text:
    Nelson DEAN, d/b/a Colonial Kitchen, Appellant, v. CENTRAL MUTUAL INSURANCE COMPANY, Appellee.
    No. QQ-181.
    District Court of Appeal of Florida, First District.
    April 1, 1980.
    Donald P. Kohl, of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.
    Guy M. Junger, of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellee.
   SHIVERS, Judge.

Appellant/employer appeals an order of the Judge of Industrial Claims finding that the appellee/carrier did not provide workmen’s compensation insurance coverage for appellant’s employees. Because the insurance policy in question was not before the Judge of Industrial Claims at the time of the entry of the order, we reverse.

Appellant purchased the Colonial Kitchen Restaurant on November 1, 1977. The claimant, a restaurant employee of appellant, was injured on January 21, 1978. On the date of the accident, the former owner of the restaurant had a prepaid workmen’s compensation insurance policy from appel-lee which covered the restaurant and was still in effect. There was no proration of the prepaid coverage at the sale of the restaurant and the former owner never requested a refund from appellee. Appellee did not cancel the former owner’s policy until it expired on March 8, 1978, the same date appellee commenced coverage under a new policy issued to appellant.

At the hearing below, appellant claimed compensation coverage under the former owner’s policy. Appellee denied coverage of the claimant’s accident on the grounds that the policy in effect on the date of the accident was for the benefit of the former owner and not for the benefit of appellant. Appellant contended appellee was estopped from denying coverage because it had received timely notice of the change in the restaurant’s ownership. Appellant and appellant’s attorney testified that they notified an agent of appellee of the change in the ownership of the restaurant both before and immediately after appellant purchased the business. However, appellee’s agent denied receiving notice of the sale of the restaurant until after the date of the accident.

The Judge of Industrial Claims did not resolve the issue of estoppel by notice but, instead, held that appellee did not provide appellant with workmen’s compensation insurance coverage. Although the Judge of Industrial Claims did not have before him the former policy under which appellant claimed coverage, he found that such policy did not extend to appellant or his employees. This finding was based upon an interpretation of the new policy issued to appellant subsequent to the accident which provided that all changes must appear as an endorsement on the policy and that the agent writing the policy has no power to bind appellee. Since the finding of no coverage was based solely upon an interpretation of the new policy and not the policy under which appellant claims coverage, there is no competent and substantial evidence to support the order.

Additionally, the Judge of Industrial Claims erred in failing to rule on the issue of estoppel by notice. Estoppel is applicable when the insurer has conducted itself in such a manner as to induce action in reliance upon by it by the insured. Reliance Mutual Life Insurance Company v. Booher, 166 So.2d 222 (Fla. 2d DCA 1964); City Homes, Inc. v. Balido, 9 FCR 40 (1974), cert. denied 308 So.2d 112 (Fla.1975). Consequently, even assuming the policy in question contains a condition that all changes must appear as an endorsement on the policy and that the agent writing the policy has no power to bind appellee, it is possible appellee may have conducted itself in such a manner as to be estopped from raising any condition of the policy in support of its denial of coverage.

Therefore, the order is reversed and the case remanded for additional proceedings consistent with this opinion.

ERVIN and SHAW, JJ., concur.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    PLANT CITY STEEL, Division of Harsco & Travelers Ins. Co., Appellants, v. Burnie Lee GRACE, Appellee.
    No. QQ-325.
    District Court of Appeal of Florida, First District.
    April 1, 1980.

      Charles A. Zinn of Shackleford, Farrior, Stallings & Evans, Tampa, for appellants.
    William D. Douglas of Hamilton & Douglas, Tampa, for appellee.
   WENTWORTH, Judge.

The employer/carrier appeals a worker’s compensation order awarding 35% permanent partial disability compensation for a wage earning capacity loss. Appellant asserts the law and evidence do not permit compensation for aggravation of a preexisting hernia or other condition, or for wage earning capacity loss in this case. We agree and reverse and remand for the award of compensation consistent with the provisions of the hernia statute, § 440.15(6), Florida Statutes.

The order on appeal finds:

The claimant has had hernia surgery pri- or to the injury of August 24, .1970, while employed by the same employer. The accident of August 24, 1970, was an aggravation of the preexisting hernia, so the claimant’s remedy is not limited by the provisions of the hernia statute, Section 440.15(6), F.S. See Padrick Chevrolet Company v. Crosby, 75 So.2d 762 (Fla.1954). The prior order in this case, which was not appealed, implicitly rejected the contention of the employer/carrier that the claimant’s recovery is limited by.the provisions of the hernia statute.

The prior order and the record preceding its entry do not substantiate the conclusion that inapplicability of the hernia statute was previously adjudicated. Although that point was initially raised, the first order omitted any reference to the point and the issue was entirely avoided by the limited award of disability compensation for a period of four weeks following surgery in 1974, apparently well within the terms of the hernia statute so far as can be determined from the facts recited or reflected by the record.

In 1958 the claimant sustained an initial hernia which was successfully repaired by two surgical procedures. In 1970, while lifting materials for his employer, claimant developed a knot and severe pain at the site of his prior hernia. He sought immediate medical attention and his condition was diagnosed as a recurrent hernia. The treating physician specifically indicated that claimant’s prior hernia was fully healed and that the present injury represented a recurrence. After undergoing two surgical procedures for his present injury, the claimant continued to experience pain and a burning sensation. He rejected any further surgery by the treating physician and sought referral, indicating that he would then be willing to undergo surgery. However, that physician could find no existing herniation and felt that the claimant’s symptoms were due to scarification and weakness from his prior operation. He concluded that there was nothing he could do to improve the claimant and “would definitely not recommend any surgery.” The initial treating physician was of a similar opinion, that his hernia repair was successful and that claimant’s symptoms represented residual discomfort. The medical testimony was to the effect that although the claimant’s hernia condition would not preclude further work, nevertheless he is totally disabled as a result of the combination of his health problems.

We agree with appellants’ contention that the deputy erred in finding that the 1970 accident produced an aggravation of a preexisting hernia. Section 440.-15(6)(f), Florida Statutes, provides in relevant part that all hernias are to be treated by surgical operation and that compensation shall be paid for a period of six weeks from the date of the operation. But where a preexisting unrepaired hernia is aggravated by an industrial accident, compensation is payable under § 440.02(19), Florida Statutes, and is neither limited by nor necessarily equivalent to the six weeks provision in § 440.15(6)(f). Padrick Chevrolet Co. v. Crosby, 75 So.2d 762 (Fla.1954). Where a hernia has been successfully repaired and a new accident causes recurrence of the hernia, that injury is governed by the § 440.15(6)(f) six weeks limitation, and § 440.19 is not applicable. Empire Furniture Factory v. Kuczynski, IRC Order 2-3544 (Sept. 20, 1978), cert. denied, Kuczynski v. Empire Furniture Factory, 379 So.2d 206 (1979). Cataldo v. Reliable Plasterers, 5 FCR 77 (1962).

In the present case the evidence indicates that the claimant’s prior hernia had been successfully repaired and that his present injury was a recurrent hernia. Compensation should thus be governed by § 440.15(6)(f), since we find no evidence of aggravation of any condition other than a weakness at the site without which “any hernia, whether an ‘initial’ hernia or a ‘recurrent’ hernia, ordinarily does not appear.” Cataldo v. Reliable Plasterers, 5 FCR at 79. The appellee’s citation of Sherman v. Peoples Water & Gas Co., 138 So.2d 745 (Fla.1962), appears to be inappropriate. That case involved a preexisting unrepaired hernia, and its aggravation by injury under the circumstances presented was compensable pursuant to a permanent partial disability rating.

Since claimant’s industrial injury in this case was simply a recurrent hernia which was surgically repaired, § 440.15(6) precludes a compensation award based on loss of wage earning capacity. Empire Furniture, supra; Cataldo, supra. Even assuming relevance of wage earning capacity loss, the record contains no evidence of a good faith work search as required by Exxon Co. USA v. Alexis, 370 So.2d 1128 (Fla.1978). While claimant’s various health problems (including ailments of a nonindustrial character) precluded a return to his former employment, there is no showing (other than the fact of his retirement) that he was limited to a “specially created job,” or that a work search would be “obviously futile.” Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960); Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976).

The order awarding compensation, costs and attorney fees is accordingly reversed and the cause remanded for further proceedings consistent herewith.

ROBERT P. SMITH, Jr., and LARRY G. SMITH, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    FIRESTONE TIRE AND RUBBER COMPANY and Liberty Mutual Insurance Company, Appellants, v. Leroy VAUGHN, Appellee.
    No. QQ-127.
    District Court of Appeal of Florida, First District.
    April 1, 1980.

      Billy L. Rose, of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellants.
    Edwin J. Bradley, of Lloyd & Henninger, P.A., St. Petersburg, for appellee.
   PER CURIAM.

