author: GRIMES, Acting Chief Judge.

text:
    Lester Clark DEAN, Michael Giltner, Afton W. Pyles, Paul Richardson, and Donald Webb, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-829, 81-830, 81-832, 81-833 and 81-835.
    District Court of Appeal of Florida, Second District.
    May 12, 1982.
    Rehearing Denied June 7, 1982.

      Mark Lipinski of Law Offices of Jerome Pratt, Palmetto, for appellants.
    Jim Smith, Atty. Gen., and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

By these appeals, appellants attack some troubling technical deficiencies in the information upon which they were convicted.

The state filed a single three-count information in Manatee County against the five appellants and three other defendants. Count I charged all defendants except appellant Pyles with conspiracy to possess with the intent to sell or to deliver cannabis. Count II charged all of the defendants except appellant Giltner and one of the nonappealing defendants with a separate conspiracy to possess with the intent to sell or deliver cannabis. Count III charged the same defendants as listed in count II with violation of the Florida RICO act premised upon a pattern of racketeering activity which encompassed three incidents of racketeering conduct. The first underlying incident pertained to an allegation that appellants Richardson, Webb and Pyles sought to bribe a deputy sheriff to divulge confidential information of the sheriff’s office concerning its investigation of drug violations. The second and third underlying incidents were summary reallegations of the activities covered by counts I and II.

There are two basic problems with the information. The first is that while counts I and II properly allege venue to be in Manatee County, count III contains no allegation of venue. It refers only to the attempt to bribe the Manatee County deputy to obtain confidential information from the Manatee County Sheriff’s Office. The other problem is that while the appellant Pyles is charged .in count III, the state did not allege his involvement in two of the underlying incidents of racketeering conduct as required for conviction under the RICO act. § 943.461(4), Fla.Stat. (1979); United States v. Winter, 663 F.2d 1120 (1st Cir. 1981); United States v. Welch, 656 F.2d 1039 (5th Cir. 1981); United States v. Martino, 648 F.2d 367 (5th Cir. 1981). The state obviously intended for the two underlying incidents of racketeering conduct involving Pyles to consist of the bribery of the deputy and the allegations in count II. However, in the course of summarizing the allegations of count II as one of the underlying incidents in count III, Giltner’s name was inadvertently substituted for Pyles, even though Giltner was not charged under count II, and the state was not seeking to convict Giltner of a RICO violation.

The appellants filed numerous motions to dismiss, motions to suppress and motions for discharge, all of which were denied by the court. Ultimately, all of the appellants entered into a plea bargain under which they would be fined $4,500 for each count filed against them. As part of the bargain, they pled nolo contendere, reserving the right to appeal the denial of their several motions. While appellants raise other points on this appeal, the only ones which give us concern are those which pertain to the defects in the information described above.

The various motions to dismiss directed to the face of the information contained anywhere from twenty-two to forty-nine grounds. Nestled among the many grounds in each of the motions is the statement that count I of the information “fails to set forth jurisdiction or venue in Manatee County, Florida.” Even a casual reference to the information demonstrates the total lack of merit in this position with respect to count I. However, the same attack is later made on count III by virtue of a paragraph which realleges all the defenses to count I with instructions to interlinéate count III for count I “in the appropriate paragraphs and at appropriate locations throughout.” As a consequence, it cannot be said that appellants totally failed to raise the question of venue with respect to count III in their motions to dismiss.

The defense of the failure of count III to properly allege a RICO violation against appellant Pyles was raised differently. Pyles never filed written motions to dismiss directed to the information. However, he did file a motion to adopt all the motions filed by codefendants Webb, Richardson and Dean. At the time of the plea hearing, his attorney called this to the attention of the judge who observed that since he had denied the other motions he would permit the motion to adopt and deny it as well. Needless to say, the motions of the other defendants say nothing about the omission of Pyles’ name from the second incident of racketeering activity alleged in count III. However, the other defendants’ motions to dismiss do include assertions that count III fails to legally charge them with a felony. Hence, Pyles’ separate point was also technically preserved by pretrial motion.

Ordinarily, we would feel compelled to reverse on these points were it not for the fact that we have concluded that the appellants waived their right to assert them at the time they entered their pleas.

The subject of venue came up at the time the appellants tendered their pleas because the hearing was actually being conducted in DeSoto County, another county in the Twelfth Judicial Circuit, rather than in Manatee County. In the course of asking the appellants if they would waive venue for purposes of the plea hearing, it was explained to them that they had a right to be tried in Manatee County' where the commission of the crimes took place. While the agreement to waive venue on the part of each defendant was obviously related to the acceptance of their pleas in DeSoto County, nevertheless the entire colloquy indicates a complete acquiescence in the fact that the venue of the alleged crimes was Manatee County.

We do not accept the appellants’ contention that there can be no waiver of insufficient venue allegations in an information. The appellants rely upon State v. Black, 385 So.2d 1372 (Fla.1980), in which the court held that an indictment which completely failed to allege venue was fundamentally defective and void. However, this decision rested in part upon the proposition that in view of the secrecy which surrounds grand jury proceedings, it was essential that indictments should facially indicate jurisdiction. Unlike an indictment, an information may be amended by the state attorney. Florida Rule of Criminal Procedure 3.140 provides that an information should not be dismissed on account of any defect unless the court should feel that it is so vague or indefinite as to mislead the accused in his defense. We believe that insufficient allegations of venue in an information are subject to being waived in the same way as defects in the allegation of essential elements of the crime.

The point involving appellant Pyles stands on a different footing. We have held that the statement of a factual basis given in connection with a guilty plea can serve to supply an essential element which is missing from the information. Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979). Florida Rule of Criminal Procedure 3.172(a) now requires the court to establish a factual basis for a plea of nolo contendere. In the course of entering the plea, Pyles’ attorney announced that he would stipulate that if the case went to trial, the state could present sufficient evidence to permit the case to go to the jury. This statement had the effect of obviating the need of further stating a factual basis which would have necessarily included as an element that Pyles committed two underlying incidents of racketeering conduct.

If we seem to have strained in reaching our conclusion, it is only because we are interested in the justice of the cause. Specific arguments of the foregoing points in the court below would have resulted in an amendment to the information to correct the deficiencies. To reverse the cases under these circumstances would have the effect of exalting form over substance and circumventing the legitimate expectations of all concerned.

AFFIRMED.

RYDER and SCHOONOVER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raoul MUNNE and Herman Cohen, Appellants, v. Vivian Munne GARCIA, Appellee.
    No. 81-877.
    District Court of Appeal of Florida, Third District.
    May 18, 1982.
    Rehearing Denied June 22, 1982.
    James A. Baccus and Herman Cohen, Miami, for appellants.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Coral Gables, for appellee.

      Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The final judgment against Cohen is reversed and remanded for a new trial because it was error to disqualify him from representing himself. § 454.18, Fla.Stat. (1977); Carr v. Grace, 321 So.2d 618 (Fla. 3d DCA 1975), cert. denied, 348 So.2d 945 (Fla.1977). In all other respects, the judgment appealed from is affirmed.

Affirmed in part and reversed in part.


text:
    Michael SWAIN, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AK-454.
    District Court of Appeal of Florida, First District.
    May 21, 1982.
    Rehearing Denied June 24, 1982.
    Michael Swain, pro se.
    No appearance for appellee.
   PER CURIAM.

The petition for writ of mandamus has been treated as an appeal of final agency action of the Florida Parole and Probation Commission. See Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). The action of the Commission declining to review the issues raised by appellant at his § 947.173, Fla. Stat. (1981), review is affirmed in part and reversed in part. We therefore remand this cause for consideration of appellant’s claim pertaining to new information, that the federal district court for the Southern District of Florida invalidated one of appellant’s convictions. See § 947.16(4), Fla.Stat. (1981).

ROBERT P. SMITH, Jr., C. J., and McCORD and BOOTH, JJ., concur.


author: SHIVERS, Judge.

text:
    CITY OF TALLAHASSEE, Appellant, v. In re the Forfeiture of ONE YELLOW 1979 FIAT 2-DOOR SEDAN FLORIDA TAG NO. FVN-467, Appellee.
    No. AE-450.
    District Court of Appeal of Florida, First District.
    May 26, 1982.

      Patrick E. Hurley, Asst. City Atty., of Henry, Buchanan, Mick & English, P. A., Tallahassee, for appellant.
    No appearance for appellee.
   SHIVERS, Judge.

City of Tallahassee appeals from a final order denying forfeiture of an automobile under Section 943.43, Florida Statutes (1980 Supp.), on the ground that the owner of the automobile had not been convicted of any offenses arising out of the circumstances leading to the seizure of the automobile. We reverse.

The facts which led to the seizure of the yellow, 1979 Fiat 2-door sedan are not disputed. The appealed order expressly found:

(1) the vehicle was owned by Walter E. Peterson;

(2) Peterson concealed contraband in the vehicle;

(3) Peterson attempted to sell the contraband obtained from the vehicle to an off-duty Tallahassee police officer; and,

(4) when Peterson presented the contraband to the officer and demanded payment, the officer arrested him and seized the vehicle and the contraband contained in the vehicle.

The trial court denied forfeiture solely on the ground there was no proof that Peterson had been convicted of an offense arising out of the circumstances leading to the seizure of the vehicle.

The denial of forfeiture under these circumstances constitutes reversible error because nowhere in the Florida Contraband Forfeiture Act, Sections 943.41-943.44, Florida Statutes (1980 Supp.) is proof of conviction a condition precedent to an order of forfeiture, provided it is shown the owner of the subject vehicle had or should have had knowledge that the vehicle was being used in criminal activity.

Section 943.43(1), Florida Statutes (1980 Supp.), provides, in part:

Any ... motor vehicle ... which has been or is being used in violation of any provision of Section 943.42 .. . shall be seized.

