text:
    Cois TEELE, et al. v. Aileene GRAVES.
    81-658.
    Supreme Court of Alabama.
    Jan. 28, 1983.

      Robert Austin, Oneonta, for appellants.
    George Hawkins and George C. Day, Jr., Gadsden, for appellee.
   PER CURIAM.

This is an appeal by Cois Teele and other children and heirs at law of J. Lee Teele, deceased, from a summary judgment in favor of Aileene Graves, another child, who was the beneficiary under the will of their father.

J. Lee Teele died on June 8,1973, leaving seven surviving children. Six of the children are the plaintiffs/appellants, herein; the seventh child, Aileene Graves, is the defendant/appellee. Under the will of J. Lee Teele, Aileene Graves was devised and bequeathed all of the real and personal property of the deceased. The will of J. Lee Teele was admitted to probate on August 27, 1973;the will was not contested. On January 23, 1981, some seven years after the will was admitted to probate, this action was commenced by the plaintiffs/appellants.

The plaintiffs alleged that their father, prior to his death, had stated that all of his property would be left to Aileene Graves with the understanding that she would distribute the property in equal shares to the other children. The plaintiffs also maintained that the defendant, Aileene Graves, had represented to the plaintiffs that it was her intention that the property left to her in the will would be equally divided and distributed among the seven children. The plaintiffs sought to have a constructive trust imposed upon all of the property in the possession or control of Aileene Graves for the benefit of all of the children of J. Lee Teele. The plaintiffs also sought damages of $400,000.00 for willful misrepresentation by the defendant.

The record does not disclose any motion to dismiss the complaint challenging its legal sufficiency to state a claim upon which relief could be granted. Therefore, the sole issue presented for our review is whether the trial court erred in granting defendant’s motion for summary judgment. The motion for summary judgment was submitted upon the pleadings and depositions of the plaintiffs. In determining whether summary judgment is proper, this Court has stated that the ultimate question is whether there is a genuine issue of material fact. First National Bank of Birmingham v. Culberson, 342 So.2d 347 (Ala.1977). We hold that under the pleadings and evidence presented, the trial court was correct in granting summary judgment.

The depositions taken from the plaintiffs do not bear out the statements made in their complaint. Ruby Greene, one of the plaintiffs, stated she was unaware of the contents of the will and that she did not have any grounds particularly for contesting the will. She also stated that no one ever told her she was going to get part of the estate.

Grady Teele, another of the plaintiffs, stated that he understood the property was to be divided equally. However, he also stated his failure to contest the will was not caused by anything his sister, Aileene Graves, had told him.

Lonnie Teele, another plaintiff, stated he understood the property was left to his sister with the stipulation that she divide it. He also stated that the defendant did not say anything that stopped him from contesting the will.

L.M. Teele, another plaintiff, stated that he had no knowledge of the contents of the will prior to his father’s death. He also stated that his decision not to contest the will was not caused by any representations made by the defendant Aileen Graves.

James Teele, another plaintiff, stated that his father told him that after his death, Aileene was to sell the property and divide the money equally among the seven children. He also stated that his decision not to contest the will was not the result of any promise made by the defendant.

Cois Teele, the sixth plaintiff, stated that his father had indicated that he wanted to give him a parcel of land. He did not indicate that he was aware of any general scheme of disposition for the property. He also indicated that the defendant never promised to divide the property and never attempted to talk him out of contesting the will.

There is no evidence that the plaintiffs were induced to forego contesting the will by any statements by the defendant. Thus, the trial court was correct in granting summary judgment as to the count alleging willful misrepresentation.

This Court has stated:

“A constructive trust is a creature of equity that operates to prevent unjust enrichment; such a trust will be imposed when a property interest has either been acquired by fraud or where, in the absence of fraud, it would be inequitable to allow the property interest to be retained by the person who holds it.”

Coupounas v. Morad, 380 So.2d 800, 803 (Ala.1980).

From the facts presented in the plaintiffs’ depositions, there is simply no evidence of fraud in this case. There was also no evidence that the decedent at any time told Aileene Graves, the defendant, that she was to divide the property among the children. Further, even though the property was not distributed following the death of J. Lee Teele, the plaintiffs failed to contest the will or to take any action for seven years. This failure to act contradicts their assertion that they thought they were legally entitled to a share of their father’s property. Ruby Greene indicated that no one told her she was to receive part of her father’s estate. Cois Teele never indicated he was aware of a general scheme of distribution for the property. In fact, our review of the complaint indicates that the plaintiffs failed to allege any of the traditional bases for establishment of a constructive trust, such as abuse of a confidential relationship, mistake, fraud, or a parol promise to hold in trust. Thus, we hold that the trial court was correct in granting summary judgment on the count asking for the imposition of a constructive trust.

The granting of summary judgment as to the imposition of a trust and the claim for willful misrepresentation is due to be affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Harris STEWART, et al. v. CITY OF NORTHPORT, a municipal corporation.
    81-819.
    Supreme Court of Alabama.
    Jan. 28, 1983.

      Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
    Robert P. Reynolds and Elizabeth R. Jones of Hubbard, Waldrop, Tanner & de-Graffenried, Tuscaloosa, for appellee.
    Drayton N. Hamilton, Montgomery, for Amicus Curiae Alabama League of Municipalities.
   FAULKNER, Justice.

This is an appeal from a motion dismissing this case in favor of defendant, City of Northport. Plaintiffs, four Tuscaloosa County businessmen, owned a parcel of land in Northport. The land had been zoned RG-2 (multi-family) in October 1978. At the time of the re-zoning, plaintiffs were told by the Planning and Zoning Board of Northport that in computing “net site acre,” the plaintiffs could utilize the area of land contained in the Alabama Power Company easement across the property. “Net site acre” means roughly the amount of land which can be used to determine the maximum number of units which can be built on a piece of property.

In August 1980, plaintiffs entered into a contract to sell their property to a developer. The sales agreement was conditioned upon the representation by plaintiffs that a building permit to construct seventy-six multi-family housing units on the property could be obtained.

On October 6, the owners of a nearby apartment complex filed a petition with the Northport Zoning Board of Adjustment claiming that the subject property should contain only sixty-eight units because the Alabama Power Company easement should be excluded from the “net site acre” figure. In response to the petition, the Zoning Board of Adjustment defined a “net site acre” as excluding easements, ruling thereby that only sixty-eight units could be built on plaintiffs’ property. Plaintiffs thereafter filed a petition for a variance from the ruling, which was denied on October 23, 1980. In February 1981, the loan for the construction project was closed.

Plaintiffs filed their complaint against the City of Northport on May 21, 1981. They alleged that the actions of the North-port Zoning Board of Adjustment were vio-lative of 42 U.S.C. § 1983, the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution. Plaintiffs sought $14,909.72 actual damages, $30,000.00 punitive damages and attorney’s fees.

The City of Northport moved to dismiss the lawsuit on the grounds that the action was barred in that no claim was filed within six months as required by § 11-47-23, Code 1975. The trial court granted the City of Northport’s motion to dismiss. We affirm.

Two issues are raised on appeal:

(1) Whether the six months notice requirement of § 11-47-23, Code 1975, can be used to defeat a claim under 42 U.S.C. § 1983.
(2) Whether plaintiffs’ cause of action accrued in October 1980 or February 1981.

We will address the six months’ notice requirement first. It is well established that in a § 1983 action, the courts must look to state law for the applicable statute of limitations. Rubin v. O’Koren, 644 F.2d 1023 (5th Cir.1981). Since the defendant is a municipality, the applicable Alabama statute of limitations is § 11-47-23, Code 1975.

Section 11 — 47-23 states:

“All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.”

Plaintiffs contend that the trial court incorrectly ruled that this action is barred by § 11-47-23, Code 1975. Plaintiffs aver that this case is governed by Ehlers v. City of Decatur, 614 F.2d 54 (5th Cir.1980), a suit for damages under 42 U.S.C. § 1983 against the city of Decatur, Georgia. The plaintiff in Ehlers did not file a claim with the city within six months of the events giving rise to the claim, as required under Ga.Code Ann. § 69-508, Georgia’s anti-litem notice provision. The Ehl-ers court, however, read the Georgia statute as an exhaustion of remedies requirement, not as a statute of limitations. The Ehlers court stated, “Federal Courts may not require exhaustion of state administrative or judicial remedies in a § 1983 action for damages for deprivation of a constitutional right.” 614 F.2d at 56. Id.

The City of Northport states that the Ehlers case is easily distinguished from this cause. Georgia’s anti-litem notice provision was held by the Ehlers court to be “more than a statute of limitations.” Id. at 56. The City of Northport claims that it was the “more” that caused the statute to be held unconstitutional and not the fact that it imposed a time limitation. Section 11-47-23, Code 1975, according to the City of Northport,, is only a limitation without “more.”