This case involves an unusual award of palliative care under § 440.13(1), Florida Statutes (1977). The judge of industrial claims found that the installation of a swimming pool on claimant’s premises was reasonable and necessary, awarding claimant partial reimbursement for the cost of the pool and awarding pool maintenance costs. The appellants contend there was not competent, substantial evidence to support the finding that a pool was required to alleviate the employee’s pain. On cross-appeal, Vaughn alleges that it was error to deny full reimbursement. While we affirm the points on appeal and reverse the point on cross-appeal, we stress that this affirmance is justified only because of the highly unique circumstances presented in this case. Because of the nature of such an award, we have no intention of sanctioning the installation of pools for mere convenience of claimants who find it beneficial in the course of their treatment.

Vaughn suffered an accident rendering him permanently and totally disabled in 1966. Since that time he has undergone twelve operations, involving the removal of several intervertebral discs, the removal of a coccyx during an operation in an unsuccessful attempt to reach a spinal nerve, and a fusion operation on the back. The twelfth operation was performed only a year before the hearing. To relieve pain in Vaughn’s left shoulder, arm and chest, and back and left leg, he takes medication daily and hooks up his body to what he terms an “electrode machine.” Occasionally, he leaves this mechanism on all day. He also uses a vibrating recliner equipped with a heating mechanism. In 1970, Vaughn’s doctors recommended that he begin exercising in a swimming pool. The appellants failed to provide a pool after a request made by the injured employee. Subsequently, Vaughn joined a health spa but discontinued using the spa after a year and a half because, although the spa treatment was very effective in alleviating pain, the traveling to and from the spa canceled the benefits of the treatment. In 1977, Vaughn contracted to have a twelve-by thirty-foot pool built on his property, equipped with two high-pressured jets which he can control when he needs relief. He uses the pool for exercising and relief of pain. In the summertime, the pool is used three to five times daily and is often used in the a. m. hours when Vaughn cannot sleep. In all, three treating physicians recommended the use of swimming facilities for exercise and relief of pain. Dr. Wallace wrote, after the installation of the pool, that “it was necessary for Mr. Vaughn to install a pool so that he could do his exercises for his back.” The appellants present no evidence rebutting the recommendations of the doctors, nor of Dr. Wallace, nor do they rebut Vaughn’s statement of facts showing that a pool is required on his premises. Lastly, there are no issues presented here concerning the appropriateness of the physical characteristics of the pool.

As to Point I, appellants argue that the pool installation was prohibited by Empire Drilling Co. v. Dunaway, IRC Order 2-3453 (June 6, 1978), urging that it is outside the Workmen’s Compensation Act provisions to furnish a claimant with an item in which title vests in the’claimant. However, Walt Disney World v. Morgan, IRC Order 2-3818 (May 22, 1979) interprets the case to mean only that it is not necessary to construe an order as an unconditional mandate for “vesting of title” under the statutory requirement to “furnish . other apparatus.” Thus, the vesting of title is not per se prohibited. The test is whether the furnishing of the apparatus, i. e., the pool, was required under § 440.13(1). After carefully considering the evidence presented in this case, we affirm the determination made below that Vaughn’s treatment required the installation of a pool.

Appellants raise under Point II the issue of whether it was proper to require appellants to reimburse Vaughn for the maintenance costs of the pool. We answer this in the affirmative. E. g., Cover v. T. G. & Y., 377 So.2d 792 (Fla. 1st DCA 1979).

The remaining issue raised under Point II and Point I of the cross-appeal concerns a determination of the proper amount of reimbursement. Appellants urge that the pool increases the value of the residence and is a monetary advantage to appellee to the detriment of appellants. On the other hand, Vaughn urges that there is no statutory authority to apportion the costs of furnishing apparatus under § 440.-13(1) between the employer/carrier and employee. We agree with Vaughn. Not only did appellants fail to establish the value of the alleged collateral benefit, but the apportionment of such costs is not provided for by statute. Rather, the injured employee may provide himself with the required apparatus at the expense of the employer, with only the reasonableness and the necessity of the expense to be approved by the judge of industrial claims. There was no evidence here, nor a finding by the judge, that the amount paid for the pool was unreasonable or not necessary. We feel it appropriate to remark that the partial reimbursement in this case seems to be a fair and reasonable result under the circumstances involving this type of award. However, we fail to find the statutory authority to apportion the expense absent a finding that the expense is unreasonable or not necessary. We note that judicially permitting a setoff based upon appreciation of property would open the door to litigation regarding an endless array of other setoffs urged because of “collateral benefits” to employees. Addressing such an issue is the prerogative of the legislature.

Points I and II are affirmed, and Point I on cross-appeal is reversed and remanded for further proceedings not inconsistent with this opinion.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: PER CURIAM.

text:
    Hector VALDEZ, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-1230.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.
    Mandina & Lipsky, Coconut Grove, for appellant.
    Walton, Lantaff, Schroeder & Carson and John Neil Buso, Fort Lauderdale, for appel-lee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The final judgment appealed from is reversed and the cause remanded to the trial court with directions to order a new trial on damages upon a holding that the jury verdict of no damages was against the manifest weight of the evidence adduced at the trial of this cause. Without dispute, the plaintiff Hector Valdez was entitled to PIP benefits from his insurer, the defendant State Farm Mutual Automobile Insurance Company, as to reasonable expenses for medical treatment rendered by Dr. Fonseca following the subject accident. In addition, it is our view that the defendant State Farm Mutual Automobile Insurance Company was also obligated to pay PIP benefits to the plaintiff Hector Valdez for reasonable medical and hospital expenses incurred during the plaintiff’s three day stay at Mt. Sinai Hospital in January 1977 for diagnostic tests. Banyas v. American Mutual Fire Insurance Co., 359 So.2d 506 (Fla. 1st DCA 1978); § 627.736(1), Fla.Stat. (1979).

Reversed and remanded.


text:
    James Frederick MEAD, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1411.
    District Court of Appeal of Florida, Third District.
    April 1, 1980.

      Angus M. Stephens, Jr., Coral Gables, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is affirmed upon a holding that: (a) the motions to suppress evidence and statements filed by the de- ■ fendant were properly denied in the trial court as the police had probable cause to arrest the defendant Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); Berry v. State, 316 So.2d 72 (Fla. 1st DCA 1975), and probable cause to search the defendant’s vehicle; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted by § 933.19, Fla.Stat. (1979); McGowan v. State, 351 So.2d 1116 (Fla. 4th DCA 1977), based on Trooper B. A. Adriance’s testimony that he smelled a strong odor of marijuana emanating from the defendant’s vehicle prior to stopping the vehicle, arresting the defendant driver and searching the said vehicle; and (b) the defendant failed to preserve for appellate review the propriety of an alleged improper argument made by the prosecuting attorney in final argument at the trial of this cause because defense counsel did not, as required by law, make a motion for mistrial based on the alleged inflammatory argument after counsel’s objection thereto had been overruled by the trial court. Clark v. State, 363 So.2d 331, 335 (Fla.1978); see also State v. Cumbie, 380 So.2d 1031 (Fla.1980).

Affirmed.


text:
    Charles R. CAMPBELL and Joyce M. Campbell, his wife, Appellants, v. Walter C. RAWLS, Jr. and Sheila D. Rawls, his wife, Appellees.
    No. PP-82.
    District Court of Appeal of Florida, First District.
    April 2, 1980.

      Tyrie A. Boyer, of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellants.
    William Nussbaum, of Goldman, Presser & Nussbaum, Jacksonville, for appellees.
   PER CURIAM.

The Campbells appeal a final judgment awarding the Rawls damages in a breach of contract action based upon appellants’ warranty contained in a February 1978 purchase and sale agreement which states in part:

Seller warrants air conditioning and heating systems, . . . to be in working order at time of Closing. Buyer, at his expense, may inspect such systems 3 days prior to Closing, and in the event discrepancies exist, Seller will repair same at Seller’s expense.

We affirm the trial court’s ruling that the warranty did not merge with the execution and delivery of the deed on March 16, 1978. Merger “does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.” Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla.3d DCA 1967). Our research reveals that the warranty in this case is the type of independent covenant generally excepted from the merger doctrine. Meyers v. Antone, 227 A.2d 56, 57 (D.C.App.1967); Goodspeed v. Nichols, 231 Mich. 308, 204 N.W. 122, 123, 125 (1925); Annot., 38 A.L.R.2d 1310 (1954). Further, we construe the plain language of the agreement to mean that the Rawls were not required to inspect the premises three days before closing and report discrepancies to preserve their rights under the warranty. We also affirm the trial court’s finding that the air-conditioning system was not in working order at the time of closing, recognizing that this presented a close factual issue. In this connection, the error in allowing appellees to introduce copies of newspaper articles containing the daily high and low temperatures is considered harmless.

However, we must reverse the trial court’s ruling that the appellees are entitled to damages measured by the cost of installation of two new air-conditioning systems, rather than the cost of repairing the existing system. We hold that under the circumstances presented, the damages recoverable by appellees must be limited to the repairs necessary to place the existing system in working condition, not in such condition as would be necessary to guarantee its working life for any specific period of time, because no such guarantee was in the agreement between the parties. In the case of a breach of contract, the purpose of compensation is to restore the injured party to the condition which he would have been in had the contract been performed. Those damages which are the natural and proximate result of the breach are recoverable. See generally 17 Fla.Jur.2d Damages § 26. The Rawls can neither receive more than they bargained for nor be put in a better position than they would have been had the contract been performed. Meyers v. Antone, 227 A.2d at 59.

