text:
    Frank SMOOT, Jr. v. STATE.
    7 Div. 714.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.

      Rufus D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of murder in the second degree of B. J. Turner and sentenced to imprisonment for fifteen years. His trial was on an indictment charging murder in the first degree.

The corpus delicti was thoroughly established by the testimony of Talladega County Sheriff Jerry Studdard and other witnesses to the effect that about 6:30 P.M. May 8, 1979, a search was begun for the victim as a reported missing person; his decomposed body was found about 2:00 the next morning about three-fourths of a mile off Talladega County Road No. 88 near a garbage dump; the victim’s automobile was in the same vicinity; expert witnesses testified that the victim’s death had been caused by “a cut throat or a sharp force wound to the neck.” There is no issue between the parties as to the question of the sufficiency of the evidence to support the verdict. As stated by appellant:

“The State’s evidence tended to prove that on Sunday afternoon May 6, 1979, the victim’s throat was cut by a pocket knife wielded by the defendant. The State’s evidence included two written statements signed by the defendant, a tape recording, and an oral statement relative to a knife which was the alleged murder weapon.”

Appellant further narrows the issues on appeal by stating:

“The defendant’s defense was based in the main on self-defense (RA 140-141). The defendant’s evidence tended to prove that prior to Sunday May 6, 1979 that not only had the victim taken defendant’s' wife away from him but had given defendant ample reason to fear for his life. The victim had threatened defendant’s life with a gun at a ball game at Oxford, Alabama (RA 133-135). On another occasion the victim had drawn a gun on the defendant (RA 144-145). Still another occasion the victim had kicked the door down at defendant’s home (RA 143-145) and had in other ways and on other occasions spoken and acted in such ways as to cause defendant to fear for his life. Further the evidence for defendant tended to prove that on Sunday afternoon May 6, 1979, the victim had again approached defendant with verbal threats and with one of his hands in his pocket as if reaching for a weapon such as a knife. These threats and actions caused the defendant to fear, for his immediate bodily safety and life to such an extent that defendant swung at the victim with his pocket knife in an apparent necessity to protect himself. The victim, having been struck on the throat by the pocket knife, ran off into the woods while the defendant ran in fear in the opposite direction.”

Appellant does not question the fact that the written statements signed by defendant and the tape recording of a dialogue between one of the investigating officers and defendant were preceded by plenary advice and warning as to his constitutional rights against self-incrimination and to an attorney at the expense of the State. His complaint is that the written statements and the recording failed to include some of the information that defendant had given his questioners that tended to support his defense of self-defense, particularly some statements by defendant as to some of the apparently hostile actions of the victim pri- or to the time of the fatal encounter.

Appellant’s complaint is primarily addressed to two written statements, in the handwriting of the officer or investigator taking them and signed by defendant. These statements were introduced in evidence by defendant, as well as by the State. The record shows the following on cross-examination of the State’s witness who had testified as to the recording and had played the tape thereof to the jury:

“Q. Had you been present when some of the others had talked with him?
“A. I was in and out of the office when Frank talked to him.
“Q. Frank Strickland. Did you all get a signed statement from him on the same day at 11:30 P.M., didn’t he start at 11:30 P.M.
“RUMSEY: I have both of those statements. I will be glad to get the originals and offer them into evidence.
“MR. LOVE: Please do. I’ll mark them and offer them myself.
“MR. RUMSEY: I’ll offer them in.
“Q. Mark them as Defendant’s 8 and 9. We offer Defendant’s 8 and 9 into evidence. Take them please sir. Look at those handwritten statements and tell us who wrote those statements?
“A. Frank Strickland.”

Thereupon defendant’s counsel continued his cross-examination of the witness and in doing so quoted much of the statements made by defendant. When the particular witness finished his testimony, the State called another witness to the stand and interrogated him as to defendant’s Exhibit 8, which chronologically was the second of the two written statements made by him and designated as Defendant’s Exhibits 8 and 9. The following occurred out of the presence of the jury, immediately after the witness had taken the stand:

“Q. I’ll ask you if you áre the Chief Investigator for the Talladega County Sheriff’s Department?
“Q. Frank, I’ll show you Defendant’s Exhibit No. 8 and ask you, can you identify that?
“A. Yes, sir.
“Q. What is that?
“A. That is a statement from Mr. Smoot. This is the Miranda warning on the front.
“Q. Now, did you advise the Defendant of his constitutional rights on that occasion?
“A. Yes.
“Q. When was that occasion?
“MR. LOVE: On this statement here?
“Q. Yes, sir.
“MR. LOVE: I am not making an issue of that. I offered it myself.
“Q. Do you stipulate as to those rights that they were given?
“MR. LOVE: Oh, yes, sir.”

Appellant argues that the “use of written statements which selectively incorporate only that which helps the state to make out its case and which does not contain the defendant’s entire statement is definitely erroneous and unfairly prejudices the rights of the defendant. It raises the Constitutional issue of whether the defendant was denied fundamental fairness. . . .”

Our review of the lengthy interrogation of witnesses by attorneys for both parties as to the contents of the oral statements made by defendant to the officers who interrogated him, as compared to the contents of the written statements signed by him and admitted in evidence, does not convince us that there was any intentional selection of “only that which helps the State to make out its case.” Furthermore, appellant is in no position to complain of admission in evidence of the1 contents of written statements that he introduced in evidence. We observe also that, by thorough interrogation of witnesses on the point, defendant’s counsel brought to the knowledge of the jury everything that defendant told his interviewers. He thereby vitalized the recognized right of a party in such a situation as the one presented here to prove an entire conversation between him and another if only a part thereof has been introduced in evidence by the other party.

There was no restriction whatever upon defendant’s freedom on the trial to show everything said by defendant that constituted any part of any conversation between him and his interviewers that was omitted from either of the written statements signed by him. It would have been error for the trial court to have allowed the State to introduce in evidence the written statements of defendant without allowing the defendant to show “all that was said at the same time, on the same subject,” as was held in Chambers v. State, 26 Ala. 59 (1855), and Parke v. State, 48 Ala. 266 (1872), relied upon by appellant, but no such action of the court occurred in the instant case.

Appellant also argues that his incriminating statements were vitiated by reason of his grossly substandard education, that he could not read and could not write well, that he had only had a third grade education. He says that another vitiating factor was that he was interrogated twice orally, once lengthily while the questions and answers were being recorded on tape, and that he signed two written statements, all during the same night between about 6:30 P.M. and about 3:00 A.M. There was no great insistence along this line, on the trial.. The evidence does not show that most of such time, that the greater part of such time, or that any extraordinarily large part of such time was devoted to interviewing the defendant. It does not show that he was in any subnormal physical condition, that he was suffering in any way or that there was any abusive treatment whatever of him. The evidence as a whole tended to show the contrary. The trial judge, as well as the jury, heard him as he replied to the questions recorded on the tape and played in open court. There was no evidence or any claim of any mental retardation. The record does not support appellant’s contention that defendant did not understand his rights, that he did not make a free and voluntary waiver of his constitutional rights, or that he did not intelligently, knowingly and understandingly make the incriminating statements that were introduced in evidence. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961); Twymon v. State, Ala.Cr.App., 358 So.2d 1072 (1978); Joshua v. State, Ala.Cr.App., 372 So.2d 885, cert. denied, 372 So.2d 891 (1979).

The only other contention of appellant is that a statement of defendant concerning his pocket knife, that it was the knife he used in cutting the victim’s throat, should not have been admitted in evidence as it “had not been immediately preceded by the Miranda warning.” Appellant continues this insistence by stating:

When the final statement had been written by the interrogating officer and signed by the illiterate defendant the statement was deposited in the officer’s folder and placed aside. After this the defendant and several officers drove across town to defendant’s house. Some time after reaching his house, the defendant crawled under the house, retrieved his pocket knife and made a statement which was admitted into evidence at the trial. This statement was not prefaced by the Miranda warning. The last Miranda warning had occurred some time earlier back at jail (RA 91-100).”

