author: OWEN, Judge.

text:
    WALT DISNEY WORLD CO. and Insurance Company of North America, Appellants, v. Carl LEFF and Sylvia Left, his wife, Appellees.
    No. 75-1750.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Thomas B. DeWolf of Helliwell, Mel-rose & DeWolf, Orlando, for appellants.
    E. Hugh Chappell, Jr., Fort Lauderdale, for appellees.
   OWEN, Judge.

The issue is venue. Plaintiffs, residents of Broward County, filed their personal injury action in Broward County against two defendants, both foreign corporations: Walt Disney World and Walt Disney World’s insurer, Insurance Company of North America. The injury occurred (and therefore the cause of action accrued) at Walt 'Disney World in Orange County. Defendant-insurer “resided” in both Broward and Orange Counties. Defendant-Disney “resided” only in Orange County.

Defendant-Disney moved to dismiss for improper venue, or in the alternative, to transfer the cause to Orange County, alleging that “Walt Disney World does not have an office for the conduct of business in Broward County, Florida, and . no representatives or agents ... residing in ... or doing business in Broward County, Florida.” Plaintiffs filed a response to defendant’s motion alleging that defendant-Disney advertises and solicits business throughout Florida, including Broward County, and demanding trial in Broward under Fla.Stat. § 47.122 (1973), for the convenience of the parties and witnesses and in the interests of justice, alleging that they and most of their witnesses resided in Broward, and that because defendant-Disney’s attraction is located in Orange and supports the economy of that community, plaintiffs would not receive a fair trial in that county. Defendant’s motion was denied and this appeal followed.

Appellant’s point that it has a statutory venue privilege in Orange County is well taken. The applicable statutes are:

“§ 47.051. Actions against corporations. —. . . Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.” Fla.Stat. § 47.051 (1973).

and

“§ 47.021. Actions against defendants residing in different counties. — Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.” Fla.Stat. § 47.021 (1973).

While on the face of these two statutes, it may appear that plaintiffs had the choice, under § 47.021, of laying venue in either Orange or Broward County, being the “residence” of one or the other defendant, this is not in fact the case due to a fairly logical and well-reasoned line of cases interpreting § 47.021.

The seminal case interpreting this statute (at that time numbered Fla.Stat. § 46.02) is Enfinger v. Baxley, 96 So.2d 538 (Fla.1957). In that case, the cause of action had accrued in Polk County, where plaintiff also resided. There were two defendants: the individual defendant resided in Polk County; the corporate co-defendant “resided” in both Polk and Duval Counties and the plaintiff chose to initiate his action in Duval County. The trial court denied the individual defendant’s Motion to Dismiss for Improper Venue. The Supreme Court reversed, stating at 540:

“Section 46.02 places a qualification upon the venue privilege granted to an individual defendant by Section 46.01 and to a corporate defendant by Section 46.04. Inverness Coca-Cola Bottling Co. v. McDaniel, supra, 78 So.2d 100, 102. It gives a plaintiff the right to make the final choice of the forum in which his suit will be tried as between the conflicting interests of defendants whose venue privileges, as granted by Section 46.01 and/or Section 46.04, do not fall within the same county. The applicability of the statute is clear where the venue privileges of the defendants are co-equal and not co-existent in the same cownty. Here, however both defendants ‘reside’ in Polk County, even though the corporate defendant may also be said to ‘reside’ in Duval County. If sued alone, the defendant corporation would have no greater right, under Section 46.04, to be sued in Duval County than in Polk County since it has an agent in both counties; but the individual defendant if sued alone would have the privilege, under Section 46.01, of being sued in Polk County. In this situation, we do not think Section 46.02 should be applied to give to a plaintiff the right to choose the forum in which to bring his suit. ‘The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.’ Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209, 210.” (e. s.)

The same rationale was employed in Commercial Carrier Corporation v. Mercer, 226 So.2d 270 (2nd DCAFla.1969), whose facts are nearly on all fours with those at bar. There, the defendants were both corporations called upon to defend an action brought in Hillsborough County. One defendant “resided” in both Hillsborough and Polk Counties; the other “resided” only in Polk County. “Thus,” the appellate court reasoned, “each ‘resides’ in Polk County, although [one defendant] also ‘resides’ elsewhere.” The court then quoted § 47.021, supra, adding emphasis to the word, “different”, and concluded:

“It is clear, of course, that this section applies only when codefendants reside in ‘different’ counties. But when dll defendants to an action enjoy mutual residence within one county, the section does not apply even though, as here, one or more corporate codefendants may also ‘reside’ in other counties.
“We therefore hold that § 47.021, F.S.A. does not apply to the factual situation here and that the action should have been filed in Polk County within the purview of § 47.011, F.S.A. The trial court’s denial of the plea of privilege was therefore error.” (footnote omitted).