The purchase and sale agreement provided for reasonable attorney’s fees to the prevailing party. Although we affirm the award of attorney’s fees to appellees at trial, and hereby award reasonable attorney’s fees to appellants for prevailing on appeal, the trial court shall not only determine the reasonableness of the fees to be awarded appellants, but shall redetermine the reasonableness of the award to appel-lees, and in each instance should consider all relevant factors appearing in the resolution of this case. See generally 12 Fla.Jur.2d Costs § 36; § 59.46, Florida Statutes (1979).

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: ANSTEAD, Judge.

text:
    Ernest James BUEHLER, Appellant, v. STATE of Florida, Appellee.
    No. 77-2560.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.

      Richard L. Jorandby, Public Defender, Jack Goldberger and Cathleen Brady, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mary E. Marsden and Mark Horn, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment and sentence adjudicating appellant-defendant guilty of manslaughter and grand larceny. Defendant claims that the lower court erred in denying his motion to suppress inculpato-ry statements made by him while he was being transported by police officers from St. Augustine to Fort Lauderdale following his flight from the South Florida area immediately after the alleged crimes occurred. He contends that the statements were improperly elicited from him during the five hour trip after he had specifically advised the officers that he did not wish to make any statements prior to consulting his attorney.

The testimony adduced at the suppression hearing established that two officers of- the Fort Lauderdale Police Department went to St. Augustine to serve an arrest warrant on defendant and transport him to Fort Laud-erdale. Defendant signed a Miranda rights waiver form at the St. Augustine jail prior to being transported but thereafter indicated to the officers that he wanted to speak to his attorney before he answered questions. The police officers were also told by defendant that he would cooperate upon his return to Fort Lauderdale following consultation with his attorney, whom he specifically named.

In St. Augustine the defendant became seriously ill due to his withdrawal from heroin addiction. Prior to departing for Fort Lauderdale, he was taken to a local hospital where he was given a shot of Demerol. On the way to the hospital the defendant repeated his position that he would not give the officers a statement until he spoke to his attorney. In the opinion of the officers, although defendant looked sick, he appeared well enough to make the trip after receiving the shot. The defendant was handcuffed and shackled and placed alone in the back seat of the police vehicle.

During the trip to Fort Lauderdale one of the officers started a conversation with the defendant by asking him how he got to St. Augustine from Fort Lauderdale. The officer candidly admitted that at the same time a tape recorder, hidden from defendant’s view, had been turned on in order to record defendant’s statements about the criminal episode. The defendant was not readvised of his Miranda rights. Subsequently, during the course of the conversation with the officer, defendant did give an inculpatory statement. By the time they arrived in Fort Lauderdale the defendant had taken ill and again advised the officers of his desire to see his lawyer before giving a statement.

The case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) has become the touchstone of our criminal law regarding a defendant’s right not to be compelled to incriminate himself by his own statements. The Miranda opinion expressly stated that when a suspect in police custody indicates that he does not wish to give a statement prior to consulting his attorney, all interrogation must cease. Jones v. State, 346 So.2d 639 (Fla.2d DCA 1977), Wakeman v. State, 237 So.2d 61 (Fla. 4th DCA 1970). While a defendant may subsequently waive his rights, once he has asserted such a right the state has the heavy burden of proving that any subsequent statement from the defendant is a product of a knowing and intelligent waiver of his right to remain silent and consult an attorney. Cason v. State, 373 So.2d 372 (Fla.2d DCA 1979); Jones, supra; United States ex rel. Sanders v. Rowe, 460 F.Supp. 1128 (N.D.Ill.1978). It is axiomatic that the courts indulge in every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Government of Canal Zone v. Gomez, 566 F.2d 1289 (5th Cir. 1978).

The question of waiver is an issue of fact which must be determined upon the circumstances surrounding each particular case. See Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969). Factors to be considered might include the time span between an initial refusal and the subsequent statement; whether the defendant has been readvised of his rights; the location and time of day of the interrogation; the condition of the defendant; the methods employed by police authorities to secure the statement; whether the defendant or the authorities initiated the request for the statement; whether the statement is oral, recorded or in writing or signed by the defendant; and any other circumstances tending to indicate waiver or the absence thereof.

In some cases the evidence of waiver may be clear. For instance, in Rivera Nunez v. State, supra, waiver was found from the following circumstances:

Approximately 30 hours after his arrest, and without having had the advice of counsel appellant was again interrogated by a police officer with the assistance of an interpreter. At that time, and before the interrogation began, appellant was again advised in detail as to his constitutional rights, following which an inquiry was made as to whether appellant wished to waive such rights and make a statement to the officer. The evidence established that on this occasion appellant clearly understood all of his constitutional rights and indicated his willingness to voluntarily waive such rights and to make a voluntary statement concerning his participation in the billing with which he was charged. The statement which appellant gave at that time and under those circumstances was reduced to writing by a typist as the interrogation was conducted, following which the written statement was read by the interpreter to appellant and approved and signed by him. Id. at 324, 325.

A finding of waiver under such circumstances seems apparent. The defendant was specifically readvised of his rights and expressly waived them. On the other hand, in Jones v. State, supra, the Second District held that waiver was not established where it was shown that the police authorities ignored the defendant’s assertion that he did not want to give a statement and wanted to talk to his lawyer, and instead continued to discuss the case with the defendant. The Jones opinion concluded:

We are compelled to reject the state’s contention that the inculpatory statement given at the police station was admissible because it was not the product of direct interrogation. No one can seriously doubt that officer Spivey was attempting to obtain incriminating statements when he continued to converse with appellant about the incident after appellant told him he did not want to talk. In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the U.S. Supreme Court recently quashed some incriminating statements obtained by the police in an equally subtle manner after the suspect’s attorney had made it clear that his client did not wish to make a statement.
This is not a case in which interrogation has been terminated at a suspect’s re-: quest and later resumed under circumstances in which it is apparent that the suspect has changed his mind and desires to make a statement. Rivera Nunez v. State, 227 So.2d 324 (Fla. 4th DCA 1969); cf. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Here, the appellant clearly indicated that he didn’t want to talk, and the state failed to meet the heavy burden of showing that he thereafter made a knowing intelligent waiver of his right to remain silent. Id. at 640.

In our view the factual circumstances involved herein are similar to those present in Jones. Defendant twice specifically informed the Fort Lauderdale officers that he did not wish to give a statement until he had talked with his attorney in Fort Lauderdale. Thereafter, the defendant was required to travel for some five hours in a closed automobile with the two officers. He was suffering from severe withdrawal symptoms and required an injection of Demerol to make the trip. During the trip, and contrary to the police officer’s usual procedure in securing a recorded statement, defendant was not read-vised of his rights. Instead, defendant was questioned about his flight from Fort Laud-erdale after the crime and the circumstances of the crime itself. Before initiating the conversation, unbeknownst to defendant, the police officer turned on a tape recorder to record his statements. These circumstances fall far short of demonstrating a knowing intelligent waiver of the defendant’s right to remain silent and to consult with an attorney. To the contrary the circumstances reveal a course of conduct designed to subtly avoid the effect of the defendant’s specific refusal to give a statement. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

In Brewer, the United States Supreme Court held a statement involuntary where it was shown that the statement was given during a conversation initiated by police officers who were transporting the defendant in an automobile after the defendant’s attorney had earlier refused to allow his client to give a statement. Similarly here, the police acknowledged initiating the discussion about the case with the appellant in violation of his earlier refusals to discuss the matter.

If indeed the rule requiring all questioning to cease is to have any meaning at all, it should be applied to prevent questioning when the appellant has clearly indicated that he will not give a statement about the incident until he has consulted with his lawyer. In such instances, some evidence beyond a defendant’s responses to a subsequent police-initiated conversation must be presented to demonstrate a voluntary waiver.

Accordingly, our conclusion is that the state did not demonstrate that defendant waived his rights. That being so, this cause is hereby reversed and remanded for a new trial in accordance with the terms of this opinion.

DOWNEY, C. J., and HERSEY, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.694 (1966).

      . The officer testified that his usual procedure when recording a statement is to readvise a defendant of his Miranda rights on the tape.

      . The officer having the conversation with the defendant testified that he may have supplied the defendant with some of the details of the alleged crime while questioning him. The accompanying police officer testified that the defendant was asked questions about the homicide and when asked what type of questions were being asked replied: “You ask the case on hand.”

      . See fn. 2, supra.


author: JOHN H. MOORE II, Associate Judge.

text:
    Anna C. JOWANOWITCH, a minor, by and through her mother, next friend and natural guardian, Rogeria Jowanowitch, and Rogeria Jowanowitch, Individually, Appellants, v. FLORIDA POWER AND LIGHT COMPANY, a Florida Corporation, King Halikman and American Liberty Insurance Company, Appellees.
    No. 78-398/NT4-79.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.