We agree with the City of Northport that Alabama’s statute' is different from the Georgia statute under consideration in Ehl-ers. Section 11 — 47-23 does not require that an injured party give notice directly to the City before filing suit; rather this section has been construed to allow the filing of suit within the six-month period to be notice to the city. Hamilton v. City of Anni-ston, 268 Ala. 559,109 So.2d 728 (1959). An additional difference is that the Georgia statute requires affirmative action on behalf of the municipal body and is a bar until such notice is given. Alabama’s statute does not require such affirmative action. The only requirement is that suit be filed within the six months allowed by the statute of limitations. We are of the opinion that § 11-47-23 does not establish any constitutional barriers, such as the exhaustion of administrative remedies to plaintiffs’ filing their § 1983 action. Therefore, Ehlers is not controlling in this cause.

The second issue on appeal concerns when the plaintiffs’ cause of action accrued. Plaintiffs aver that they did not sustain any economic loss until February 1981, when the loan for the construction project was closed. However, this Court finds that plaintiffs’ cause of action on their § 1983 claim accrued in October 1980, when the Northport Zoning Board of Adjustment rendered its decision denying plaintiffs’ petition for a zoning variance. The standard governing accrual of a cause of action under § 1983 is when a plaintiff “knows or has reason to know of the injury which is the basis of the action.” Rubin v. O’Koren, 621 F.2d 114, 116 (5th Cir.1980), citing Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980). The United States Supreme Court, discussing the accrual of a cause of action under Federal law, stated in Delaware State College v. Ricks, 449 U.s. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431, 440 (1980), that “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful,” quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979).

In this cause the allegedly discriminatory act by the Northport Zoning Board of Adjustment occurred in October 1980. At that time plaintiffs knew or had reason to know of their injury which is the basis of this action. Thus, the applicable six months statute of limitations, § 11-47-23, Code 1975, ran prior to plaintiffs’ filing their complaint in May 1981.

The trial court correctly granted defendant’s motion to dismiss.

Affirmed.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    N. WILSON’S CONTRACTING COMPANY, et al. v. Jesse JONES, Jr., et al.
    81-1015.
    Supreme Court of Alabama.
    Jan. 28, 1983.
    Henry L. Penick of Shores, Larkin, Pen-ick & Massie, Birmingham, for appellants.
    L. Stephen Wright, Jr. of Knopf & Wright, Birmingham, for appellees.
   FAULKNER, Justice.

This is an appeal by a residential contractor from a final judgment in a suit for breach of contract.

The dispute between Jesse Jones, Jr. and N. Wilson’s Contracting Company arises from a written contract whereby Wilson was to build a residence on Jones’s lot. Jones paid $1,100.00 in earnest money and conveyed title to the property to Wilson as part of a security for the payment for the erection of the residence. The contract had two pertinent provisions: (1) that the building would be completed by a certain date, and (2) that the agreement was contingent upon Jones’ securing a Y.A. loan.

On May 18, 1981, Jones filed a complaint seeking cancellation of the deed and monetary damages on the basis of breach of contract by Wilson. The answer denied the breach of contract and counterclaimed for monetary damages in an amount equal to the cost of the house minus the amount of the earnest money and the value of the Jones lot.

On July 19, 1982, Judge William Barber heard the case without a jury and his judgment reads in part:

“1. The provision relative to completion of the residence by the prescribed date was waived by the conduct of the parties.
2. The Veteran’s Administration refused to make the requested loan and no other lending agency agreed to make the loan.
Based upon the law involved in the cause and upon the equities existing between the parties from all of the evidence, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
ONE: Defendant shall, forthwith, re-convey the subject real property to Plaintiffs.
TWO: The earnest money in the sum of ONE THOUSAND ONE HUNDRED AND NO/100 DOLLARS ($1,100.00) which has already been paid to Defendant is awarded to Defendant and shall be retained by him.”

Wilson’s arguments are predicated on the assumption that breach of contract has been established. The trial court’s judgment does not reflect a determination of this issue.

We have inspected the record and find only “PLAINTIFF’S AND DEFENDANT’S EXHIBITS” consisting of house plans, specifications, licenses issued, other documents pertaining to the building of the residence, and payments of bills by Wilson. We presume that Judge Barber allowed the retention of the earnest money as compensation of Wilson’s expenses. There is no transcript, part of a transcript, or a statement of the evidence of oral testimony in compliance with ARAP Rule 10(d). We can only speculate as to why the transcript is absent.

When ore tenus evidence is presented in a non-jury case the trial court’s findings of fact and its conclusions carry the presumption of correctness and the judgment will not be disturbed unless shown to be palpably wrong or manifestly unjust.

The Complete absence of a transcript presents us with no reviewable issue. We can only affirm. Smith v. Haynes, 364 So.2d 1168 (Ala.1978).

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


text:
    Diane WILBANKS and Larry Wilbanks, a minor v. Jody BRAZIL, a minor and Marsha Brazil.
    81-767.
    The Supreme Court of Alabama.
    Jan. 28, 1983.

      Robert M. Hill, Jr., Florence, for appellants.
    Robert L. Gonce, Florence, for appellees.
   FAULKNER, Justice.

Plaintiffs, Diane Wilbanks, parent and guardian of Larry Wilbanks, and Larry Wilbanks, a minor, appeal from a summary judgment granted in favor of defendants Jody Brazil, a minor, and Marsha Brazil, parent and guardian of Jody Brazil. This appeal is brought on the amended complaint, alleging negligent entrustment, against the defendant, Marsha Brazil.

The facts are as follows: On May 13, 1981, Jody and a friend, Larry Wilbanks, were playing with Marsha Brazil’s golf clubs when Marsha left her home to pick up her older child at swim practice. After Mrs. Brazil left, Jody Brazil accidentally struck Larry Wilbanks with an iron club, the blow fracturing the skull, with the toe of the club, entering the brain cavity. According to testimony, Jody had told Larry to “stand back.” Jody was hitting balls when Larry either stepped into the club or was standing too close and was hit by the golf club and injured.

The case progressed as follows: On July 9, 1981, Diane Wilbanks, as parent and guardian of Larry Wilbanks, and Larry Wilbanks, a minor, filed a complaint against Marsha Brazil, parent and guardian of Jody Brazil, and Jody Brazil, a minor, alleging damages for negligence in the injury of Larry Wilbanks. On July 16,1981, the Bra-zils filed an answer alleging the general issue, contributory negligence, and assumption of risk. On July 21, 1981, the Brazils filed a motion for summary judgment, requesting the lower court to dismiss the action on the ground that the Brazils were entitled to judgment as a matter of law based on the pleadings and Marsha Brazil’s affidavit.

On February 1, 1982, Wilbanks filed an amendment to the complaint by adding Count II alleging that Marsha Brazil negligently entrusted golf clubs to her minor son Jody. Wilbanks also filed the affidavit of Alex Sloan, an expert in golf, on February 6, 1982, and filed the deposition of Marsha Brazil on March 5,1982, in opposition to the motion for summary judgment. On May 3, 1982, the trial court granted the motion for summary judgment. We affirm.

The issue raised on appeal is whether there is a cause of action based on the negligent entrustment of a golf club.

In Brown v. Vanity Fair Mills, Inc., 291 Ala. 80, 82, 277 So.2d 893 (1973), this Court stated:

“Negligent Entrustment is defined in Restatement (Second) of Torts § 390, as follows:
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
“The elements of negligent entrustment have been listed as follows:
“(1) Proof that the entrustee was incompetent, inexperienced or reckless; (2) that the entrustor ‘knew or had reason to know’ of the entrustee’s condition or proclivities; (3) that there was an entrustment of the chattel; (4) that the entrustment created an appreciable risk of harm to the plaintiff and a relational duty on the part of the defendant; (5) that the harm to the plaintiff was ‘proximately’ or ‘legally’ caused by the negligence of the defendant.” See Collins v. Arkansas Cement Co., 453 F.2d 512 (8th Cir.1972); Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional Liability, 20 Ark. L.Rev. & B. Ass’n J. 101 (1966).

This Court then stated: “Most of the negligent entrustment cases involve automobiles, but the all-embracing term ‘chattels’ used in the Restatement is not restricted to automobiles.”

Quoting the above passage, Wilbanks argues that the term “chattel” should be interpreted to include a golf club. This Court finds, however, that all cases arising under the negligent entrustment doctrine have involved entrustment of vehicles, boats, firearms, or explosives, except the case of Brown v. Vanity Fair Mills, Inc., supra, which is relied on by Wilbanks. This Court stated in Brown that the issue was whether or not the defendant was negligent in retaining or employing an employee who had violent propensities and who struck the plaintiff with a hammer. We discussed the negligent entrustment doctrine but stated that the demurrer was properly granted to the complaint and that the plaintiff had not stated a cause of action. We did not hold that there was negligent entrustment of a hammer.

In this case, an eight-year-old boy is playing with golf clubs. We opine that it is not negligent to entrust golf clubs to an eight-year-old boy. Golf clubs are items used in playing sports. If it is found to be negligent to entrust golf clubs to an ordinary eight-year-old, then parents would have to keep the golf clubs and similar sports equipment such as baseball bats, tennis rackets, and hockey sticks under lock and key and never allow a child to play with them except when he or she is under some sort of expert supervision.

This Court finds that one does not know or have reason to know that an ordinary eight-year-old will likely use a golf club in a manner involving unreasonable risk of harm to others. (See the elements of negligent entrustment stated in Brown v. Vanity Fair Mills, Inc., supra.) Thus, we find that summary judgment was properly granted in this cause.