The rule was also applied in Allen v. Summers, 273 So.2d 13 (3rd DCAFla.1973); Maloney v. Fleishaker, 238 So.2d 496 (2nd DCAFla.1970); King v. King, 188 So.2d 857 (4th DCAFla.1966), and was recognized by this court, but not applied because the facts did not so warrant, in Sage v. Travelers Indemnity Company of Hartford, 239 So.2d 831, 833 (4th DCA Fla.1970).

Appellees make an unpersuasive attempt to distinguish the above cases on their facts from that at bar. Their argument is infected with a fallacious concept: that venue was properly laid in Broward County as to defendant-Disney in any event (i. e., irrespective of the presence of the Broward-based defendant/insurer in the suit) because Disney was “active and doing business in Broward County.” Ap-pellees overlook that the statutory standard for obtaining venue in actions against a foreign corporation is, as set out in § 47.051: “where such corporation has an agent or other representative.” The fact of “doing business” is not the test in spite of some dicta to the contrary in the court’s opinion in Mann v. Goodyear Tire and Rubber Company, 300 So.2d 666 (Fla.1974).

Appellees in responding to the motion, apparently sought to justify venue in Broward County on the basis of Fla.Stat. § 47.122. It is clear that venue in the first instance was only properly laid in Orange County. Had the action been brought there initially, appellees could not have successfully sought transfer to Broward County under § 47.122 absent the consent of appellant-Disney. Mann v. Goodyear Tire and Rubber Company, supra. Manifestly, appellant-Disney does not consent to the action being brought in Broward County. Thus, appellees may not rely upon § 47.122 as justification for the action being “retained” in Broward County.

The order denying appellant’s motion for change of venue is reversed and this cause remanded with directions that said motion be granted.

Reversed and remanded.

WALDEN, C. J., and MAGER, J., concur.

      . The term “resided” is here used for convenience and stands for the satisfaction of the statutory requirements for laying venue in actions against a foreign corporation which are set out in Fla.Stat. § 47.051 (1973) ; these will be discussed infra.

      . Although § 47.021 speaks of defendants “residing,” connoting individual defendants, this section has been determined to be equally applicable to corporations. L. B. McLeod Construction Company v. State, 106 Fla. 805, 143 So. 594, 596 (1932); Enfinger v. Baxley, 96 So.2d 538 (Fla.1957).

      . There the court stated, at 668:
      “We conclude that, when suing a foreign corporation, one has the right to bring one’s action anywhere business is transacted in Florida [citing Fla.Stat. § 47.051] subject to the forum non conveniens statute and further limited by the provisions of § 47.163, Florida Statutes, requiring the consent of the parties.” (footnotes omitted).


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, Appellant, v. Charles A. KOTTMEIER, M.D., Appellee.
    No. 75-948.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      William E. Hennen and William Duane Wood, III, of Bradham, Lyle, Skipper & Cramer, St. Petersburg, for appellant.
    Joseph W. Gaynor, of Jacobs, Robbins & Gaynor, P.A., St. Petersburg, for appellee.
   GRIMES, Judge.

This appeal involves a question of liability insurance coverage in a suit for slander.

Dr. J. Martin Klein brought suit against Dr. Charles A. Kottmeier and his liability insurance carrier, Employers Commercial Union Insurance Company of America (Employers Commercial), alleging that Dr. Kottmeier had made numerous slanderous remarks impugning Dr. Klien’s professional reputation as a physician and anesthesiologist. Count I of the second amended complaint contained a prayer for compensatory damages, Count II sought punitive damages and Count III was a claim for compensatory and punitive damages based upon a theory that the alleged statements constituted a malicious and intentional interference with Dr. Klein’s professional relationships with surgeons and other personnel at Morton Plant Hospital. A motion to dismiss filed by Employers Commercial was granted as to Counts II and III but denied as to Count I.

Employers Commercial then filed its answer denying that Dr. Kottmeier was insured for the claims contained in Count I. Thereupon, Dr. Kottmeier filed a cross-claim against Employers Commercial seeking specific performance and a declaratory judgment to the effect that he was covered under the policy and that Employers Commercial had a duty to provide him a defense to Dr. Klein’s suit. Ultimately the court entered an order on the cross-claim which specified that Employers Commercial had a duty to provide coverage and a defense to Dr. Kottmeier with respect to Count I of Dr. Klein’s complaint. Employers Commercial has filed an interlocutory appeal from that order which we construe to be a partial summary judgment on liability.

