Washington Avenue Food Center, Inc. v. Modlin

Nov 29, 1967

No. 34849

Versions:

Lead Opinion

PER CURIAM.

By petition for a writ of certiorari, we have for review a decision of the District Court of Appeal, Third District, in Washington Avenue Food Center, Inc. v. Modlin et al., Fla.App., 178 So.2d 596. Jurisdiction is laid with the contention that the cited decision conflicts with the opinion of this Court in Slavin v. Kay, Fla., 108 So.2d 462.

The factual background is adequately delineated in the opinion of the District Court under review. We find that the jurisdictional conflict of decisions is present. In our opinion in Mai Kai, Inc. et al. v. Colucci et al., 205 So.2d 291, opinion filed 29th day of November, 1967, we have announced our adherence to our decision in Slavin v. Kay, supra. On the authority of Mai Kai, Inc., the decision of the District Court now under review is quashed, and the cause is remanded to the District Court of Appeal, Third District, for disposal consistent with this opinion and our opinion in Mai Kai, Inc. v. Colucci, supra.

It is so ordered.

CALDWELL, C. J., and THOMAS, DREW and THORNAL, JJ., concur. ROBERTS, J., concurs specially with opinion. ERVIN, J., dissents with opinion. WHITE, Jos. S., Circuit Judge (Retired) dissents with opinion.

Concurrence Opinion

ROBERTS, Justice

(concurring specially) :

I concur in the judgment for the reasons stated in Hall v. Holland, Fla., 47 So.2d 889 and because the doctrine of implied warranty is not raised.

Dissenting Opinion

ERVIN, Justice

(dissenting):

I would follow without modification the opinion of .the District Court with respect to the question of the liability of Washington Avenue Food Center, Inc., a Florida corporation. I think the District Court’s opinion appropriately sets forth policy considerations supported by legal precedents which are best attuned to provide a remedy for members of the public who suffer injury in cases of this kind. I refer to the text of its opinion from which headnotes 1 to 6, inclusive, are drawn.

Dissenting Opinion

WHITE, Jos. S., Circuit Judge

(Retired) (dissenting) :

I respectfully dissent in this case, also, upon grounds stated in dissenting opinion in Mai Kai and Reilly v. Colucci, 205 So.2d 291, filed the 29th day of November, 1967.