      Larry Klein, West Palm Beach, Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, P. A., West Palm Beach and Lover-ing, Pound & Lober, P. A., Rockledge, for appellants.
    Palmer W. Collins, Melbourne, and William T. McCluan of 'Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for Florida Power and Light Co.
    Jon Johnson of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for Halikman and American Liberty Ins. Co.
   JOHN H. MOORE II, Associate Judge.

The plaintiffs in a negligence action stemming from a boating accident appeal a final summary judgment entered in favor of the defendant, Florida Power and Light Company (FP&L). The summary judgment was based on two releases executed by Rogeria Jowanowitch, mother of the minor plaintiff. FP&L cross-appeals an order compelling it to produce its files pertaining to boating accidents involving contact with its power lines in two counties.

In a third-party action, FP&L sued King Halikman, the operator of the boat, and his insurer, American Liberty Insurance Company, for indemnification, contending that Halikman’s active negligence was the sole proximate cause of the plaintiffs’ injuries and that FP&L was, at most, passively negligent. FP&L cross-appeals the entry of final summary judgment in favor of the third-party defendants.

Rogeria Jowanowitch and her minor daughter, Anna, were passengers aboard a sailboat operated by King Halikman, the third-party defendant. The mast of the sailboat collided with overhead power lines owned and operated by FP&L, resulting in injuries to Mrs. Jowanowitch and her daughter. In settling any claims she may have had against Halikman and his insurer, Mrs. Jowanowitch executed two releases. One of the releases (release No. 1) related solely to Mrs. Jowanowitch’s personal claims and was executed by her in her individual capacity. That release discharged Halikman, his wife, and his insurer, and further released “all other persons, firms, corporations, associations, or partnerships . . . .” The second release (release No. 2) was entitled “Parents-Guardian Release and Indemnity Agreement” and related to Mrs. Jowanowitch’s claims as parent and guardian of the minor, as well as to the minor’s own claims. That document released only the Halikmans and their insurer. There is conspicuously absent from release No. 2 any general language releasing others not specifically named.

Suit was then instituted by Mrs. Jowa-nowitch against FP&L to recover her own damages, and as guardian and next friend, those of her daughter. On motion by FP&L, final summary judgment was entered in its favor on the basis of the two releases. Plaintiffs argue that because FP&L was not named in either release, the entry of final summary judgment in its favor was error. We agree and reverse the summary judgment.

As noted previously, in release No. 1, Mrs. Jowanowitch released inter alia, “all other persons, firms, corporations, associations or partnerships . ■. . .” In Hurt v. Leatherby Ins. Co., 354 So.2d 918 (Fla. 4th DCA 1978), the Court held that such all inclusive language discharges all joint tort-feasors. See also, Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3rd DCA 1976) and Hester v. Gatlin, 332 So.2d 660 (Fla. 2nd DCA 1976). The decision in Hurt was certified to the Florida Supreme Court which reversed, holding that whether a general printed release is effective to discharge other than specifically named tortfeasors is a question of fact. Hurt v. Leatherby Ins. Co., 380 So.2d 432 (Fla.1980). In so holding, the Court stated: “[T]he manifestation of intent must be more explicit than signing a printed form which happens to contain broad, general release language in addition to providing spaces for the specifically discharged parties.” We are taught that a latent ambiguity is thereby created which necessitates a rule allowing extrinsic evidence of the parties’ intent. In the present case, FP&L relied solely on the printed, general release language in support of its motion for summary judgment. We find this reliance inadequate to sustain its burden of proving it was entitled to judgment as a matter of law and reverse the final summary judgment.

We emphasize that, in any event, the execution of this release applied only to the individual damages of Mrs. Jowanow-itch, including those which she incurred as a result of her daughter’s injuries. This release did not affect the daughter’s claims, it being well settled that a parent’s individual right of action for a child’s injuries is independent of the child’s right of action for the same injuries. Tucker v. Shelby Mutual Insurance Co., 343 So.2d 1357 (Fla. 1st DCA 1977).

In release No. 2, Mrs. Jowanowitch solely released the Halikmans and their insurer from liability for any damages which her daughter may have sustained. Assuming the Halikmans and their insurer to be so released, Florida Power and Light Company is not included by name or by the use of general language. Thus, this release had no effect on its liability, if any, for the daughter’s damages. Consequently, the trial court erred in granting final summary judgment in favor of FP&L as to the daughter’s claims.

We now consider the discovery order which required FP&L to produce its files concerning accidents in which boats came into contact with its power lines located in two counties. This order is obviously over-broad. It makes no provision for the protection of privileged communications or work product, matters which traditionally have been exempt from discovery. The discovery order is therefore reversed and, on remand, an order should be entered reasonably limiting discovery to matters, not privileged, which are relevant and material to the issues involved.

Finally, we consider the' final summary judgment entered in favor of the third-party defendants. As noted above, the third-party complaint filed by FP&L was for indemnification founded upon an active-passive negligence theory. In view of the recent Florida Supreme Court decision in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), the trial court correctly entered final summary judgment for the third-party defendants. See also, Florida Power and Light Company v. Schauer, 374 So.2d 1159 (Fla. 4th DCA 1979) and Bradshaw v. Bedsole, 374 So.2d 644 (Fla. 4th DCA 1979).

In summary, we reverse the final summary judgment in favor of FP&L and affirm the final summary judgment in favor of the third-party defendants. We also reverse the discovery order entered against FP&L and remand with directions to proceed in accordance with the views expressed herein.

ANSTEAD, HARRY LEE, and GEIGER, DWIGHT L., Associate Judges, concur.


author: DOWNEY, Chief Judge.

text:
    James AGRIESTI, Appellant, v. CLEVETRUST REALTY INVESTORS et al., Appellees.
    No. 79-742.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    William Robert Leonard, of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.
    Maurice M. Garcia of Abrams, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for appellees.
   DOWNEY, Chief Judge.

Appellant seeks review by plenary appeal of an alleged final order dismissing Counts I and II of his counterclaim.

We perceived an apparent lack of jurisdiction and requested counsel to file supplemental briefs addressing, the jurisdiction question. In their supplemental briefs both counsel suggest that the order in question is final and appealable and entreat this court not to dismiss the appeal because this case has been pending in the trial court for an interminable period. We are quite sympathetic to counsel’s entreaty and would comply therewith and consider the merits of the appeal were it within our power to do so. However, we remain convinced that the order is not appealable, as the following brief description of this litigation demonstrates.

Appellees sued appellant and others to foreclose a mortgage on a large condominium complex. Appellant, as one of the defendants owning a condominium unit, filed a multi-count counterclaim asserting facts which appellant contended should make ap-pellee’s mortgage unenforceable against appellant’s unit. Counts I and II of the counterclaim seek to avoid appellee’s mortgage lien via constructive or resulting trust theories or a third party beneficiary theory. As appellant phrases it in his brief:

By way of explanation then, AGRIESTI has attempted, in answering the foreclosure complaint instituted against him as the party in possession, to assert a counterclaim based upon theories of constructive trust, resulting trust, third-party beneficiary law of contracts and a declaratory judgment. Each of these vehicles has been instituted in an attempt to gain, as relief for AGRIESTI, a discharge of the mortgage as to the unit for which he has paid, a warranty deed, and whatever other documents may be necessary to fully and completely vest his title of record as the successor of BARTH, the developer, and CLEVETRUST, the financial institution whose funds were placed at risk in this development.

In S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974), the Supreme Court said that:

Piecemeal appeals will not be permitted where claims are interrelated and involve the same transaction and the same parties remain in the suit. However, it may occur that a distinct and severable branch of the controversy, cause of action, may be adjudicated by order of the trial court which would be appealable. 304 So.2d at 99.

The rule precluding an appeal unless the order involved disposes of certain issues or causes in the case is relaxed:

where the judgment, order or decree adjudicates a distinct and severable cause of action, not interrelated with remaining claims pending in the trial court. 304 So.2d at 99

The issues involved in the complaint and counterclaim are clearly interrelated; they involve the same transaction; and the parties on appeal remain parties to the litigation in the trial court.

Enticing as it may be to reach the merits of this appeal we do not have jurisdiction and thus are helpless to do so. Accordingly, the appeal must be dismissed.

APPEAL DISMISSED.

ANSTEAD and MOORE, JJ., concur.


author: ANSTEAD, J.

text:
    Rosemary T. ESKRIDGE, Appellant, v. John M. ESKRIDGE, Appellee.
    No. 78-2692.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1980.
    William E. Stockman of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for appellant.
    Richard Michael Birnbaum, Fort Lauder-dale, for appellee.
   ANSTEAD, J.

In this appeal from a final judgment of dissolution of marriage the wife claims error by the trial court as to the amount of periodic alimony awarded and in providing for an automatic reduction thereof in the future.

We find no error as to the amount of alimony awarded. However, our review of the record reveals no evidentiary basis for ordering an automatic decease in the amount of alimony.

The evidence revealed that the wife had no substantial employment during the 25 year marriage and had devoted her full time to her duties as a mother and housewife. Shortly before the dissolution the wife had major surgery and, although her recovery was normal, she was unemployed at the time of trial and had no immediate employment prospects. There was no evidence presented as to the current earning ability of the wife. The final judgment awarded the wife $100.00 weekly alimony to be reduced to $75.00 in six months and again to $50.00 per week in one year.