The pertinent portions of the Employers Commercial policy read as follows:

“1. COVERAGE
(a) PERSONAL LIABILITY The company agrees to pay on behalf of the Insured the ultimate net loss in excess of the retained limit which the Insured shall become legally obligated to pay as damages because of personal injury or property damage caused by an occurrence.
* * * Hí * *
C. DEFINITIONS
* * * * * *
9. ‘Personal Injury’ means:
******
(c) the publication or utterance of a libel or slander or other defamatory or disparaging material, or a publication or utterance in violation of an individual’s right of privacy, except that maliciously published or uttered by, at the direction of, or with the consent of the Insured,

It has been said that “malice, either actual or imputed, [is] the gist of every actionable libel.” Layne v. Tribune Co., 1933, 108 Fla. 177, 146 So. 234. Therefore, Employers Commercial contends that the provisions of C.9.(c) preclude coverage even though Count I of Dr. Klein’s complaint does not contain allegations of malice. If this be true, paragraph C.9.(c) would be meaningless with respect to defamatory statements by the insured because it would provide coverage for libel and slander and yet take it away in the same breath. We think a more logical interpretation of this provision is that there is coverage for all libel or slander by the insured, except that which is published or uttered with actual malice. In other words, even though the defamatory words may carry with them a presumption of legal malice, coverage is still provided unless it be shown that the statements were made with actual malice.

Employers Commercial’s reliance upon paragraph B.6. of the policy which excludes coverage for “any act committed by or at the direction of the Insured with intent to cause personal injury” is misplaced. The Florida courts follow the rule that even though the act which causes an injury was intentionally done, liability coverage will not be excluded under an intentional injury exclusion clause unless the insured acted with the specific intent to cause the injury. Phoenix Insurance Company v. Helton, Fla.App.1st, 1974, 298 So.2d 177; Cloud v. Shelby Mutual Ins. Co. of Shelby, Ohio, Fla.App.3d, 1971, 248 So.2d 217. Thus, in Cloud liability coverage was held to exist where a personal injury resulted from the insured impatiently seeking to push out of his way a car blocking him in the driveway. Even though the act of pushing was intentional, the insured did not intend to inflict the injury. By the same token, a statement may be intentionally uttered which is ultimately determined to be slanderous, but if the statement was not made with the specific intent to harm the slandered party, liability coverage would not be eliminated by the intentional injury exclusion clause. Paragraph B.6. is actually consistent with our construction of paragraph C.9.(c). In essence, a slanderous statement is covered by the policy unless the statement was made with the specific intent to harm which is equivalent to actual malice.

The last contention of Employers Commercial is that the initial pleadings reflect actual malice because in a reply to Dr. Kottmeier’s answer, Dr. Klein alleged that the disparaging statements described in the second amended complaint “were not made in good faith or with good motives, but were made with malice.” The way this came about was that one of Dr. Kott-meier’s affirmative defenses was that any statements he may have made concerning Dr. Klein were qualifiedly privileged. This would be a good defense to a statement otherwise slanderous unless it be shown that the statement is made with actual malice. Loeb v. Geronemus, Fla.1953, 66 So.2d 241; see W. Prosser, Law of Torts, § 110 (3d ed.1964). Therefore, it was natural that Dr. Klein would file a reply in which he asserted that the statements were made with malice (presumably actual malice). This would not have prevented Dr. Klein from obtaining a judgment by showing that Dr. Kottmeier had made slanderous statements even without proof of actual malice, providing that Dr. Kottmeier was unable to sustain his defense of qualified privilege. Thus, even if the reply is considered to be an initial pleading, the pleadings, taken as a whole, still included a cause of action for slander not uttered with actual malice. Cf. St. Paul F. & M. Ins. Co. v. Icard, Merrill, Cullis & Timm, Fla.App.2d, 1967, 196 So.2d 219. This is what the Employers Commercial policy was intended to cover. Likewise, so long as one count of the complaint against Dr. Kottmeier was within the scope of liability coverage, Employers Commercial also had the duty to defend, at least until such time as the covered portion of the claim was eliminated from the suit. C. A. Fielland, Inc. v. Fidelity & Cas. Co. of New York, Fla.App.2d 1974, 297 So.2d 122.