Appellant’s third contention proceeds on an assumption that an accused should be given a Miranda warning before each separate interrogation of him, even though it is established that such had been done on one or more previous interrogations and that the accused had clearly expressed a waiver; that a failure to repeat the Miranda warning before any such separate interrogation precludes the admission in evidence of an inculpatory response thereto by the accused. Such contention has been repeatedly rejected. Love v. State, Ala.Cr.App., 372 So.2d 414 (1979); Burlison v. State, Ala.Cr.App., 369 So.2d 844, cert. denied, 369 So.2d 854 (1979); Pope v. State, Ala.Cr.App., 367 So.2d 998 (1979); Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972). In Gamble, McElroy’s Alabama Evidence, § 201.09 (1977), the author, in quoting from Jones v. State, says:

“Perhaps the best statement of the rule was given by Mr. Justice Almon when he said: ‘Whether the Miranda warning should be given before each interrogation must depend upon the circumstances of each case. The length of time and the events which occur between interrogations are relevant matters to consider.’ ”

According to the witness who testified as to defendant’s statement at his home relative to the knife, he had “just advised him of the Miranda warning . . . probably thirty minutes before that.” The record shows that while defendant was interrogated at the jail, he told his interrogators about the knife under his residence, promised to get the knife, and that promptly thereafter he returned with them to his residence, produced the knife he had been talking about and confirmed that it was the particular knife. There was no error in the admission of defendant’s statement made at his residence relative to the knife, and defendant was not injured by his mere repetition of the statement that was already in evidence relative to the knife.

There is no error in the record prejudicial to the defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: OVERTON, Justice. BOYD, Justice,

license: Public Domain

text:
    Stewart IGLEHART et al., Appellants, v. Walter PHILLIPS, Jr., Appellee.
    No. 52503.
    Supreme Court of Florida.
    March 13, 1980.
    Rehearing Denied June 6, 1980.

      John S. Call, Jr., of Stewart, Van der Hulse, Call & Byrd, Palm Beach, for appellants.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellee.
   OVERTON, Justice.

This cause is before this Court upon a request from the United States Court of Appeals for the Fifth Circuit to answer certified questions concerning whether a repurchase option contained as a covenant in a deed is void as being a violation of the rule against perpetuities or the rule against unreasonable restraints on alienation, and, if so, whether the deed is subject to rescission or cancellation. Phillips v. Iglehart, 558 F.2d 737 (5th Cir. 1977). We have jurisdiction.

The stipulated facts are as follows:

Statement of Facts:
This case for declaratory relief involves a repurchase option in a deed. Plaintiff maintains that the. repurchase option should be declared invalid, void and of no force and effect. Defendants say that it is valid and should be upheld, but if it is held invalid, the Defendants maintain that the Court should rescind the deed and restore the parties to the status quo prior to the execution of the deed.
By deed dated March 12, 1959, filed June 24, 1959, recorded in Deed Book 249, Page 246, public records of St. Lucie County, Florida, Defendants conveyed to Plaintiff’s now deceased father 306.35 plus or minus ( H-) acres of land subject to a repurchase option specifically set forth in the deed.

The deed recites as follows:

“Witnesseth that the said parties of the first part (Defendants) for and in consideration of the sum of $10.00 and other valuable considerations, to them in hand paid, the receipt whereof is hereby acknowledged, have granted, bargained, sold, transferred, and by these presents, do grant, bargain, sell and transfer unto the said party of the second part and his heirs and assigns forever, all that certain tract of land lying and being in the county of St. Lucie and the State of Florida more particularly described as follows:
(Legal Description omitted)
This conveyance is made subject to the following restrictive covenant which is construed as a covenant running with the land and shall inure to the benefit of and be enforceable by the grantors, their heirs, legal representatives and assigns, and shall be applicable and be binding upon the grantee, and his heirs, legal representatives and assigns:
1. The' grantee does hereby covenant that in the event the grantee herein desires to sell the property conveyed by this deed, together with improvements, if any, then said property shall be offered for sale to the grantors at a price, which shall equal the amount paid by the grantee to the grantors for said property plus the cost of all permanent improvements placed on said property by the grantee and the grantors shall have sixty (60) days within which to exercise their option to repurchase said property; and should the grantors fail or refuse within sixty days after receipt of written notice of grantee’s desire to sell the property to exercise their option to repurchase said property, based upon a price hereinabove mentioned, then the grantee of said property shall have the right to sell said property to other parties.
By accepting this deed the grantee agrees that the foregoing covenant and condition is made as a part of the consideration for this conveyance and is a part of the purchase price of the above described land.
Together with all the tenements, heredit-aments, and appurtenances, with every privilege, right, title interest and estate, dower and right of dower, reversion remainder and easement thereto belonging or in any wise appertaining:
TO HAVE AND TO HOLD the same in fee simple forever.”
Affixed to the deed are twenty ceiits in Florida documentary stamps reflecting a tax (at that time) on a cash consideration of between $1.00 and $100.00. The land at that time was worth approximately $200.00 per acre.
Plaintiff, in his deposition, testified that he didn’t know what his father paid for the property in question but that he had been given to understand that his father paid only the $10.00 recited in the deed. Defendants contend there was no cash consideration and that the repurchase option was the only consideration for the deed. Plaintiff claims this fact is irrelevant, but doesn’t deny it, and further contends that any evidence as to consideration for the deed was hearsay and viola-tive of both the Florida Dead Man’s Statute, Fla.Stat. § 90.05 and the parol evidence rule.
Plaintiff received the subject property as a gift from his mother after his father’s death, and paid nothing for it. • Defendants have never received any notice of a desire to sell nor has the property been offered to Defendants pursuant to the repurchase option. Defendants were requested to subordinate the repurchase option to a mortgage lien, which they did. Plaintiff and his father before him have been in possession of the subject real property since. 1959, have maintained it, paid taxes on it since that time and have made improvements thereon, including construction of a house, improvement of pasture and construction of fences.
The subject covenant has not been breached, however, Plaintiff has filed this action to have the Court determine validity or invalidity. Defendants, by answer and counterclaim, sought to have the repurchase option upheld, or in the alternative, to have the deed rescinded and the parties placed in status quo.
The Plaintiff-Appellee contends that the repurchase option is void as violative of the rule against perpetuities and the rule against unreasonable restraints on alienation and is therefore unenforceable and that he is therefore entitled to a judgment declaring that he holds title unencumbered by the repurchase option. The Defendants-Appellants, on the other hand, contend that the repurchase option is not subject to the rule against perpetu-ities nor the rule against unreasonable restraints on alienation, but if it is, the entire transaction should be rescinded. Plaintiff-Appellee replies to the prayer for rescission by pointing out that granting the relief of rescission would have the same effect as enforcement of the invalid covenant.
Summary judgment was granted Plaintiff based upon the amended complaint, answer, counterclaim, answer to counterclaim, request for admission and answers thereto, deposition of Plaintiff Walter Phillips, pre-trial stipulation, and motion for summary judgment.

The United States District Court for the Southern District of Florida, the original trial court in this proceeding, held the repurchase option provision void. The trial court expressly found the option restraint was unreasonable because (1) there was no purpose for which the restraint is imposed; (2) the duration of the restraint was unlimited; and (3) the method of determining the price to be paid was unreasonable in light of the value of the land today, thus creating a substantial restraint on the alienation. The court rejected the grantors’ claim that this finding entitled them to rescission or cancellation of the deed because of a material mistake of fact or law. In so doing, the trial court determined that the option provision appeared to have been inserted by the grantor for his own benefit, and, consequently, equity should not grant him relief. The court further held that although the subject invalid covenant was consideration for the conveyance, it was only a part of such consideration and that inadequacy of consideration is not a sufficient basis for rescinding or canceling a deed unless it is so gross as to indicate fraud. The trial court concluded that affording defendants the relief of rescission would effect the same result as upholding the option, and this would circumvent the rule against unreasonable restraint on alienation.

The Fifth Circuit certified four questions to this Court. We have restated the questions, and our response is in two parts.

PART I

THE RULE AGAINST PERPETUITIES AND UNREASONABLE RESTRAINTS ON THE'ALIENATION OF PROPERTY

We restate the first certified question as follows:

Under Florida law, is a repurchase option, expressly set forth in a deed as a covenant running with the land and as part of the consideration for the conveyance, void as being in violation of the rule against unreasonable restraints on alienation or the rule against perpetuities, under circumstances where the option is unlimited as to time, the price is fixed, and no purpose other than consideration is stated in the deed?

