal, Deceased, and State Farm Mutual Automobile Insurance Co., 254 So.2d 521 (Miss.1971), this Court said:

“This rule has been followed in this state since 1924 beginning with Austin v. Austin, 136 Miss. 61, 100 So. 591, 33 A.L.R. 1388 (1924), in which a wife sought to sue her husband for injuries resulting from her husband’s negligent operation of an automobile. The same rule was had in the following cases: Ensminger v. Ensminger, 222 Miss. 799, 77 So.2d 308 (1955), (wife sued her husband for injuries caused by negligent operation of automobile); McLaurin v. McLaurin Furniture Co., 166 Miss. 180, 146 So. 877 (1937), (wife sued her husband for negligent operation of automobile); Scales v. Scales, 168 Miss. 439, 151 So. 551 (1934), (a wife sued her husband for injury from negligent operation of automobile).” 254 So.2d at 522-23.

The trial court also rejected the appellant’s argument that, since the defense of interspousal immunity is a personal one, it cannot be raised by one not a party to the marriage. This defense was asserted by Maryland Casualty Co. in the Austin suit, and this Court affirmed the judgment in its favor. The rationale of Austin v. Maryland Casualty Co., supra, is particularly applicable to coverage under the uninsured motorist statute because MCA section 83-11-107 (1972) provides:

“An insurer paying a claim under the endorsement or provisions required by section 83-11-101 shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made, including the proceeds recoverable from the assets of the insolvent insurer.”

It was not intended that the named insured be granted greater rights against the uninsured motorist carrier than she would have enjoyed against the uninsured tort feasor. Such a result would violate the stated purpose of the UMC statute and render section 83-11-107 meaningless where the statute provides:

“An insurer paying a claim under the endorsement or provisions required by section 83-11-101 shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made, ...”

The insurance carrier thus succeeds to the defenses available to the so-called uninsured motorist. If Aitken cannot be sued, then his wife’s insurance carrier cannot be sued and the carrier can assert any defense available to Aitken, the husband.

In Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (Kan.1973), the Supreme Court of Kansas said:

“We construe the words ‘legally entitled to recover as damages’ to mean simply that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages. This would mean that in a direct action against the insurer the insured has the burden of proving that the other motorist was uninsured, that the other motorist is legally liable for damage to the insured, and the amount of this liability. In resisting the claim the insurer would have available to it, in addition to policy defenses compatible with the statute, the substantive defenses that would have been available to the uninsured motorist such as contributory negligence, etc., ...” 505 P.2d at 610. (Emphasis added).

The fact that we are affirming the trial court answers the assignment of error on excluding the evidence of the appellant on punitive damages. This demonstrates beyond per adventure that the appellee had legitimate and arguable reasons for not paying appellant’s claim. See: Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797 (Miss.1979); Standard Life Ins. Co. v. Veal, 354 So.2d 239 (Miss.1977).

AFFIRMED.

PATTERSON, C. J., SMITH, P. J„ and SUGG, WALKER, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


author: BOYD, Justice.

text:
    James D. CASTO, Petitioner, v. Donna L. CASTO, Respondent.
    No. 59255.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Nov. 12, 1981.
    DuBose Ausley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee and Talbot D’Alemberte of Steel, Hector & Davis, Miami, for petitioner.
    S. Robert Zimmerman, Pompano Beach, James H. Walden, Dania and Edna L. Caruso, West Palm Beach, for respondent.
    Henry P. Trawick, Jr., Sarasota, Julian D. Clarkson, Tampa and Tobias Simon, Miami, for amici curiae.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Casto v. Casto, 388 So.2d 1 (Fla. 4th DCA 1980). The decision was a dismissal of petitioner’s appeal as untimely filed under Florida Rule of Appellate Procedure 9.110(b). The district court of appeal certified that its decision passed upon a question of great public importance. We therefore have jurisdiction. Art. V, § 3(b)(4), Fla.Const. We quash the decision and order the appeal reinstated.

The petitioner and the respondent were parties to a dissolution of marriage proceeding. On June 22, 1979, a written final judgment was signed. On June 25, 1979, the judgment was filed with the clerk of the court. On June 27, 1979, the judgment was recorded. The petitioner moved for rehearing, serving his motion on July 6, 1979. On September 12, 1979, the court denied the motion and the petitioner filed his notice of appeal the same day.

The district court held that it had no jurisdiction of the appeal because, since the motion for rehearing was filed untimely, it did not postpone the time of the judgment’s rendition, with the result that the notice of appeal was untimely as well.

Florida Rule of Appellate Procedure 9.110(b) provides that the jurisdiction of an appellate court is “invoked” by filing notice of appeal as provided therein “within 30 days of rendition of the order to be reviewed.” “Rendition (of an order)” is defined as “the filing of a signed, written order with the clerk of the lower tribunal.” Fla.R.App.P. 9.020(g). The filing of a timely motion for rehearing, however, suspends the rendition of the order. That is, in the event of such a motion, “the order shall not be deemed rendered until disposition thereof.” Id.