Unless the evidence supports a finding that the wife’s financial position will in fact change in the future, there can be no provision for an automatic change in the amount of alimony awarded. Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980). There is no evidence in the record to support such reductions here. If in fact the wife’s financial position should change substantially, the husband can apply for modification. Garrison v. Garrison, supra.

Accordingly, the judgment of the trial court is hereby reversed with directions that an amended judgment be entered in accordance with this opinion.

DOWNEY, C. J., and MOORE, J., concur.


text:
    Brian R. ASHBY, one of the underwriters at Lloyd’s London, Appellant, v. RENDEZVOUS FARMS, a/k/a Rendezvous Farms, Inc., Appellee.
    No. 78-2580/T4-317.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Brian D. Hill and Larry J. Townsend of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Kendall T. Moran of Moran & Wasileski, Titusville, for appellee.
   PER CURIAM.

Upon consideration of the record on appeal, briefs and argument of counsel for the respective parties, we determine that the comment made by Appellee’s counsel in closing argument over objection that no arrest had been made or anyone convicted as a result of the fire was prejudicial. Thus the trial court erred in not granting Appellant’s motion for a new trial as to the issue of liability. Royal Indemnity Co. v. Muscato, 305 So.2d 228 (Fla. 4th DCA 1974); Eggers v. Phillips Hardware Company, 88 So.2d 507 (Fla.1956).

Accordingly, the final judgment is reversed and the cause remanded for a new trial limited solely to the issue of liability of the defendant for plaintiff’s damages, the extent of which damages has been determined.

REVERSED AND REMANDED.

DAUKSCH, C. J., and’ CROSS and OR-FINGER, JJ., concur.


text:
    Harry David BILYOU, Appellant, v. STATE of Florida, Appellee.
    No. 78-1816/T4-193.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   NORRIS, WILLIAM A., Jr., Associate Judge.

Appellant pleaded nolo contendere to a charge of lewd assault upon a six year old female, a violation of section 800.04, Florida Statutes (1977). Pursuant to a plea bargain, the trial judge accepted the plea and agreed that appellant was to receive “a cap of ten years probation as a possible sentence.” He was subsequently placed on eight years probation. Thereafter, following a hearing, his probation was revoked, he was adjudicated guilty and sentenced to fifteen years in the state prison with credit for time served. The maximum penalty of this offense is fifteen years in the state prison. The trial judge retained jurisdiction over the appellant for the first third of the sentence pursuant to the provision of section 947.16(3), Florida Statutes (Supp.1978).

In this appeal appellant contends that the fifteen year sentence is illegal because it is in excess of the ten years agreed to by the trial judge when he accepted appellant’s nolo contendere plea, and that the trial judge improperly retained jurisdiction for the first third of appellant’s sentence.

The essence of the plea bargain was that appellant was to be placed on probation for a term not to exceed ten years. This the trial judge did. The plea bargain did not contemplate a maximum sentence should the appellant’s probation be subsequently revoked.

The Third District Court of Appeal has held that since the punishment received by a probation violator is imposed under the original charge, this punishment cannot be in excess of the bargain upon which the defendant first entered a plea. Payne v. State, 372 So.2d 152 (Fla. 3rd DCA 1979); Overman v. State, 368 So.2d 434 (Fla. 3rd DCA 1979); Kord v. State, 361 So.2d 800 (Fla. 3rd DCA 1978); Segarra v. State, 360 So.2d 79 (Fla. 3rd DCA 1978).

The Second and Fourth District Courts of Appeal have held to the contrary. Johnson v. State, 378 So.2d 335 (Fla. 2nd DCA 1980); Mulder v. State, 356 So.2d 870 (Fla. 4th DCA 1978).

Section 948.06(1), Florida Statutes (1979) provides, in part:

If such probation is revoked, the court shall adjudge the probationer guilty of the offense charged and proven or admitted, unless he shall have previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation. (Emphasis supplied).

We now align ourselves with the Second and Fourth District Courts of Appeal and hold that so long as the original order of probation was within the terms of the plea agreement, the court has fulfilled the plea bargain. Upon revocation of probation the trial court is free to impose any punishment within the limits prescribed for the crime. The other point raised by appellant is without merit.

AFFIRMED.

DAUKSCH, C. J., and CROSS, J., concur.


author: UPCHURCH, Judge.

text:
    Lawrence M. LITUS, Appellant, v. Robert B. McGREGOR, Appellee.
    No. 78-1975/T4-205.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.

      H. S. Henderson, Titusville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   UPCHURCH, Judge.

This is an appeal from a final order of the Circuit Court for Brevard County holding Appellant, Lawrence M. Litus, an attorney, guilty of criminal contempt.

Appellant scheduled a hearing before Circuit Judge Robert B. McGregor on a motion to set aside a bench warrant in a criminal matter. Appellant failed to attend the hearing and the judge issued a rule to show cause why Mr. Litus should not be held in contempt. At the hearing on the rule, Appellant was adjudged guilty and a fine of $500.00 was imposed which was suspended pending his attendance at all of his future scheduled hearings.

Appellant raises as error that the court abused its discretion in finding him guilty of indirect criminal contempt.

We REVERSE.

A criminal contempt citation will be upheld provided it meets these criteria:

I. The conduct of the party must in law constitute contempt;
2. the contempt proceedings were in “due course of law;” and
3. the punishment must be appropriate to the offense.

Vines v. Vines, 357 So.2d 243 (Fla. 2d DCA 1978). The procedure followed by the trial court and the punishment, especially because it was suspended, require no discussion; therefore, we shall consider only whether Appellant’s conduct, in law, constituted criminal contempt. See Lee v. Bauer, 72 So.2d 792 (Fla.1954).

The purpose of criminal contempt is solely to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court. Faircloth v. Faircloth, 321 So.2d 87 (Fla. 1st DCA 1975).

The courts in Krueger v. State, 351 So.2d 47 (Fla. 3d DCA 1977) and Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977) followed the test of Ex parte Biggers, 85 Fla. 322, 95 So. 763 (1923) stating:

If the matter complained of as constituting contempt, when fairly interpreted, does not have a reasonable tendency to degrade, or to embarrass or hinder a judge in performing his own duty, or to affect a mind of reasonable fortitude, it is not a criminal contempt for which imprisonment may be lawfully adjudicated particularly when an intent to offend is denied on oath.

The courts went on to say that:

Generally it is the nature and reasonable tendencies of the matter complained of that controls; and if the matter is of doubtful tendency or might or might not be considered ambiguous as to its general or specific purpose, the circumstances under which the thing was done or in which its consequences are to appear, may be considered in determining the reasonable tendency of the matter to affect judicial authority or dignity.

The sworn testimony of Appellant acknowledged that he was aware the hearing had been scheduled, and a conflict developed with matters scheduled at the same time in another court. Appellant requested his associate, Mr. Joe M. Mitchell, an attorney familiar with the case, to appear before the court on that date. The court acknowledged that it would have been acceptable had Mr. Mitchell appeared. Appellant neglected to specifically instruct Mr. Mitchell to handle the particular hearing but requested only that he take care of the matters on the criminal docket for that date. The hearing was not listed on the docket and when all matters were covered Mr. Mitchell asked to be excused and left. Therefore, no one was present for the scheduled hearing.

The court characterized this conduct as an “[ijnterference with the administration of justice and contumacious in character ,” Black’s Law Dictionary, 298 (5th ed. 1979) defines “contumacious conduct” as “willfully stubborn and disobedient conduct,.commonly punishable as contempt of court.” The court announced that the acts tended to interfere with the proper administration of justice, not in the sense of planned or organized conduct, but in a sense of neglect.

Nothing in the record reflects that Appellant acted in a willfully stubborn manner. The worst that can be said of Appellant’s conduct was that it reflects he was disorganized and negligent in his planning. He promptly and respectfully apologized to the court, assumed full responsibility for his oversight, and assured the court he had taken steps to avoid repetition of the incident. The record does not reflect that Appellant previously had ever missed a hearing or even been tardy. It does not reflect that he deliberately ignored this hearing with awareness and knowledge that the hearing would not be covered. To sustain the lower court’s position the conclusion would be inescapable that anytime an attorney misses a scheduled hearing because of carelessness or neglect he would be guilty of criminal contempt.

In Lee v. Bauer, 72 So.2d 792 (Fla.1954) the contemnor failed to appear in compli-anee with a pre-trial order and the court’s finding of contempt was sustained on appeal. In Carroll v. State, 327 So.2d 881 (Fla. 3d DCA 1976) the attorney persisted in improper questioning of a witness and the trial court found him guilty of criminal contempt. The appellate court reversed holding that the trial judge failed to warn him that if he persisted he would be cited for contempt. See Kleinfield v. State, 270 So.2d 22 (Fla. 3d DCA 1972). In the case before us, no order requiring counsel’s attendance had been entered nor was there anything to reflect Appellant had ignored or disregarded previous instructions or warnings of the court. While there is no doubt that a trial court possesses the inherent power to punish for contempt this power should be exercised cautiously and sparingly. Carroll v. State, supra.