We must determine whether the repurchase option is void because it violates (1) the rule against perpetuities, or (2) thé common law rule against unreasonable restraints on the alienation of property. Although distinct entities, these rules share a common public interest and purpose. They each came into existence to facilitate the marketability and continued utilization of property. In simple terms, their purpose is to ensure that property is reasonably available for development by prohibiting restraints that remove property from a beneficial use for an extended period of time. L. Simes and A. Smith, The Law of Future Interests § 1135 (2d ed. 1956); Leach, Per petuities in a Nutshell, 51 Harv.L.Rev. 638, 640 (1938). To answer the first question, it is necessary to distinguish and define these two rules and apply them to the stipulated facts of this case.

Rule Against Perpetuities

Professor Gray’s statement of the rule against perpetuities is as follows: “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” J. Gray, The Rule Against Perpetuities § 201 (4th ed. 1942). We adopted the rule in Story v. First National Bank & Trust Co., 115 Fla. 436, 441, 156 So. 101, 104 (1934), stating: “[T]he vesting of an estate . can be postponed no longer than a life or lives in being and twenty-one years plus the period of gestation.” It is a rule of law, not of construction, and it applies to legal and equitable estates of both realty and personality. It is not a rule that invalidates interests which last too long, but interests which vest too remotely. In other words, the rule is concerned not with the duration of estates but with the time of their vesting.

The rule against perpetuities being a rule of property law, not of contract law, some writers have questioned whether an unexercised option which creates no interest in land can be subject to the rule. See Note, Options and the Rule Against Perpetuities, 13 U.Fla.L.Rev. 214 (1960). Generally, an independent option, or option in gross, which is an option that is not a part of or included in a leasehold or conveyance, is subject to the rule against perpetuities; however, there are numerous exceptions which exclude certain options contained in a lease or deed from the applicability of the rule. 6 American Law of Property § 26.66 (A. J. Casner ed. 1952); Restatement of Property §§ 393-94, 413 (1944); 5 Powell on Real Property § 771(2) (1979); L. Simes & A. Smith, The Law of Future Interests § 1154 (1956). Although we conclude that the option in this case might be subject to the rule against perpetuities, such a finding is not necessary to answer the first question since we find this repurchase option is more appropriately classified as an unreasonable restraint on the use of the subject property. Further, it should be recognized that the rule against perpetuities in the State of Florida is now governed by a statute adopted by the legislature in 1977, subsequent to the commencement of this case. The rule as rewritten by statute excludes from its operation restraints of the type contained in the instant case.

Rule Against Unreasonable Restraints

The rule against unreasonable restraints on the use of property concerns restraints of such duration that they pre--vent the free alienation of property. While the rule against perpetuities invalidates interests which vest too remotely, the rule against unreasonable restraints is principally concerned with the duration of a restraint on the property rather than the time of vesting. The test which should be applied with respect to restraints on alienation is the test of reasonableness: The validity or invalidity of a restraint depends upon its long-term effect on the improvement and marketability of the property. Once that effect is determined,' common sense should dictate whether it is reasonable or unreasonable.

Case law has in a number of situations identified reasonable and unreasonable restraints under the rule. It is generally agreed that an option restraint is reasonable if the option price is at market or appraised value, irrespective of the duration of the option. Restatement of Property § 413 (1944). This general principle was adopted in Watergate Corp. v. Reagan, 321 So.2d 133 (Fla.4th DCA 1975), which approved as reasonable an unlimited duration repurchase option, at a price established by market value. In Blair v. Kingsley, 128 So.2d 889 (Fla.2d DCA 1961), a right of first refusal of twelve-year duration for purchase at market value, to be exercised within one year of notice of sale, was held reasonable. The case of Wing, Inc. v. Arnold, 107 So.2d 765 (Fla.3d DCA 1958), concerned an option to purchase which was contained in a ninety-nine-year lease, with the price to be determined by appraisal. In considering whether this option violated the rule against perpetuities, the district court in Arnold expressed the following rationale in rejecting the rule’s application:

The reasoning given to the majority view is that improvement of the land is stimulated rather than retarded by the presence of an option to purchase in the lessee, and substantial improvements may be made by the lessee with impunity. Without the benefit of such an option it would not be good business for a lessee to make improvements which would have substantial value at the end of the lease term; and a contrary rule would defeat the policy favoring free alienation and use of property, sought to be furthered by the Rule Against Perpetuities.

Id. at 769. This reasoning applies equally well in an unreasonable restraint case.

Although the law is clear that a repurchase option at market or appraised value for unlimited duration is not an unreasonable restraint, the situation changes substantially when the price is fixed in the option. It is the generally accepted rule that a fixed price repurchase option of unlimited duration, independent of the lease, is an unreasonable restraint. Missouri State Highway Comm. v. Stone, 311 S.W.2d 588 (Mo.App.1958); 6 American Law of Property §§ 26.63-67 (A. J. Casner ed. 1952). See also 4 Thompson on Real Property § 2015 (1979); 7 Thompson on Real Property § 3574 (1962). Consistent with this general rule of law, we held in Davis v. Geyer, 151 Fla. 362, 9 So.2d 727 (1942), that a deed containing a provision which prohibited the grantee from selling property without first obtaining the approval of the grantor was violative of the rule against unreasonable restraints because the provision allowed the grantor to arbitrarily deny a sale.

An option for a fixed price clearly discourages any improvements of the land by the existing property owner because he could never recover the value of the improvements should the optionee exercise the option. It is important, however, to distinguish this type of option from a dependent fixed price option contained in a lease. In the latter instance, the option is reasonable because it encourages improvements by the optionee-possessor, as they would inure to him at no increase in price upon the exercise of the option. These two situations illustrate the necessity to determine the effect of the option on the use and improvement of the property in order to determine its reasonableness.

Independent fixed price options have been approved in certain circumstances, but only where they were of limited duration. We approved as reasonable a fixed price option which was of limited duration in MacArthur v. North Palm Beach Utilities, Inc., 202 So.2d 181 (Fla.1967). The option we approved granted to the mortgagee a right to repurchase the property, but only during the life of the mortgage. In Warren v. City of Leesburg, 203 So.2d 522 (Fla.2d DCA 1967), a ninety-nine-year fixed-term option was approved by the Second District Court of Appeal. It should be noted that the issue of an unreasonable restraint was not fully considered by the trial court because it was not raised until a petition for rehearing was filed. We are concerned about the reasonableness of such a long-term fixed-price option, but we need not confront that question in the context of this case.

Turning to the instant case, the option is (1) a right of first refusal for an unlimited period and (2) for a fixed purchase price, established as the price paid for the land plus the cost of the improvements. Although a right of first refusal is reasonable if based on market price or appraised value,- such an option is unreasonable if based on a fixed price. Under the formula contained in the subject restraint, the option price would never include appreciation of the property or improvements. This would restrict improvements, since only their original cost and not their value would be recoverable. Further, for as long as there is an inflationary market, the use of the property would be much more valuable than the cost and, consequently, there would never be a sale. For all practical purposes, we find the formula contained in this restrictive covenant no different than a fixed-price option of unlimited duration, which has uniformly been held an unreasonable restraint. We find the provision fixing the price as the purchase price plus cost of improvements to be invalid and unenforceable.

PART II

RESCISSION OR CANCELLATION OF DEED CONTAINING THE RESTRICTIVE COVENANT

We restate the second, third, and fourth certified questions as follows:

If the subject covenant is void as an unreasonable restraint on alienation under Florida law, is the deed subject to rescission for mistake or cancellation for inadequate consideration where the covenant is stated in the deed to be part of the consideration for the deed, when the grantee has been in possession under the deed for more than fifteen years, paid all taxes on the subject property, and constructed substantial improvements including a home thereon?

We answer this question in the negative and find that the deed is not subject to rescission or cancellation, but the grantor’s successors are entitled to equitable relief under the circumstances of this case.

The subject property conveyed to the grantee consisted of approximately 306 acres upon which the grantee’s father constructed a house, improved the pasture, and constructed fences. From the stipulated facts, no more than ten dollars in cash was paid for the property.

What must be answered is whether the void restraint results in such a mistake or inadequate consideration that equity requires rescission, cancellation, or other equitable relief.

The heirs of the grantor claim that if the covenant is void, rescission is the proper remedy because the option constituted the whole of the consideration. They cite the Restatement of Property, section 394, comment F (1948 Supp.), which provides:

Effect of invalidity of option to repurchase. An option to repurchase the whole or any part of the interest conveyed is necessarily only one ingredient in the entire transaction between the parties. If this ingredient is so essential a part of the entire agreement that the parties would not have made the agreement, if they had known of the option’s invalidity, then the failure of the option is a sufficient basis for appropriate proceedings to rescind the entire transaction and to restore each of the parties to the situation in which he was before the transaction was made. [Emphasis supplied.]