Florida Rule of Civil Procedure 1.530(b) requires that a motion for rehearing must be served “not later than 10 days after the . .. entry of judgment in a non-jury action.” The district court’s holding that the notice of appeal was untimely filed was grounded on its conclusion that the petitioner’s motion for rehearing, not having been filed within the time allowed, did not effectively stay the rendition of the final judgment. The essential question, therefore, is whether the motion for rehearing was served “not later than 10 days after the . .. entry of judgment” as governed by Florida Rule of Civil Procedure 1.530(b). Because of the circumstances of this case, resolution of this question requires a decision on the question of when “entry of judgment” took place.

The district court of appeal expressed the issue as follows:

In the case at bar, if entry of judgment as provided in Rule 1.530(b) means the date the judgment was recorded, as the appellant contends, then the motion for rehearing, served July 6,1979, was timely and we have jurisdiction. On the other hand, if, as the appellee contends, the entry of judgment is the date the signed written order is filed with the clerk, then the motion for rehearing was untimely and we do not have jurisdiction.

Casto v. Casto, 388 So.2d at 2. The court held that “entry of judgment” means the date the signed written judgment is filed with the clerk. The court reasoned that, previous to the adoption of the new Florida Rules of Appellate Procedure, In Re Proposed Florida Appellate Rules, 351 So.2d 981 (Fla.1977), the terms “rendition of judgment” and “entry of judgment” had come to mean the same thing. The 1977 revision explicitly changed the definition of “rendition” so' that it no longer refers to the recording of a judgment and now refers to its filing. Compare Fla.R.App.P. 9.020(g) (1977) with Fla.App.R. 1.3 (1962). Therefore, the court concluded, the term “entry of judgment” as used in civil Rule 1.530(b) must be construed to refer to the filing date, so as to maintain uniformity and consistency between the appellate rules and the civil procedure rules on this matter of when a judgment is final.

The district court cited Dibble v. Dibble, 377 So.2d 1001 (Fla.3d DCA 1979), where the same question was presented. The court there reasoned that because there is no specific definition in either the civil or the appellate rules of the term “entry of judgment,”

the issue is controlled by the supreme court’s determination of the requisite for the finality of judgments, as contained in its definition of “rendition” in Fla.R. App.P. 9.020(g). In other words, what is deemed final for appellate purposes when no motion for rehearing is filed, is likewise final for the purposes of determining when the motion itself must be served.... [Tjhat definition requires merely, as we have noted, the filing of a signed order with the clerk....

Id. at 1003. The district court in the instant case adopted this reasoning. On this basis it dismissed the appeal as untimely.

As framed by the district court of appeal, the certified question of great public importance is:

Is the term “entry of judgment,” as used in Florida Rule of Civil Procedure 1.530(b), synonymous with the term “rendition” as used in Florida Rule of Appellate Procedure 9.020(g)?

Casto v. Casto, 388 So.2d at 3. We answer the question in the negative.

The petitioner contends that the court below, and the Dibble court before it, erred in holding that “entry of judgment” as used in Florida Rule of Civil Procedure 1.530(b) has the same meaning as “rendition” as used in the Florida Rules of Appellate Procedure. He argues that “entry of judgment” had a well defined meaning before the adoption of the new appellate rules, and suggests that nothing in the general revision of the appellate rules compels any particular conclusion regarding the construction to be given to the civil procedure term under consideration. We agree.

At common law, “rendition” of judgment and “entry” of judgment had two separate and readily distinguishable meanings. “Rendition” meant the judicial act of deciding the controversy and pronouncing the judgment of the court. “Entry” meant the ministerial act, typically the responsibility of the clerk of the court, of “spreading the judgment rendered upon the court’s official records.” Williams v. State, 324 So.2d 74, 78 (Fla.1975).

In Williams, this Court recognized that these common law definitions of the terms were at variance with the meanings accorded the terms as used in the then-existing Florida Appellate Rules. The adoption of Florida Appellate Rule 1.3, however, had “harmonized these two definitions by making them synonymous.” Williams v. State, 324 So.2d at 78. The definition of “rendition” provided by Rule 1.3, the Court said, was to apply not only to that word as used in the appellate rules, but also to the term entry of judgment, “for appellate purposes.” Id. at 79.

It is well settled that “entry of judgment” under Florida Rule of Civil Procedure 1.530(b) means the recording of the judgment — the spreading of the judgment upon the court’s official records. See, e. g., Palladeno v. Oesterle, 345 So.2d 382 (Fla. 3d DCA 1977); Becker v. King, 307 So.2d 855 (Fla. 4th DCA), cert. dismissed, 317 So.2d 76 (Fla.1975); Borrego v. Kessler, 183 So.2d 695 (Fla. 2d DCA 1966); Bannister v. Allen, 127 So.2d 907 (Fla. 3d DCA 1961). The respondent urges that we approve the district court’s conclusion that a new and different construction of this civil procedure term is needed because this Court changed the definition of "rendition” when it promulgated the new appellate rules. We decline to do so. Williams pointed out that the two concepts had come to have the same meaning for appellate purposes. It does not follow, however, that an explicit change of definition in the appellate rules requires a different interpretation of a civil procedure term having a settled meaning under the Florida Rules of Civil Procedure.