Section 943.42(l)-(4), Florida Statutes (1980 Supp.), states that it is unlawful to use any motor vehicle for the “transport,” “purchase,” “sale,” or “possession” of contraband. Section 943.43(1), supra, goes on to state:

In any incident in which possession of any contraband article defined in Section 943.41(2)(a)-(d) constitutes a felony, the ... motor vehicle ... in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture.

Section 943.41(2)(a), Florida Statutes (1980 Supp.), defines contraband article as: “any controlled substance as defined in Chapter 893 .... ” [Here, Peterson attempted to sell the off-duty police officer Methaqualone which is a controlled substance under Section 893.03(2)(c)5., Florida Statutes (1980 Supp.). Under Section 893.-13(l)(a)2., Florida Statutes (1980 Supp.), possession or sale of Methaqualone is a third degree felony.] Section 943.43(1), supra, then states:

It shall be presumed in the manner provided in Section 90.302(2) [(rebuttable presumption) ] that the ... motor vehicle ... in or on which such contraband article is located at the time of seizure, is being used or was intended to be used in a manner to facilitate the transportation, ... concealment ... possession ... [or] sale ... of a contraband article defined in Section 943.41(2)(a)-(d).

Section 943.44(1), Florida Statutes (1980 Supp.) provides that an attorney employed by the seizing agency

... shall promptly proceed against the ... motor vehicle ... by rule to show cause in the circuit court .. . and may have such ... motor vehicle ... forfeited to the use of, or to be sold by, the law enforcement agency, ... upon producing due proof that the . .. motor vehicle .. . was being used in violation of the provisions of such law.

Moreover, this Court has held that neither conviction nor acquittal in the companion criminal case can have any effect on the forfeiture proceeding because forfeiture under Section 943.44 is civil in nature and the record and judgment in the criminal action is not admissible in the civil proceeding. Knight v. State, 336 So.2d 385 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 424 (Fla.1977). Although Knight, supra, involved a forfeiture proceeding under Sections 943.43 and 943.44, Florida Statutes (1974 Supp.), there is no relevant difference for purposes of the present appeal between the 1974 and 1980 forfeiture statutes. The 1974 forfeiture statute still provided for seizure and forfeiture whenever a motor vehicle was used to “conceal or possess any contraband” or “to facilitate the transportation ... [or] sale ... of any contraband article.” Section 943.42 and Section 943.43, Florida Statutes (1974 Supp.).

Therefore, the trial court erred in denying forfeiture on the ground that Peterson had not yet been convicted of an offense arising out of the circumstances leading to the seizure of his automobile. Neither conviction nor acquittal in the companion criminal case is relevant to the civil forfeiture proceeding. As dictated by Section 943.44(1), supra, the attorney for the seizing agency “shall promptly proceed against” the motor vehicle and nowhere in the forfeiture act is proof of conviction a condition precedent to the trial court’s ordering forfeiture.

Accordingly, the appealed order is reversed and remanded for further proceedings consistent with this opinion.

ERVIN, J., concurs.

WENTWORTH, J., concurs with conclusion only.


author: WENTWORTH, Judge.

text:
    Jeffrey R. STERMAN, Appellant, v. The FLORIDA STATE UNIVERSITY BOARD OF REGENTS, State of Florida, Appellees.
    No. AH-240.
    District Court of Appeal of Florida, First District.
    May 26, 1982.

      John D. Carlson of Woods, Johnston & Carlson, Tallahassee, for appellant.
    Charles S. Ruberg, Associate University Atty., Florida State University, Tallahassee, for appellees.
   WENTWORTH, Judge.

This case involves an appeal from an administrative order of Florida State University denying appellant’s petition for an administrative hearing. In dismissing the petition the university found first that it was not timely, and second that it did not sufficiently allege the existence of a substantial interest. Appellant contends that the first conclusion was erroneous as a matter of law, and that the second was based on improper consideration of the merits of his allegations without a hearing. We reverse.

Appellant filed his petition on September 19, 1981. Since it was dismissed without a hearing, the facts as they are alleged in the petition are presumed to be true. Those facts are stated as follows:

In 1977, appellant entered a doctoral program offered at Florida State University in science education. In February, 1979, his prospectus was approved. From that time until November, 1980, he worked under the supervision of his major professor. In November, 1980, appellant defended his dissertation before his major professor and other members of his doctoral committee. Sometime thereafter, he was advised by his major professor that the doctoral committee would not grant him a Ph.D. but would allow him the following options:

A. Treat his study as a pilot.
B. Take an Ed.D. degree (Doctor of Education).
C. Take a Master’s Specialist degree.

Appellant accepted the second option. He secured the signatures on the cover page of his dissertation and secured the initial abstract as required by university rules and regulations. Subsequently appellant’s major professor signed the “Final Term Degree Clearance Form,” but the department chairman refused to allow appellant to take the Ed.D. degree and revoked the options set out above.

The order denying the petition correctly noted that the procedures were governed by § 120.57, Florida Statutes, § 120.54(10), Florida Statutes, and Fla.Admin.Code Rule 28-5. Rule 28-5.111 permits an agency to deny a petition for administrative hearing if it is not filed within 21 days of the date on which the petitioner received written notice of the agency’s decision. The notice must state the time limit for requesting a hearing and refer to the agency’s procedural rules.

In finding that the petition filed in September, 1981, was untimely, the university relied on certain of its records which might indicate that appellant knew as early as December, 1980, that he would not be awarded the Ph.D. degree. However, whether he was informed that he would not be awarded the Ed.D. degree under any circumstances is questionable. In any event, actual notice of such agency action which did not inform petitioner of his right to request a hearing and the time limits for doing so would be inadequate to trigger the commencement of the administrative process. See Higgins v. Florida Keys Aqueduct Authority, 403 So.2d 1042 (Fla. 3d DCA 1981). The notices which the university relied on, in finding that the petition was untimely, did not provide appellant with a clear point of entry into the administrative process as the university was required to do. Capaletti v. State Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978). The failure to conform with the procedural requirements of Fla.Admin.Code Rule 28-5.111 was a material error, which resulted in substantial unfairness when the petition was dismissed because it was not filed within the 21-day limit set out in the same rule.

As indicated above, the order also found that appellant failed to allege a violation of a substantial interest which would afford him a right to a § 120.57 hearing. This determination was based upon two conclusions, the first being that the degree transfer which petitioner claims was offered to him is not permitted under university and administrative rules. The second conclusion is “that the Petitioner has grounded his allegations of substantial interest on the assertion that he has met all of the requirements for the Ed.D. degree ...” and, relying on Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978), “a substantial interest in a decision based upon the assessment of a student’s academic performance would not be a substantial interest within the scope of that term as used in § 120.57, Florida Statutes, with respect to invoking the procedural tool of formal or informal hearings.”

The first conclusion deals with the allegation that appellant was offered the Ed.D. degree in lieu of the Ph.D. degree. Appellant’s contention is that the offer was not only not prohibited by university regulations but that such transfers are common within the university. By deciding otherwise without providing appellant an opportunity to submit evidence in support of his contention, the university improperly decided an issue going to the merits of the allegations in the petition.

The second conclusion, that the substantial interest alleged is in the subjective assessment of appellant’s academic performance, overlooks the substance of the petition. The interest which was in fact alleged was in a degree which had been offered and approved by authorized university officials and subsequently revoked without explanation. Thus the allegations were in no way concerned with the initial subjective judgment of his academic performance, relating instead to the alleged impropriety of the revocation. The injury alleged was the result of specified agency action, the validity of which should be determined by a hearing on the merits of the allegations in the petition.

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

ERVIN and SHIVERS, JJ., concur.

      . The petition is not specific about the exact dates of the defense and the following events.

      . Two of these records consist of memoranda circulated between the department head and the doctoral committee; one was a letter to appellant informing him that he could continue his research; and one was a copy of the failing grades appellant received for his Ph.D. courses.


text:
    Charles Aaron MINNOT, Appellant, v. STATE of Florida, Appellee.
    No. AH-261.
    District Court of Appeal of Florida, First District.
    May 26, 1982.

      Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

We affirm the appellant’s convictions on charges of attempted manslaughter and attempted burglary of a structure, finding that the asserted error at trial was not preserved for appellate review. See Castor v. State, 365 So.2d 701 (Fla.1978).

However, as the parties agree, the trial judge erred at sentencing by imposing costs upon Minnot, who is indigent. See Arnold v. State, 356 So.2d 862 (Fla. 1st DCA 1978) and authorities cited therein.

Accordingly, judgment of conviction is affirmed, and this cause is remanded solely for correction of sentence. The appellant need not be present for this procedure.

BOOTH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: ERVIN, Judge. LARRY G. SMITH, Judge,

text:
    Ida Jean HARTMAN, Appellant, v. OPELIKA MACHINE AND WELDING COMPANY and United States Fidelity and Guaranty Company, Appellees.
    No. TT-50.
    District Court of Appeal of Florida, First District.
    May 28, 1982.
    R. P. Warfield and James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Charles C. Sherrill and Larry Hill, of Sherrill, Moore & Hill, Pensacola, for appel-lees.
   ERVIN, Judge.

In this products liability action, Ida Jean Hartman appeals from a final judgment in favor of appellee, Opelika Machine and Welding Company, the manufacturer of an allegedly defective product which purportedly caused certain personal injuries suffered by her at the Monsanto Textiles Company mill where she worked. Appellant Hartman relies for reversal upon several asserted trial errors, only two of which merit extended discussion: (1) Whether the entry of a directed verdict for appellee on the theory of strict liability was reversible error, and (2) whether it was reversible error for the trial judge to allow Opelika to present evidence of Monsanto’s design changes in the spin buggy after the accident. We find the first assigned point requires reversal, but affirm the latter.