In the order entered below, the court said that Employers Commercial had a duty to provide coverage under Count I of Dr. Klein’s complaint. If this was a final determination of coverage for Dr. Kott-meier’s allegedly slanderous statements, it was premature because the case was not in a posture to decide whether any of the statements were made without actual malice. On the other hand, the court may have only been saying that Count I of Dr. Klein’s complaint stated a cause of action which was within the scope of liability coverage provided to Dr. Kottmeier by the Employers Commercial policy. This was a proper interpretation of coverage at that point, ■ and we will construe the order in that fashion because we are confident that the court will apply the principles set forth above in the ultimate determination of whether any statements made by Dr. Kott-meier which are held to be slanderous were within the coverage of the policy.

Affirmed.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: PER CURIAM.

text:
    Dorothy HERMAN, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Milton Medical and Drug Co., Respondents.
    No. 75-891.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Dorothy Herman, in pro. per.
    Kenneth H. Hart, Jr., Tallahassee, James R. Parks, Miami, for respondent.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Dorothy Herman is a claimant for unemployment compensation benefits. She has brought her petition for review of an order of the Commission denying benefits to her. See Florida Unemployment Compensation Law, Fla.Stat. § 443.07(4) (e). She claimed benefits which the examiner determined that she was not entitled to under the act.

Pursuant to the statute, she filed a “Notice of Appeal” and a hearing’ was held before an Appeals Referee. The hearing was held upon two separate “Referee’s Decision Docket” numbers. The first was 75-923U, in which the employer was Alicia Ruth, Inc., where Ms. Herman had been employed from April, 1956, until December 3, 1974. The second was 75-344U, in which the employer was Milton Medical, where Ms. Herman had been employed for eight days from December 12th to December 20th, 1974. The only witness at the hearing was Ms. Herman; neither employer appeared.

The substance of the testimony was that Ms. Herman was employed as a salesperson for more than eighteen years by Alicia Ruth, Inc., in a dress shop located in the Fountainbleau Hotel on Miami Beach and that she was discharged because she could not work a new and more exhausting schedule of hours. Thereafter, in an attempt to secure other employment, she found a job as a prescription clerk in a pharmacy but the work was beyond her physical activity. She voluntarily left this job.

There is no contention in the brief filed upon the review that Ms. Herman would not be entitled to benefits if she had not taken the second job. It is our view that the Commission in approving the Appeals Referee’s decision has departed from the purpose of the Unemployment Compensation Law, which is “remedial, humanitarian legislation . . . [that] should be liberally and broadly construed.” Williams v. State, Department of Commerce, Fla.App. 1972, 260 So.2d 233; and see St. Joe Paper Company v. Gautreaux, Fla.App. 1965, 180 So.2d 668. A claimant ought not be penalized for seeking to be employed even if, in her desire to be employed, she takes an unsuitable job and after a few days cannot continue the employment.

We, therefore, hold that the decision of the Industrial Relations Commission is not supported by competent substantial evidence and the order appealed is quashed. Upon return of the cause to the commission, such proceedings as necessary should be taken to secure benefits to the petitioner and charge the same to the employer, Alicia Ruth, Inc.

It is so ordered.

      . “You voluntarily quit your job because you could not handle the work. It has not been shown that your terms of hire were misrepresented. Your quitting was without good cause attributable to your employer.”

      . In stating the issues to be tried, the Referee included: “ . . . whether the benefit payments made to claimant shall be charged to the employment record of the employer. This is Alicia Ruth, Inc.”

      . A letter was referred to in the testimony which claimed discharge was for “ . loud bad language, swearing and cursing at other employees.” The letter itself is not in the record.

      . Under “Reasons for Decision,” the Referee stated: “ * * * The record and evidence of the instant case clearly shows that claimant voluntarily left her employment on December 20, 1974. * * * ”


author: SMITH, Judge.

text:
    Bernard WOODS, Appellant, v. STATE of Florida, Appellee.
    No. Y-289.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Appealing from his conviction of robbery, Woods asserts among other points that it was error for the circuit court to have tried him upon a robbery indictment as an adult because he had been in custody as a juvenile under ch. 39, F.S.1973, for more than 14 days prior to the indictment. Juvenile jurisdiction having not otherwise been waived or divested, appellant urges that § 39.02(5) (c), F.S.1973, requires that he be dealt with as a juvenile notwithstanding the subsequent indictment for a life felony. This point appears not to have been previously decided.