The district court of appeal erred in holding that the time for service of petitioner’s motion for rehearing ran from the date of rendition. The time period should have been measured from the time of the recording of the judgment. Therefore the motion was timely filed and stayed the rendition of the judgment, for purposes of calculating the time for filing the notice of appeal, until the motion was disposed of. It follows that the notice of appeal was timely filed and the district court’s appellate jurisdiction was properly invoked.

We quash the decision of the district court of appeal, vacate its order of dismissal, and remand with directions to hear the petitioner’s appeal.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON and ENGLAND, JJ., concur.

ALDERMAN and McDONALD, JJ., dissent.

      . Florida Rule of Appellate Procedure 9.020(e) defines “Order” as “a decision, order, judgment, decree or rule of a lower tribunal, excluding minutes and minute book entries.”


author: McDonald, justice.

text:
    FORD MOTOR COMPANY, Petitioner, v. Willie Lee HILL, et al., Respondents.
    No. 58556.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Nov. 12, 1981.
    Aubrey V. Kendall, Timothy J. Norris and Edward T. O’Donnell of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, and James A. Dixon, Jr., of Dixon, Dixon, Hurst, Nicklaus & Webb, Miami, for petitioner.
    Sheldon Schlesinger of Simons & Schlesinger, Fort Lauderdale, Walter H. Beck-ham, Jr., and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for Willie Lee Hill, et al.
    K. P. Jones of the Law Offices of K. P. Jones, Fort Lauderdale, for Barkett Oil Co.
   McDonald, justice.

After affirming a judgment against Ford Motor Company entered upon a jury verdict predicated on instructions of strict liability, the Fourth District Court of Appeal certified the following question to be of great public interest:

IS THE COMMON LAW NEGLIGENCE THEORY IN SECOND COLLISION CASES SET FORTH IN EVANCHO STILL VIABLE DESPITE THE ADOPTION OF STRICT LIABILITY IN WEST v. CATERPILLAR TRACTOR COMPANY, INC.?

Ford Motor Co. v. Hill, 381 So.2d 249, 251 (Fla. 4th DCA 1979). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question by holding that a plaintiff may proceed in either strict liability or negligence, or both, and we approve the district court’s decision.

The pertinent facts of the occurrence as set forth in the opinion of the district court are as follows:

The accident occurred when his [Hill’s] tanker truck, overloaded and possessed of bald tires went out of control on a wet highway and spun around sliding backwards onto the median strip. The single unit truck carried over 4,000 pounds of gasoline and oil and when the rear wheels dug into the soft median, the tank tore loose gouging deeply into the soft median, then ground to a halt while the still moving cab slammed into it. This happenstance released two latch hooks securing the hinged cab and it snapped, whip-like, open and then shut again, causing the injuries.

381 So.2d at 250. The apparent reason for the release of the hooks was the forced bending of two parallel lever rods securing the hooks. This bending resulted from the force of the contact between these rods, exposed because of the separation of the tank from the body, and the tank itself. Hill contended that the hooks should have been attached to the lever rods in opposite directions from each other so that if the lever rods were bent in the same direction only one hook would release.

The original complaint, filed prior to publication of West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), did not contain a count in strict liability. After publication of West, however, the trial court ruled that the standard jury instruction on strict liability would be given. The district court affirmed the trial court’s action, finding after reviewing the transcripts that the issue of strict liability was at least tried by the implied consent of all parties. Even though Hill did not originally term this action in strict liability, we find the allegations of fact sufficient to support this theory.

This Court recognizes that confusion might have been created by the adoption of strict liability for products liability cases in West and the Court’s failure to enunciate what effect, if any, West would have on secondary collision claims and their theory of recovery.

In Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976), this Court faced the issue of whether automobile manufacturers could be held liable for defects in their cars which, although playing no part in causing a primary automobile collision, nevertheless increase or bring about injury to occupants through secondary impacts. At that time Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.), cert. denied, 385 U.S. 836, 87 S.Ct. 83, 17 L.Ed.2d 70 (1966), and Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.1968), expressed the two opposing viewpoints. We adopted the Larsen view, “that the manufacturer must use reasonable care in design and manufacture of its product to eliminate unreasonable risk of foreseeable injury.” 327 So.2d at 204. In explaining the Larsen rationale we stated:

This theory [for secondary collision cases] does not impose liability on a basis of warranty or strict tort liability; rather, it recognizes a duty of reasonable care on automobile manufacturers based on common law negligence.