The grantors also assert that to declare the covenant void, but deny .rescission or cancellation of the deed, is to make the conveyance by the original grantor a total gift of the subject property. This they argue was clearly not the intent of either party to the transaction.

The grantee’s heirs contend that relief by way of rescission would be improper because it would have the same effect as enforcement of the invalid covenant. They assert that the restatement position recommending rescission was adopted solely on the authority of Pure Oil Co. v. Baars, 224 N.C. 612, 31 S.E.2d 854 (1944), the circumstances of which are distinguishable from the instant case. It is contended that the position of the Supreme Court of Connecticut in Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958), is applicable under the instant facts. Neustadt concerned a repurchase clause which recited that the option to repurchase was part of the consideration of the sale. The court held the repurchase clause to be void, but found that this did not require cancellation of the deed. The grantees further cite our decision in Brinkley v. Arnold, 98 Fla. 166, 123 So. 569 (1929), as authority for the proposition that failure of part of the consideration does not establish a sufficient basis for rescinding or canceling the deed. In Brinkley the grantor conveyed certain Florida land in return for a sum of money and eighty acres of land in Arkansas. The grantor sought cancellation of the deed to the Florida land, alleging that the grantee had not possessed title to the Arkansas tract. It was held that cancellation was not equitably required because the grantor made an inadequate inquiry concerning the status of the Arkansas land, and, under the circumstances, such a partial failure of consideration did not require cancellation.

Our conclusion is not wholly in accordance with either party’s contention or the trial court’s holding. The covenant in this instance is clearly an unreasonable restraint which inhibits the free alienation of this property. Both the grantor and the' grantee believed, however, that the covenant was valid at the time of the conveyance. The grantee accepted the property with the understanding that the covenant was part of the consideration and subsequently, at the time the improvements were made on the property, had the grantors subordinate their- right to the necessary mortgages. Further, it is unrefuted that the covenant was the primary part of the consideration for the conveyance of this property. The stipulated facts clearly reflect that the original grantor desired to give the land to the grantee as a homestead for as long as the grantee and his heirs wanted to keep or use the property, but the grantor did not want the grantee to sell the property.

We disagree with the conclusions reached by the United States District Court that the unreasonable restraint contained in the repurchase covenant was a unilateral mistake of law by the grantor. From the stipulated facts it is our conclusion that this was a mutual, not a unilateral, mistake.

If the action to eliminate the void restraint results in a rescission or cancellation, we agree such a judgment would have the same effect as enforcing the repurchase option; the commencement of the suit to remove the restraint would actually accelerate the effect of the repurchase option. This certainly was not the grantees’ desired purpose in the action. Such a result could have a chilling effect on future grantees seeking to remove unreasonable restraints upon the use of their land.

On the other hand, voiding the restraint and denying rescission or any other equitable relief to the grantor’s successors effectively frustrates the clear intent of the original grantor and destroys what he considered the primary consideration for this land. It is obvious from the stipulated facts that this transaction would not have occurred but for the void restraint. In our view, the circumstances of this cause make it impossible to return the parties to- this transaction to status quo.

Although under the circumstances we find equity does not require rescission or cancellation, we do believe that the grant- or’s successors are entitled to equitable relief. When the equity powers of the court have been brought into an action, its active jurisdiction will be continued until full justice has been done between the parties. City of Miami v. Keton, 115 So.2d 547 (Fla.1959); Schupler v. Eastern Mortg. Co., 160 Fla. 72, 33 So.2d 586 (Fla.1948); see H. Kooman, Florida Chancery Pleading and Practice § 7 (1939). The appropriate relief should be left to the trial court, which should be allowed to consider evidence and take testimony concerning the actual consideration paid by the grantees for the subject property. Relief to be considered could include an equitable or vendor’s lien on the property for its market value at the time of the original conveyance, increased by present dollar inflation, but not property appreciation, payable at the time of any future conveyance. It appears that unless grantor’s successors receive, the present-day dollar value of the market value of the property at the time of the original conveyance, they will not, in actuality, be receiving the full equitable relief to which they are entitled. We deem it inappropriate upon a certified question to direct specific relief under the circumstances of this record and suggest remanding this cause to the trial court for the purpose of receiving such additional testimony and evidence as may be necessary to provide suitable equitable relief.

In summary, the first question is answered by our finding that the repurchase option is an unreasonable restraint; the remaining questions are answered by our finding that no rescission or cancellation is required but other equitable relief is appropriate.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG, ALDERMAN and McDONALD, JJ., concur.

BOYD; J., concurs in part and dissents in part with an opinion.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with that portion of the majority opinion that holds the covenant in question to be an unreasonable restraint on alienation of real property. I dissent from that portion which finds that the successors of the grantor may be entitled to equitable relief from the effect of the invalid restraint dictated by the grantor. I would advise the Circuit Court of Appeals that the decision and opinion of the United States District Judge Clyde Atkins were correct in all respects.

      . § 25.031, Fla.Stat. (1975); Fla.R.App.P. 9.510.

      . 1. Under Florida law, is á repurchase option, set forth as a covenant running with the land in a deed, void as being in violation of the rule against unreasonable restraints on alienation or the rule against perpetuities, if:
      (a) no purpose for the repurchase option is stated in the deed;
      (b) the repurchase option is of unlimited duration and provides that prior to any sale of 'the property by the grantee, his heirs, or assigns, the grantee must first offer the property to the grantors for a period of 60 days at a price to be determined as set forth in the covenant;
      (c) the option price as set forth in the covenant is the amount paid by the grantee to the grantor for the property, plus the cost of all permanent improvements placed on the property by the grantee?
      2. If the subject covenant is void and unenforceable under Florida law, and if the covenant is stated in the deed to be a part of the consideration for the deed, and if the grantee has been in possession under the deed for more than 15 years paying all taxes on the subject property and having constructed substantial permanent improvements including a home thereon, under Florida law, will a court of equity upon determining that the subject covenant is void and unenforceable, rescind the deed and restore the parties to the status quo existing prior to execution and delivery of the deed even though the effect of such rescission would be to enforce the terms of the void covenant?
      3. If the answer to the foregoing question is in the negative and if the deed itself recites that the invalid covenant is only a part of the consideration for the conveyance, under the Florida law, may parol evidence be received in an attempt to prove that the invalid covenant was an “éssential part” of the consideration for the deed, absent which the deed would not have been executed, for the purpose of defeating the operation and effect of the deed?
      (a) Under the circumstances set forth above, under Florida law, does the parol evidence rule preclude inquiry into the nature of the recited consideration where the purpose and effect of the parole testimony would be to defeat the operation and effect of the deed?
      4. If such evidence is admissible and, if the repurchase option was only a part of the consideration for the execution and delivery of the deed and if the repurchase option was so essential a part of the entire consideration that the parties would not have made and executed the deed if they had known of the option’s invalidity, then under Florida law and the foregoing circumstances, would the transaction be rescinded even though the effect of such rescission would be to enforce the terms of the void covenant? [Footnotes omitted.]

      . § 689.22(3)(a)(7), Fla.Stat. (1977):
      (3) APPLICATION OF RULE.—
      (a) The rule against perpetuities does not apply to:

      7. Options to purchase in gross or in a lease or preemptive rights in the nature of a right of first refusal, but no option in gross is valid for more than 40 years from the date of its creation.

      . For discussion of the improvement theory, see Note, Options and the Rule Against Perpetuities, 13 U.Fla.L.Rev. 214 (1960).


author: OVERTON, Justice.

text:
    Charles A. WHITMAN, Jr., as Administrator of the Estate of John Michael Whitman, deceased, and James Girot, Petitioners, v. CASTLEWOOD INTERNATIONAL CORP., Respondent.
    No. 54679.
    Supreme Court of Florida.
    March 27, 1980.
    Rehearing Denied June 6, 1980.

      Joel T. Daves III of Burdick & Daves, West Palm Beach, for petitioners.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for respondent.
   OVERTON, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the Fourth District Court of Appeal, reported at 359 So.2d 5 (Fla. 4th DCA 1978). We find conflict with our recent decision in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1978). We have jurisdiction.

The district court held improper a general verdict under circumstances where two alternative theories of liability were presented to the jury and the evidence was not sufficient to support one of the theories. We quash the decision of the district court and remand for reconsideration in light of Colonial Stores.