Appellant was employed by Monsanto as a drawtwist operator. Her job was to take finished yam from one drawtwist machine, put the spools of finished yarn onto the arms of a spin buggy, and move on to the next machine. The spin buggy had a rectangular base, and was mounted on four wheels so that it could be rolled by the operator along the plant floor from machine to machine. At each end of the spin buggy’s rectangular base were stanchions to which were welded several projecting arms made of aluminum tubing, that served as handles for moving the buggy and to hold the bobbins of yarn. The accident occurred while appellant was walking backwards, pulling at the same time the top arm of the buggy with her right hand, when the arm handle broke off, thereby causing her to fall onto the concrete floor.

Appellant’s three-count fifth amended complaint sought recovery on the theories of implied warranty, negligence, and strict liability. Prior to trial, a summary judgment was granted in favor of Opelika on the strict liability count, insofar as any design defect was concerned, upon uneontra-dicted evidence that the spin buggy was fabricated by Opelika based upon a design and specifications furnished by Monsanto. At trial, after all evidence for plaintiff and defendant had been presented, the trial court directed a verdict for Opelika on the strict liability count, as to any manufacturing defect, and submitted the case to the jury on the counts charging breach of implied warranty and negligence. As to those theories, the jury returned verdicts absolving Opelika from liability.

Although the record before us does not disclose the trial judge’s reasons for directing a verdict on the strict liability count at the close of all the evidence, we presume from Opelika’s arguments here and in the court below that the trial judge was persuaded by Opelika’s “stream of commerce” argument. Opelika maintains that a manufacturer which fabricates and supplies a product solely for the use of a single purchaser, using a design, plans and specifications furnished by the purchaser, is not “engaged in the business of selling such a product” within the meaning and intent of Section 402A, Restatement of Torts (Second). If this were the basis for the court’s decision, it was without legal foundation. Opelika was in the business of manufacturing and supplying products such as the spin buggy to independent customers, and we find no authority to suggest that Opelika’s liability for a defectively welded part should be determined on different principles than for a manufacturer who places its product on the market for sale to the general public. Section 402 of the Restatement of Law of Torts (Second), defining strict liability, “applies to any manufacturer of ... a product [for use or consumption], to any wholesale or retail dealer or distributor .. .. ” See comment f to Section 402A.

The arguments made by defendant here should be compared with those of the defendant manufacturers in Foster v. Day & Zimmermann, 502 F.2d 867 (8th Cir. 1974) and Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5th Cir. 1975), to the effect that because they assembled certain military products according to the government’s specifications and design, and sold the products exclusively to the government, they were not part of the distributive process. Both courts rejected these arguments, holding that strict liability applies to a situation which is essentially commercial in nature, involving the transmission of the product into the stream of commerce.

Opelika’s stronger argument is that notwithstanding the fact that the lower court may have erred in granting the motion for directed verdict on Hartman’s strict liability claim, the error was harmless only because the charge given to the jury on implied warranty, being substantially similar to that of strict liability was, in effect, an instruction which was tantamount to strict liability. Opelika relies upon a decision of the Fourth District Court of Appeal, Sansing v. Firestone Tire and Rubber Company, 354 So.2d 895 (Fla. 4th DCA 1978), in which the court held that no error occurred due to the trial court’s dismissal of plaintiff’s strict liability claim because the charge given the jury on breach of implied warranty closely paralleled that given on strict liability. Had the same or substantially similar charge been given by the court to the jurors in the case below as was given them in Sansing, we would have no difficulty in agreeing that the directed verdict on the strict liability claim was harmless. The trial court’s instruction in Sansing was, however, far different from that given here. Compare the charge given below with that given the jury in Sansing.

The Sansing instruction substantially approximates the standard instruction presently provided juries in strict liability actions, to the effect that “[a] product is defective if it is in a condition unreasonably dangerous to the user and the product is expected to and does reach the user without substantial change affecting that condition.” See Standard Instruction PL-4. On the other hand, the charge given here was patterned after Standard Instruction PL-2, relating to the implied warranty of merchantability, stating that “[a] product is defective if it is not reasonably fit for the uses intended or reasonably foreseeable by (defendant).” Obviously, then, both the standard instruction on strict liability and the instruction given by the trial court in Sansing on breach of implied warranty of merchantability emphasize — unlike the charge given here — the unreasonably dangerous condition of a product that may cause physical harm to the user. The failure to charge the jury on a product’s potential affinity for causing injury is a serious omission. As Professor Wade has observed: “[A] product may be defective and still not be likely to cause injury. An automobile, for example, may have something wrong with the ignition so that it will not start properly, or the clock or the radio may not work correctly. If so, it is obviously defective, but it is not harmfully defective.” Wade, On the Nature of Strict Liability for Products, 44 Miss.LJ. 825, 832 (1973).

Instead of advising the jury that a defendant may be liable for manufacturing a defective product which may be so unreasonably dangerous as to cause physical harm to a human being, the charge given below stresses the contractual relationship between the buyer and the seller, or the idea of a contractual action for failure of the plaintiff to receive what had been contracted for. Indeed, the various remedies afforded the respective parties under Part VII of the UCC relating to sales (2.701-.724) underscore such contractual relationships. As examples, the buyer’s remedies include his right to cancel the contract, to recover damages for non-delivery of the goods, to obtain specific performance or replevy the goods, etc., UCC 2.711; yet, only one remedy is permitted him in the event he suffers personal injuries, and it is limited to consequential damages resulting from the seller’s breach which are “proximately resulting from any breach of warranty.” Section 672.715(2)(b), Florida Statutes (1979) (UCC 2.715(2)(b)). Thus, the reasonable fitness test for determining whether goods are merchantable

was never intended to be a test for ascertaining when a maker would be liable for damages incurred by those who were physically harmed. This is apparent from the fact that the Uniform Commercial Code provides for recovery of damages for physical harm as consequential damages from a breach of warranty and only then if that damage proximately results from the breach of warranty. This means at the very least that physical harm from such unfitness must be reasonably foreseeable.... [T]his is a circuitous route to saying that the product is unreasonably dangerous.

Keeton, Product Liability and the Meaning of Defect, 5 St. Mary’s L.J. 30, 37 (1973) (footnotes omitted) (emphasis in original).

An additional problem stemming from the indiscriminate application of the implied warranty standard to a strict liability action is the measure of damages awardable. As we previously observed, one who seeks damages for personal injuries in an action founded on breach of implied warranty may receive them only if they “proximately result ... from any breach of warranty.” Section 402A, however, does not limit the recovery of damages to those which are proximately caused by a product’s defectiveness, but instead uses the words, “harm thereby caused ...,” thus suggesting that it may have been the drafters’ intention to require the plaintiff to prove only that the defective product was the factual cause of his injury.

Professor Wade pinpoints another problem in gauging the measure of damages awardable in strict liability cases if a warranty standard is applied. Because damages for personal injuries resulting from breach of warranty are characterized by the UCC as “consequential”, such damages might be limited to the rule stated in Hadley v. Baxendale, 9 Ex. 341, 156 Rep. 145 (1854), requiring that damages recoverable for breach of contract be those which are reasonably foreseeable or within the contemplation of the parties at the time they entered into the contract. If such a limitation were imposed upon a claim brought under strict liability, another paradox emerges: although strict liability is founded on tort, see comment m to Section 402A, tort principles would necessarily be disregarded in determining the measure of damages in strict liability. The anomalous result would be that a claimant’s recovery in strict liability would ordinarily be far less than that allowable if the action were founded upon negligence, an action which strict liability was designed to supersede.

There can be little doubt that the scope of strict liability is far more extensive than a claim based on implied warranty. In fact, one of the reasons West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 90 (Fla.1976) gave for its adoption of Section 402A was that “warranty law in Florida has become filled with inconsistencies and misapplications in the judiciary’s attempt to provide justice to the injured consumer, user, employee, bystander, etc., while still maintaining the contractual principles of privity.” The creation of Section 402A was no doubt in part motivated by the drafters’ efforts to correct such judicial “misapplications” and “inconsistencies.” Indeed, comment m to Section 402A states:

A number of courts, seeking a theoretical basis for the liability, have resorted to a “warranty,” either running with the goods sold, by analogy to covenants running with the land, or made directly to the consumer without contract. In some instances this theory has proved to be an unfortunate one. Although warranty was in its origin a matter of tort liability, and it is generally agreed that a tort action will still lie for its breach, it has become so identified in practice with a contract of sale between the plaintiff and the defendant that the warranty theory has become something of an obstacle to the recognition of the strict liability where there is no such contract. There is nothing in this Section which would prevent any court from treating the rule stated as a matter of “warranty” to the user or consumer. But if this is done, it should be recognized and understood that the “warranty” is a very different kind of warranty from those usually found in the sale of goods, and that it is not subject to the various contract rules which have grown up to surround such sales.
* * * * * *
The rule stated in this Section is not governed by the provisions of the Uniform Sales Act, or those of the Uniform Commercial Code, as to warranties; and it is not affected by limitations on the scope and content of warranties, or by limitation to “buyer” and “seller” in those statutes. Nor is the consumer required to give notice to the seller of his injury within a reasonable time after it occurs, as is provided by the Uniform Act. The consumer’s cause of action does not depend upon the validity of his contract with the person from whom he acquires the product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer’s hands. In short, “warranty” must be given a new and different meaning if it is used in connection with this Section. It is much simpler to regard the liability here stated as merely one of strict liability in tort.

Restatement of Law of Torts (Second), 355-56.

Thus, as the above comments indicate, the standard for product defectiveness in warranty actions is not wholly applicable to claims grounded upon strict liability. Until the lines of demarcation are clearly drawn, we are reluctant to state that the standard charge pertinent to an action for breach of implied warranty, stressing as it does a plaintiff’s loss of bargain, coextends with the standard charge presently required for strict liability. And, because the instruction as given below failed to suggest to the jury the alleged offending product’s potential for causing physical harm to the user, it was, in our judgment, an incomplete and misleading instruction, the effect of which was reversible error. Cf. Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911); Adkins v. Seaboard Coastline R.R. Co., 351 So.2d 1088 (Fla.2d DCA 1977).