In Vines v. Vines, supra, the court said, “. . . [t]he true test is whether the conduct interferes with or impugns the judicial function, not whether it causes a particular judge to feel aggrieved or vexed.” While failure to appear at a hearing by counsel is undoubtedly somewhat disre-spective of a judge’s planning and time management, it does not impugn the judicial function in the sense that the judge is hindered in his ability to administer justice. The same disruption is present when a hearing is cancelled for whatever cause. No evidence appears in the record that the judicial function was otherwise impugned.

The trial court suspended payment of the fine conditioned on Appellant appearing at all future scheduled matters in which he is counsel of record. Essentially, the same method could have been used to assure Appellant’s attention without adjudicating him guilty of criminal contempt, that is, by entering an order warning Appellant that should he again fail to appear he would be cited for contempt and a fine or other appropriate punishment imposed.

The order of contempt is reversed and this cause is remanded for entry of an order not inconsistent- with this opinion.

REVERSED and REMANDED.

CROSS and COBB, JJ., concur.

      . The court makes the following findings of fact:
      A. That the Respondent, Lawrence M. Litus, had obtained hearing time with the court which was scheduled on August 21, 1978 at 9:15 A.M. or as soon thereafter as may be heard in chambers at the Brevard County Courthouse in Titusville, Florida on the defense Motion to Set Aside Bench Warrant.
      B. That the Respondent failed to appear at that time and place.
      C. That the Respondent had requested his associate in the practice of law, Joe Mitchell, Esquire, to cover matters before .the court on the day and time in question but had failed to instruct Mr. Mitchell that a hearing was scheduled on the aforesaid motion and that, while Mr. Mitchell appeared on other matters before the court, he left before the hearing was called up on the aforesaid motion.
      D.That hearing on said motion was held at another time and date, that is to say, August 25, 1978 at which the defendant, Homer Lee Ozzment, was authorized to be released upon the original bond posted.
      The Court further finds that the aforesaid facts constitute an interference with the administration of justice and that they are contumacious in character.


author: ORFINGER, Judge.

text:
    Lorenzo MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 79-440.
    District Court of Appeal of Florida, Fifth District.
    April 2, 1980.
    Lorenzo Mitchell, in pro. per.
    No appearance for appellee.
   ORFINGER, Judge.

Mitchell appeals an order of the trial court summarily denying relief under Rule 3.850, Florida Rules of Criminal Procedure.

The record reflects that appellant pleaded nolo contendere to one count of burglary of a dwelling and one count of involuntary sexual battery. Appellant contends that he was a juvenile and a first-time felony offender and that under Rule 3.710, Florida Rules of Criminal Procedure, the trial court could not sentence him without first receiving and considering a pre-sentence investigation report. There is no contention that the sentence is otherwise not authorized by law.

It has repeatedly been held that relief under Rule 3.850 is not available as to any matters which could have been raised by direct appeal. Peterson v. State, 237 So.2d 223 (Fla. 1st DCA 1970); Stallings v. State, 319 So.2d 640 (Fla. 1st DCA 1975); Falagan v. State, 267 So.2d 109 (Fla. 2d DCA 1972); Burau v. State, 353 So.2d 1183 (Fla.3d DCA 1977).

The trial court’s failure to receive or consider a pre-sentence investigation report prior to sentencing where such report is required under Rule 3.710 is appealable and constitutes reversible error. Harden v. State, 290 So.2d 551 (Fla. 1st DCA 1974); Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977); DeOca v. State, 326 So.2d 453 (Fla. 4th DCA 1976). The receipt and consideration of the pre-sentence report can be waived. Rinaldi v. State, 343 So.2d 94 (Fla. 3d DCA 1977). Under the circumstances shown here, there is no error of constitutional magnitude such as was found in Hicks v. State, 336 So.2d 1244 (Fla. 4th DCA 1976).

Since the trial court’s alleged failure to receive and consider a pre-sentence investigation report could have been the subject of a direct appeal, appellant is not entitled to now attack the sentence under Rule 3.850. The lower court was correct in summarily denying the motion, so the order appealed from is

AFFIRMED.

COBB and UPCHURCH, JJ., concur.


author: SHIVERS, Judge.

text:
    A. B. EDWARDS, Jr., Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, Appellee.
    No. NN-276.
    District Court of Appeal of Florida, First District.
    April 3, 1980.
    Robert B. Staats, Panama City, for appellant.
    John M. Fite, of Barron, Redding, Boggs, Hughes & Fite, Panama City, for appellee.
   SHIVERS, Judge.

Edwards appeals the entry of summary judgment in favor of Bankers Life and Casualty Company on Edwards’ claim for disability insurance benefits under a policy issued by Bankers to Edwards. The trial court found that there was no coverage under the policy since Edwards’ present disability was materially attributable to an injury sustained prior to the time the policy was in force and since Edwards’ present disability was a recurrence of his previous disability. We affirm.

Bankers’ policy provided for permanent total disability benefits if the insured sustained an injury causing total disability for a period of twelve consecutive months. Under the definitional section, the policy provided:

“Injury” shall mean bodily injury caused solely by an accident which occurs while the policy is in force and while the Person sustaining such injury is insured under the policy and which results directly and independently of all other causes in a loss covered by the policy. . . . [Emphasis added.]

The policy also contained an exclusionary provision providing in pertinent part:

The policy does not cover loss caused by or resulting directly or indirectly from any one or more of the following: . (2) bodily infirmity, sickness or disease; . [Emphasis added.]
Edwards, relying upon Nationwide Mutual Insurance Company v. Anglin, 306 So.2d 147 (Fla. 2d DCA 1975) and Braley v. American Home Assurance Company, 354 So.2d 904 (Fla. 2d DCA 1978), cert. denied, 359 So.2d 1210 (Fla.1978), argues that although his prior injury may have combined with his present injury to create his disability, a factual question exists as to whether his disability was the result of the latter injury “directly and independently of all other causes”. Anglin, supra and Braley, supra, are distinguishable. Unlike the policies therein, the present policy contains an exclusionary clause precluding recovery where the loss results directly or indirectly from any bodily infirmity, sickness, or disease. Anglin, supra and Braley, supra, both recognize the distinction between express exclusion clauses and “caused solely by accident” clauses as discussed in 10 Couch on Insurance 2d, § 41:380. Couch indicates:
§ 41:380. Distinction between express exclusion clause and “caused solely by accident” clause.
There is a distinction between an accident policy covering loss “resulting directly, independently and exclusively” from other causes and a similar policy containing the additional phrase excluding disability “wholly or in part, directly or indirectly, from disease or other bodily infirmities,” or phrases of like nature. The phrase “resulting directly, independently and exclusively” refers to the efficient, substantial, and proximate cause of the disability at the time it occurs. On the other hand, a policy containing the additional phrase set out above refers to another contributory cause, whether proximate or remote. Where, under a policy containing only the first phrase, the accidental injury acts upon a pre-ex-isting disease causing total disability which except for such disease would not have occurred, the injury is deemed to be the proximate cause of the disability entitling recovery. But it is otherwise where the policy contains the additional phrase indicated above. . . . Otherwise stated, where the policy covers accidental death resulting directly and independently of all other causes through external, violent, and accidental means, liability arises if the accident is the moving, sole, and proximate cause of death, even though a pre-existing disease or physical infirmity is a necessary condition to the result. However, where the insurer’s liability is further restricted by a clause avoiding liability where death results directly or indirectly from disease or from bodily or mental infirmity, it is not sufficient to create liability to establish a direct causal relation between the accident and the death or disability, but the plaintiff-must show that the resulting condition was caused solely by external and accidental means, if the evidence points to a pre-existing infirmity or abnormality which may have been a contributing factor, the burden is upon him to produce further evidence to exclude this possibility. [Footnotes omitted.]

Since the undisputed evidence reveals that Edwards’ pre-existing infirmity was a contributing factor to his present disability, recovery is precluded by virtue of the express exclusion clause contained in the present policy. Accord, Maccabees v. Terry, 67 So.2d 193 (Fla.1953); Berg v. New York Life Insurance Company, 88 So.2d 915 (Fla.1956). Accordingly, the summary judgment appealed is affirmed.

MILLS, C. J., and ERVIN, J., concur.


text:
    James H. ALEXANDER et ux., Appellants, v. Melba J. MARTIN et al., Appellees.
    No. 79-2125.
    District Court of Appeal of Florida, Second District.
    April 3, 1980.
    Rehearing Denied April 17, 1980.
    Shei^vood L. Stokes, Haines City, for appellants.
    Gary E. Massey of Massey, Alper, Waek & Eaton, Altamonte Springs for appellees.
   PER CURIAM.

James H. Alexander and Sylvia M. Alexander, husband and wife, filed suit against various defendants alleging causes of action for abuse of process and slander of title. The causes of action were alleged to have resulted from statements made by the defendants during the course of hearings before the Board of Adjustment of the Town of Lake Hamilton and from the defendants’ prosecution of a petition for a writ of cer-tiorari in the circuit court for review of a zoning variance granted by the Town’s Board of Adjustment. The case was dismissed by the trial court for failure to state a cause of action under either theory of law relied upon by the plaintiffs. We affirm.