AFFIRMED.

JONES, ALMON, SHORES and EMBRY, JJ., concur.


author: MCDONALD, Judge.

text:
    Theodore TRUSHIN, Petitioner, v. STATE of Florida, Respondent.
    No. 59378.
    Supreme Court of Florida.
    Nov. 4, 1982.
    Rehearing Denied Feb. 8, 1983.

      Louis M. Jepeway, Jr., of Jepeway & Jepeway and Smith, Black & Peckins, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for respondent.
   MCDONALD, Judge.

Trushin petitions for review of a district court decision, reported at 384 So.2d 668 (Fla. 3d DCA 1980), which affirmed his conviction of vote buying and construed and passed on the constitutionality of subsection 104.061(2), Florida Statutes (1977). We have jurisdiction and approve the instant decision.

In September 1978 Trushin circulated a letter throughout an apartment complex in Miami Beach in which he promised:

To every resident of the Roney Plaza Apartments who comes to my office to pledge their vote to Judge Frederick N. Barad and Judge Calvin R. Mapp, in the upcoming runoff election, I will prepare a Last Will and Testament for that person without charge.

He was charged by information with both promising something of value with the intent to buy votes and corruptly influencing voting under subsection 104.061(2).

Trial

The state’s first witness in the nonjury trial was a resident of the apartment complex who identified the letter and testified that he received a copy under his door. Next the state introduced into evidence a statement made by Trushin to an assistant state attorney in which he admitted sending the letter. Defense counsel objected to the admission of that statement on the ground that the corpus delicti had not been independently established because the letter had not yet been connected to Trushin. At the close of the state’s case Trushin moved for a judgment of acquittal grounded on the fact that the state’s evidence failed to connect Trushin sufficiently with the letter, thus failing to prove Trushin’s responsibility for the letter. At the close of all the evidence Trushin again moved for judgment of acquittal, charging only “that there has . been no evidence to prove defendant’s guilt beyond a reasonable doubt.” The court denied both motions. Then, before the court announced its verdict, the following dialogue occurred:

MR. COHEN [defense counsel]: May it please the Court, I now ask that the state elects to which portion of [104.061(2)] they are referring to.
THE COURT: Mr. Glick?
MR. GLICK [prosecutor]: I suggest respectfully that we do not have to elect either one of those portions. The Court can receive evidence as to all portions and eject the portion which does not go to any portion of paragraph 2 of the statute.
THE COURT: The Court will elect for you.
I find no evidence that the defendant corruptly influenced another to cast his vote. However, I do find that the defendant directly gave or promised something of value, that is, writing a will to another, intending thereby to receive his vote to support candidates Judge Barad and Judge Mapp.

The court then adjudicated Trushin guilty of vote buying. Trushin moved for a new trial at which time he first challenged the constitutionality of subsection 104.061(2). He alleged no specific grounds as the basis for this challenge, and the trial court denied the motion.

District Court Appeal

On appeal to the Third District Court of Appeal Trushin charged that: 1) the term “anything of value” in subsection 104.061(2) is unconstitutionally vague; 2) subsection 104.061(2) is unconstitutionally overbroad; 3) the evidence was insufficient to convict because the state failed to prove that the promisee was a registered voter, that the will was “anything of value,” and that Trushin had the requisite criminal intent; and 4) Trushin’s statement was improperly introduced at trial without independent proof of the corpus delicti because the state failed to prove the promisee was a registered voter.

At trial Trushin raised none of the four points brought up on appeal. Nonetheless, the district court, in a comprehensive and well-reasoned opinion, decided the first three issues, holding that the subsection is not unconstitutionally vague or overbroad, that proof of a registered voter-promisee and knowledge of the law are not elements of the crime, and that the will in this case is something of “value” for purposes of subsection 104.061(2). The district court certified the case to this Court as “involving issues of great public importance concerning the validity and interpretation of § 104.061(2).” 384 So.2d at 679 n. 28.

Supreme Court Review

On application to this Court for discretionary review Trushin asserts six points:

1) Specifically exempting “food to be consumed at a political rally or meeting,” even if provided with the intent to buy votes, from the provisions of the statute, makes the statute irrational, thereby violating the equal protection provisions of the state and federal constitutions;
2) The terms “anything of value,” “corruptly,” and “influence” are unconstitutionally vague;
3) Section 104.061(2) is unconstitutionally overbroad;
4) The trial court should have granted a judgment of acquittal because the state failed to prove Trushin’s knowledge that any promisee was a registered voter, or that he offered “anything of value”;
5) Trushin’s statement to the assistant state attorney was improperly allowed into evidence because the state failed to prove the corpus delicti by failing to show the letter was sent to a registered voter and by failing to competently introduce the contents of the letter, itself; and
6) Trushin has a right to closing argument which was denied.

In summary, none of the four issues raised in the district court was raised in the trial court. Likewise, this Court is asked to decide six issues, none of which was raised at trial and two of which, the first and the sixth, were not raised in the district court.

The obvious threshold question we must answer is which questions presented we should answer. There is and has been confusion on whether an appellate court should consider the constitutionality of a criminal statute absent a constitutional attack at the trial level. This Court itself has considered the constitutionality of statutes, under the doctrine of fundamental error, in civil cases even though that issue had not been raised at the trial court level. See Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Town of Monticello v. Finlay son, 156 Fla. 568, 23 So.2d 843 (1945).

On the other hand, in Davis v. State, 383 So.2d 620 (Fla.1980), and in Silver v. State, 188 So.2d 300 (Fla.1966), we ruled that the constitutionality of a criminal statute cannot be raised for the first time on appeal. In Whitted v. State, 362 So.2d 668 (Fla.1978), we disallowed the assertion of one of the alleged grounds of unconstitutionality even though the constitutionality of the statute had been attacked at trial because the appellant had failed to raise that particular ground at trial. Perhaps the previous jurisdiction of this Court, which allowed a direct appeal when the constitutionality of a statute was at stake, influenced the categorical positiveness of our declarations in those eases, but these cases more properly illustrate the fact that questions of constitutional infirmity may be waived. See Clark v. State, 363 So.2d 331 (Fla.1978).

The district court answered the facial constitutionality of the statute question with the following correct assertion: “Notwithstanding that these issues are ac-knowledgedly raised for the first time on appeal, we consider their merits because a conviction for the violation of a facially invalid statute would constitute fundamental error.” 384 So.2d at 672 (footnotes omitted). The facial validity of a statute, including an assertion that the statute is infirm because of overbreadth, can be raised for the first time on appeal even though prudence dictates that it be presented at the trial court level to assure that it will not be considered waived. The constitutional application of a statute to a particular set of facts is another matter and must be raised at the trial level. Once an appellate court has jurisdiction it may, if it finds it necessary to do so, consider any item that may affect the case. See Whitted; Miami Gardens, Inc. v. Conway, 102 So.2d 622 (Fla.1958); Vance v. Bliss Properties, Inc., 109 Fla. 388, 149 So. 370 (1933).

Only the constitutionality of the statute under which Trushin was convicted was the kind of alleged error which must be considered for the first time on appeal because the arguments surrounding the statute’s validity raised a fundamental error. Whitted; Silver. Accordingly, since Trush-in failed to raise issue 6 before either the trial court or the district court, we decline to address that claim when presented for the first time to this Court. Further, issue 5, concerning failure to prove the corpus delicti, was rejected by the district court and was not included within the issues certified in the district court’s opinion. While we have the authority to entertain issues ancillary to those in a certified case, Bell v. State, 394 So.2d 979 (Fla.1981), we recognize the function of district courts as courts of final jurisdiction and will refrain from using that authority unless those issues affect the outcome of the petition after review of the certified case.

Questions two through four present a different problem because the district court ruled on those issues and certified them to this Court. While we may disagree on whether these issues should have been considered as having been waived, the district court had the authority to consider them and found them important enough to certify to this Court. Therefore, we will exercise our jurisdiction and discuss the certified issues. We repeat that the decision of the district court is well reasoned and thorough and requires little elaboration.

Trushin alleges that the terms “anything of value,” “corruptly,” and “influence” found in subsection 104.061(2) are unconstitutionally vague. Since only the term “anything of value” was raised before the district court, we will limit our consideration to that term. Simmons v. State, 305 So.2d 178 (Fla.1974).

A statute will withstand constitutional scrutiny under a void-for-vagueness challenge if it is specific enough to give persons of common intelligence and understanding adequate warning of the proscribed conduct. Sanicola v. State, 384 So.2d 152 (Fla.1980). Trushin maintains that the term “anything of value” is vague because there is no delineation of that term and therefore its application is purely subjective. The state disagrees, arguing that the challenged words are clear on their face.

In considering this issue we agree with the district court that “no person of ordinary mental capacity needs to guess about the fact that he is precluded from offering or transferring any item which is worth anything — even, as appellant suggests, a pencil or a blotter — so long as he acts with the unlawful intent proscribed by the statute.” 384 So.2d at 673 (footnote omitted). It is the act of giving or promising to give that is precluded by the statute. It is well within the prerogative of the legislature to proscribe such an act, and by using the term “anything of value” the emphasis of the statute is on the act rather than on the consideration given in return for the act. Therefore, the term “anything of value” does not render subsection 104.-061(2) void for vagueness.