Section 39.02(5) specifies the occasions and procedures for waiver or divesting of juvenile jurisdiction over a child. One of those occasions is the indictment of the child for an offense punishable by death or life imprisonment. While subsection (c) provides with certain exceptions that no adjudicatory hearing be held until 14 days after a child has been taken into juvenile custody for such an offense, and that the court may then proceed as otherwise required by law, the statute evidences no purpose to disable a grand jury thereafter to indict the child, thereby divesting the court of juvenile jurisdiction.

We have considered appellant’s other points. There was no reversible error.

Affirmed.

BOYER, C. J., and MILLS, J., concur.


author: McNULTY, Chief Judge.

text:
    LAKE REGION PARADISE ISLAND, INC., a Florida Corporation, Petitioner, v. Harold GRAVISS, Respondent.
    Nos. 75-486, 75-499.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      David A. Maney and Stanley Lane of Gordon & Maney, Tampa, and J. Hal Con-nor, Jr., of Summerlin & Conner, Winter Haven, for petitioner.
    Mel R. Martinez and Kenneth R. Cate, of Billings, Frederick, Wooten & Honeywell, Orlando, for respondent.
   McNULTY, Chief Judge.

We consider this day a petition for common law certiorari to review a non-appeal-able order awarding costs after a declaration of mistrial. We grant the writ.

Plaintiff-respondent Graviss filed suit against petitioner Lake Region on a contract of employment. After the issues had been joined and at the end of the second day of trial the judge continued the trial until the following morning and directed the bailiff to remove the jury. One of the lady jurors tripped on a step as she went out the door. As the bailiff was trying to get her up Mr. Paul, one of the officers of petitioner Lake Region, heard the commotion and helped the lady bailiff pick up the injured juror Mr. Paul asked the injured juror if she wanted him to bring her car to her. Another lady juror went with Mr. Paul to show him where the car was parked. The bailiff waited with the injured juror until Mr. Paul returned with the car, helped her get into the car and left the scene. This occurrence was reported to the trial judge, who characterized it as “a very honest unavoidable thing” and a situation where Mr. Paul was “just at the wrong place at the right time.”

Notwithstanding the objection of Grav-iss, the trial court, on his own motion, declared a mistrial. Graviss filed a motion to tax costs to which Lake Region objected. Upon hearing, the court entered an order taxing costs against Lake Region in the amount of $2,869.76, holding that Grav-iss was entitled to recover costs notwithstanding the fact that no misconduct on the part of Lake Region or its agents was responsible for the mistrial.

Costs are taxable only pursuant to statute or rule; and under the facts here, wherein no punitive sanctions are appropriate, we are unaware of any statute or rule which is applicable. We think, therefore, that the trial court was without authority to enter the cost award under review.

Section 57.021, F.S.1973, provides as follows:

“Costs; taxing. — The clerk or the judge shall tax the costs accruing in each action when it is determined and shall keep a duplicate of the costs bill on file among the original papers in the action. Each item of costs shall be enumerated in the bill.” (Italics ours.)

We construe this statute to mean that allowable costs of an action are taxable only upon the determination or end of the action. That, of course, would be at or following final judgment.

With respect to any rules relating to costs prior to final judgment, absent those punitive in nature, we find none applicable to the facts here. In any case, the necessarily incurred additional costs resulting from the mistrial are certainly amenable to taxation as may be appropriate pursuant to § 57.021, supra, when the action is ultimately “determined.”

The trial court being without authority or power to enter the order under review, and thus having departed from the essential requirements of law, certiorari is appropriate. Accordingly, our writ therefor should, and it does hereby, issue quashing that order.

GRIMES and SCHEB, JJ., concur.

      . Cf. Gore v. Hansen (Fla.1952), 59 So.2d 538.

      . Cf. Roberts v. Askew (Fla.1972), 260 So.2d 492.

      . See 20 Am.Jur.2d Costs § 17 (1965) at p. 16.


author: SMITH, Judge. MILLS, Judge

text:
    Franklin D. PALMER, Appellant, v. STATE of Florida, Appellee.
    No. X-225.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.

      . This charge was nearly but not exactly like that approved in Dixon v. State, 227 So.2d 740, 743 (Fla.App.4th, 1969), differing only in the inclusion of the phrase “or if explained is by an explanation so unreasonable and incredible that the jury finds it unworthy of belief.” Both charges are markedly different from that recommended by Florida Standard Jury Instructions (Criminal), which in the recommended charges on burglary and larceny omits any reference to the accused’s explanation or the lack of it. Recommended modifications of the standard charges now before the Supreme Court (No. 48,491) would restore the reference to “unexplained posses- . sion.”

   SMITH, Judge.