A detailed factual statement concerning the bizarre and tragic circumstances which resulted in this action is contained in the district court’s opinion. In summary, the petitioners, who were plaintiffs in the consolidated trial, presented to the jury two theories of liability against Castlewood. One theory proposed that Castlewood was negligent in failing to exercise reasonable care to provide for the safety of the petitioners as invitees upon the premises. The second theory asserted that the two volunteer assistants to the employed bouncer were agents of Castlewood and were acting within the scope of their agency at the time and place of the incident. The jury returned general verdicts in favor of the petitioners. On appeal, the Fourth District Court of Appeal reversed the verdicts, holding that the jury instruction concerning the agency relationship was prejudicial error and that there was no competent evidence to support an agency relationship. The district court specifically noted that it did not pass on the issue of Castlewood’s negligence and further stated: “[T]he jury verdict did not set forth the theory upon which it reached its verdict, and .it may well have done so upon the agency relationship which we have found is not present under the facts of this case.” 359 So.2d at 7.

In Colonial Stores we adopted the two-issue rule and held that where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced. 355 So.2d at 1186.

In the instant case we reject the contentions that there was a proper request for a special verdict and a proper objection to the general verdict form. No special verdict, interrogatories or requested written instructions were submitted to the court at the close of the evidence and before the instruction conference, as required by Florida Rule of Civil Procedure 1.470(b). Instead, the request for a special verdict was made after argument by counsel to the jury and after instructions on the law by the court. At a conference with the court concerning the form of the verdicts at the conclusion of the trial, the following was discussed:

MR. McGILL [defense counsel]: My only problem, Judge, is that we have two separate theories of liability against Castle-wood, one of which should be pre-empted out if we were not on the agency issue.
THE COURT: What are you suggesting? Do you have a special verdict?
MR. DAVES [plaintiff’s counsel]: It might have been a good idea but I don’t know. We are going to do it now? It is a little late for special verdict. I might not have objected to special verdicts.
MR. McGILL: They were instructed that there is one issue on liability and then there is during the agency issue. Then secondly they were told they have to find he was an agent to find us liable. .
THE COURT: It is a little late at this point. There are different ways it could be handled, by special interrogatories but at this point it is a little late to deal with it. The Jury are back there waiting for us to give these to them. If you are requesting special verdict interrogatories, the Court would deny that.

Special verdicts or interrogatories necessarily require explanatory instructions to the jury. In order to properly object to a general verdict form, counsel must therefore submit a special verdict form together with the necessary explanatory instructions in accordance with Florida Rule of Civil Procedure 1.470(b). In the instant case, the request for special verdicts and the implied objection were neither timely nor properly presented to the court.

We note that our decision in Colonial Stores was rendered shortly before the decision of the district court in the instant case, and neither counsel had brought our decision to the attention of the district court.

For the reasons expressed, we quash the decision of the district court and remand for further proceedings consistent with this opinion and our decision in Colonial Stores.

It is so ordered.

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

      . Art. V, § 3(b)(3), Fla.Const.


author: ADKINS, Justice.

text:
    Raymond DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 54360.
    Supreme Court of Florida.
    April 3, 1980.
    Rehearing Denied June 6, 1980.

      David A. Demers of the Law Offices of Demers & Demers, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

This is a direct appeal from the circuit court, sixth judicial circuit, which held that section 810.08, Florida Statutes (1977) was constitutional.

Defendant was charged with violating the provisions of the statute by willfully entering the Albertson-Southco, Inc., in St. Petersburg, Florida, after having been previously forbidden to enter that establishment. Defendant entered a plea of not guilty in the county court and moved to dismiss the information on the ground that it did not contain any allegation that the person issuing the warrant had such authority. This motion was denied. Defendant also filed a motion to dismiss on the ground that the uncontradicted facts did not establish a prima facie case. This motion was also denied.

The defendant then entered a plea of nolo contendere reserving his right to assert on appeal error in the denial of both motions to dismiss. The constitutionality of the statute was not raised in either one of the motions to dismiss. On appeal to the circuit court defendant first raised the constitutionality of the statute. The court affirmed the conviction and specifically held that the statute involved was constitutional.

Article V, section 3(b)(1), Florida Constitution, provides that the Supreme Court shall hear appeals from “orders of trial courts and decisions of district courts of appeal initially and directly passing on the validity of a state statute”. In seeking jurisdiction, the defendant relies upon City of Ft. Lauderdale v. King, 222 So.2d 6 (Fla.1969). The appeal in King was from a judgment of the circuit court affirming convictions for assault and battery and disorderly conduct but vacating a mandatory jail sentence on the ground that the statute allowing the mandatory jail sentence was invalid. We regarded the decision of the circuit court on the constitutional argument as that of a “trial court” within the above provisions of article V, authorizing appeals from trial courts to be taken directly to the Supreme Court as a matter of right. The issue of statutory validity was not raised in the municipal court and, in fact, could not in any event have been presented until after imposition of the sentence. We accepted jurisdiction.

Defendant also relies upon Dresner v. City of Tallahassee, 164 So.2d 208 (Fla.1964), where the Court held that a judgment of a circuit court affirming a municipal court conviction was subject to review by timely petition to the district court of appeal for a common law writ of certiorari. The opinion contains the following statement:

Assuming, for purposes of the instant case, that the Circuit Court would be classified generically as a “trial court” exercising an incidental appellate function, then if it had construed a controlling provision of the federal constitution, its judgment would have been appealable directly to the Supreme Court of Florida.

164 So.2d 211. In Dresner the Court did not discuss the question of whether the defendant raised the constitutionality of the statute at the trial level. Under some circumstances the circuit court may have authority to initially pass upon the constitutionality of a statute while exercising appellate jurisdiction, but no such circumstances are present here.

In passing upon the constitutionality of the statute, the circuit court was not acting as a “trial court” as contemplated by article V, section 3(b)(1), Florida Constitution.

In Silver v. State, 188 So.2d 300 (Fla.1966), the defendant was tried upon a charge of grand larceny and was convicted. On appeal the defendant raised the constitutionality of the statute for the first time, and the district court of appeal passed on the constitutionality. The Supreme Court declined to take jurisdiction of an appeal from the decision of the district court of appeal. In its opinion the Court said:

Sanction of the maneuver attempted in this cause could, and probably would, result in much mischief, for example, a defendant could plead not guilty to an information, offer no challenge of the statute forming a basis for the formal charge then abide the verdict and adjudication hoping, no doubt, there would be a conclusion of not guilty. Then he could appeal and by assignment of error obscure any question of the validity of the act by assigning a general ground indistinctly relating to a ruling on a motion for a new trial which could “probably” embrace a challenge of constitutionality since it consisted of the charge that “the information did not state a crime * Going a step farther, the hypothetical defendant in a nebulous fashion on which the District Court of Appeal animadverted finally could inject there for the first time the constitutional question. Meanwhile the trial court would have been left far behind with never a chance to pass upon the constitutional issue. So the hypothetical defendant after losing his case in the District Court of Appeal could knock at the door of the Supreme Court and represent that the constitutional question so belatedly and nebulously raised by him had been “initially” decided by the District Court of Appeal. Were he to succeed he would have had two appeals instead of the one to which we have said he was entitled, Lake v. Lake, 103 So.2d 639, Fla.1958.
The attempt is, we apprehend, ingenious but it is not conductive to sound practice, and it is so lacking in merit that we reject it as a means of vesting jurisdiction in this court.
The appellant’s right of appeal was vouchsafed to him by the same section of the Constitution. He had but to secure a ruling on the constitutional question in the trial court then, in event of an unfavorable ruling, appeal direct to this court. Not having followed a course that is clearly charted he is now hoist on his own petard.

188 So.2d at 301-92.

Also, defendant Davis waived his right to question the validity of the statute on appeal.

In the case sub judice the defendant entered a plea of nolo contendere and did not reserve any right to raise the constitutional question on appeal. The statute was not attacked at the trial level. Defendant has exercised his right to one appeal. If he had desired to appeal to this Court, he only had to raise a constitutional question before the trial court and, in event of an unfavorable ruling, could have appealed directly to this Court. Not having followed this course, he is clearly wrong in his effort to activate the jurisdiction of this Court.

For the reason stated, jurisdiction is declined and the judgment of the circuit court is not disturbed.