Trushin’s third issue alleges that subsection 104.061(2) is unconstitutionally over-broad because it criminalizes behavior which is protected by the first amendment to the United States Constitution and by article I, sections 4 and 9 of the Florida Constitution. The district court rejected this contention, finding that the subsection proscribes only conduct, “the purchase and attempted purchase of votes,” which the state has a manifest right to regulate. It further found that the subsection does not, in fact, forbid any activity or conduct which is protected by either the state or federal constitution.

When, as here, a state regulates conduct as well as speech, the applicable test for overbreadth is stated in Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973): “where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” As for the statute’s plainly legitimate sweep, the United States Supreme Court recently recognized that a state may prohibit the giving of money or other things of value to a voter in exchange for his support and may also declare unlawful an agreement embodying the intention to make such an exchange. Brown v. Hartlage, 456 U.S. 45, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982). In Brown the Supreme Court interpreted a Kentucky statute dealing with illegal activities of candidates for political office. While the court found the Kentucky statute unconstitutionally restrictive on the candidates’ first amendment right of free speech, Brown has limited application to the instant case.

Subsection 104.061(2) is not as restrictive on first amendment rights as the Kentucky statute in Brown and has as its purpose the prevention of corrupt elections. As the district court stated:

On its face, and without the necessity of construing any ambiguity or judicially inserting any limiting qualifications, the statute is confined to non-protected, clearly criminal conduct. To repeat, it precludes giving or promising anything of value only when the defendant intends “thereby to buy [a] vote or to corruptly influence” the casting of a vote. Thus the statute, forbidding acts intended to condition another’s vote upon the receipt of a personal benefit, is plainly and properly designed only to preserve the sanctity of the ballot.

384 So.2d at 674 (footnotes omitted, emphasis in original).

In this Court Trushin pursues his constitutional attack on section 104.061 by claiming that the statute is contrary to the equal protection clause of the constitution. His predicate for this argument is the exclusion in the statute for serving food at a political rally or meeting. This provision is alluded to in footnote 20 of the district court opinion, but the equal protection argument was not squarely presented to the district court. While we tend to believe that this argument has been waived by not presenting it earlier, to assure there is no misconception of our finding the statute to be completely constitutional, we have also considered this attack and likewise reject it. Many statutes have exclusions and exceptions of acts from the criminality of statutes. This is not unequal treatment of persons or a class of people because the exemptions are not directed to favor one group over another. There is an historical basis for the exception of serving food at political rallies — since the early formation of this republic people have gathered together on the grounds, eating fried mullet, chicken pilau, or the like, while candidates extol their virtues and try to persuade the voters to elect them. The legislature can properly exclude such activities from the operation of the “buying of votes” statute.

Trushin’s final issue questions the sufficiency of the evidence and in particular alleges that the state must prove that the promisee is a registered voter and that drawing a will is “something of value.” The district court has properly analyzed these issues. As for the allegation that the promisee must be a registered voter, subsection 104.061(2) speaks only of influencing or buying “another’s” vote. It does not require that the other person be a registered voter. Support for this is found in subsection 104.061(1), where the term “elector” is used. Had the legislature intended subsection 104.061(2) to apply to only electors (registered voters) it could have carried that term from subsection (1) to subsection (2). The clear intent of not doing so is to proscribe the act of attempting to make the forbidden offer or promise regardless of whether it is accepted or responded to. We find no merit to Trushin’s allegation that his promise to prepare a will was not shown to be “anything of value.” The question of whether the consideration for the promise is “anything of value” is a question for the trier of fact and unless clearly erroneous will not be reversed on appeal.

The decision of the district court is approved.

It is so ordered.

ALDERMAN, C.J., and ADKINS and OVERTON, JJ., concur.

BOYD, J., dissents.

APPENDIX

Theodore M. Trushin Law Offices, P.A.

      .§ 104.061, Fla.Stat. (1977), provides:
      Corruptly influencing voting.—
      (1) Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him in the free exercise of his right to vote at any election is guilty of a misdemean- or of the first degree....
      (2) No person shall directly or indirectly give or promise anything of value to another intending thereby to buy his or another’s vote or to corruptly influence him or another in casting his vote. Any person who violates this subsection is guilty of a felony of the third degree.... However, this [subsection] shall not apply to the serving of food to be consumed at a political rally or meeting.
      (Footnote omitted.)

      . Our jurisdiction is grounded on the district court’s certification of this case as being of great public importance. See 384 So.2d at 679 n. 28. Art. V, § 3(b)(4), Fla. Const.

      . In the letter Trushin explained that he practiced law in Miami Beach. For the full text of the letter, see appendix.

      . The reasons Trushin gave for sending the letter were to encourage individuals to vote in the upcoming election and to help carry out what he perceived to be a recommendation of the Florida Supreme Court and Florida Bar that everyone should have a last will and testament.

      . The trial judge correctly overruled the objection on that ground because identity of the perpetrator is not necessary for proof of the corpus delicti.

      . The unconstitutionality of a statute is not grounds for a new trial. Fla.R.Crim.P. 3.600.

      . The lack-of-intent argument surfaces because of Trushin’s insistence that he did not know he was breaking the law.

      . 384 So.2d at 677 n. 24.

      . Trushin’s fourth point was rejected as a result of the court’s ruling on point three. 384 So.2d at 677 n. 24.

      . If we treat each vagueness challenge and each challenge to admissibility of the statement separately, we are actually presented with nine issues — none raised at trial and only four raised on initial appeal.

      . The Kentucky statute barred the otherwise outright promise of a candidate to serve at a reduced salary during the term of his office.


author: PER CURIAM.

text:
    Levis Leon ALDRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 61673.
    Supreme Court of Florida.
    Dec. 22, 1982.
    Rehearing Denied Feb. 22, 1983.

      Richard L. Jorandby, Public Defender and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a denial of appellant’s Rule 3.850 post-conviction relief motion to vacate judgment and sentence of death on the ground that he was not afforded reasonably effective assistance of counsel at trial. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm.

Appellant was convicted and sentenced to death by the trial court on January 8,1976. This Court affirmed the conviction and sentence in Aldridge v. State, 351 So.2d 942 (Fla.1977), cert. denied, 439 U.S. 882, 99 S.Ct. 220, 58 L.Ed.2d 194 (1978) (Aldridge I). For the purpose of this opinion, the facts leading to appellant’s conviction and sentence are briefly restated. Appellant, while on parole after serving approximately ten years in prison, was employed and befriended by Robert Ward, who worked in a restaurant. Having borrowed a shotgun and shells, appellant robbed the restaurant, and during the commission of the robbery, Ward was struck in the head and killed by at least one of three shots fired by appellant. Appellant was convicted of first-degree murder, and the jury recommended imposition of the death penalty. The trial judge, finding no mitigating circumstances, and concluding that the murder was heinous, atrocious, and cruel, followed the jury’s recommendation and sentenced appellant to death. In the appeal before this Court, appellant sought reversal of his conviction, raising three points: the admission of prejudicial photographs; the trial court’s direction requiring a unanimous verdict; and the trial court’s instruction on second-degree felony murder. We affirmed, holding that (1) the photographs were admissible as relevant and were not so objectionable and inflammatory as to require reversal; (2) the requirement of a unanimous verdict did not prejudice the defendant; and, (3) the reading of the second-degree felony murder instructions was not error. Appellant also claimed error in the sentencing phase, asserting that the trial court improperly found that the crime was heinous, atrocious, and cruel. This Court found no error in the sentencing phase and noted that appellant was under a sentence of imprisonment at the time of the murder, and that the murder was committed during the commission of a robbery.

Subsequent to this Court’s opinion on the merits, the appellant, on October 29, 1979, filed an application for relief under this Court’s all writs jurisdiction, claiming that this Court, in considering the appeal of his conviction and sentence, improperly found two aggravating circumstances which had not been found by the trial judge. We denied relief in an unreported order (Aldridge II) on December 21,1979, and appellant’s petition for certiorari to the United States Supreme Court on this issue was also denied. Aldridge v. Florida, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 118 (1980).

While appellant’s application for relief filed under this Court’s all writs jurisdiction was pending, the appellant, on November 2, 1979, filed a Rule 3.850 motion in the trial court, seeking to have his judgment and sentence vacated. In this motion, appellant contended that the death sentence was imposed on him in violation of the United States and Florida constitutions and that he was denied effective assistance of counsel at trial. While this 3.850 motion was pending in the trial court, the governor, on June 16, 1981, signed a death warrant authorizing appellant’s execution on July 15, 1981. The trial court, on June 18, 1981, denied appellant’s motion without conducting an evidentiary hearing. In an expedited appeal, this Court reversed the trial court’s order and granted a stay of execution on the grounds that an evidentiary hearing was required on the issue of effectiveness of trial counsel. The case was remanded for that purpose and relief on all other grounds was denied. Aldridge v. State, 402 So.2d 607 (Fla.1981) (Aldridge III).