In her second point, appellant urges that it was error to allow defendant to produce evidence showing Monsanto’s post-accident design changes to the buggy consisting of substitution of steel bars for the hollow aluminum tubing arms, and the welding of a bracket to each arm where it joined the stanchion. Appellant bases this point upon the well-settled general rule, followed in Florida, that evidence of a change in condition or repairs made after an injury-causing accident is not admissible as proof of the defendant’s negligence in failing to make the repairs or changes prior to the accident. City of Miami Beach v. Wolfe, 83 So.2d 774 (Fla.1955); City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964), and see Section 90.407, Florida Statutes (Supp.1980), “Subsequent remedial measures.” There are only two recognized exceptions to the general rule in Florida pertinent to the issue before us: First, inquiry as to subsequent repairs is permissible on cross-examination to test credibility. Wilson & Toomer Fertilizer v. Lee, 90 Fla. 632, 106 So. 462 (1925). Second, evidence of subsequent repairs can be used in rebuttal if the opposing party “opens the door.” Hethcoat v. Chevron Oil Co., 383 So.2d 931 (Fla. 1st DCA 1980).

We have found no cases in Florida involving the precise factual situation to that before us, i.e., where post-accident design changes were made by one not a party to the litigation, and such facts are sought to be admitted into evidence by one or more of the parties. There is, however, impressive out-of-state authority both permitting, see, e.g., Denolf v. Frank L. Jursik Co., 395 Mich. 661, 238 N.W.2d 1 (1976); Lolie v. Ohio Brass Co., 502 F.2d 741 (7th Cir. 1974); Steele v. Wiedemann Machine Co., 280 F.2d 380 (3d Cir. 1960), and excluding such evidence. See Texas & New Orleans R.R. Co. v. Barnhouse, 293 S.W.2d 261, 266 (Tex.Civ.App.1956). We prefer the rule of admissibility under the limited circumstances applicable to this case, and adopt the reasons advanced by the Michigan Supreme Court for its reception:

The rule [of exclusion] is defended in terms of relevancy and policy. Such evidence is said to be irrelevant because it is capable of explanations equally as plausible as an admission by conduct of pre-ac-cident neglect of duty. If relevancy were the only criteria, Professors Wigmore and McCormick both point out that such evidence would meet the usual standards of relevancy. The rule is primarily grounded in the policy that owners would be discouraged from attempting repairs that might prevent future injury if they feared that evidence of such acts could be introduced against them. This policy consideration is absent in a case, such as this, where imposition of liability is not sought against the person taking the remedial action.

(238 N.W.2d at 4) (footnotes omitted).

In view of our ruling upholding the admission of such evidence when the change is made by one not a party to the action, we find it unnecessary to address appellee’s contention that the general rule excluding evidence of post-accident remedial action is inapplicable in products liability litigation. See, on this issue, Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (App.Div., 1976); Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148 (Cal.1974); and Sutkowski v. Universal Marion Corp., 5 Ill.App.3d 313, 281 N.E.2d 749 (Ill.3d DCA 1972); contra, Cann v. Ford Motor Co., 658 F.2d 54 (2d Cir. 1981), holding that the rule of exclusion applies in strict liability actions as well as negligence actions, and noting the split in jurisdictions.

Finally, we have considered and affirm the trial court’s rulings as to appellant’s two remaining points, one asserting error in allowing defense witness Lamar to testify concerning the design of the spin buggy, the other claiming error in permitting expert witness Johnson to testify. The trial judge is accorded considerable leeway in ruling on the admissibility of evidence and the qualifications of an expert witness. See Whitten v. Erny, 152 So.2d 510 (Fla.2d DCA 1963); Seaboard Air Line R. C. v. Lake Region Packing Association, 211 So.2d 25 (Fla. 4th DCA 1968); Headley v. Lasseter, 147 So.2d 154 (Fla.3d DCA 1962); Vitale Fireworks Manufacturing Company v. Marini, 314 So.2d 176 (Fla. 1st DCA 1975); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975). And we do not find on this record such an abuse of discretion warranting reversal.

Reversed in part and affirmed in part, and remanded for further proceedings consistent with this opinion.

SHIVERS, J., concurs.

LARRY G. SMITH, J., concurring in part and dissenting.

LARRY G. SMITH, Judge,

concurring in part, and dissenting.

I disagree with that portion of the majority’s opinion dealing with the trial court’s error in directing a verdict for defendant and failing to instruct the jury on the strict liability count, and I would affirm on this point under the harmless error rule. I concur in the decision and the discussion of the other points.

I agree with the majority that the trial court was in error in directing a verdict on the strict liability count. As indicated by the majority, the trial judge gave no reasons for this ruling, but it is assumed, from Opelika’s arguments here and in the court below, that it was based upon Opelika’s “stream of commerce” argument. As pointed out by the majority, the foundation for a “stream of commerce” defense is absent here. In fairness, however, since a great deal of argument was devoted to this point both here and in the trial court, it should be pointed out that Opelika’s argument would have merit under different facts, as in Garrison v. Rohm, and Haas, 492 F.2d 346 (6th Cir. 1974). Although in Garrison, as in this case, the manufacturer did not design the product, the plaintiff’s expert in Garrison admitted there was no defect in workmanship or materials in the allegedly defective dolly that was the subject of the law suit. Thus, Garrison is clearly distinguishable. Our research disclosed several cases in which the “stream of commerce” element was found absent, thereby defeating recovery under a strict liability theory, but none of these cases involved facts similar to those in the case before us. See, e.g. Shook v. Jacuzzi, 59 Cal.App.3d 978, 129 Cal.Rptr. 496 (1976); Streatch v. Associated Container Transp. Ltd., 388 F.Supp. 935 (D.C.Cal.1975), 29 A.L.R.2d 771; Nastasi v. Hochman, 58 App.Div.2d 564, 396 N.Y.S.2d 216 (N.Y.Supp.Ct.App.Div.1977); and Luna v. Rossville Packing Co., 54 Ill.App.3d 290, 12 Ill.Dec. 115, 369 N.E.2d 612 (1977).

I am persuaded, however, that although the trial court directed a verdict on the strict liability count, submission of the case to the jury on the theories of negligence and implied warranty adequately presented to the jury all issues and all theories of liability upon which plaintiff might have been entitled to recover. At the outset, it should particularly be noted that the directed verdict was entered only after all evidence had been presented by both sides. Thus, appellant cannot claim that she was precluded from presenting any evidence that might possibly have had some effect on the jury’s consideration of liability. The only other basis for reversal would have to be found in the trial court’s failure to instruct the jury on strict liability. The test, on this point, is whether under the particular facts of the case, the instructions misled the jury, or prejudiced a party’s right to a fair trial. American National Bank of Jacksonville v. Norris, 368 So.2d 897 (Fla. 1st DCA 1979), cert. den., 378 So.2d 342 (Fla.1979). For the reasons stated below, I would hold that the error in failing to submit the strict liability count to the jury does not meet this test.

I would follow the decision of the Fourth District Court of Appeal in Sansing v. Firestone Tire and Rubber Company, 354 So.2d 895 (Fla. 4th DCA 1978), cert. den., 360 So.2d 1250 (Fla.1978), which held in a similar case that where the trial court instructed the jury on the theory of implied warranty of merchantability, as here, the failure to instruct on strict liability was of no practical significance. The error in the case before us is even less egregious than in Sansing, because here, unlike Sansing, in addition to instructions on implied warranty and negligence, the plaintiff had the benefit of an instruction authorizing the jury to find for the plaintiff under the doctrine of res ipsa loquitur.

The res ipsa loquitur instruction advised the jury:

If you find that the circumstances of the occurrence were such that, in the ordinary course of events, it would not have happened in the absence of negligence, and that the instrumentality causing an injury was in exclusive control of the defendant at the time the negligent act or omission, if any, must have occurred and that the instrumentality, after leaving the defendant’s control, was not improperly used or handled by others or subjected to harmful force or conditions, you may infer that the defendant was negligent unless, taking into consideration all the other evidence in the case, you conclude that the occurrence was not due to any negligence on the part of the defendant.

This instruction, given over Opelika’s objection, although of questionable application under the facts, was undoubtedly of some benefit to the plaintiff’s case. The discussion in Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), reveals the similarity between the inferences giving rise to recovery under res ipsa loquitur, and those applicable to strict liability. Both legal inferences, the Cassisi opinion noted, are similar in being based upon common sense assumptions that the occurrence of the accident is such that in the ordinary course of events it could not have happened in the absence of negligence, or a defective product, respectively. Additionally, both inferences are founded upon “strong policy considerations that aid a plaintiff in meeting his burden of proof when direct proof of negligence or product defectiveness is wanting.” Cassisi, 396 So.2d at 1149. Thus, appellant’s argument here that she was prejudiced by denial of her right to have the jury consider a verdict in her favor without proof of specific acts of negligence on Opelika’s part is not entirely accurate.

Moreover, appellant’s claim of prejudice grounded upon the argument that the jury could not have considered a verdict in her favor without proof of specific acts of negligence is selfcontradictory, under the particular facts of this case. Appellant’s entire case was devoted to proof of a specific defect, namely, an improperly welded metal joint which, if it existed, could have results ed only from negligent manufacture on the part of Opelika. In order to establish a defective product, the evidence necessarily had to also establish negligence. No negligence in manufacture — no defect, since Opelika was not responsible for the design or specifications of the spin buggy.