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


author: ALDERMAN, Justice.

text:
    Blanche STROTHER, Petitioner, v. MORRISON CAFETERIA et al., Respondents.
    No. 56149.
    Supreme Court of Florida.
    April 24, 1980.
    Michael Brumer of Brumer, Moss, Cohen & Rodgers and Susan Goldman, Miami, for petitioner.
    Eugene N. Betts, Fort Lauderdale, for respondents.
   ALDERMAN, Justice.

We have for review by petition for writ of certiorari an order of the Industrial Relations Commission reversing the order of the judge of industrial claims and denying claimant Blanche Strother workers’ compensation on the basis that while her injuries did arise out of her employment, they were not sustained in the course of her employment. The commission rendered a contrary decision in Sixty-Seven Liquors v. Gamel, IRC No. [ XXX-XX-XXXX ] (IRC Jan. 1979), cert. denied, 383 So.2d 628 (Fla.1980), and awarded compensation to a doorman-bouncer who had been injured away from the employer’s premises and outside his working hours on the ground that his injury was clearly shown to have arisen out of his employment.

The sole issue in this case of first impression is whether Strother sustained a com-pensable accident when she was assaulted outside the time and space limits of her employment. We hold that Strother’s injuries, which had their origin and cause entirely within the course of her employment and which arose out of her employment, are compensable.

Strother, a cashier at Morrison’s Cafeteria, was charged with the responsibility of handling the payment of food bills from customers from mid-afternoon to closing at nine each night. Although not a part of her regular employment, on two occasions she drove the cafeteria’s manager to the bank to deposit the day’s receipts. On the two days preceding the incident which resulted in the injury for which she now seeks workers’ compensation, Strother observed two men in the cafeteria who were not customers or employees. On the evening of the incident, she noticed the same two men enter the cafeteria in the same manner as they had entered on the two previous days. This evening, she left work and drove directly home (some fifteen or twenty minutes’ drive from the cafeteria) where she was assaulted by and her purse was taken by one of the men whom she had observed in the cafeteria.

The judge of industrial claims determined that Strother was injured in a compensable accident since the circumstances of her employment exposed her to a greater risk than that of a regular cashier and that the assault arose out of and in the course of her employment. The judge accepted Strother’s testimony that she was followed and attacked by the same men who were at the cafeteria, and he concluded that they thought she was carrying the cafeteria’s money since they demanded “the money or deposits.”

Relying on Hill v. Gregg, Gibson & Gregg, Inc., 260 So.2d 193 (Fla.1972), Strother argues that her injuries are com-pensable because they “arose out of and in the course of employment” as this language is defined by Hill. She submits that her injuries arose out of and solely because of conditions connected with her employment.

Respondents, on the other hand, rely on Bituminous Casualty Corp. v. Richardson, 148 Fla. 323, 4 So.2d 378 (1941), and Southern Bell Telephone and Telegraph Co. v. McCook, 355 So.2d 1166 (Fla.1977), and recite that to be compensable, the assault must not only have arisen out of Strother’s employment but also must have occurred within the time and space limits of her employment. Respondents further contend that this case does not fall within the special hazard exception to the going and coming rule.

Section 440.02(6), Florida Statutes (1977), defines injury, for purposes of the workers’ compensation act, as “personal injury or death by accident arising out of and in the course of employment, and such diseases or infection as naturally or unavoidably result from such injury.” Our early decision of Bituminous Casualty Corp. v. Richardson construed this language as requiring a showing that the injury both arose out of employment and occurred in the course of employment. “Arising out of” was defined to mean the origin or cause of the accident. “In the course of” employment was defined as the time, place, and circumstances under which the accident occurs. We stated as a general rule that the accident must occur while the employee is acting within the duties of his employment or in some act incidental thereto. See also Foxworth v. Florida Industrial Commission, 86 So.2d 147 (Fla.1956), wherein we stated that compensation coverage is confined to an injury arising out of and in the course and scope of employment and both circumstances must appear before compensation can be awarded; Travelers Ins. Co. v. Taylor, 147 Fla. 210, 3 So.2d 381 (1941), wherein we held that arising out of and in the course of employment are used conjunctively, and it is indispensable to recovery that both of them be established; Fidelity & Casualty Co. of New York v. Moore, 143 Fla. 103, 196 So. 495 (1940), wherein it was held that to arise out of and in the course of employment, an injury must occur within the period of employment at a place where the injured employee may reasonably be and while he is reasonably fulfilling duties of his employment or is engaged in something incidental thereto.

More recently, in Southern Bell Telephone and Telegraph v. McCook, we reaffirmed our decision of Bituminous Casualty Corp. v. Richardson and explained that “arising out of” and “in the course of” were separate elements which must be proved to establish a compensable accident. In McCook, we were concerned with the “arising out of” element rather than “in the course of.” Relying on Suniland Toys & Juvenile Furniture, Inc. v. Karns, 148 So.2d 523 (Fla.1963), we defined “arising out of” to mean originating in some risk connected with employment or flowing as a natural consequence from the employment.

Although in several decisions, we have referred to the distinct and separate nature of the two elements of “arising out of” and “in the course of,” we have also, in other decisions, tended to merge these two factors together into a test of work connectedness. In Fidelity & Casualty Co. of New York v. Moore, we said:

The cases generally hold that' for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence. Another definition widely approved is that the injury must occur within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.

196 So. at 496 (emphasis added).

Then in Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941), we allowed recovery to a deputy sheriff who, while on his way to work, was struck by a delivery truck and sustained injury to his leg which ultimately resulted in its amputation. We determined that by the nature of his employment, the deputy was continuously under a duty to protect the peace and safety of the community and to apprehend those guilty of its violation. In explanation of our result, we declared that an injury must both arise out of and be in the course of employment and proceeded to recite the alternative definitions for arising out of and in the course of one’s employment which we had earlier enunciated in Fidelity & Casualty Co. of New York v. Moore.

Again, in Suniland Toys & Juvenile Furniture, Inc. v. Karns, we relied on the alternative definitions established by Fidelity & Casualty Co. of New York v. Moore to award compensation to an employee who had sustained an allergic reaction to a typhoid inoculation administered at a physician’s office. We said: “[T]o be compensa-ble, an injury must have originated in some risk connected with the employment or flowing as a natural consequence from the employment.” 148 So.2d at 524.

In our 1972 decision of Hill v. Gregg, Gibson & Gregg, Inc., we again emphasized the alternative nature of the definitions established in Fidelity & Casualty Co. of New York v. Moore. We quashed the commission’s order which denied compensation and held that an assault which arose out of Hill’s employment was compensable even though it did not occur on the employer’s premises or during working hours, and we said:

From their orders, it appears the Judge of Industrial Claims and the Industrial Relations Commission looked only to the last definition [i. e., the injury must occur within the period of employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it] and concluded Petitioner could not recover because he was not injured while at his job site working and benefiting his employer. While such a conclusion is proper under the fourth Moore definition, it is not determinative of the issue. It is necessary to also consider the first three definitions. All are alternatives. Sweat v. Allen, 1941, 145 Fla. 733, 200 So. 348.

260 So.2d at 195.

It is apparent that our prior decisions have developed inconsistent interpretations of the statutory language “arising out of and in the course of employment.” One line of cases establishes a two-prong test of work connectedness where both prongs must be separately proven. The other line of cases effectually develops an arising out of and an originating in the course of employment test where either element may suffice. The present case has spotlighted the uncertainty created by the conflicting lines of cases. A resolution of this conflict must be made before we can determine whether Strother’s injury is compensable.

Larson, in his treatise. Workmen’s Compensation Law, volume 1A, section 29.00, discusses this problem area of workers’ compensation law and analyzes numerous decisions from other jurisdictions involving fact situations somewhat similar to the present case where indisputably the injury arose out of the employment and where the originating cause of the injury occurred entirely within the time and space limits of employment, but where the actual injury occurred while the employee was not acting within the duties of his employment. He asserts that grave injustice occurs when courts insist on the separateness of “arising out of” and “in the course of” when the latter denotes occurrence within the period of employment at a place where the injured employee may reasonably be and while he is reasonably fulfilling duties of employment or is engaged in doing something incidental thereto. He suggests that the more reasoned approach, consistent with the goals of workers’ compensation acts, is not to apply these concepts entirely independent of each other but rather to view them as parts of a single test of work connectedness- where deficiencies in the strength of one factor may, in some cases, be made up by the strength in the other. He proposes that the term “arising” in the statutory phrase “arising out of and in the course of employment” be employed not only to modify “out of” but also to modify “in the course of” and then declares that arising connotes origin, not completion or manifestation. Summarizing his analysis, Larson concludes that in the cases allowing compensation for the type of injury with which we are presently concerned, the common element is the fact that the originating cause of injury arose out of and in the course of employment:

The time bomb, so to speak, is constructed and started ticking during working hours; but it happens to go off at a time and place remote from the employment. The hazards of the employment, whether the animosity of a fired employee, a needle-like shaving in the eyebrow, or dynamite cap in the pocket, follow the claimant beyond the time and space limits of his work, and there injure him.