When apprehended appellant was driving an automobile carrying two companions and, on the rear floorboard and seat and in the trunk, fishing tackle, cigarettes and beer which had been stolen that night from Libby’s Bait Shop at Southport in Bay County. Appellant was granted a trial separate from his companions because one of them, when taken in custody, made an explanatory statement incriminating appellant as well as himself and the other gave an explanation incriminating in its improbability. Convicted of entering without breaking with intent to commit a felony, appellant complains on appeal of the trial court’s charge that the jury might infer guilt from his unexplained possession of recently stolen goods.

It is far too late in the day to doubt that the unexplained possession of stolen goods soon after the theft gives rise to an inference that those in possession are the thieves. As Mr. Justice Roberts stated for the Court in State v. Young, 217 So.2d 567 (Fla. 1968), cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 that inference was formally recognized in Florida before Young v. State, 24 Fla. 147, 3 So. 881 (1888), and in the common law before Regina v. Langmead, 169 Eng.Rep. 1459 (Cr. Cas.1864).

Appellant argues that no presumption of guilt could arise against him because he was not in exclusive possession of the stolen goods, Solomon v. State, 145 So.2d 492 (Fla.App.2d, 1962), cert. den. Fla., 155 So.2d 151 (1963), Cone v. State, 69 So.2d 175 (Fla.1954), nor was his possession of the car and its contents, jointly with his passengers, accompanied by personal knowledge of the stolen goods and the ability to control them. See, e. g., Frank v. State, 199 So.2d 117 (Fla.App. 1st, 1967) and Harris v. State, 307 So.2d 218 (Fla.App.3d, 1975). In the absence of evidence to the contrary, appellant urges that he didn’t place the stolen goods in the car or see them placed there, that the goods must have been placed there while appellant slept a drunken sleep on the front seat, that appellant did not see and could not conveniently see any of the goods from the driver’s seat, and that he drove the car only to accommodate the owner, a companion with an injured foot.

The visibility of stolen goods to anyone who looked in the rear seat and appellant’s control of the car while driving are persuasive that appellant knew of and was able to control the stolen goods. But the necessary proof need not be derived solely from the automobile. There is other evidence that appellant acted in concert with his companions, the only other likely handlers of the stolen property. The three spent most of the day driving and drinking together. Libby’s Bait Shop, where the goods were stolen, is next door to the Seahorse Lounge where appellant and his companions drank late into the night. At intervals each of the three stepped out of and then returned to the barroom. When finally they drove away, the suspicious bartender discovered that Libby’s had been broken, entered and pillaged. Proof of those circumstances tended to show that the goods carried away in the car were not merely in the possession of the member of the party most likely to have placed them there but were rather under the knowing dominion of all three jointly. Cameron v. State, 112 So.2d 864 (Fla.App.1st, 1959); State v. Chase, 444 S.W.2d 398 (Mo.1969); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759 (1949); Flamer v. State, 227 A.2d 123 (Del.1967); 1 Wharton, Criminal Evidence § 139, n. 38 (13th ed., 1974 Supp.); Annot, 51 A.L.R.3d 727, 752 (1973). The Frank and Harris decisions relied on by appellant are thus distinguished, as is the similar decision in Lockett v. State, 262 So.2d 253 (Fla.App.4th, 1972).

There was evidence, then, from which the jury could have concluded that appellant possessed the recently stolen property and so likely was the thief or one of them. State v. Young, 217 So.2d at 571:

“It can be seen, therefore, that the rule of evidence respecting possession of recently stolen goods is no different, in kind, from the rule respecting the probative value of any other circumstantial evidence. Flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, incriminating fingerprints —the whole body of circumstantial evidence relevant in a given case — are all incriminating circumstances which the jury may consider as tending to show guilt if evidence thereof is allowed to go to the jury unexplained or unrebutted by evidence of exculpatory facts and circumstances.”

The issue at hand is not precisely whether the trial judge in ruling on an acquittal motion and the jury in deliberating upon its verdict were entitled to reflect on the inference that appellant is the thief. On the evidence as well as in contemplation of the law, that inference arises inexorably “from the reason and experience and common understanding of men” (Young, 217 So.2d at 571), and it would be as frivolous to obstruct the natural effect of the proof as to command the arrest of the sun. The particular issue before us, however, is whether the inference is a proper subject of comment by the trial judge and whether the charge in this case was properly given over objection:

“I charge you further that with reference to the possession of recently stolen goods, that where it is shown beyond a reasonable doubt that a building has been entered and property stolen from it and soon thereafter the property is found in possession of the person charged with entering the building with an intent to steal, such possession unexplained, or if explained is by an explanation so unreasonable and incredible that the jury finds it unworthy of belief, may warrant the jury to infer guilt of the crime of entering the building with intent to steal. The guilt of the defendant does not follow as a presumption or conclusion of law from the unexplained possession of the property recently stolen, but an inference of guilt as a matter of fact may be drawn therefrom by the jury to be considered by them in connection with all other evidence” (emphasis added).