327 So.2d at 203.

West was published five months after Evancho. Without mentioning secondary collision situations, the Court held that a manufacturer may be held liable under the theory of strict liability in tort for injury to a user of a product or a bystander to its use. Because Evancho's negligence approach was not discussed, the issue has arisen as to whether strict liability in tort as well as negligence is a proper theory for enhanced injury cases.

We see no reason to create an illusory distinction between manufacturers whose products cause a primary collision and those whose products merely enhance or bring about further injury. It would be unreasonable to have the availability of the strict liability theory depend on the cause of the accident rather than the cause of the injury. As stated in West,

strict liability should be imposed only when a product the manufacturer places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. The user should be protected from unreasonably dangerous products or from a product fraught with unexpected dangers. In order to hold a manufacturer liable on the theory of strict liability in tort, the user must establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of the proximate causal connection between such condition and the user’s injuries or damages.

336 So.2d at 86-87. It should make no difference whether the injury is caused in a primary collision or a secondary collision, so long as the plaintiff establishes the requisites of West. Most jurisdictions agree. But see Annot., 42 A.L.R.3d 560 (1972).

Ford Motor Company (Ford) contends there are such significant differences between manufacturing flaws (where products do not conform to planned specifications due to manufacturing error) and design defects (where products are produced as designed but the design itself is defective) that this Court should utilize a negligence standard for design defects and permit strict liability for manufacturing errors. Ford reasons that in manufacturing flaws there is a guide, the plan or blueprint of the product, to aid jurors in determining defectiveness, but that no such comparison guide is available for design defects. Instead, Ford contends that the highly technical issues involved in an engineering design choice are too complex for jurors with no engineering training or manufacturing experience. Thus, Ford asserts that the product must be evaluated in terms of how well it performed, taking into account all of the practical and technical problems of the designer’s options — a negligence standard.

It appears that analysis of whether a product is in a defective condition unreasonably dangerous to the user involves a negligence analysis in a “design defect” case, unlike the analysis ordinarily required in a “manufacturing flaw” situation. But this does not mean it is erroneous to apply the doctrine of strict liability to design defect cases. In Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977), the Seventh Circuit Court of Appeals overruled its earlier decision in Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966), saying:

One who is injured as a result of a mechanical defect in a motor vehicle should be protected under the doctrine of strict liability even though the defect was not the cause of the collision which precipitated the injury. There is no rational basis for limiting the manufacturer’s liability to those instances where a structural defect has caused the collision and resulting injury. This is so because even if a collision is not caused by a structural defect, a collision may precipitate the malfunction of a defective part and cause injury. In that circumstance the collision, the defect, and the injury are interdependent and should be viewed as a combined event. Such an event is the foreseeable risk that a manufacturer should assume. Since collisions for whatever cause are foreseeable events, the scope of liability should be commensurate with the scope of the foreseeable risks.

565 F.2d at 109.

Commenting on this language the Nebraska Supreme Court in Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979), stated:

Such result, based upon either simple logic or the law, makes sense. It would be a strange result if we said that a manufacturer who carefully designs a product and thereafter negligently produces it should be held liable, but a manufacturer who negligently designs the product and thereafter carefully produces it pursuant to the negligent design should be relieved of liability.

Id. at 475, 283 N.W.2d at 33. Moreover, some commentators agree that

[t]he policy reasons for adopting strict tort liability do not change merely because of the type of defect alleged. If a product, due to its design, is dangerous at the time of an accident, that should be sufficient to impose strict tort liability.

2 L. Frumer & M. Friedman, Products Liability § 16A[4][f][iv][D] at 3B-136.2(p) (1981). Contra, Henderson, Renewed Judicial Controversy over Defective Product Design: Toward the Preservation of an Emerging Consensus, 63 Minn.L.Rev. 773 (1979).

We feel that the better rule is to apply the strict liability test to all manufactured products without distinction as to whether the defect was caused by the design or the manufacturing. If so choosing, however, a plaintiff may also proceed in negligence.

Ford filed a third party complaint seeking indemnification and contribution (the contribution claim was later withdrawn) from Hill’s employer, Barkett Oil Company. The trial judge dismissed this complaint with prejudice, and the district court affirmed on the authority of Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977); and Maybarduk v. Bustamante, 294 So.2d 374 (Fla.4th DCA 1974). We adopt its opinion on this issue.

The decision of the district court of appeal affirming the judgment is approved.

It is so ordered.

SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

      . This question can be rephrased in two parts:
      (1) Does the doctrine of strict liability adopted in West apply to a second collision case, or

        (2) Is a plaintiff limited exclusively to a negligence action by Evancho?

      We answer the first part in the affirmative and the second in the negative.

      . The Court does not, however, recognize a conflict between Evancho and West. Evancho was a “pre-strict liability” decision, and the Court therefore used negligence terminology.

      . Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979); Daly v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162, 144 Cal.Rptr. 380 (1978); Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978); Smith v. Fiat-Roosevelt Motors, Inc., 556 F.2d 728 (5th Cir. 1977) (Fla.); Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68 (Fla.2d DCA 1979); Friend v. General Motors Corp., 118 Ga.App. 763, 165 S.E.2d 734 (1968), cert. dismissed, 225 Ga. 290, 167 S.E.2d 926 (1969); Farmer v. International Harvester Co., 97 Idaho 742, 553 P.2d 1306 (1976); Buehler v. Whalen, 70 Ill.2d 51, 15 Ill.Dec. 852, 374 N.E.2d 460 (1978); Huff v. White Motor Corp., 565 F.2d 104 (7th Cir. 1977) (Ind.); Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972) (Iowa); Stueve v. American Honda Motors Co., 457 F.Supp. 740 (D.Kan.1978); Wooten v. White Trucks, 514 F.2d 634 (5th Cir. 1975) (Ky.); Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir. 1979) (La.); Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 398 A.2d 490 (1979), rev’d on other grounds, 286 Md. 714, 410 A.2d 1039 (1980); Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975); Wagner v. International Harvester Co., 611 F.2d 224 (8th Cir. 1979) (Minn.); Cryts v. Ford Motor Co., 571 S.W.2d 683 (Mo.App.1978); Brandenburger v. Toyota Motor Sales, U.S.A., Inc., 162 Mont. 506, 513 P.2d 268 (1973); Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979); Devaney v. Sarno, 125 N.J.Super. 414, 311 A.2d 208 (1973), aff'd, 65 N.J. 235, 323 A.2d 449 (1974); Johnson v. American Motors Corp., 225 N.W.2d 57 (N.D.1974); McMullen v. Volkswagen of America, 274 Or. 83, 545 P.2d 117 (1976); Jeng v. Witters, 452 F.Supp. 1349 (M.D.Pa.1978), aff'd, 591 F.2d 1335 (3rd Cir. 1979); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974) (R.I.); Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); Baumgardner v. American Motors Corp., 83 Wash.2d 751, 522 P.2d 829 (1974); Austin v. Ford Motor Co., 86 Wis.2d 628, 273 N.W.2d 233 (1979). But see Sealey v. Ford Motor Co., 499 F.Supp. 475 (E.D.N.C.1980); Volkswagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737 (1974).

      . We agree with Ford that the standard jury instruction on' products liability could be improved. We therefore direct the committee on standard jury instructions for civil trials to develop and present to this Court an appropriate instruction which adequately addresses the issue and which reflects the holding of the instant case.


author: McDONALD, Justice.

text:
    TRAVELERS INSURANCE COMPANY, Petitioner, v. Robert BARTOSZEWICZ, Respondent.
    No. 59665.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Nov. 12, 1981.
    Ronald L. Harrop of Gurney, Gurney & Handley, Orlando, for petitioner.
    Ronald J. Langa and Herbert H. Hall, Jr. of Maher, Overchuck, Langa & Cate, Orlando, for respondent.
    Joseph C. Jacobs and Thomas M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen and Frederick B. Karl, Tallahassee, for American Ins. Ass’n, amicus curiae.
    Larry Klein, West Palm Beach, for the Academy of Florida Trial Lawyers, amicus curiae.
   McDONALD, Justice.

In this case we decide whether the declaration of a corporation as the named insured of a personal injury protection (PIP) insurance policy has the effect of making the corporation’s employees named insureds. Because the district court decision conflicts with Marina Del Americana, Inc. v. Miller, 330 So.2d 164 (Fla. 4th DCA 1976), we have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

Robert Bartoszewicz, an employee of Vaughn Printers, Inc., was injured in an auto accident while driving a company car during the course of his employment. Although at the time Bartoszewicz personally owned another car and was required by law to maintain security under the Florida Automobile Reparations Reform Act (Act), he sued his employer’s PIP carrier, Travelers, for benefits under Vaughn Printers’ business owner’s policy. That policy states that Travelers will pay benefits in accordance with the Act for bodily injury sustained by:

(1) The named insured or any relative occupying a motor vehicle or, while a pedestrian through being struck by a motor vehicle; or
(2) Any other person while occupying the insured motor vehicle or, while a pedestrian, through being struck by the insured motor vehicle.

Named insured is defined in the policy as

the person or organization named in the declarations of the policy and if an individual, shall include the spouse if a resident of the same household.

The declaration names “Vaughn Printers, Inc.” The exclusion section of the policy provides that the insurance does not apply

to any person, other than the named insured, if such person is the owner of a motor vehicle with respect to which security is required under the Florida Automobile Reparations Act, as amended.

Because, by ownership of a personal car, Bartoszewicz was required to maintain security under the Act, he could claim benefits under the Travelers policy only if he were a named insured under his employer’s policy. Whether he is a named insured is the question for resolution.