The subject of this appeal is the trial court’s finding, after an evidentiary hearing in this Aldridge IV proceeding, that appellant had reasonably effective assistance of counsel at trial. At the evidentiary hearing, the trial court followed the standard established in Knight v. State, 394 So.2d 997 (Fla.1981), and found “[tjhat [appellant] has shown that the specific omission of trial counsels’ failing to take pre-trial depositions upon oral examination of the State’s main witnesses was a substantial and serious deficiency measurably below that of competent counsel.” The trial judge concluded, however, “[t]hat [appellant] has not shown that this specific deficiency . .. when considered under the circumstances of this individual case, was substantial enough to demonstrate a prejudice to the [appellant] to the extent that there is a likelihood that this deficient conduct effected [sic] the outcome of the trial.” Consequently, the trial judge denied appellant’s post-conviction relief motion.

Appellant contends that he was denied effective assistance of counsel in four respects. First, appellant asserts that he was denied the right to counsel during pre-trial preparations by the assignment of a non-lawyer to represent him. Second, appellant contends that the trial court denied him effective assistance of counsel by refusing to appoint an attorney from outside the public defender’s office to represent appellant. Third, appellant contends that the denial of the public defender’s motion for a continuance, which was filed immediately before trial, was prejudicial error which counsel should have raised on appeal. Fourth, appellant cites several specific acts and omissions on the part of appointed counsel, particularly the failure to depose witnesses, which he contends show that, under the totality of the circumstances, he was not provided effective assistance of counsel.

On the first point, appellant alleges that a part-time legal intern, not licensed to practice law, was assigned to his case and not properly supervised by a member of the bar. As a result, appellant contends, valuable preparatory work, such as the filing of motions and the taking of depositions, was not done. At the evidentiary hearing, the public defender testified that he was in charge of appellant’s case and that the intern was merely assisting him in his preparation for trial. We agree with appellant that an accused in a criminal case has a right to counsel at every important stage of the proceedings, but find that appellant was not denied the assistance of counsel at the preparation stage or at any other stage of his trial.

In his second point, appellant asserts that conflict developed between himself and his appointed counsel, and that the trial court, after being informed of this conflict, erred in not appointing counsel from outside the public defender’s office. Because the public defender’s office is considered a “firm,” appellant argues, whenever conflict arises, counsel not affiliated with the particular public defender’s office must be appointed. We reject this contention. We find that appellant has misconstrued the meaning of conflict in this situation. In Babb v. Edwards, 412 So.2d 859 (Fla.1982), and Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976), conflict in a public defender’s office arose out of multiple representation, and in Roberts v. State, 345 So.2d 837 (Fla. 3d DCA 1977), conflict was created when an assistant public defender was called to testify against a defendant represented by another assistant public defender working in the same office. The asserted conflict in this case arose out of appellant’s fear that appointed counsel would make a “deal” for him, and his belief that appointed counsel had failed to properly investigate a state witness appellant contended was lying. This type of asserted individual conflict or personal disagreement does not mandate that new counsel be appointed by the court. It is clearly distinguishable from either Turner or Roberts, and there was no error in the trial court’s refusal to appoint new counsel from outside the public defender’s office. Furthermore, in this case the record reflects that once the public defender explained to appellant that the state witness was being investigated and that no “deal” could be made without appellant’s consent, appellant acquiesced in the continued representation by the public defender’s office.

Appellant’s third contention is that the trial court erred in denying the motion for continuance. Although trial and appellate counsel now claim that the denial of the continuance was error, neither thought enough of this issue to raise it in post-trial motions or designate it as an issue on appeal. Nothing has been shown to this Court concerning what evidence could have been discovered had the continuance been granted or what would have been done differently if counsel had been afforded a continuance. No prejudice has been shown to have resulted from the denial of the motion for continuance, which is an issue that could have been raised in the original appeal. See Valle v. State, 394 So.2d 1004 (Fla.1981). To allow this issue to now be considered on the facts of this case affords counsel an opportunity to keep an issue in reserve for post-conviction relief proceedings. Since this was an issue which could have been raised on appeal, it is not a proper subject for post-conviction relief. See Zeigler v. State, 402 So.2d 365 (Fla.1981) cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Spenkelink v. State, 350 So.2d 85 (Fla.), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). Further, there being no specific prejudice shown, the failure to raise the issue on appeal cannot be a basis for a finding of ineffective assistance of counsel under the test adopted by this Court in Knight v. State, 394 So.2d 997 (Fla.1981).

Appellant’s fourth point concerns appointed counsel’s failure to take the formal depositions of state witnesses under Florida’s criminal discovery rules. The test for determining whether effective assistance of counsel has been provided, as expressed in Knight, requires a defendant to show that a “specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel.” 394 So.2d at 1001. The trial judge found that appointed counsel’s failure to take formal depositions under the criminal rules was a substantial and serious deficiency. Although we agree that the failure to take depositions requires an inquiry, it does not necessarily follow that this conduct in itself necessitates a finding of ineffective assistance of counsel or prejudice to appellant. This is particularly so when defense counsel, as was the case here, had sworn statements from each of the witnesses who testified and there is no showing as to what other information would have been provided to defense counsel through the use of depositions. In our view, the record clearly fails “to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Id. Appellant has made no attempt whatever to present any evidence to indicate what information would have been elicited in taking the depositions which would have affected the outcome of his trial. Again, appellant has failed to show the required prejudice under Knight.

We previously rejected all the other alleged defects in the instant case when we remanded appellant’s initial Rule 3.850 motion for an evidentiary hearing on the issue of the effectiveness of trial counsel.

For the reasons expressed, the trial court’s denial of appellant’s Rule 3.850 motion is affirmed.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, OVERTON, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Jose J. LARRAZ, Respondent.
    No. 62915.
    Supreme Court of Florida.
    Jan. 13, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
    John F. Evans, Coral Gables, and Stuart Adelstein, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rules 1-102(A)(1), (2), (4), (5) and (6) of the Code of Professional Responsibility; article XI, Rules 11.02(2), 11.02(3)(a) and 11.02(4) of the Integration Rule of The Florida Bar; and article XI, Section 11.-02(4)(c), paragraphs 2.a. and ’4.a., Bylaws Under The Integration Rule. We approve the Petition, and we hereby reprimand Respondent, Jose J. Larraz, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $922.20 are hereby taxed against the Respondent.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, MCDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Mark S. ROTH, Respondent.
    No. 62955.
    Supreme Court of Florida.
    Jan. 20, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Branch Staff Counsel, Fort Lauderdale, for complainant.
    Nicholas R. Friedman, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rules 1-102(A)(4), 6-101(A)(3), 7-101(A)(2) and 7-101(A)(8) of the Code of Professional Responsibility. We approve the Petition, and we hereby reprimand Respondent, Mark S. Roth, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $635.54 are hereby taxed against the Respondent.

It is so ordered.

ADKINS, A.C.J., and BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


author: SCHWARTZ, Judge. FERGUSON, Judge

text:
    SHOP IN THE GROVE, LTD., a Florida limited partnership, Appellant, v. UNION FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a United States corporation, et al., Appellees.
    Nos. 82-1705 to 82-1712.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Ciravolo & Feldman and Bennett G. Feld-man, Miami, for appellant.
    Durrach, McClaskey, Merkin & Sacasas, Britton, Cohen, Kaufman, Benson & Schantz, Daniel P. Tunick, Sidney Z. Brodie and Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, Miami, for appel-lees.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ. '
   On Motions for Stay

SCHWARTZ, Judge.

Shop in the Grove, Ltd. was the defendant below in actions upon various secured and unsecured debts in the Dade County Circuit Court and is now the appellant seeking reversal of the judgments entered against it on those claims. It has filed motions to stay these appeals on the ground that it has brought a Chapter 11 proceeding in the United States Bankruptcy Court for the Southern District of Florida. In so doing, it invokes the so-called automatic stay provision of the “new” Bankruptcy Act, 11 U.S.C.A. § 362(a)(l-3) (1978) which provides that the filing of a petition under the Act itself effects a stay of

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate.

We deny the motions on the ground that the present appeals by the debtor-defendant from judgments rendered against it do not fall within the purview of this provision. While we are guided by no prior authority whatever under the recently enacted statute, it seems self-evident that an appeal, initiated and to be prosecuted by the debtor may be considered neither the “continuation ... of a ... proceeding against” it, cf. State ex rel. Merchants’ Nat. Bank v. Hull, 37 Fla. 579, 20 So. 762 (1896); the “enforcement” of the judgments previously obtained; nor an “act to obtain possession” of its property. The manifest purpose of the automatic stay provision is to act as a debtor’s shield from proceedings which may adversely affect its interest; that purpose will hardly be served by requiring an indefinite suspension of the appellant’s attempts to be relieved of the judgments with the obvious effect of acting as the debtor’s sword against the creditor’s claims upon it. Furthermore, although the matter is not of direct interest to us, it seems totally unconducive to an orderly administration of the petitioner’s affairs in the bankruptcy court to permit it to claim the court’s protection from the full effect of adverse judgments while simultaneously maintaining that it may, at some unknown time in the future, secure a total reversal of those judgments on appeal. In any event, addressing an issue which is within our concern, we do not believe that, in exercising the necessary control over our own docket, we are required to or should permit these appeals to remain in limbo indefinitely. Instead, the appellant-debtor must be required to fish or cut bait and either pursue these appeals or submit the judgments as they are for such relief as the bankruptcy court may afford.