Larson, Workmen’s Compensation Law, volume 1A, section 29.22 at 5-376-77.

The early case of Matter of Field v. Charmette Knitted Fabric Co., 245 N.Y. 139, 156 N.E. 642 (1927), authored by Justice Cardozo laid the groundwork in these types of cases for utilizing the originating in the course of employment test. There recovery of workmen’s compensation was allowed to a general manager and superintendent of a mill who was assaulted outside working hours and off employment premises by an employee he had discharged. On the work premises, the employee had moved threateningly toward the superintendent but had been pulled away. Justice Cardozo said: “[Cjontinuity of cause has been so combined with contiguity in time, and space that the quarrel from origin to ending must be taken as one.” 156 N.E. at 643. He explained that this assault was engendered on the work premises.

In cases analogous to the present one, other jurisdictions, whose workers’ compensation acts speak in terms of an injury by accident “arising out of and in the course of employment,” have seen fit to adopt Larson’s originating rationale to avoid the inequity and illogic of denying compensation to one whose injuries indisputably arose out of employment and where the' originating cause of the injury occurred during working hours and on the employment premises. For example, in Thornton v. Chamberlain Manufacturing Corp., 62 N.J. 235, 300 A.2d 146 (1973), while on the job, Thornton, a production foreman, reprimanded an employee for repeated failure to wear safety glasses and several times reported these failures to the employer. One of these times, the employee threatened Thornton by saying he would take care of Thornton’s eyes later. The employee was terminated from his employment and nine days thereafter attacked Thornton and said, “Remember me, remember me.” As a result of this attack, Thornton sustained total loss of vision in his right eye. Thornton was denied compensation by the commission because his injuries did not occur in the course of employment, and the county court affirmed. The New Jersey Supreme Court reversed and found that, unquestionably, the attack had its genesis in Thornton’s employment. He incurred his attacker’s wrath and enmity because he had performed his assigned employment duty. Had he been at work when the.attack occurred, there would have been no question as to the compensability of his injuries. The New Jersey court found Larson’s construction of “arising out of and in the course of” reasonable and conducive to the advancement of the basic purpose of the workmen’s compensation act and concluded:

Here the injuries were caused in every realistic sense by petitioner’s exposure at work. We can think of no reason why the Legislature would want to deny relief because the work-generated force overtook petitioner at one moment rather than another.

300 A.2d at 149. See also Daniello v. Machise Express Co., 119 N.J.Super. 20, 289 A.2d 558 (1972), aff’d, 122 N.J.Super. 144, 299 A.2d 423 (App.Div.1973).

In Graybeal v. Board of Supervisors of Montgomery County, 216 Va. 77, 216 S.E.2d 52 (1975), claimant, a county prosecutor, was injured by a bomb explosion at his home. The bomb was placed by an individual whom he had successfully prosecuted for second-degree murder and who, after conviction, vowed revenge on everyone who had anything to do with his conviction. The Supreme Court of Virginia acknowledged its earlier rulings that an accident occurs in the course of employment when it takes place within the specified time, space, and. circumstance of the employment but modified the rule for the particular facts of the case before it where the accident arose in the course of employment. The court explained that a modified rule is permitted by the statutory language “arising . in the course of the employment.” It then proceeded to give arising its ordinary meaning of originating but further explained:

Upon first examination, this rule might appear to constitute a blending into one single test of the dual “arising out of” and “in the course of” requirements. But the “arising out of” requirement refers to causation, only incidentally related to considerations of time and space, and must be satisfied by a showing of causal connection between work and injury. The “course of” requirement, on the other hand, refers to continuity of time, space and circumstances, only incidentally related to causation. This requirement must be satisfied by a showing of an unbroken course beginning with work and ending with injury under such circumstances that the beginning and the end are connected parts of a single work-related incident

216 S.E.2d at 54 (emphasis added).

This originating in the course of employment test has been carefully limited to those situations where the fact that originated the cause of injury occurred entirely within the time and space limits of employment. The Court of Appeals of New York, in Malacarne v. City of Yonkers Parking Authority, 41 N.Y.2d 189, 391 N.Y.S.2d 402, 359 N.E.2d 992 (1976), denied compensation to a parking lot employee who was shot in the back and killed while outside his sister’s home by an assailant who had demanded the money bag containing parking lot receipts which the employee usually deposited in the bank across the street from his employment. The court determined that there was no evidence to indicate that an event ultimately culminating in the employee’s death occurred within working hours and at the business premises and reasoned:

Consequently, if, in the case before us, there had been substantial evidence rather than mere conjecture to support a finding that an attempted robbery had begun at the deceased’s point of departure from the parking lot itself, the board might have been entitled to consider whether that event and the subsequent shooting were but two parts of a whole. The reality, however, is that there was not a scintilla of evidence of any earlier event related to the shooting. The “money bag” statement attributed to the decedent during the testimony before the referee does not supply it. That bare statement did not include, for instance, anything to indicate that suspicious persons had been lurking in the vicinity of the parking lot, or that anyone had been seen to follow the decedent from there or, for that matter, that he had observed anyone following him at any time during his half hour’s drive to his sister’s house until he had already arrived on her street. Even assuming that the decedent had in fact made the “money bag” statement and, in doing so, had accurately quoted his assailant, on the record here we are left then with nothing but speculation on which to base a choice from among the countless number of possibilities of where, how or why the assailant came to the erroneous belief that Malacarne would have a money bag on him when he arrived at his sister’s house.

391 N.Y.S.2d at 407-8, 359 N.E.2d at 995-996.

We find the construction of “arising out of and in the course of employment,” proposed by Larson and adopted by several jurisdictions to be reasonable and conducive to the basic purposes of the workers’ compensation act. Essentially, the preliminary predicate for the two-pronged work connectedness test was laid in Fidelity & Casualty Co. of New York v. Moore and Hill v. Gregg, Gibson & Gregg, Inc.

We hold that to be compensable, an injury must arise out of employment in the sense of causation and be in the course of employment in the sense of continuity of time, space, and circumstances. This latter factor may be proved by showing that the causative factors occurred during the time and space limits of employment.

Thus, employing this test, we hold that Strother’s injury is compensable. There is no issue that the injury sustained as a result of the assault arose out of employment. Furthermore, it had its genesis at the place of employment since the assailants were actually on the business premises, casing it so to speak, and, then when Strother left, they followed her home and there assaulted her and robbed her of her purse which they thought contained the cafeteria’s cash receipts. The time bomb began ticking while she was on the business premises and during working hours.

Accordingly, the order of the Industrial Relations Commission is quashed, and the order of the judge of industrial claims is reinstated.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, SUNDBERG and MCDONALD, JJ., concur.


author: PER CURIAM.

text:
    SIXTY SEVEN LIQUORS et al., Petitioners, v. David Christ GAMEL et al., Respondents.
    No. 56173.
    Supreme Court of Florida.
    April 24, 1980.
    Albert P. Massey, III, of Pyszka, Kessler & Adams, Fort Lauderdale, for petitioners.
    Michael F. Kempner of Kempner & Schottenfeld, Fort Lauderdale, for respondents.
   PER CURIAM.

Denied. See Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980).

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


text:
    STATE of Florida, Appellant, v. Daniel Edward COOMES, Appellee.
    No. 56975.
    Supreme Court of Florida.
    April 24, 1980.
    Jim Smith, Atty. Gen., and James S. Pur-dy, Asst. Atty. Gen., Tampa, for appellant.
    Joshua Stanford Morse of Law Offices of John T. Ware, St. Petersburg, for appellee.
   OVERTON, Justice.

This appeal is from a county court order declaring sections 322.261 and 322.262, Florida Statutes (1977), unconstitutional as an unlawful delegation of legislative authority to the Department of Highway Safety and Motor Vehicles and the Department of Health and Rehabilitative Services. We reverse and remand for trial for the reasons expressed in State v. Bender, 382 So.2d 697 (Fla. 1980).