The central concern in interpreting insurance contracts is the intent of the parties. Excelsior Insurance Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). In discerning that intent, most courts have held that the term “named insured” has a restricted meaning and does not apply to persons not specifically named in the policy. Kohly v. Royal Indemnity Co., 190 So.2d 819, 821 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 813 (Fla.1967). See Annot., 91 A.L.R.3d 1280 (1979).

The district court, ruling that employee Bartoszewicz is a named insured, relied on the rule of insurance law that equivocal insurance contracts are read in favor of coverage. 386 So.2d at 607. This rule employs basic contract law that an ambiguous written agreement should be construed against the party which drew the contract. Capital City Bank v. Hilson, 59 Fla. 215, 51 So. 853 (1910). This rule is applied to insurance contracts as well, and, because it is more often the insurer who draws the contract, the general rule is that ambiguities (equivocalities) are read against the insurer. Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975); Harris v. Carolina Life Insurance Co., 233 So.2d 833 (Fla.1970).

The district court’s application of this rule is unfounded in this case because the present contract is not equivocal. The reason given by the district court for its view that the contract is equivocal was that the contract failed to name which individuals within the corporation were meant to receive personal injury protection. The district court felt such a provision necessary because an inanimate corporation is, itself, incapable of sustaining personal injury. This fact, reasoned the court, renders a PIP policy which declares a corporation as named insured but does not extend coverage to the only persons within the corporation who could sustain personal injury, its agents, nonsensical.

Equivocality arises only when the terms of a contract present a genuine inconsistency, uncertainty, or ambiguity. 369 So.2d at 942. Under this test we hold that the contract is not equivocal. It is not unreasonable that the parties would declare the corporation the named insured without necessarily meaning to include the employees. It is obvious that benefits are conferred by naming the corporation alone, because anyone (including an employee) who is injured while occupying a corporation car or who is struck by a corporation car and who is not required to have his own PIP coverage will be insured.

The decision of the district court is quashed, and this case is remanded with instructions to affirm the trial court judgment.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . This is a policy required by the Florida Automobile Reparations Reform Act, §§ 627.730— 627.741, Fla.Stat. (1979).

      . Bartoszewicz v. Travelers Ins. Co., 386 So.2d 605 (Fla. 5th DCA 1980). The district court reversed a final summary judgment on behalf of Travelers and held that, under the terms of the policy in this case, declaring the corporation the named insured has the effect of including this employee as a named insured.

      . Also declared named insured in the policy is William Drew Vaughn, the principal owner of Vaughn Printers, Inc.

      . Commenting on the public policy aspects of the rule, this Court stated:
      [insurance policies are prepared by experts in this complex field, and the interplay of their various provisions is intricate and difficult for the layman to understand. For this reason, the public interest requires that a policy be interpreted by the courts in the manner most favorable to the insured....

        Praetorians v. Fisher, 89 So.2d 329, 333 (Fla.1956).

      .Although not material to our holding, we note that the PIP policy was merely part of a comprehensive business owner’s policy which included liability and property loss protection.

      . See Rosen v. National Union Fire Ins. Co., 249 So.2d 701 (Fla. 3d DCA 1971).


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Robert L. PAYNE, Respondent.
    No. 57505.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Jim Smith, Atty. Gen., and James H. Greason and Anthony C. Musto, Asst. At-tys. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, Miami, for respondent.
   ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Third District, (Payne v. State, 372 So.2d 152 (Fla. 3d DCA 1979)), which conflicts with the decision of another district court (Mulder v. State, 356 So.2d 870 (Fla. 4th DCA 1978)), on the same point of law. We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The district court’s opinion sets forth the pertinent facts:

[Respondent] Payne was charged by information with aggravated assault and unlawful possession of a firearm, and he entered a plea of not guilty to the charges. Trial by jury was had; however, due to inability of the jury to reach a verdict, a mistrial was declared. Thereafter, defendant withdrew his prior plea and entered a plea of guilty to the charges, upon the trial court’s assurance that the sentence would not be greater than one year. The defendant was sentenced to one years imprisonment, but the sentence was suspended and he was placed on three years probation.
Approximately eighteen months later an affidavit alleging violation of the terms of probation was filed against Payne. After hearing was held on the alleged violation, defendant was sentenced to a term of imprisonment of five years in the state penitentiary by the same trial court.

Payne v. State at 152.

On appeal to the district court, respondent contended that the five-year sentence was improper, arguing that the trial court, in resentencing, was limited by the terms of the agreement by which respondent had pled guilty. Thus, respondent asserted, he could not be sentenced to more than one year imprisonment. Relying upon its earlier decision in Segarra v. State, 360 So.2d 79 (Fla. 3d DCA 1978), the district court agreed with respondent and reversed and remanded the case. Petitioner, the state, then sought review by this Court.

Subsequent to the above proceedings, we released our decision in State v. Segarra, 388 So.2d 1017 (Fla.1980), reversing the third district’s decision in Segarra v. State. In State v. Segarra, we held that under the provisions of subsection 948.06(1), Florida Statutes (1975), one placed on probation pursuant to the terms of a plea agreement may, upon violation and revocation of said probation, be sentenced to a term in excess of the provisions of the original bargain. In light of said ruling and its applicability to the case sub judice, we reverse the district court’s decision herein.