Although the certiorari proceedings are still pending, the circuit court has entered a temporary order prohibiting plaintiffs from residing in the residence they built in accordance with a permit issued by the Town. The gist of the plaintiffs’ grievance appears to be their claim that they have been wrongfully dispossessed from their residence. Accordingly, our affirmance is without prejudice to the plaintiffs’ right to file a motion to intervene in the certiorari proceedings now pending in circuit court. There the plaintiffs can raise the issue of whether the circuit court should find that the Town was correct in granting the variance and certificate of occupancy because the Town would be estopped from doing otherwise due to its prior approval of the building permit and denial of the defendants’ request for a stop order while construction was in progress.

The time for filing a motion for a rehearing is shortened to ten days.

SCHEB, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    STATE of Louisiana v. Gerard EDWARDS.
    Nos. 66512, 66565.
    Supreme Court of Louisiana.
    Jan. 17, 1980.
   ORDER

On considering that defendant Gerard Edwards has filed a motion for newly discovered evidence, in No. 265-068, Section “D”, Criminal District Court, Parish of Orleans, and on further considering that the motion has been filed within one year of the verdict or judgment:

It is ordered that the case be remanded to the district court for a hearing on the motion for new trial based on newly discovered evidence. See La.C.Cr.P. art. 853.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Leon HAMLIN.
    No. 66643.
    Supreme Court of Louisiana.
    Jan. 21, 1980.
   In re Leon Hamlin, applying for writs of certiorari, mandamus, prohibition, and stay order. Parish of Jefferson. Number unknown. .

Writ denied.

DIXON, J., would deny the stay order and permit relator to amplify his application if he will.

DENNIS, J.,

would grant at least a stay in this proceeding to determine whether trial is in progress and whether defendant was prejudiced by the state’s alleged repudiation of its bargain not to prosecute him on the attempted murder charge.


text:
    STATE of Louisiana v. Norman K. LANOIX.
    No. 66651.
    Supreme Court of Louisiana.
    Jan. 22, 1980.
   In re Norman K. Lanoix, applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Jefferson. No. 79-2189.

Denied in part and granted in part. Relator’s motion to set aside the hearing on the motion to determine his capacity to proceed is denied. The scope of the inquiry at this hearing is limited to his capacity to proceed. Relator’s motion to withdraw his plea of not guilty and not guilty by reason of insanity is granted.


text:
    STATE of Louisiana v. Phillip M. FAULK.
    No. 66659.
    Supreme Court of Louisiana.
    Jan. 23, 1980.
   In re Phillip M. Faulk, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Ouachita. No. 39,108.

Granted in part, denied in part. The district court and court reporter are ordered to make a copy of the transcript of the witnesses’ testimony available to defendant if, in fact, it has been transcribed. Otherwise, the trial judge’s order is allowed to stand, since defendant has an adequate remedy by appeal.


author: CALOGERO and MARCUS, JJ.

text:
    SUPERDOME SERVICES, INC. v. STATE of Louisiana, Louisiana Stadium and Exposition District, Hyatt Corporation, and HMC Corporation.
    No. 66660.
    Supreme Court of Louisiana.
    Jan. 23, 1980.
   In re Superdome Services, Inc., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 77-18162 & 77-19145, Court of Appeal, Fourth Circuit, No. 11,248.

Writ denied. The showing made does not warrant exercise of this Court’s supervisory jurisdiction.

CALOGERO and MARCUS, JJ.

This application,- although timely, was filed here just this morning. We would prefer to issue a stay order and delay for twenty-four hours this Court’s ruling on the application, in order to have furnished copy of the trial court’s ruling and/or reasons, to consider whether the Court of Appeal erred in reversing the trial court judgment, and to consider alternatively, whether the Court of Appeal’s protective order is sufficient.


text:
    Sarah Watson CARTER v. Charles Robert CARTER.
    No. 66636.
    Supreme Court of Louisiana.
    Jan. 24, 1980.
   In re Charles Robert Carter, applying for writs of prohibition, mandamus, certiorari and stay order. Parish of East Baton Rouge, Family Court. Number 13,375.

Writ granted. The case is transferred to the Court of Appeal for it to act upon relator’s application expeditiously. Relator has no adequate remedy by appeal. Execution of sentence suspended pending the Court of Appeal’s action.


author: WATSON, Justice. MARCUS, Justice

text:
    Edwin E. FOSTER, Jr. v. Joseph M. HAMPTON et al.
    No. 65395.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
    Rehearing Denied March 14, 1980.

      Michael R. Connelly, Baton Rouge, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Car-mack M. Blackmon, Thomas S. Halligan, Asst. Attys. Gen., Dept, of Justice for State of Louisiana, for defendants-respondents.
   WATSON, Justice.

In Foster v. Hampton, 352 So.2d 197 (La., 1977) plaintiff, Edwin E. Foster, Jr., was held to have no cause of action against the Sheriff and Parish of East Baton Rouge. This court there stated that the defendant deputy sheriff, Joseph M. Hampton, was an officer and employee of the State of Louisiana. The matter was remanded for further proceedings, and plaintiff filed an amended petition naming the State of Louisiana as defendant. The trial court sustained a peremptory exception of. prescription on the part of the State. The Court of Appeal affirmed the judgment holding that the deputy sheriff and the State were not soli-dary obligors, and that the suit against the employee did not interrupt prescription against the State of Louisiana. A writ was granted to review the judgment.

The question presented now is whether the initial suit against the deputy sheriff interrupted prescription against his employer, the State of Louisiana.

The. employment relationship between the deputy sheriff and the State is established, for the reasons stated in the prior opinion of this court. Wambles v. State, 283 So.2d 331 (La.App. 4 Cir. 1973) insofar as it conflicts with that finding, is expressly disapproved.

In Thomas v. W. & W. Clarklift, Inc. and Reliance Insurance Company, 375 So.2d 375 (La., 1979), a vicariously liable employer was held to be a solidary obligor with a concurrently negligent stranger. However, Cox v. Shreveport Packing Company, 213 La. 53, 34 So.2d 373 (1948) was distinguished. Cox held that a master is not solidarily liable with a servant for the latter’s torts and suit against the servant does not interrupt prescription as to the master.

Civil Code article 2320 provides in pertinent part that:

“Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

The liability of the master, for harm caused by the servant’s employment-connected creation of an unreasonable risk of injury, has been described as vicarious. Loescher v. Parr, 324 So.2d 441 (La., 1975); Caldwell v. Montgomery Ward & Company, Inc., 271 So.2d 263 (La.App. 2 Cir. 1972). Vicarious liability is indirect legal responsibility. Black’s Law Dictionary, Fifth Edition, page . 1404. In John Thomas, supra, the fact that the employer’s liability was vicarious was held not to bar solidary liability between the employer and the concurrently negligent tort-feasor. Although the liability of the master for the tort of the servant is vicarious and they are not joint tort-feasors, both master and servant are nonetheless obligated for the same thing, repair of the damage to the third party. LSA-C.C. art. 2091 states:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when the payment which is made by one of them exonerates the others toward the creditor.”

The responsibility imposed by Civil Code art. 2320 has been recognized as a solidary one. Cline v. Crescent City R. Co., 41 La. Ann. 1031, 6 So. 851 (1889). Cline refers to in solido obligations as being perfect or imperfect. The solidarity is described as imperfect, when the parties are bound for the same thing but not on the same basis, as in the case here of master and servant. LSA-C.C. art. 2092. When there is imperfect solidarity, jurisprudence states that suit against one party does not interrupt prescription as to the other. However, there is no legislative ground for the distinction drawn between perfect and imperfect solidarity. See the concurring opinion by Justice Tate in Wooten v. Wimberly, 272 So.2d 303 (La., 1973), and the comment at 35 La. Law Review 291. The distinction drawn between perfect and imperfect solidarity is untenable and must be rejected.

When a servant’s actions during his employment create an unreasonable risk of harm to another, any resulting liability is solidary with that of his master. The injured party has only one cause of action against both, and suit against either the employer or the employee will interrupt prescription as to the other. Cox v. Shreveport Packing Company, 213 La. 53, 34 So.2d 373 (1948) is overruled.

For the foregoing reasons, the judgment of the trial and appellate courts sustaining the peremptory exception of prescription on the part of the defendant State of Louisiana is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

SUMMERS, C. J., concurs in the result only.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

The state was not a party to this cause at the time that our previoüs opinion in this matter was rendered. Therefore, I consider the statement therein that the state may be considered the deputy sheriff’s employer was dicta.

In my view, a deputy sheriff is not an employee of the state. Rather, he is an employee of the sheriff who is an officer of the state provided for in La.Const. art. 5, § 27. I do not feel that the state should be responsible for the actions of constitutionally empowered officials and their employees. Therefore, I do not reach the question of whether or not Cox v. Shreveport Packing Co., 213 La. 53, 34 So.2d 373 (1948) should be overruled.

Accordingly, I respectfully dissent.