The majority opinion places great emphasis upon the absence of any instruction for the jury to consider that the “unreasonably dangerous condition” of a product may cause physical harm to the user. The majority alludes to the strict liability definition of a defective product, as one which “is in a condition unreasonably dangerous to the user...." (Florida Standard Jury Instructions, PI. 4, “strict liability”). The majority’s opinion concludes that the “failure to charge the jury on a product’s potential affinity for causing injury is a serious omission,” and deplores the absence of an instruction “advising the jury that a defendant may be liable for manufacturing a defective product which may be so unreasonably dangerous as to cause physical harm to a human being, .... ”

If the appellant was prejudiced in any manner by not having the benefit of the “unreasonably dangerous to the user” language, it has not been demonstrated here. In singling out this verbal deficiency, the majority has given critical importance to an element apparently deemed of no significance by the appellant. There is no mention in appellant’s brief, or reply brief, of prejudice or potential prejudice by reason of the jury’s nonconsideration of the “unreasonably dangerous” character of a defective product. Appellant’s argument on this point focuses upon her contention that consideration of the case on the theory of strict liability in tort would have enabled the jury to return a verdict for the plaintiff without being required to find a specific act of negligence. Appellant rationalizes the jury’s failure to find liability on the negligence count by asserting that the jury “necessarily concluded that the plaintiff did not prove any specific acts of negligence on the part of the defendant, Opelika.” Prejudice appears, it is argued, because (appellant’s brief, page 11):

... [H]ad the plaintiff been aided by their count of strict liability and by the jury instructions on that count based on the West decision no specific act of negligence on Opelika’s part would have to have been proven. If the jury concluded that the defective product and the plaintiff’s subsequent injuries fit within the definition of strict liability, then the defendant Opelika’s actions in placing the defective product on the market would have been negligence per se. (West, refers to West v. Caterpillar Tractor Co. Inc., 336 So.2d 80 (Fla.1976))

As above indicated, appellant’s entire case rested solely upon evidence of a defective weld at the break point of the arm-handle being used by appellant to pull the buggy at the time of her fall. Thus, unlike the cases in which a specific act of negligence has not or cannot be proven by the plaintiff, appellant here relied upon a specific act of negligence, i.e., a defective weld, as proof that the spin buggy was defective when it left the hands of the fabricator, Opelika. There is no other evidence from which a jury finding could be made that the product was defective because of any act or omission of Opelika, regardless of whether recovery was being sought under negligence, implied warranty, or strict liability. I fail to see how change of the standard of proof required from “defective,” or “negligently constructed,” to “defective and unreasonably dangerous” could have benefit-ted the plaintiff.

Again referring to the recent case of Cassisi v. Maytag Co., supra, there it was stated that as one of the prerequisites for recovery in products liability cases a plaintiff has the burden — whether the case is based upon negligence, breach of implied warranty, or strict liability — of proving that a defect was present in the product. Although Cassisi dealt primarily with problems of proof encountered by a plaintiff under varying factual circumstances in strict liability actions, it is pertinent to note the discussion in that case concerning the “defective condition — unreasonably dangerous” element in strict liability actions under Section 402A, Restatement of Torts (Second). Cassisi concluded that the terms “defective” and “unreasonably dangerous” are redundant. Cassisi thus conformed to the view expressed by the Supreme Court of Florida in West v. Caterpillar Tractor Company, 336 So.2d 80, 88 (Fla.1976): “The doctrine of strict liability does not introduce a notion of ‘defective condition unreasonably dangerous to the user or consumer or to his property,’ which is different from the notion of ‘unmerchantability’ as applied in warranty law.”

How, then, has the appellant in this case been prejudiced by absence of the terms “unreasonably dangerous” from the jury instruction? We are not aware from our reading of West, Cassisi, or other authorities, of any inference or suggestion that the plaintiff’s burden of proving “defective condition — unreasonably dangerous” under strict liability is any less onerous (except for being relieved of any need to prove a specific act of negligence) than the burden of proving that a product is defective under the implied warranty theory. Although it is true, as the majority states, “a product may be defective and still not be likely to cause injury,” this would be a matter for argument in defense of liability, not to establish it, on the theory that although defective, the plaintiff must still prove the additional element that the product is “unreasonably dangerous to the 'user.” As a practical matter it appears that “unreasonably dangerous to the user,” describes a more defective product than one simply “not reasonably fit for the uses intended or reasonably foreseeable,” as a defective product is described under the implied warranty theory. See Florida Standard Jury Instructions P. 2 and P. 4 (June, 1979). This view is supported by cases from a number of jurisdictions which for this reason have either rejected the “unreasonably dangerous” element initially, or have subsequently eliminated the requirement in strict liability cases. As one witness in this case actually testified: “Dangerous is a relatively volatile word.”

In any event, regardless of how one might compare the theories of negligence, implied warranty, and strict liability, the majority has reversed upon a theory which is not argued, directly contradicts the express language of West, is at odds with the reasoned analysis of other courts (see cases cited, footnotes 1-4), and which is not supported by authority or reason.

The majority opinion also goes far afield, it seems to me, in its statement that “the charge below stresses the contractual relationship between the buyer and the seller, or the idea of a contractual action for failure of the plaintiff to receive what had been contracted for” I find no suggestion in the trial court’s entire instructions that any “contractual issue” was involved in the case. The court first instructed the jury on the negligence issue, and then, as to breach of implied warranty, instructed the jury that the issue was “whether the buggy was defective ... and if so, whether such defect was a legal cause of injury or damage sustained by the plaintiff.” The charge further stated that a product is “defective” if it is “not reasonably fit for the use intended, or reasonably foreseeable by the defendant.” There is no mention of contractual relationship, privity, buyer or seller, or any other word that could possibly have contractual implications. Thus, the majority opinion assumes the existence of an element in the jury instructions that is simply not present.

Next, the majority elaborates upon some supposed harm, by reason of the giving of the implied warranty instruction, with respect to the measure of damages awardable. Except from an academic viewpoint, it is difficult to discern how the damages discussion relates to this case. First, there is no suggestion in the briefs or arguments that the trial judge improperly excluded any evidence proffered by appellant on any element of damages, nor that counsel’s jury argument and discussion of damages was curtailed or limited in any manner. Furthermore, no objection relating to the instructions on damages was made at the trial, and no issue relating to damages has been raised on this appeal.

Further, while the majority points to authorities dealing with the impropriety of limiting damages under strict liability to those which are “reasonably foreseeable or within the contemplation of the parties,” the majority fails to note that no such instruction was given in the court below. In fact, the jury instruction given here clearly authorized the jury to award “the total amount of her damages,” in event the jury should find that the defective condition of the spin buggy “was a legal cause of injury or damage sustained by the plaintiff.”

Still further, on the subject of damages, while the majority posits a difference in the “measure of damages” recoverable under implied warranty, and those recoverable under strict liability, the Florida Standard Jury Instructions on “Product Liability” (PI. 2, 3 and 4), “Causation” (No. 5.2), and “Damages” (Nos. 6.1 and 6.2), recognize no such distinction. The fact of the matter is that had the trial court actually given the standard instructions on “strict liability,” so far as damages are concerned, the instructions would have been exactly the same as those recommended for implied warranty.

There were conflicts and inconsistencies in much of the evidence presented in this four-day trial. I would hold that appellant has failed to demonstrate reversible error warranting the setting aside of the jury’s verdict, and would affirm.

      . The jury was instructed:
      The alternative claims of the plaintiff are a claim of negligence and a claim of breach of implied warranty of the [sic] fitness. On each of these claims, the defendant has denied liability- The issues for your determination on the breach of implied warranty claim of the plaintiff against the defendant are whether the buggy manufactured, assembled and fabricated by the defendant, Opelika Machine and Welding Company was defective when it left the possession of said defendant and if so, whether such defect was a legal cause of injury or damage sustained by the plaintiff. The product is defective if it is not reasonably fit for the use intended, or reasonably foreseeable by the defendant ...

      . The instruction given the jury in Sansing was as follows:
      In order for the plaintiffs to recover from the defendants Ford and Firestone for injuries sustained as a result of a defect in the truck wheel rim assembly involved in this litigation it is necessary that the plaintiff's injuries were caused by some defect or dangerous condition in the wheel rim assembly which makes it unreasonably dangerous to the user. The wheel rim assembly in question must be dangerous to an extent beyond that which would be contemplated by the ordinary user of the product, possessing the knowledge common to the community as to its characteristics. 354 So.2d at 897 (emphasis supplied).

      . This instruction tracks generally the black letter statement of Section 402A, Restatement of Torts (Second), providing in part: “One who sells any product in a defective condition unreasonably dangerous to the user or consumer ... is subject to liability for physical harm thereby caused to the ultimate user or consumer.”

      . This is the “reasonably fit” standard prescribed under the UCC for determining a product’s merchantability. See Section 672.-314(2)(c), Florida Statutes (1979) (UCC 2.314(2)(c)).

      . Professor Wade was one of the members of an advisory committee which assisted in drafting Section 402A.

      . Dean Page Keeton also contributed to drafting Section 402A.

      . This is a view advocated by certain commentators. See, e.g., R. Parks, A. C. Watts-Fitzgerald, T. A. Watts-Fitzgerald, Products Liability, 33 Mi.L.Rev. 1185, 1206 (1979); D. Maleson, Negligence is Dead But Its Doctrines Rule Us From the Grave: A Proposal to Limit Defendant’s Responsibility in Strict Products Liability Actions Without Resort to Proximate Cause, 51 Temple L.Q. 1 (1978).

        .See Wade, supra, at 933-34.

      . The damages recoverable for the commission of a tort are of course not circumscribed by any rule of foreseeability as long as the consequences directly and proximately result from the wrongful act, provided that such act is not interrupted by the intervention of an independent cause, without which cause the injury could not have occurred. See Fla.Jur.2d, Damages, § 36 (1980). For a more extended discussion of the differences in the damages recoverable in tort as opposed to contract actions, see Prosser, Law of Torts, § 92 at 619-20 (4th ed. 1971).