If the propriety of such an instruction were a fresh issue today, we might doubt that sensible jurors need telling of an inference that is said to arise unaided from their own reason, experience and common understanding. And if the evidence is such that the inference has not occurred to the jury after argument of counsel, we might doubt that it is the trial judge’s business to summon up the inference either by a wink and nod or by an overt instruction. But the giving of such a charge in a proper case was approved long ago, 2 Wharton, Evidence in Criminal Issues, § 758, at 1509-11 (10th ed., 1912), and recently. Romanello v. State, 160 So.2d 529 (Fla.App.1st, 1964), cert. den. 381 U.S. 915, 85 S.Ct. 1541, 14 L.Ed.2d 436; McClain v. State, 185 So.2d 707 (Fla.App.2d, 1966), cert. den. 192 So.2d 498 (Fla.1966); State v. Young, supra.

Although the formulation of the inference remains much as stated in the trial court’s charge in this case, its rationale has been remarkably transformed in response to Fifth Amendment pressures. Formerly all emphasis was on the accused’s duty to explain satisfactorily how he came honestly by the stolen goods. See Leslie v. State, 35 Fla. 171, 17 So. 555 (1895); Collier v. State, 55 Fla. 7, 45 So. 752 (1908); McDonald v. State, 56 Fla. 74, 47 So. 485 (1908); Bargesser v. State, 95 Fla. 401, 116 So. 11 (1928); Ferguson v. State, 157 Fla. 324, 25 So.2d 799 (1946). If his explanation was “reasonable and credible,” the State was said to have a “duty” to disprove it. Collier, 55 Fla. at 10, 45 So. at 753; McDonald, 56 Fla. at 79, 47 So. at 486. But recognizing now that the accused has the absolute right to remain silent both at trial and in custody, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we do not permit the prosecutor to exact a penalty by calling up an inference of guilt from the accused’s silence while in custody, as by rhetorically questioning the arresting officer about the accused’s failure when arrested to explain his possession of stolen goods. Miranda v. Arizona, 384 U.S. at 468, 86 S.Ct. at 1625, 16 L.Ed.2d at 720, n. 37; State v. Young, 217 So.2d at 570 (Fla.1968) (dictum); People v. Masters, 30 A.D.2d 723, 291 N.Y.S.2d 230 (1968), citing People v. Travato, 309 N.Y. 382, 131 N.E.2d 557 (1955).

Because of Fifth Amendment considerations, the District Court of Appeal, Fourth District, held in its Young decision, 203 So.2d 650 (Fla.App.4th, 1967), rev’d 217 So.2d 567 (Fla.1968), that charging the jury on the inference of guilt is no longer constitutionally permissible. Accord, Gamble v. State, 210 So.2d 238 (Fla.App.2d, 1968), cert. dism. Fla., 225 So.2d 910 (Fla.1969); Urquhart v. State, 211 So.2d 79 (Fla.App.2d, 1968); Carpenter v. State, 213 So.2d 738 (Fla.App.2d, 1968), rev’d 222 So.2d 194 (Fla.1969). Contra, Shaw v. State, 209 So.2d 477 (Fla.App.1st, 1968), cert. dism. 218 So.2d 168 (Fla.1968).

The Supreme Court, over the dissent of three justices who wished to infer guilt from possession and to excise all reference to the accused’s explanation or the lack of it, sought in Young to preserve the formulation based on “unexplained possession of goods recently stolen” while avoiding the implication that the accused has, at any time, a duty to explain. Thus, although unexplained possession of recently stolen goods is the triggering circumstance, the resulting inference of guilt was said to arise not from the accused’s failure .to explain his possession of stolen goods, not from the fact of “unexplained possession,” but from the fact of possession. 217 So.2d at 570. The words of the charge remained the same; their meaning changed.