      . LSA-C.C. art. 2092:
      “The obligation may be in solido, although one of the debtors be obliged differently from the other to the payment of one and the same thing; for instance, if the one be but conditionally bound, whilst the engagement of the other is pure and simple, or if the one is allowed a term which is not granted to the other.”


text:
    STATE of Louisiana v. David D. MARTIN.
    No. 62687.
    Supreme Court of Louisiana.
    Jan. 28, 1980.
   In re David D. Martin, applying for stay of execution, (Lafourche Parish).

Considering defendant’s application that his execution, presently scheduled for February 8, 1980, be stayed (See La., 376 So.2d 300),

IT IS ORDERED that execution of David D. Martin be and the same is hereby stayed until such time as the United States Supreme Court takes final action on his writ of certiorari or until such other time, in advance of that da'te, as this Court deems proper.

BLANCHE, J., absent.


author: DENNIS, Justice. MARCUS, Justice PER CURIAM.

text:
    STATE of Louisiana v. Willie Earl LEE and Grady E. Harris.
    No. 65064.
    Supreme Court of Louisiana.
    Feb. 15, 1980.
    Per Curiam on Denial of Rehearing April 7, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist.' Atty., Bobbie Stromile, Asst. Dist. Atty., for plaintiff-appellee.
    S. Patrick Phillips, Bossier City, for defendants-appellants.
   DENNIS, Justice.

This criminal appeal calls upon us to decide when evidence of an attempted escape by a person in custody may be introduced as an admission of guilt by conduct of the crime for which he was arrested. Since evidence of an attempted escape constitutes other crimes evidence, we conclude that unless the evidence forms part of the res gestae of the charged offense, it may be introduced only if it is probative of defendant’s consciousness of guilt of the crime charged and its probative value outweighs its prejudicial effects. In the present case, evidence of defendant Harris’ attempted escape, which occurred while he was being transported from jail to a hospital over six weeks after his arrest for the crime charged, was clearly not sufficiently probative of his consciousness of guilt of the crime charged to outweigh its prejudicial effects. Accordingly, the trial court’s refusal to grant a mistrial because of the prosecuting attorney’s reference to the attempted escape in the presence of the jury was reversible error.

Defendant, Grady E. Harris, was convicted by a jury of armed robbery, La.R.S. 14:64, and sentenced to serve forty years at hard labor. He appealed, relying on four assignments of error. We pretermit all assignments save his complaint relative to the trial court’s refusal to grant a mistrial, in which we find reversible merit.

Defendant Harris was arrested and charged with the crime of armed robbery. After he had been incarcerated in the Bossier Parish Jail for six weeks, he was taken to a hospital in Shreveport for treatment. En route to the hospital, at an interstate highway exit ramp, Harris jumped from the police car and attempted to flee, but was apprehended quickly by the officers. At the armed robbery trial, when the prosecuting attorney asked Harris, on cross-examination, if he jumped from the car and ran, the trial judge sustained defense counsel’s objection and admonished the jury to ignore the remark. However, the defense motion for a mistrial was overruled.

The prosecuting attorney’s remark, which referred within the hearing of the jury to another crime committed by the defendant as to which evidence was not admissible, was mandatory ground for a mistrial; an admonition to the jury to disregard the remark was not sufficient. See La.C.Cr.P. art. 770. The defendant’s conduct referred to by the prosecutor was “another crime” because an intentional departure of a person in lawful custody of any law enforcement officer constitutes simple escape. La. R.S. 14:110. Evidence of the other crime was not admissible in the present case because the attempted simple escape did not form part of the res gestae or meet the tests governing the introduction of other-crimes evidence.

The prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character. Aside from related offenses admissible as part of the res gestae, and convictions admissible for impeachment purposes, Louisiana statutes provide for only three “other purposes” for which evidence- of other criminal acts may be offered — to show intent, knowledge or system. La.R.S. 15:445, 446; State v. Prieur, 277 So.2d 126 (La. 1978). In accordance with general authority, however, evidence has been admitted for purposes other than those listed in the statutes. See State v. Sutfield, 354 So.2d 1334 (La. 1978).

In State v. Burnette and Granger, 353 So.2d 989 (La. 1978), this Court held that evidence of criminal acts of the accused designed to obstruct justice or avoid punishment for the present crime may be introduced as an admission by conduct, provided that none of the safeguards for protecting the accused from unfair prejudice are violated. The safeguards applicable to evidence of criminal conduct offered as an admission of guilt include the following: (1) before the evidence is introduced at all, there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; (2) the evidence of the accused’s conduct must be substantially relevant to show his consciousness of guilt of the crime charged; (3) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. See State v. Burnette and Granger, supra; State v. Franklin, 353 So.2d 1315 (La. 1977); cf. State v. Hatcher, 372 So.2d 1024 (La. 1979); United States v. Meyers, 550 F.2d 1036 (5th Cir. 1977).

Similarly, evidence of an accused’s escape or attempted escape may, in compliance with applicable safeguards, be introduced to show his admission of guilt by conduct. By the same token, however, evidence of escape must be excluded if its admission would violate any of the rules protecting a defendant from unfair prejudice.

Applying these rules to the present case, we conclude that the evidence of attempted escape by Harris did not form part of the res gestae, that it had no significant probative value as circumstantial evidence of his guilt, ad that its prejudicial effect clearly outweighed its probative value. Defendant’s flight, a momentary departure from a vehicle transporting him from jail to a hospital for treatment which occurred over six weeks after his arrest for armed robbery, was not significantly probative of his guilt, since it may have been motivated by many other reasons, such as prison or hospital conditions, a simple desire for freedom, or a lack of confidence in his right to a fair and speedy trial. Accordingly, while there was no question of defendant’s attempted escape, consciousness of guilt of the crime charged reasonably could not be inferred from his flight, and the prejudicial effect of the evidence clearly outweighed its probative value.

We reject as too broadly formulated the statements by this Court and other authorities which seem to indicate that evidence of flight is always admissible regardless of the circumstances. See State v. Graves, 301 So.2d 864 (La. 1974); J. Wigmore, II Wigmore on Evidence, § 276; Pugh, Work of the Louisiana Supreme Court 1958-59 Term, 20 La.L.Rev. 336 (1960). Unless the flight is part of the res gestae of the charged crime, discernment is now required - between escape evidence which is admissible under the other crimes rules and that which must be excluded as unfairly prejudicial. Consistent with this view is a growing trend among other authorities to require closer scrutiny of the validity of the inference of guilt from flight in each particular case. See United States v. Meyers, supra; McCormick, McCormick on Evidence, § 271 at 656 (2d ed. 1972).

The other crimes evidence was, therefore, inadmissible and the prosecuting attorney committed error clearly prejudicial to the defendant’s rights by referring to it in the jury’s presence. Accordingly, upon his timely motion, the defendant was entitled to have a mistrial ordered by the trial judge. La.C.Cr.P. art. 770. Consequently, the refusal of the trial judge to order a mistrial under those circumstances was reversible error because it was prejudicial to substantial rights of the accused. La.C.Cr.P. art. 921.

The conviction and sentence of defendant Grady E. Harris are reversed and a new trial is ordered.

REVERSED AND REMANDED.

SUMMER, C. J., dissents.

MARCUS, J. dissents and assigns reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(dissenting).

I agree with State v. Graves, 301 So.2d 864 (La. 1974), which is contrary to the result reached by the majority. Moreover, I do not consider that the jury interpreted the question asked by the district attorney to defendant on cross-examination as an indirect reference to another crime in violation of La.Code Crim.P. art. 770. Accordingly, I respectfully dissent.

ON REHEARING

PER CURIAM.

On February 15, 1980 we reversed the conviction and sentence of defendant Harris and remanded for a new trial, having concluded that the trial court’s refusal to grant a mistrial based on the prosecutor’s reference, in the presence of the jury, to an attempted escape by Harris was reversible error. We have this day considered an application for rehearing by the state and have determined that the case should not be reheard. A motion filed on behalf of defendant Lee, however, prompts this per cu-riam.

In the original opinion, we were silent as to defendant Lee’s conviction and sentence. A motion has been filed arguing that our judgment should be amended to show that the conviction of defendant Lee is also reversed. We conclude that this argument lacks merit. The prosecutor’s remark referred to defendant Harris only. We are not convinced that the prejudice was such as to deprive defendant Lee of a fair trial. See La.C.Cr.P. art. 771. Moreover, the jury was contemporaneously instructed to disregard the remark and was later charged that “[t]here must be a separate verdict returned for each defendant. And you are not required to return the same verdict for each defendant.” We have also, reviewed the remaining assignments of error briefed and argued and conclude that there is no independent basis for reversal of defendant Lee’s conviction and sentence.

MARCUS and BLANCHE, JJ., and de la HOUSSAYE, J. ad hoc, would grant the State’s application.

Accordingly, the decree is hereby amend- • ed. The conviction and sentence of defendant Grady E. Harris are reversed and the case remanded for a new trial; the conviction and sentence of defendant Willie Earl Lee are affirmed.

      . Because we have amended the decree as to defendant Lee, his time within which to apply for rehearing commences this date. See La. Sup.Ct. Rules, Rule 9.