      . To the same effect, see Chestnut v. Ford Motor Company, 445 F.2d 967 (4th Cir. 1971), finding no error in submitting the case to the jury solely on the breach of warranty theory, rejecting plaintiffs contention that it was error to refuse to submit the case also on the alternative theories of strict liability in tort and negligence. The Chestnut opinion further points out that except for the additional requirement in negligence, of proving that the defect was the result of the defendant’s failure to exercise due care,
      the differences between the three rationales of liability consist of varying defenses available to the defendant depending upon whether the theory of the forum is tort or contract: in a tort action, the defendant may raise the defense of contributory negligence; in a contract action, the defendant may raise defenses of lack of privity, lack of notice of the breach, express disclaimer of the warranty, or contractual assumption of risk. (Id. at 969)
      Here, as in Chestnut, none of these defenses were raised by the defendant. See also footnote 2 of the opinion, 445 F.2d at 969, citing F. Harper and F. James, § 28.32, and Greeno v. Clark Equip. Co., 237 F.Supp. 427, 429 (N.D.Ind.1965).
      See also annotation 52 A.L.R.3rd 101, “Products Liability — Alternate Instructions,” § 2[a], comment page 103, and footnote 13, page 104.

      . The Supreme Court of Pennsylvania, which has rejected the “unreasonably dangerous” language of Section 402A, noted in Azzarello v. Black Brothers Co., 480 Pa. 547, 556, 391 A.2d 1020, 1025, that the phrase has “no independent significance and merely represent[s] a label to be used where it is determined that the risk of loss should be placed upon the supplier.” See also Baker v. Outboard Marine Corp., 595 F.2d 176 (3rd Cir. 1979).

      . In Dooms v. Stewart Bolling & Co., 68 Mich.App. 5, 241 N.W.2d 738 (1976), the court held that although Michigan does not recognize “strict liability in tort” as a third theory of products liability, the defendant manufacturer against whom a verdict was rendered was not entitled to reversal merely because the trial judge instructed the jury on “strict liability,” using the “unreasonably dangerous condition to the user,” language of 402A, Restatement of Torts (Second). The reasoning of the Michigan court is illuminating. First, the court made it plain that it would not sanction an instruction on strict liability in tort because: “First and foremost, we believe such a theory is unnecessary.” The court then reasoned that it appeared “inconceivable that a plaintiff might fail to recover under our tort warranty of fitness theory, yet recover under a strict liability in tort theory.” (Id. 241 N.W.2d at 741). Further, page 743:
      This court opines that if the condition of a product is unreasonably dangerous as well as defective (strict liability theory) then the product would necessarily be unfit for the use anticipated or reasonably foreseeable (implied warranty in law theory).
      We cannot conceive that had the jury found the rubber milling machine to be in a defective and unreasonably dangerous condition, it could still find the machine reasonably fit for the use anticipated or reasonably foreseeable. Conversely, we cannot conceive that if the jury determined the machine was reasonably fit for the use anticipated or reasonably foreseeable (thus rejecting implied warranty) it could nevertheless find that the machine was defective and unreasonably dangerous (thus finding strict liability).

      . It should first be noted that California, which pioneered in the development of the strict liability in tort theory, has not adopted the “unreasonably dangerous” phraseology of Section 402A. Greenman v. Yuba Power Products Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963); Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Barker v. Lull Engineering Co. Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978). Of particular interest is the statement of the court in Cronin, supra (104 Cal.Rptr. at 453, 501 P.2d at 1173):
      In summary, we have concluded that to require an injured plaintiff to prove not only that the product contained a defect but also that such defect made the product unreasonably dangerous to the user or consumer would place a considerably greater burden upon him than that articulated in Greenman.

        More recently, the California court in Barker, supra, has made it clear that the Cronin rejection of the “unreasonably dangerous” terminology extended not only to cases involving design defects, but to manufacturing defects also.
      A jury verdict for the defendant was reversed in Hansen v. Cessna Aircraft Co., 578 F.2d 679 (7th Cir. 1978), because the trial judge instructed the jury on the theory of strict liability only, and rejected plaintiffs requested negligence instructions. Again, the language of the federal court, applying Wisconsin law, is illuminating. The court rejected the argument by the defendant that the jury’s finding that there was no defect that was “unreasonably dangerous” precludes a finding that there was negligence that caused the plaintiffs injuries, therefore no error in refusing a negligence instruction. In alluding to the Wisconsin Supreme Court’s decisions recognizing clear-cut distinctions between “negligence” and “strict liability” under the “unreasonably dangerous” formulation, the court stated (Id. at 684):
      It is quite possible that the Wisconsin Supreme Court was fearful that the term [‘unreasonably dangerous’] might connote more to a jury deciding a products liability case than the ‘obviousness’ of a defect in the product at issue. As one commentator has noted the term ‘unreasonably dangerous’ ‘sounds as if the requisite proof for a product defect is some form of ‘extraordinary’ danger.’ (quoting from Twerski, Note, Products Liability in Wisconsin, 1977 Wis.L.Rev. 227, at 334).
      The Barker case, supra, describes the “unreasonably dangerous” terminology as representing “an undue restriction” on the application of strict liability principles, and further points out that it has been viewed “as shielding a defendant from liability_” 143 Cal.Rptr. at 233, 573 P.2d at 451. Further, according to the editors of the annotation in 54 A.L.R.3d 352, the “unreasonably dangerous” element is used to “limit the scope of the strict tort liability doctrine_” Id. at 358.
      New Jersey and West Virginia have also rejected the “unreasonably dangerous” term. Cepeda v. Cumberland Engineering Co. Inc., 76 N.J. 152, 386 A.2d 816 (1978); MomingStar v. Black & Decker Mfg. Co., W.Va., 253 S.E.2d 666 (1979). It is also interesting to note, as pointed out in the MomingStar opinion (253 S.E.2d at 681-682) that Dean Wade (whose article in 44 Miss. Law Journal is cited by the majority in support of its decision) adopts the term “not duly safe” instead of “defective condition unreasonably dangerous” in his suggested model instruction on strict liability. See, 44 Miss. Law Journal 825, 839-840 (1973).

      . Dean Wade, in his article On The Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 830 (1973) traces the origin of the terms “defective” and “unreasonably dangerous” as found in the restatement, Section 402A. He points out that while the two terms “may seem redundant,” they were joined together by an “or” instead of an “and,” and this has created problems of its own. He inquires, assuming the two terms are not “entirely synonymous,” and if it is “too much” to insist that the product be “both defective and unreasonably dangerous,” which term “is the more appropriate?” Significantly, while he finds difficulties in the use of the term “defective,” he states that its “natural application would be limited to the situation in which something went wrong in the manufacturing process, so that the article was defective in the sense that the manufacturer had not intended it to be in that condition.” (Id. at 831). Parenthetically, it is observed that in this case we are dealing with a “manufacturing defect.” Therefore, the term “defective,” according to Dean Wade’s analysis, was used in its “natural application.” Of further significance, in discussing “unreasonably dangerous,” the very first “problem” Dean Wade finds in the use of the term is stated as follows: “It may suggest an idea like ultrahazardous, or abnormally dangerous, and this gives rise to the impression that the plaintiff must prove that the product was unusually or extremely dangerous.” (Id. at 831). Dean Wade then makes a thorough case for the proposition that whatever word or phrase is used, “a further explanation or indication of meaning is needed.” (Id. at 833).
      From the foregoing, it is difficult to determine in what manner the majority considers that Dean Wade’s article supports a reversal in this case. As already indicated, in footnote 4, Dean Wade suggests abandonment of the “unreasonably dangerous” terminology.

      . Appellant’s main brief makes the argument that the jury’s denial of a verdict for appellant on implied warranty was because “the jury certainly could have determined that there was no contractual relationship between the plaintiff Ida Jean Hartman and the defendant Opeli-ka Machine and Welding Company .... ” This argument has no foundation in reality, as pointed out by appellee’s brief, because the jury was never instructed that a contractual relationship was necessary, and never instructed to determine whether or not a contractual relationship existed. Thus “contractual relationship” never entered the case. Appellant’s reply brief contains no response to appellee’s argument on this point. There is no “privity” requirement for implied warranty action by an employer of a purchaser if it is “reasonable to expect such person may use” the product. Section 672.318, Florida Statutes.

      . As previously noted, the trial court’s ruling granting a directed verdict on the strict liability count came at the conclusion of the testimony, after both sides had rested.

      .Instruction-5.2, covering “Legal Cause (Product Liability),” follows the identical standard used in negligence (tort cases (instruction 5.1)). Under these instructions, either negligence or a defect in a product is the legal cause of injury or damages “if it directly and in natural and continuous sequence produces or contributes substantially to producing such ... [injury] [or] [damage], so that it can reasonably be said that, but for ... ” the negligence, or defect, “... the [injury] [or] [damage] would not have occurred.” Instructions 5.1, 5.2. See, Model Charge No. 7, Florida Standard Jury Instructions (pages 32-35, 1980-81 revisions).
      The trial judge gave the legal causation instruction, number 5.1, in connection with the negligence count, but omitted the comparable instruction, 5.2, with respect to implied warranty. However, since appellant based her attempted recovery, in part, upon the implied warranty theory, and requested the implied warranty instruction, it was counsel’s duty to make timely objection to any error or omission in the jury instructions. As given, however, the instructions with respect to damages contained no such limitations as are suggested by the majority opinion, and the instructions clearly authorized the jury to return a verdict for all injuries or damages proved by the appellant.


text:
    Jimmy Charles DANIELS a/k/a Jimmy Charles Daniel, Sr., a/k/a Jimmie Charles Daniel, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 80-737.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded pursuant to the Supreme Court’s decisions in Tascano v. State, 393 So.2d 540 (Fla.1980) and Murray v. State, 403 So.2d 417 (Fla.1981). By these decisions the Supreme Court has apparently ruled that no matter how overwhelming the evidence may be, failure to give a requested instruction on the penalties for the crimes charged constitutes reversible error. We make no rulings on the other issues raised by appellant, none of which were properly presented in the trial court, and all of which may become moot or the subject of a subsequent plenary appeal.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C, Jr., Associate Judge, concur.


author: HERSEY, Judge.

text:
    Herman KELLY, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-605, 81-1606.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.