For these reasons, it is ordered that the appellant shall prosecute these appeals in accordance with the Florida Rules of Appellate Procedure, or they shall stand dismissed.

Motions for stay denied.

FERGUSON, Judge

(dissenting).

It is not so self-evident to me that an appeal, initiated by the debtor, may not be considered a “continuation ... of a judicial . . . proceeding against the debtor .. . ”; the only apposite authority seems to be quite to the contrary. Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982) [on a timely appeal by the defendant from an adverse judgment the action continues to have life until a final determination on an appeal]; Coleman v. State, 215 So.2d 96 (Fla. 4th DCA 1968) [entry of an appeal is a step in the case and not a new action]; 1 Fla. Jur.2d, Actions § 35 [the rendition of a judgment in a court of first instance does not terminate the pendency of the action where an appeal is taken]. None of the authorities distinguish between an appeal taken by a plaintiff and one taken by a defendant, and it would be quite an invention, supported by little reason, to hold that an appeal by a plaintiff from an adverse judgment is a continuation of the original trial but an appeal by the defendant is not. The requirement imposed upon an appellant-debtor by the majority to “fish or cut bait” translates into a Hobson’s choice between waiver of bankruptcy for the purpose of an appeal from the adverse judgment or conceding the contested debt in order to seek relief in the bankruptcy court. I am aware of no rule of bankruptcy law or federal procedure that would require such an election. In my opinion the appeal by the appellant-debtor from a judgment against it is a continuation of the judicial proceeding against debtor, clearly within the purview of the Act’s automatic stay provision.

Having determined that the Bankruptcy Act does apply to the debtor’s appeal for purposes of an automatic stay, the matter is not only of no direct interest to us, as the majority concedes, but we should defer to the bankruptcy court any consideration as to whether the denial of the stay of state proceedings will adversely affect the interests of the debtor or serve the purpose of the Act; Matter of Holtkamp, 669 F.2d 505 (7th Cir.1982) [the statute commits the decision of whether to lift the automatic stay to the discretion of the bankruptcy judge].

Finding an absence of power to do otherwise, I would grant the motion to stay.

      . The remaining subsections provide for a stay of
      (4) any act to create, perfect, or enforce any lien against property of the estate;
      (5) any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
      (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
      (7) the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
      (8) the commencement or continuation of a proceeding before the United States Tax Court concerning the debtor.

      . Moreover, we have discovered nothing persuasive even under the previous Bankruptcy Acts, Bankruptcy Acts of 1898 and 1938, former 11 U.S.C.A. §§ 11, 29, 711 and Rules, Bankruptcy Rules 11 — 44, 401, 601, which provided for judicial injunctions against proceedings against the debtor, rather than an automatic stay upon filing. Cf. Mid-Jersey National Bank v. Fidelity-Mortgage Investors, 518 F.2d 640 (3d Cir.1975); Pinsonat v. Skinner, 125 So.2d 216 (La.Ct.App.1960).

      . For a discussion of the meaning of the expressions “continue” and “continuation” in various legal contexts, see Variety Children’s Hospital, Inc. v. Perkins, 382 So.2d 331, 337 (Fla. 3d DCA 1980), and cases cited at note 2.

      . See Notes of the Committee on the Judiciary, S.Rep. No. 989, 95th Cong., 2d Sess. 51, 54-55, reprinted in 1978 U.S.Cong. & Ad.News 5787, 5840-41.

      . We shall of course be tolerant of any delays occasioned by securing the necessary permission of the bankruptcy court to proceed. See 11 U.S.C.A. § 541(a)(1) (1978).


author: SCHWARTZ, Judge.

text:
    NORTH MIAMI GENERAL HOSPITAL, INCORPORATED, Appellant, v. Eva L. PLAZA and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 82-2011.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellee, Unemployment Appeals Com’n.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   On Motion to Strike

SCHWARTZ, Judge.

The Unemployment Appeals Commission has moved to “strike” the notice of appeal filed before it on the ground that it was signed by a corporate representative who is not a member of the Florida Bar. The motion is denied solely because, as outlined in The Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, Office of Licensure and Certification, 420 S.2d 310 (Fla. 1st DCA 1982), “self-representation by corporations is permissible in administrative proceedings.” In accordance with the procedure adopted in Magnolias, an attorney shall appear herein on behalf of the appellant within fifteen days of this order, or this appeal shall stand dismissed.

      . We do not decide that this court will continue to adhere to the apparent holding in Great Southern Trucking Co. v. Standard Wholesale Grocery Co., 110 So.2d 507 (Fla. 3d DCA 1959), cited in Magnolias, that a notice of appeal filed in a trial court by a non-Florida Bar member on behalf of a corporation, is not a nullity. Contra, Daytona Migi Corp. v. Daytona Automotive Fiberglass, Inc., 417 So.2d 272 (Fla. 5th DCA 1982) (alternative holding); but cf., Gelkop v. Gelkop, 384 So.2d 195 (Fla. 3d DCA 1980); Nicholson Supply Co., Inc. v. First Federal Savings & Loan Assn, of Hardee County, 184 So.2d 438 (Fla. 2d DCA 1966).


author: LETTS, Chief Judge. SCHWARTZ, ALAN R., Associate Judge

text:
    INSURANCE COMPANY OF NORTH AMERICA and John Menninger, Appellants, v. Richard D. PASAKARNIS and Lucille Mekjian, Appellees.
    No. 80-1895.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Feb. 9, 1983.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, and Robin A. Lloyd, Sr. of Jones, Foster & Moss, Vero Beach, for appellants.
    James C. Gavigan of Hoadley & Gavigan, West Palm Beach, for appellees.
    Larry Klein, West Palm Beach, for ami-cus curiae — The Academy of Florida Trial Lawyers.
   LETTS, Chief Judge.

This cause is affirmed upon the authority of Lafferty v. Allstate Insurance Company, 425 So.2d 1147 (Fla. 4th DCA, Case No. 81-279, opinion filed December 15,1982).

GLICKSTEIN, J., concurs.

SCHWARTZ, ALAN R., Associate Judge, dissents with opinion.

SCHWARTZ, ALAN R., Associate Judge

(dissenting).

The question in this case is whether a plaintiffs failure to fasten his seat belt, when coupled with competent expert evidence that it contributed to the extent of the injuries he sustained in an automobile accident, may be considered by the jury as an aspect of the defense of comparative negligence. Contrary to the ruling on this point below, I would hold that the “seat belt defense" indeed exists in Florida and therefore reverse the judgment under review.

The inherent difficulty of resolving this important issue is eased somewhat by the purity of the factual posture in which it is presented. The plaintiff Pasakarnis was involved in an intersection accident near Stuart caused when the defendant Men-ninger ran a stop sign. Pasakarnis was driving a jeep which he acknowledgedly knew was a relatively unstable vehicle; notwithstanding this fact, he stated that he had deliberately chosen not to fasten the fully operational seat belt with which it was equipped. There was substantial evidence that this decision had serious consequences. When the collision occurred, the jeep was flipped over and Pasakarnis was hurled from the vehicle. He landed on his posteri- or, sustaining a compression-type injury of his lower back. By deposition, an expert engineer-accident analyst stated that if the seat belt had been fastened, the plaintiff would have remained inside the vehicle and would have been injured only slightly, if at all. In granting the plaintiff’s pre-trial motion to that effect, however, the trial court ruled that the failure to use the seat belt was legally irrelevant and that evidence concerning it would not be submitted to the jury. After a trial which consequently concerned only the issues of liability for the collision and resulting damages, the plaintiff won a verdict and judgment of $100,000 for his back injury. I agree with the defendants’ primary contention on this appeal that the seat belt ruling was erroneous.