Although we dispose of this cause on the basis of our decision in State v. Segarra, respondent raises a constitutional argument which we feel warrants consideration. Respondent contends that the imposition of a five-year prison term after he had earlier been sentenced to one year violated the double jeopardy clauses of the United States and Florida Constitutions, and cites several cases in support thereof. See Ex Parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874); United States v. Turner, 518 F.2d 14 (7th Cir. 1975); Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Hardwick v. State, 357 So.2d 265 (Fla. 3d DCA 1978); Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977).

The above cases pertain to the resentenc-ing of parties already sentenced once before. All articulate the general rule that once a defendant has begun serving his sentence, double jeopardy protections attach and the sentence cannot thereafter be increased, for:

To do so is to punish him twice for the same offense. He is not only put in jeopardy twice, but put to actual punishment twice for the same thing.

Ex Parte Lange 18 Wall, at 175, 85 U.S. at 175. Respondent contends that there are no Florida cases encompassing a factual situation precisely like that here, but cites several from Pennsylvania which hold that one sentenced and then placed on probation cannot, upon revocation of probation, be re-sentenced to a term longer than that to which he was originally sentenced. See Commonwealth v. Cole, 222 Pa.Super. 229, 294 A.2d 824 (1972); Commonwealth v. Davy, 218 Pa.Super. 355, 280 A.2d 407 (1971); and Commonwealth v. Scheetz, 217 Pa.Super. 76, 268 A.2d 193 (1970).

We have, respondent’s assertions notwithstanding, rendered decisions holding that under subsection 948.01(4) one who has been sentenced to a period of incarceration and then given a period of probation may, upon revocation of his probation, be resentenced to any term which might originally have been imposed, regardless of whether the term of the second sentence exceeds that of the first. See State v. Holmes, 360 So.2d 380 (Fla.1978); State v. Jones, 327 So.2d 18 (Fla.1976); rev’d in part on other grounds, 330 So.2d 189 (Fla.1978). Scott v. State, 326 So.2d 165 (Fla.), cert. denied, 429 U.S. 836, 97 S.Ct. 104, 50 L.Ed.2d 103 (1976). In construing the statute, however, the preceding opinions did not address the constitutional question which respondent has raised. Several decisions from other courts, however, have considered the constitutionality of increased “second sentences” and found such to be proper.

We begin by considering the United States Supreme Court’s opinion in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which addressed the question of whether the constitution prohibits imposition of a more severe punishment upon retrial after a prior conviction has been set aside and a new trial granted at the defendant’s behest. Both respondents in North Carolina v. Pearce were in the position of having had such occur and each contended that imposition of the longer sentence after retrial placed him twice in jeopardy for the same offense. The Court, however, found that “the guarantee against double jeopardy imposes no restrictions upon the length of a sentence imposed upon reconviction.” Id. at 719, 89 S.Ct. at 2077-78. The rationale for so holding was based on “the premise that the original conviction has, at the defendant’s behest, been wholly nullified and the slate wiped clean .. . and the unexpired portion of the original sentence will never be served.” Id. at 721, 89 S.Ct. at 2078.

The opinion further explained that a longer second sentence would not be improper if the defendant’s conduct subsequent to imposition of the first sentence demonstrated that a sterner sentence was warranted:

A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant’s “life, health, habits, conduct, and mental and moral propensities.” Williams v. New York, 337 U.S. 241, 245, 1341, 69 S.Ct. 1079 [1082], 93 L.Ed. 1337, .... The freedom of a sentencing judge to consider the defendant’s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the “prevalent .modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id., at 247, [69 S.Ct., at 1083] 93 L.Ed. at 1342.

Id. at 723, 89 S.Ct. at 2079-80.

While in the case sub judice, we are not confronted with a new sentence imposed at the conclusion of a new trial, we believe that the rationale of North Carolina v. Pearce is applicable here. As the United States District Court, Southern District of Florida, observed in a case with a factual situation similar to that in the case at bar:

[T]he sentence was imposed following revocation of probation, but it is also recognized that double jeopardy is no bar to a greater sentence as long as vindictiveness has no part in the new sentence. North Carolina v. Pearce, 409 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Gunsby v. Wainwright, 596 F.2d 654 (5th Cir.1979). The rationale of [these cases] allowing a longer sentence based on identifiable conduct not before the Court at the original sentencing should also be applicable to imposition of a sentence following revocation of probation.

Campbell v. Wainwright, No. 79-2688-Civ-SMA (S.D. Fla. Sept. 17, 1979) at page 2.