      Richard L. Jorandby, Public Defender, Anthony Calvello, Asst. Public Defender, West Palm Beach, and Herman Kelly, pro se, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant plead guilty to the charge of robbery with a firearm and was originally sentenced to the Division of Corrections for a period of five years to be followed by three years of probation. At the sentencing hearing the trial court alluded to the fact that appellant would have to serve a mandatory minimum of three years in prison. The written sentence, however, did not refer to a mandatory minimum.

Appellant, both pro se and through counsel, filed an appeal, various writs, and several motions in the trial court, in this court, and in the Supreme Court of Florida, all attacking his original sentence. On two occasions while appellant’s appeal from sentencing reposed in this court the trial court entered written corrected sentences which not only included mandatory minimum language but also increased the length of appellant’s prison term. Neither of the subsequent written sentences can stand because the trial court lacked jurisdiction to correct the sentence which was on appeal here. See Jones v. State, 400 So.2d 204 (Fla. 4th DCA 1981); Gonzalez v. State, 384 So.2d 57 (Fla. 4th DCA 1980).

Nevertheless, the mandatory minimum applies to appellant and is a valid part of his sentence because the written sentence is merely a record of the actual sentence pronounced in open court. Fla.R. Crim.P. 3.700. As stated in Toombs v. State, 404 So.2d 766, 768 (Fla.3d DCA 1981), “[the] oral pronouncement, although not reflected in the written sentence order, controls.” In the instant case, then, the trial court’s oral announcement that appellant would be required to serve a mandatory minimum takes precedence over the written sentence which omits that condition.

Further, Section 775.087(2), Florida Statutes (1981), provides that a person convicted of certain crimes and who had in his possession a firearm “shall be sentenced to a minimum term of imprisonment of 3 calendar years ... [and shall not] be eligible for parole or statutory gain-time ... prior to serving such minimum sentence.” Thus, appellant’s original sentence to five years in prison complied with the three year minimum sentence mandated by the statute. Failure to include mandatory minimum language in the written sentence, although preferable, was not fatal to implementation of Section 775.087(2). Rather, the statute is self executing so that any defendant meeting its criteria will not be eligible for release from prison prior to serving the minimum sentence required.

Appellant initially sought relief under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), and subsequently withdrew that application. This opinion shall be without prejudice to appellant’s right to renew his application for relief under Villery in the trial court if he is so inclined.

Our disposition of these matters renders appellant’s additional points moot.

We reverse the corrected sentence and remand with instructions to the trial court to reinstate the initial sentence, amended to include reference to the mandatory minimum period, to properly reflect the sentence originally pronounced in open court.

REVERSED and REMANDED with INSTRUCTIONS.

WALDEN, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.


author: DELL, Judge.

text:
    Joseph P. FARRELL, Appellant, v. Charles D. PHILLIPS, Appellee.
    No. 81-890.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellant.
    Frank H. Fee, III, of Fee, Koblegard & Teel, P.A., Fort Pierce, for appellee.
   DELL, Judge.

Joseph P. Farrell appeals from a final judgment ordering specific performance of a contract to convey the Sea Horse Lodge to the appellee, Charles D. Phillips.

Appellant, the seller, signed and delivered a deposit receipt and contract for sale and purchase of the subject real property to the appellee on March 4, 1980. The contract called for a total purchase price of $300,000 and for the appellee to immediately place a $3,000 deposit in escrow, with the balance of a $50,000 down payment to be paid at the closing. The contract required the seller to accept a $250,000 purchase money note and mortgage payable over twenty years at 7>/2% interest, subject, two years after date, to a subordination agreement which would subordinate it to “any first mortgage obtained from a lending institution for the purpose of construction.” The contract did not delineate responsibility for the existing first mortgage on the real property. Appellant had previously rejected several contracts which contained substantially similar terms except for the delayed effective date of the subordination clause. Three days after signing the contract of sale, appellant repudiated the contract. Appellee brought an action for specific performance. The trial court ordered specific performance and entered a final judgment which contained detailed provisions governing payment of the existing mortgage and operation of the delayed subordination clause.

Appellant raises three points on appeal. He contends first, that the contract lacked certain essential terms which made it indefinite, uncertain and incapable of specific performance; secondly, that the appellee breached the alleged contract because he failed to pay the deposit into a proper escrow account; and lastly, that the totality of the circumstances of the case bars specific performance.

We agree with appellant’s contention that the absence of certain essential terms made the contract too indefinite and uncertain for specific performance. Essential terms in contracts of sale vary greatly depending on the nature and complexity of the underlying transactions. Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla.3d DCA 1979). These terms must be expressed with reasonable certainty considering “the subject-matter of the agreement, the purposes for which it was entered into, the situation and relation of the parties, and the circumstances under which it was made.” Rundel v. Gordon, 92 Fla. 1110, 111 So. 386, 389 (1927). The contract of sale in the present case did not contain any terms for the disposition of an $84,000 existing first mortgage on property sold for $300,000 nor did it contain any provision regarding the amount or terms of the construction loan which would be superior to appellant’s mortgage. When a transaction is of considerable size and complexity, details concerning the assumption of an existing mortgage become essential terms for specific performance, Nichols v. MoAmCo Corporation, 311 So.2d 750 (Fla.2d DCA 1975), and when a contract of sale includes a provision on subordination of the purchase money mortgage, the amount and limits thereof must be definite and certain in the contract itself before specific performance is proper. Lasseter v. Dauer, 211 So.2d 584 (Fla.3d DCA 1968).

The trial court highlighted the need for the missing terms when it approved a form of wrap around mortgage which required the appellant to continue paying the existing first mortgage and noted that the parties understood the terms of the construction loan because they were implicit in the contract. A court may not supply material contract terms which the parties have omitted. Topper v. Alcazar Operating Co., 160 Fla. 421, 35 So.2d 392, 394 (1948). In this case the contract of sale lacked material and essential terms which made it too indefinite and uncertain for specific performance. Having reached the foregoing conclusion, we need not discuss appellant’s remaining points on appeal.

Accordingly, we reverse the final judgment granting specific performance and remand this ease for such further proceedings consistent with this opinion as may be appropriate.

REVERSED AND REMANDED.

DOWNEY, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Robert Van WILSON, Appellant, v. STATE of Florida, Appellee. Lester H. GORDON, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1992, 81-2009.
    District Court of Appeal of Florida, Fourth District.
    June 2, 1982.

      Clark W. Smith of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appellant Wilson.
    Douglas N. Duncan of Foley & Colton, P.A., West Palm Beach, for appellant Gordon.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Knight v. State, 394 So.2d 997 (Fla.1981).

ANSTEAD and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


author: MILLS, Judge.

text:
    Reginald FITZPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. AK-324.
    District Court of Appeal of Florida, First District.
    June 2, 1982.
    Reginald Fitzpatrick, pro se.
    No appearance for appellee.
   MILLS, Judge.

We affirm the trial court’s denial of Fitzpatrick’s motion for post-conviction relief.

There is no merit to Fitzpatrick’s contention that it was error for him to be charged by information rather than indictment for the crimes of burglary and grand theft.

He next contends that the trial court erred in failing to determine a factual basis for his pleas of guilty. The failure to ascertain the factual basis for negotiated pleas of guilty is an insufficient basis for reversal absent an allegation of prejudice or manifest injustice by the defendant. State v. Kendrick, 336 So.2d 353 (Fla.1976); Williams v. State, 316 So.2d 267 (Fla.1975).

There was no allegation of prejudice or manifest injustice in this case.

McCORD and SHIVERS, JJ., concur.


author: SCHOONOVER, Judge.

text:
    SHIPP CORPORATION, INC., a Florida corporation, Appellant, v. Arnold CHARPILLOZ and Alain Charpilloz, individually and as Partners of The Conservatory, a Florida Partnership, jointly and severally, et al., Appellees.
    No. 81-1473.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.
    John F. Hooley of Arthur V. Woodward, P. A., Marco Island, for appellant.
    Frederick C. Kramer and Salvatore C. Scuderi, P. A., Marco Island, for appellees.
   SCHOONOVER, Judge.

This is an appeal from an order recognizing an equity of redemption in the appel-lees, third mortgagees, and granting a motion to set aside a foreclosure sale on the ground of inadequate consideration. We reverse.

Ample Funds, Inc., a Florida corporation, filed an action to foreclose its first mortgage against The Conservatory, a Florida general partnership. They joined the second mortgagees, Norman Rubin and Gail Rubin, and the third mortgagees, appellees, Arnold and Alain Charpilloz, as defendants. The junior mortgagees filed cross-claims also seeking foreclosure.

A summary judgment was entered on April 22,1981, and the clerk was directed to sell the subject property on May 20, 1981.

At the foreclosure sale, the first mortgagee, Ample Funds, Inc., bid the amount of its judgment, i.e., $802,371.41. The second mortgagees bid the amount of their judgment, i.e., $257,915.50, plus the amount bid by Ample Funds, Inc. The appellees, holders of a judgment in the amount of $2,065,-932, were present at the sale through their attorneys but did not bid. The appellant, Shipp Corporation, made the high bid of $1,100,000.

On May 29, 1981, the appellees filed a motion for redemption of the senior mortgages. They also moved for an order setting aside and refusing to confirm the foreclosure sale on the grounds of inadequacy of consideration. Both motions were granted.

The appellant contends that any equity of redemption belonging to the appellees was extinguished at the time of the final judgment and that the trial court erred in setting aside or refusing to confirm the foreclosure sale. We agree with these contentions.

The phrase “right of redemption” has a two-fold meaning. When it is used with respect to a mortgagor, it refers to his right, prior to being foreclosed from that right, to satisfy the mortgage indebtedness which encumbers his property. When the phrase is used with reference to a junior mortgagee, as in the case sub judice, it refers to his right to satisfy a prior mortgage by payment of the debt it secures and thereby become equitably subrogated to all rights of the prior mortgagee. 22 FlaJur. Mortgages § 405 (1958).