Because the question of whether to buckle one’s seat belt — which is faced as a practical matter and issue by virtually every person on virtually every occasion he gets into a motor vehicle — is one of such overwhelming universality, its consequences have been the subject both of numerous scientific studies and of countless and diverse commentaries and decisions. See, Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329 (1968); Barry v. Coca Cola Co., 99 N.J.Super. 270, 239 A.2d 273 (1967); Glover v. Daniels, 310 F.Supp. 750 (N.D.Miss.1970); Kircher, The Seat Belt Defense State of the Law, 53 Marq.L.Rev. 172 (1970); Snyder, The Seat Belt as a Cause of Injury, 53 Marq.L.Rev. 211 (1970); Pollock, The Seat Belt Defense — A Valid Instrument of Public Policy, 44 Tenn.L.Rev. 119 (1976); Timmons & Silvas, Pure Comparative Negligence in Florida: A New Adventure in the Common Law, 28 U.Miami L.Rev. 737, 775 (1974); Roethe, Seat Belt Negligence in Automobile Accidents, 1967 Wis.L.Rev. 288; Annot. — Nonuse of Seat Belt as Failure to Mitigate Damages, 80 A.L.R.3d 1033 (1977); Annot. — Automobile Occupant’s Failure to Use Seat Belt as Contributory Negligence, 92 A.L.R.3d 9 (1979); Annot. — Nonuse of Automobile Seatbelts as Evidence of Comparative Negligence, 95 A.L.R.3d 239 (1979). There is no need to reproduce the competing arguments here. It is enough to say as a starting point that it seems clear to me that the failure to expend the minimal effort required to fasten an available safety device which has been put there specifically in order to reduce or avoid injuries from a subsequent accident is, on the very face of the matter, obviously pertinent and thus should be deemed admissible in an action for damages, part of which would not have been sustained if the seat belt had been used. This very practical viewpoint is the essential basis of those decisions which, as I would do, have accepted the viability of the “seat belt defense.” Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir.1976); Mays v. Dealers Transit, Inc., 441 F.2d 1344 (7th Cir.1971); Henderson v. United States, 429 F.2d 588 (10th Cir.1970); Caiazzo v. Volkswagenwerk, A.G., 468 F.Supp. 593 (E.D.N.Y.1979), modified on other grounds, 647 F.2d 241 (2d Cir.1981); Wilson v. Volkswagen of America, 445 F.Supp. 1368 (E.D.Va.1978); Pritts v. Walter Lowery Tracking Co., 400 F.Supp. 867 (W.D.Pa.1975); Benner v. Interstate Container Corp., 73 F.R.D. 502 (E.D.Pa.1977); Uresky v. Fedora, 27 Conn.Sup. 498, 245 A.2d 393 (1968); Spier v. Barker, 35 N.Y.2d 444, 363 N.Y. S.2d 916, 323 N.E.2d 164 (1974); Sams v. Sams, 247 S.C. 467, 148 S.E.2d 154 (1966); Sonnier v. Ramsey, 424 S.W.2d 684 (Tex.Civ.App.1968); Hernke v. Coronet Ins. Co., 72 Wis.2d 170, 240 N.W.2d 382 (1976); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967).

When, notwithstanding what I thus think is the common sense of the matter, the seat belt defense has been rejected, this has occurred only when courts have discovered and applied one or more of a variety of policy reasons against, or legal impediments to its acceptance. This has been true in Florida in which the presently leading case is Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966) which, citing several such factors, declined to recognize the defense. Largely because of significant changes and developments in the law since Kendrick, I not only agree with the first district’s own recent observation that the arguments against the defense are “troublesomely unconvincing,” Selfe v. Smith, 397 So.2d 348, 351 (Fla. 1st DCA 1981), but would directly hold that no acceptable reason exists for the continued rejection of the appellant’s position.

1. The subsequent adoption of the comparative negligence doctrine in Hoffman v. Jones, 280 So.2d 431 (Fla.1973) has eliminated the inequitable harshness inherent in the contributory negligence model, under which the plaintiff would be precluded from recovery of any damages — even those incurred in the initial accident in which, as here, he may not have been at all at fault— simply because he was negligent in not minimizing the extent of the damages he sustained only after it occurred. Moreover, the Florida formulation of the comparative negligence rule as relating to whether any negligence of the plaintiff was a legal cause, not of the accident, but' of his “damages,” “loss” or “injury,” see Hoffman v. Jones, supra, 280 So.2d at 439; Lawrence v. Florida East Coast R. Co., 346 So.2d 1012 (Fla.1977); Fla.Standard Jury Instructions (Civil), Model Charges Nos. 1 & 2 (1981), completely obviates the theoretical obstacles many courts have found in applying principles of avoidable consequences or mitigation of damages, which are usually thought to concern only the plaintiff’s conduct after the accident, and which would therefore exclude the pre-accident failure to buckle up. See W. Prosser, Law of Torts § 65 (4th ed.1971). Accordingly, several courts have either held that the seat belt defense is a good one under newly-adopted comparative negligence principles, Bentzler v. Braun, supra, or strongly hinted that it would become so when the doctrine became effective in that jurisdiction. Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973); Horn v. General Motors Corp., 17 Cal.3d 359, 131 Cal.Rptr. 78, 551 P.2d 398 (1976).

2. The claim that a “veritable battle of experts” on the issue of causation, see Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977) would result from a recognition of the seat belt defense is perhaps best met by a response of “so what?” There is no reason whatever why the jury cannot be entrusted with weighing expert opinions on this, as it is on so many other complex issues.

3. The argument that, apparently as a matter of law, a driver or passenger need not anticipate and guard against an accident and the consequences of an ensuing “second collision,” see Amend v. Bell, supra, is similarly totally without substance. Indeed, it is so commonly known that automobile accidents must be anticipated that the necessity of exercising reasonable care to minimize their effects forms the basis of an entire body of products liability law, as established in Florida since Brown v. Kendrick. Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981); Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976); Nicolodi v. Harley-Davidson Motor Co., 370 So.2d 68 (Fla. 2d DCA 1979). The most basic principles of evenhandedness preclude the imposition of a different standard of foreseeability depending on which party asserts it.

4.The objection to judicial recognition of the seat belt defense which I consider last is at once the most difficult and the one as to which it must be acknowledged there has been no decisional or statutory change since it was relied upon in Kendrick. It is, simply stated, that the matter is not for the courts, but the legislature. More elaborately, the line of reasoning is that just because the issue of whether one must buckle up is both so common and so simple, it should be the subject of a state-wide standard of conduct applicable to all our citizens; since the only body properly capable of enacting such a rule and with the technical resources to draw upon in making the decision has not acted, we should not do so ourselves. While I surely do not denigrate the force of this position, for several reasons, I cannot accept it.

(a) First, it is to be noted that the legislature has enacted no statute either way on the subject. In contrast, several states have specifically provided that the failure to use required seat belts is not to be considered negligence. Florida’s silence on the issue may therefore be taken, not as a declaration that the defense may not be recognized, but rather as one that the issue should be determined within the judicial process. Moreover, the legislature may also simply have been unwilling to make the nonuse of a seat belt the subject of any penalty by enacting a traffic or other statute forbidding it, without meaning to preclude the issue from jury consideration. Thus, the fact that it has passed no law is hardly conclusive even of the legislature’s intent concerning the question.

(b) Taking a broader approach, it is certainly the law that the mere nonexistence of a statute forbidding or requiring a particular act or omission does not prevent a jury from concluding that it constitutes a departure from what is reasonably required under the circumstances and is therefore negligent. Restatement (Second) of Torts § 285 (1965). See Lollie v. General Motors Corp., 407 So.2d 613 (Fla. 1st DCA 1981); Buckner v. Allergan Pharmaceuticals, Inc., 400 So.2d 820 (Fla. 5th DCA 1981). This principle has found special application' in product liability cases, see, e.g., Raymond v. Riegel Textile Corp., 484 F.2d 1025 (1st Cir.1973); Buckner v. Allergan Pharmaceuticals, Inc., supra; Biasing v. P.R.L. Hardenbergh Co., 303 Minn. 41, 226 N.W.2d 110 (1975), and, even more pointedly, in determining whether motor vehicles should be equipped by a defendant-manufacturer with particular safety devices even though they are not mandated by statute or regulation. Stonehocker v. General Motors Corp., 587 F.2d 151 (4th Cir.1978); Roberts v. May, 41 Colo.App. 82, 583 P.2d 305 (1978); Turner v. American Motors General Corp., 392 A.2d 1005 (D.C.1978); Lubbock Manufacturing Co. v. Perez, 591 S.W.2d 907 (Tex.Civ.App.1979). Reverting to a now-familiar theme, it is not justifiable to hold differently when the plaintiff’s conduct in failing to employ just such a device is in question.

(c)The final but, I believe, most decisive reason for rejection of the “leave it to the legislature” argument is that its acceptance would result in precisely the evil it is supposed to prevent. A holding that the seat belt question can never go to the jury would itself be a determination that the device never need be fastened, even though there is no statute which so provides. Not only would this amount to just the kind of state-wide “legislation” which, it is said, we do not and should not have the power to enact, I am far from convinced that it represents a wise policy. It would embody a conclusion that it is reasonable to disregard the seat belts we are importuned by official and non-official agencies alike to employ for our own safety and which the law requires to be available for that very purpose, see Dullanty v. Smith, 203 Cal. 621, 265 P. 814 (1928) (statute requiring vehicle to be equipped with horn implies duty to use horn when appropriate), with the effect that the plaintiff may recover and the defendant must pay for damages which the use of that device would have prevented. I am unwilling to enshrine that determination as an immutable part of our law. As is most cogently demonstrated by Hoffman v. Jones itself, the courts of this state have not been prone to abdicate their judicial responsibilities to what is essentially no more than legislative inaction. Particularly in view of what I perceive is the undesirable result of such a process in this case, I would decline to do so here.

Of course, I likewise reject — and the defendants do not argue otherwise — the adoption of the directly contrary rule that failure to buckle up is negligence per se, leaving only causation for the trier of fact. Such a course would partake of the same vice of legislation as the absolute rule of non-liability I have already rejected. Moreover, I could not in good conscience hold that it is necessarily negligent to fail to fasten one’s seat belt. It is common knowledge that, for whatever reason, the vast majority of people do not use their seat belts. This fact is, in itself, an admissible indication that reasonable care does not require that it be done. Sea Board Air Line R. Co. v. Watson, 94 Fla. 571, 113 So. 716 (1927); Florida East Coast R. Co. v. Lassiter, 59 Fla. 246, 52 So. 975 (1910) (contributory negligence); St. Louis-San Francisco R. Co. v. White, 369 So.2d 1007 (Fla. 1st DCA 1979), cert. denied, 378 So.2d 349 (Fla.1979). In addition, since there are sincerely-held conflicting views as to the merits of seat belts and whether they might under some circumstances cause even more serious injury, a decision not to use them might well be found a reasonable one.