In another case holding likewise the same court observed as follows:

“[A] sentence imposed after probation has been violated can reflect the added basis for evaluating defendant’s amenability to reform, namely, his response to probation.”
* * * * * *
Under the authorities cited above, the Court holds that the Petitioner herein has not been subjected to double jeopardy. The cases like North Carolina v. Pearce indicate that only when a defendant is sentenced and then resentenced for precisely the same conduct does double jeopardy come into play. Such is not the case here, because it was the Defendant’s violation of probation that triggered the re-sentencing. The State of Florida has chosen to subject probation violators to the sentence which might have originally been .imposed on them in lieu of probation, and because the new sentence is based on the defendant’s intervening conduct, the Constitution does not prohibit this.

Williams v. Wainwright, 493 F.Supp. 153, 155-56 (S.D.Fla.1980) (footnote omitted), in part quoting State v. Ryan, 171 N.J.Super. 427, 436, 409 A.2d 821, 825 (1979).

In reaching our decision, we also approve of and adopt as our own the reasoning of Justice Frankfurter in his dissent in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943). In Roberts, the Court construed the federal probation statute then in effect, which contained basically the same language as does subsection 948.-06(1), as prohibiting resentencing to a term exceeding that originally imposed. The Court expressly refused, however, to reach the question of the constitutionality of an increased second sentence, or more specifically, of whether an increased second sentence would violate the prohibition against double jeopardy. Id. at 265, 64 S.Ct. at 114.

Justice Frankfurter, joined by Chief Justice Stone and Justice Reed, dissented from the majority’s statutory interpretation and proceeded to consider the statute’s constitutionality, finding that it did not violate the Fifth-Amendment ban on double jeopardy. He reasoned as follows:

[T]he probation system is in effect a reliance on the future to reveal treatment appropriate to the probationer. In the nature of things, knowledge which may thus be gained is not generally available when the moment for conventional sentencing arrives. Since assessment of an appropriate punishment immediately upon conviction becomes very largely a judgment based on speculation, the function of probation is to supplant such speculative judgment by judgment based on experience.
******
We certainly should not countenance the notion that a probationer has a vested interest in the original sentence nor encourage him to weigh the length of such a sentence against any advantages he may find in violating his probation. To bind the court to such a sentence is undesirable in its consequences and violative of the philosophy of probation.
******
It would be strange if the Constitution stood in the way of a system so designed for the humane treatment of offenders. To vest in courts the power of adjusting the consequences of criminal conduct to the character and capacity of an offender, as revealed by a testing period of probation, of course does not offend the safeguard of the Fifth Amendment against double punishment. By forbidding that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb,” that Amendment guarded against the repetition of history by trying a man twice in a new and independent case when he already had been tried once, see Holmes, J., in Kepner v. United States, 195 U.S. 100, 134, 49 L.Ed. 114, 126, 24 S.Ct. 797, 1 Ann.Cas. 655, or punishing him for an offense when he had already suffered the punishment for it. But to set a man at large after conviction on condition of his good behavior and on default of such condition to incarcerate him, is neither to try him twice nor to punish him twice. If Congress sees fit, as it has seen fit, to employ such a system of criminal justice there is nothing in the Constitution to hinder.

Roberts at 273-77, 64 S.Ct. at 118-19.

We agree with the reasoning of the United States District Court, Southern District of Florida, and of Justice Frankfurter, and find that respondent was not twice put in jeopardy. It was respondent’s conduct which resulted in the stiffer second sentence, and imposition of the same does not offend the safeguards of the Fifth Amendment.

Having construed subsection 948.06(1) as allowing that which was done, and having found constitutional the action complained of, the decision of the district court is hereby reversed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.


author: ALDERMAN, Justice.

text:
    Howell PEACOCK, Appellant, v. STATE of Florida, Appellee.
    No. 58591.
    Supreme Court of Florida.
    Oct. 8, 1981.
    Thomas S. Keith and Louis G. Carres, Asst., Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Doris E. Jenkins, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ALDERMAN, Justice.

Howell Peacock was charged with violating section 943.462(3), Florida Statutes (1977), Florida’s Racketeer Influenced and Corrupt Organizations Act. His motion to dismiss on the basis that the RICO Act is unconstitutional was denied, and he pleaded nolo contendere, reserving his right to appeal the constitutional challenges.

The Second Judicial Circuit public defender was appointed to prosecute Peacock’s appeal. In his brief filed in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the public defender addresses the constitutional challenges raised below and represents that the record does not support these challenges.

We have considered the record and the constitutional issues. We find they are without merit and, accordingly, affirm the conviction. State v. Whiddon, 384 So.2d 1269 (Fla.1980); Moorehead v. State, 383 So.2d 629 (Fla.1980).

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.

      . The public defender, in his Anders brief, requested that Peacock be given an opportunity to file a brief in his own behalf. The clerk of the Supreme Court has attempted to notify Peacock at his last known address that he had until a date certain to file a brief in his own behalf, but the notification was not accepted at this last known address because he was not residing there. The clerk’s notification was marked “return to sender.”