It is so ordered.

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


text:
    ATLANTIC BANK OF ST. AUGUSTINE, etc., Petitioner, v. Iris Jean SMITH et al., Respondents.
    No. 53887.
    Supreme Court of Florida.
    May 1, 1980.
    Edward L. Kelly of Law Offices of Ul-mer, Murchison, Ashby & Ball, Jacksonville, for petitioner.
    Geoffrey B. Dobson of Law Offices of Meredith & Dobson, St. Augustine, for respondents.
   PER CURIAM.

Writ of certiorari was issued in this case. After consideration we feel that the writ should be discharged.

It is so ordered.

ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.

ENGLAND, C. J., and SUNDBERG, J., dissent.


author: BOYD, Justice.

text:
    Donald Lee MOOREHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 56095.
    Supreme Court of Florida.
    May 1, 1980.

      Jack 0. Johnson, Public Defender, and Thomas J. Sherwood, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appel-lee.
   BOYD, Justice.

Donald Lee Moorehead was convicted of being employed by or associated with an enterprise and conducting or participating in that enterprise through a pattern of racketeering activity in violation of section 943.462, Florida Statutes (1977). Before entering the plea of nolo contendere upon which the conviction was based, the appellant challenged, on vagueness and over-breadth grounds, the constitutionality of the statute, which the trial court passed on in denying his motion to dismiss. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The appellant reserved the right to appeal the court’s rulings on the facial validity of the Florida Racketeer Influenced and Corrupt Organization Act (RICO). §§ 943.-46-.464, Fla.Stat. (1977). Only these legal issues are before us, the factual questions pertaining to appellant’s conduct having been foreclosed by his nolo plea. We hold that the statute is neither vague nor over-broad under the Florida Constitution.

Appellant argues that the definition of “pattern of racketeering activity” found in section 943.461(4), Florida Statutes (1977), is unconstitutionally vague. That section provides:

“Pattern of racketeering activity” means engaging in at least two incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents .

Specifically appellant argues that men of ordinary intelligence cannot ascertain when repeated criminal conduct becomes interrelated.

The definition was derived from the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961(5) (1970), which does not explicitly require that the incidents be related and not isolated. The federal courts have upheld the federal statute against claims of constitutional vagueness by implying a requirement that the incidents not be isolated. United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975); United States v. Parness, 503 F.2d 430 (2d Cir. 1974) cert. denied 419 U.S. 1105, 95 S.Ct. 775, 42 L.Ed.2d 801 (1975). The Florida legislature incorporated the federal case law by explicitly defining “pattern of racketeering activity” to include interrelated incidents that are not isolated. This inclusion clarifies the definition and prevents it from being unconstitutionally vague.

Appellant presents the same argument with respect to section 943.462(1), Florida Statutes (1977). Since this point was not raised in the court below, we refrain from commenting on it. McNamara v. State, 357 So.2d 410 (Fla.1978); Silver v. State, 188 So.2d 300 (Fla.1966).

Next appellant argues that the entire RICO act is unconstitutionally over-broad. He argues that the legislature im-permissibly included a host of misdemeanors which are not related to organized criminal activity. See Note, Racketeers and Non-Racketeers Alike Should Fear Florida’s RICO Act, 6 F.S.U.L.Rev. 483 (1978). Whatever merits there are to this argument, they do not apply to this case. Appellant was charged with five auto thefts within a two month period. This is not the type of minor criminal activity upon which appellant bases his argument.

We affirm the circuit court’s judgment.

It is so ordered.

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

ADKINS, J., dissents.


text:
    The STATE of Florida, and the taxpayers, property owners and citizens of Sunrise Lakes Phase II Special Recreation District, including nonresidents owning property or subject to taxation therein, Appellants, v. SUNRISE LAKES PHASE II SPECIAL RECREATION DISTRICT, a taxing district of the State of Florida, Appellee.
    No. 56837.
    Supreme Court of Florida.
    May 1, 1980.

      Michael J. Satz, State’s Atty., and Richard J. Registro, Asst. State’s Atty., Fort Lauderdale, Fla., for appellants..
    Arthur B. Parkhurst, of Parkhurst, La-Hurd & Purdy, Fort Lauderdale, Fla., for appellee.
   OVERTON, Justice.

This is an appeal from a final judgment validating bonds secured by ad valorem taxes and other revenues for Sunrise Lakes Phase II Special Recreation District (District). We have jurisdiction. Art. V, § 3(b)(2), Fla.Const.

The primary question in issue is whether the creation of a recreation district in accordance with chapter 418, part II, and the issuance of bonds for the purpose of purchasing condominium recreation facilities, which will be available to the public as well as condominium owners, is a sufficient public purpose in compliance with article VII, section 10, Florida Constitution. The wisdom or desirability of this type of bond issue is not a matter for our consideration. Our review concerns only the legal validity of these bonds.

The state contends that the purpose of issuing bonds was to acquire recreational facilities primarily for the benefit of the residents of a single condominium development and, as such, the purpose is private and consequently in violation of article VII, section 10, Florida Constitution. The state further contends that operation of the recreational facilities by the condominium association comprised of condominium owners in accordance with an operating contract with the District defeats what might otherwise be a public purpose for the bond issuance.

We understand the concern of the state but reject both contentions, finding that this bond issue is legally proper. We affirm the trial court’s validation of these bonds, including its finding based on evidence in this record that this bond issue serves a valid public purpose.

The trial court determined that the creation of this recreational district primarily served a public purpose and only incidentally served any private interests. The trial court expressly found that the creation of this District was the best alternative for delivering recreational services to the area; that the District was amenable to separate special district government; and that all the territory in the District would be benefited by the proposed improvements. The trial court recognized that all the property in the District was part of a single condominium development but determined this single factor was not controlling to the issue of whether the issuance of the bonds served a valid public purpose. After taking testimony on the issue, the trial court expressly found that the proposed improvements would be available for use by the general public as well as the condominium owners for a reasonable fee. The trial court also found the existence of a contract with the condominium association to operate the facilities was not pertinent to the question of the validity of the bonds and that it had no jurisdiction to determine the validity of the contract. The court concluded by finding that all requirements of the constitution and laws of the State of Florida pertaining to the bond issuance and the adoption of the proceedings were strictly followed.

The purpose of chapter 418, part II, is to allow municipalities and counties to designate a limited geographic area as a recreation district for the purpose of providing the acquisition and improvement of recreational facilities. We must conclude that the acquisition of the facilities within the instant condominium complex is no different than acquiring similar facilities in a large single-family housing development serving the same number of people. The key is the availability of the facilities to the general public. Without that availability, there is no public purpose. This chapter demonstrates the legislative intent that the creation of recreation districts serves a valid public purpose, and a legislative determination of public purpose should be presumed valid unless it clearly appears to be beyond the power of the legislature. State v. Housing Finance Authority, 376 So.2d 1158 (Fla.1979).

Similar to other special districts, these recreation districts are essentially financing vehicles which allow residents of a limited geographic area to provide for improvements that substantially benefit the residents in the district. State v. Sarasota County, 372 So.2d 1115 (Fla.1979). To finance these facilities, the charter of the recreation district may grant many powers including the power to issue bonds, to collect ad valorem taxation, and to charge fees for the admission to or the use of the facilities. § 418.22, Fla.Stat. In our view, the chapter clearly contemplates that the facilities will be open to all members of the public and not just the residents of the recreation district although the residents of the district will receive the primary benefits because of their close proximity to the recreational facilities.

The second contention of the state concerns the jurisdiction of the trial court to determine the validity of the operating contract for the recreational facilities with the condominium association. This is a collateral issue that involves other parties and clearly cannot be properly resolved in a bond validation proceeding. We approve the finding of the trial court that there is no jurisdiction to determine the validity of the operating contract. .

In a bond validation proceeding, the function of this Court is to determine that the authorizing body has the power to act and that it exercised that power in accordance with the purpose and intent of the law. State v. Sarasota County; State v. City of Sunrise, 354 So.2d 1206 (Fla.1978).

We find the city council of Sunrise, acting for the recreation district, is a properly established authorizing body under the laws of this state and legally exercised its power to issue bonds in accordance with the purpose of the law. The final judgment validating the bonds is affirmed.

It is so ordered.

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

McDONALD, J., dissents.