Since not using a seat belt may not therefore be deemed either negligent or non-negligent as a matter of law, it is necessarily a matter of fact, to be determined in each instance by the trier of fact, the jury. Committing the resolution of this question to the jury comports with the accepted principle that it is uniquely its role to determine whether a specific safeguard is required in discharge of a duty of reasonable care, here, the one to provide for one’s own safety. Acme Electric, Inc. v. Travis, 218 So.2d 788 (Fla. 1st DCA 1969), cert. denied, 225 So.2d 917 (Fla.1969); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980). Because of the nature of this particular issue, each jury passing upon it would be serving as a representative of the community, possessing its common experience and knowledge — and thus as a mini-legislature — in determining whether society expects that a reasonable person should fasten his belt. In this respect, the jury would be performing one of its most basic and historically important functions — though one which has been pushed into undeserved obscurity by the welter of statutes and administrative regulations, not to mention judge-made rules of law, which have overwhelmed modern life. See generally, Restatement (Second) of Torts § 285(d); W. Prosser, supra, § 37; 2 F. Harper & F. James, Law of Torts § 17 (1956). Like the court in Miller v. Miller, 273 N.C. 228,160 S.E.2d 65 (1968), I recognize that, in contrast to the usual situation in which the requirements of reasonable care vary from case to case according to changing circumstances, one must ordinarily determine to use a seat belt only when he enters the vehicle, so that the failure to do so either is or is not negligent — determined as an absolute, yes or no, proposition. Thus, different juries may, indeed undoubtedly will, reach completely opposite decisions on precisely the same issue and operative set of facts — some finding it negligent not to use the belt, some concluding otherwise. This presents no reason, however, for holding that juries should not decide the issue. Apart from the fact that, as we have seen, the alternatives are unacceptable, the likelihood of divergent jury decisions on the same question proves only that jurors are not computers, but human beings, and that the jury system is a human institution. Not only, to put it negatively, has no better system been devised, I think it affirmatively right and proper that this quintessentially human controversy should be resolved in this way.

Finally, I would re-emphasize that, like all other negligence issues, the “seat belt defense” may be submitted only when there is also competent evidence that the failure to use it bore a causal relation to the plaintiff’s injuries. Compare, Eichorn v. Olson, 32 Ill.App.3d 587, 335 N.E.2d 774 (1975), and cases cited; Brown v. Kendrick, supra. Since there was such evidence in this case, the judgment below should be reversed for a new trial on the sole issue of whether, and to what degree, the plaintiff was comparatively negligent in failing to fasten his seat belt.

BY ORDER OF THE COURT:

We deny the motion for rehearing, however, recognizing the question as one of great public importance and conscious of the fact that this court certified the identical question in the companion case of Lafferty v. Allstate Insurance Company, 425 So.2d 1147, (Fla. 4th DCA) we hereby certify the following question to the Supreme Court:

SHOULD FLORIDA COURTS CONSIDER SEAT BELT EVIDENCE AS BEARING ON COMPARATIVE NEGLIGENCE OR MITIGATION OF DAMAGES?

      . As was noted in a similar situation in Maszewski v. Piskadlo, 318 So.2d 226, 228, n. 1 (Fla. 2d DCA 1975) (Schwartz, A.J., dissenting), it is all-too-apparent that this opinion was originally written as one for the court. After its submission, however, the opinion in Lafferty was prepared and won the support of the majority in this case. The melancholy process of converting this opinion from a clarion statement of the law to one of lonely dissent then followed.

      . They also complain that the investigating state trooper was allowed to testify as to the speed and direction of the vehicles before they collided, as well as to the point of impact. Because it was virtually undisputed, however, that the defendant simply ran the stop sign, the admission of the evidence, if arguendo error at all, could have been no more than harmless.

      . Other Florida cases which discuss the subject are Chandler Leasing Corp. v. Gibson, 227 So.2d 889 (Fla. 3d DCA 1969), which noted that the issue had not been raised in the pleadings (and pointed out that the defendants would have been met with the Kendrick holding if it had), and Quinn v. Millard, 358 So.2d 1378, 1384-85 (Fla. 3d DCA 1978), where the court likewise declined to pass on the merits since, like so many other cases — notably including Brown v. Kendrick itself, but not this one— there was no evidence of a causal connection between the claimant’s injuries and his failure to fasten the seat belt. Neither decision is directly contrary to the position I would adopt here.

      . It is for this reason that I fail completely to perceive the problem which the Lafferty opinion seems to' find in the form of the standard comparative negligence jury interrogatories. If, however, there is some need to draw a distinction between one’s negligent contribution to the accident, on the one hand, and to his injuries or damages, on the other, the obvious solution would seem to be the simple addition of another interrogatory which would elicit this information. It will not do, in my opinion, to treat the special verdict forms, which are merely advisory anyway, as a sort of procrustean bed which must be accommodated even at the expense of lopping off the limbs of what we would otherwise conclude about the substantive law. We should adopt the exact opposite of this process.

      .As in this very case, see n. 2, supra, expert opinion is very often, quite necessarily, and perfectly properly relied upon to substantiate the plaintiff’s burden of proof. E.g., Ford Motor Co. v. Hill, supra; Ford Motor Co. v. Evancho, supra; Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). It would be no less than wrong to hold that the necessity of such reliance precludes the other side from advancing an otherwise cognizable claim in defense.

      . It has also been said, e.g., Amend v. Bell, supra, that since seat belts are not present in all vehicles, a defendant should not be able to take advantage of their existence in the plaintiffs. I consider this contention so fallacious as to be unworthy of reply, or even of inclusion in the body of this opinion.

      . The argument is extremely well-made in Petersen v. Klos, 426 F.2d 199 (5th Cir.1970):
      An argument that decedent was under a duty to wear his seat belt, imposed by the common law, is fraught with difficulties. Before this new safety device can be said to modify the standard of ordinary care, there must be some consensus as to its utility. There was no evidence before the district court concerning the safety value of seat belts. Research and statistical experience indicates that seat belts are beneficial in most accident situations, though the lap belt has been found to cause rather than prevent injury in certain crash conditions.
      In spite of statistics, expert opinion, and safety campaigns, there is indication that the general motoring public still does not consider seat belts a necessary accoutrement of safe driving. As noted by one commentator:

        The social utility of wearing a seat belt must be established in the mind of the public before failure to use a seat belt can be held to be negligence. Otherwise the court would' be imposing a standard of conduct rather than applying a standard accepted by society.
      Yet another problem was recognized by the Supreme Court of North Carolina in Miller v. Miller [273 N.C. 228, 160 S.E.2d 65], The court observed that, excluding the most bizarre circumstances, ‘there are no standards by which it can be said that the use of seat belts is required for one trip and not for another,’ since a motorist ordinarily must engage the seat belts before the imminent danger of an accident is apparent. If a duty to use seat belts is recognized, it must then be an absolute duty, not dependent on the circumstances of a particular accident. As the Miller court noted, no court has as yet held the failure to use seat belts to be negligence per se. Some courts have concluded that this question requires arbitrary resolution and commends itself to the legislative body for determination as a question of public policy. [citing, inter alia, Brown v. Kendrick, supra; footnotes otherwise omitted]
      426 F.2d at 204-05. The Petersen court did not, however, resolve the issue it posed so well, since there was no evidence of causation. 426 F.2d at 205. See note 3, supra.

      . Minn.Stat. § 169.685, subd. 2 (1964); Tenn. Code Ann. § 59-930 (1964); Va.Code Ann. § 46.1-309.1(b) (Supp.1966).

      . Compare statutes cited in note 8, supra.

      . The exception to this rule, which arises when a customary practice is inherently or unquestionably dangerous and impermissible, see Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741 (1933); W. Prosser, supra, § 33, plainly does not apply to this situation. Contrariwise, however, the mere adherence to even universal custom does not alone establish that reasonable care has been exercised. Sea Board Air Line R. Co. v. Watson, 94 Fla. 571, 113 So. 716 (1927); The T.J. Hooper, 60 F.2d 737 (2d Cir.1932), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1933).

      . It should be pointed out that the same is true of jury determinations as to whether a vehicle or other product should be designed or equipped in a particular manner. W. Prosser, supra, § 96. This fact has surely not precluded the imposition of defendants’ liability on these theories, and, again by the same token, should therefore not preclude jury consideration of a defense which has the same characteristics.

      . I remain singularly unterrified by the parade of horribles conjured up by the Lafferty opinion as the possible result of the adoption of my view on this question. It is no less than self-evident that, as a matter of law, it is not negligent to ride in a subcompact car, to invent the wheel, etc., etc. The same is not true, as I have labored to show, of the present issue.

      .Thus, the $100,000 already assessed would be reduced by any percentage of comparative negligence found by the jury in the new trial.