A mortgagee’s right of redemption applies to the rights of senior mortgagees and not to the underlying real property. This right does not confer greater rights upon the junior mortgagee exercising the right of redemption than were held by the senior mortgagee. A mortgagor holds legal title to the mortgaged property while the mortgagee’s interest is merely that of a lienor. Hoffman v. Semet, 3Í6 So.2d 649 (Fla. 4th DCA 1975).

A junior mortgagee who is made a party to a foreclosure action brought by a senior mortgagee has his rights determined by the entry of a final judgment. Where a junior mortgagee joins in the action and files a cross-claim seeking a sale of the property, he loses his right to redeem from the senior mortgagee at the time of the final judgment.

We agree with the holding in the California case of San Jose Water Co. v. Lyndon, 124 Cal. 518, 57 P. 481 (1899), wherein the court held that a mortgagee cannot redeem from a sale made upon foreclosure of his own mortgage; and it makes no difference whether the foreclosure is in a suit originally brought by him or upon a cross-complaint in which he prays for and obtains a foreclosure in a suit brought by another mortgagee.

We also agree with the appellant’s' contention that the trial court erred in setting aside or refusing to confirm the foreclosure sale on the basis of inadequate consideration.

This court has held in American National Bank v. Lau, 268 So.2d 567 (Fla. 2d DCA 1972), at page 572:

[A]nyone subsequently dealing with property sold at a judicial sale has a right to rely on the apparent finality of the judicial proceeding giving rise to the instrument creating a new chain of title, and in the absence of any other patent irregularity in such proceedings he need not concern himself with the recorded consideration or purchase price given at the sale, however apparently inadequate.

The appellees do not allege any irregularity in the sale or in the entry of the summary judgment or order requiring the sale. Although they were represented at the sale, they took no action to protect their own interests. The failure of a party to take the required steps necessary to protect his own interest cannot, standing alone, be grounds to vacate judicially authorized acts to the detriment of other innocent parties. The law requires certain diligence of those subject to it, and this diligence cannot be lightly excused. John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980).

In this case, the total indebtedness for the three mortgages amounted to $3,126,218.91. The fair market value of the subject property was in the range of $2,800,000 to $3,200,000. We cannot say that a bid in the amount of $1,100,000 was so grossly inadequate that it should have shocked the judicial conscience. The First District Court of Appeal has taken judicial notice that a forced sale seldom brings the property’s true value, but that is not a controlling factor upon the question of the purchaser’s right to confirmation. O’Neal v. McElhiney, 172 So.2d 492 (Fla. 1st DCA 1965).

The general rule has been set forth by the supreme court in the case of Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), at page 577, as follows:

The general rule is, of course, that standing alone mere inadequacy of price is not a ground for setting aside a judicial sale. But where the inadequacy is gross and is shown to result from any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale, with resulting injustice to the complaining party, equity will act to prevent the wrong result.

The appellees agree with the general statement of law but contend that in addition to inadequacy of price, other factors existed in this case. They first contend that if the foreclosure sale had not been set aside, a large deficiency judgment could be realized. This fact standing alone will not support their position. They additionally contend that we should consider that they deposited funds necessary to redeem the senior mortgages at the time they moved to redeem. The fact that the appellees deposited funds to redeem has nothing to do with showing a mistake, accident, surprise, fraud, misconduct, or other irregularity on the part of the purchasers or others. Their last contention, i.e., that settlement negotiations between the parties had taken place, has no merit.

Accordingly, the court should have confirmed the sale in question because the ap-pellees did not allege any irregularity in the proceedings and there was no proof of any mistake, accident, surprise, misconduct, fraud, or other irregularity to go with the alleged inadequacy of price.

We accordingly reverse and remand for proceedings consistent herewith.

SCHEB, C. J., and GRIMES, J. concur.


author: GRIMES, Judge.

text:
    Daniel D. LINDERMAN, a minor, by his father, mother and next friends, Daniel J. Linderman and Cheryl D. Linderman, and Daniel J. Linderman and Cheryl D. Linderman, individually, Appellants, v. AMERICAN HOME ASSURANCE COMPANY, a foreign corporation, Appellee.
    No. 81-2120.
    District Court of Appeal of Florida, Second District.
    June 4, 1982.

      Herbert H. Hall, Jr., and John R. Over-chuck of Maher, Overchuck, Langa, Cate and Lobb, Orlando, for appellants.
    Richard M. Georges of Kieffer, Georges & Rahter, St. Petersburg, for appellee.
   GRIMES, Judge.

This case involves an interpretation of the service station operations hazard contained in a garage liability policy.

Daniel D. Linderman, a minor, was injured when an automobile in which he was riding as a passenger was struck by a pickup truck which had sped out of control while having its wheels balanced at Larry’s Automotive Services. Daniel and his parents sued Larry’s and its insurer, American Home Assurance Company, as well as others, for damages. American Home denied coverage under its garage liability policy issued to Larry’s. Following discovery, the court entered summary judgment for American Home on the coverage issue, from which this appeal is taken.

In order to decide the issue of coverage, it is necessary to consider in detail the manner in which this accident occurred. Berry Lee Casey, an employee of Larry’s, was balancing the rear tires on his personal pickup truck during working hours on the insured premises. His method of operation was to raise the rear end of the truck on the service station’s hydraulic lift so that an on-the-vehicle spin type wheel balancer could be applied to the rear wheels. While the back wheels were spinning at 55 miles per hour, the lift lowered thereby permitting the tires to touch the ground. As a result, the truck sped out of the garage and struck the passing vehicle in which Daniel was riding.

Casey stated that he and the other employees were permitted to work on their own cars at the service station. He contended that the lift lowered because of leaks in the mechanism. His employer, Larry Jackson, the owner of Larry’s Automotive Services, said that he had recently told his employees not to work on their own cars at the station without his permission and that he had not given Casey permission to balance his car’s wheels. He also explained that, in order to balance the wheels, Casey should have lifted the entire car up on the lift and put a safety stand underneath it to keep the lift from lowering. Jackson asserted that there was nothing wrong with the lift and observed that any lift would tend to lower as a result of the vibrations caused by the manner in which Casey was attempting to balance the wheels.

The American Home policy agreed to cover Larry’s Automotive Services for bodily injury “caused by an occurrence and arising out of the service station operations hazard.” The service station operations hazard was defined as:

The ownership, maintenance or use of the premises for the purpose of a gasoline service station, and all operations necessary or incidental thereto, herein called “service station operations” ....

In granting the summary judgment, the court found “that the incident sued upon was not such as to be included within the ‘service station operations hazard’ as defined in the insurance policy in question.”

A careful analysis of the policy language suggests that the service station operations hazard actually contains two facets of coverage. First, it insures against injuries caused by an occurrence arising out of the ownership, maintenance, or use of the premises for the purpose of a gasoline service station. It also covers occurrences arising out of all operations necessary or incidental to the conduct of the gasoline service station. The term “all operations necessary or incidental thereto” does not modify the preceding definition of coverage but, rather, appears to extend coverage to offsite accidents arising out of operations necessary or incidental to the service station business. The court in Knowles v. Lumbermens Mutual Casualty Co., 69 R.I. 309, 33 A.2d 185 (1943), made, this distinction, albeit with slightly different policy language. In that case a watchdog kept at a garage escaped and injured a passing pedestrian. In reversing a directed verdict for the insurer, the court held that the jury could have concluded that the keeping of a watchdog on the premises was customary in the ownership, maintenance, occupation or use of the garage. The court rejected the argument that the policy language which read “all operations either on the premises or elsewhere which are necessary and incidental thereto” limited the preceding coverage for accidents arising out of “the ownership, maintenance, occupation and use of the premises” as a garage. But see Automobile Underwriters, Inc. v. Hitch, 169 Ind. App. 453, 349 N.E.2d 271 (1976), in which the court interpreted similar language to exclude from coverage injuries caused by the malfunction of reloaded shotgun shells sold from a service station because “the sale of shotgun shells is not necessary or incidental to the use of the premises for the purpose of operating a garage.”

There are no Florida opinions to guide us. Some of the few cases on the subject are collected in 93 A.L.R.2d 1047 at page 1061 (1964). One case of interest is Jackson v. LaJaunie, 264 La. 181, 270 So.2d 859 (1973), in which the conduct of the service station employee that brought about the accident was more abberant than that of Casey. Yet, the Louisiana Supreme Court sustained liability coverage under a garage operations hazard containing the same wording as the pertinent policy language in the instant case. In that case the employee shot a customer with his pistol because he believed the pistol to be loaded with blank ammunition when he fired it at the customer as a prank. The court observed that it was beside the point that shooting a pistol at a customer is not part of the custom and usage of a service station. The court held that the accident was covered under the broad language of the policy because it arose out of the use of the premises.

American Home suggests that there was no business purpose being served by Casey in balancing the wheels on his own truck. Thus, the accident cannot be covered because it did not result from any conduct directed toward making a profit for Larry’s Automotive Services. However, we see nothing in the policy language which makes the existence of coverage depend upon whether the activity which causes the injury constitutes profit-making conduct. The actions of a fulltime employee on the premises during working hours put the truck into motion. In balancing wheels, he was doing an activity regularly associated with the service station business and one which Larry’s offered as a service to the public. We do not believe that the fact that the wheel balancing was being done for the personal benefit of Casey rather than his employer takes the accident out of the language which provides coverage for occurrences arising out of the ownership, maintenance or use of the premises for the purpose of a gasoline service station. If Casey was acting outside the scope of his employment, this is a defense which can be raised against Larry’s vicarious liability. See Traynor v. Super Test Oil & Gas Co., 245 So.2d 916 (Fla. 2d DCA 1971).

We reverse the summary judgment for American Home and remand the case for further proceedings.

SCHEB, C. J., and DANAHY, J., concur.