Relieved in theory of a previous concern for the accused’s failure to explain and relieved in form of language requiring the State to disprove any apparently reasonable and credible explanation, the conventional charge now more clearly becomes what it always tended to be: a judicial argument mildly inciting the jury to convict the defendant of stealing property notwithstanding that he was seen only to possess it. In Regina v. Langmead, the English precedent invoked by Young, 217 So.2d at 571, Baron Martin directly stated the problem for which the subject instruction has evidently become an acceptable solution:

“In cases of this nature it often happens that some of the jurors feel doubts, and think they ought not to convict the prisoner of stealing unless some one has actually seen him taking the property, and so they concur in convicting him of receiving, supposing that that is the more lenient view.” 169 Eng.Rep. at 1464.

Defense counsel objected to the charge in this case on the ground that the evidence, as well as the law, did not support the giving of it. We find on examination of the record that he was correct. As noted earlier, appellant’s confederates when arrested gave dubious or directly incriminating explanations concerning their possession of the stolen goods. For that reason they were tried separately from appellant. But there was no evidence that appellant himself, when apprehended, either failed to explain his possession of the goods or gave an arguably “unreasonable and incredible” explanation to which the jury might apply the instruction that

“. . •. such possession unexplained, or if explained is by an explanation so unreasonable and incredible that the jury finds it unworthy of belief, may warrant the jury to infer guilt . . . .”

It is true that appellant testified at trial that he did not know the goods were in the car. The jury might have found that incredible or not, but that testimony could not provide an evidentiary predicate for the charge, which pertains to explanations given or withheld by the accused when apprehended, not at trial. See authorities supra n. 4.

It is fundamental that the court’s instructions to the jury should relate to and be confined to issues concerning evidence which has been received at trial. White v. State, 129 Fla. 885, 176 So. 842 (1937); Bradley v. State, 82 Fla. 108, 89 So. 359 (1921); Gadsden v. State, 77 Fla. 627, 82 So. 50 (1919); State v. Brown, 118 So.2d 574, 580 (Fla.App.2d, 1960), cert. disc., 124 So.2d 481 (Fla.1960); Swindle v. State, 254 So.2d 811 (Fla.App.2d, 1971). It follows that the charge, being unsupported by evidence, should not have been given in this case. In Young, by contrast, there was evidence that when apprehended the accused gave some untruthful information about his identity and then refused further comment. 203 So.2d at 652, 217 So.2d at 568. See Wharton, supra n. 3.

It is unnecessary for us to decide in this case whether the State can prove, over a Miranda-based objection, that an accused apprehended in possession of recently stolen goods was given an opportunity to explain his possession, yet stood entirely silent. It is not clear to us why, without custodial interrogation, an innocent person would spontaneously explain when apprehended how he came to possess goods he did not steal or know were stolen. But see Shaw v. State, supra, 209 So.2d at 480. Clearly the charge may be given if the accused voluntarily gave an explanation when apprehended or when evidence of his failure to explain is elicited on his cross-examination at trial. Lebowitz v. State, supra n. 5.

In the retrial of this case, the jury will of course be at liberty to consider the inference of guilt arising from the evidence of Palmer’s possession of goods recently stolen from Libby’s Bait Shop. That inference will arise from the evidence without beckoning by the trial judge, and the jury will learn of it and all other legitimate inferences when they consider the evidence in the light of the argument of counsel and their own “reason and experience and common understanding.” Young, 217 So.2d at 571.

Reversed.

BOYER, C. J., concurs.

MILLS,-J., dissents.

MILLS, Judge

(dissents) :

I dissent. The phrases of the instruction which the majority found to be objectionable were no more than harmless error. I would affirm.

      . Whether and to what extent the trial judge should comment on the evidence is the subject of a continuing and lively debate. In Lester v. State, 37 Fla. 382, 387-88, 20 So. 232, 234, (1896), Mr. Justice Taylor counseled that the trial judge “avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially, or by innuendo, of conveying any intimation as to his opinion as to the weight, character, or credibility of any evidence adduced.” Florida courts have generally adhered to that view of the matter. Raulerson v. State, 102 So.2d 281 (Fla.1958); Tanner v. State, 197 So.2d 842 (Fla.App.1st, 1967), cert. den., 201 So.2d 898 (Fla.1967). Of the incriminating circumstances listed in Young, 217 So.2d at 571, and quoted above, only flight and the unexplained possession of recently stolen property are considered appropriate subjects for comment to the jury. Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920); Williams v. State, 268 So.2d 566 (Fla.App.3d, 1972). Because a judicial comment on one inference often neglects another [Gunn v. State, 78 Fla. 599, 83 So. 511 (1919)] and charges balanced with fairness all round are scarcely intelligible, judge-made argument has largely been eliminated in Florida civil eases. Florida Standard Jury Instructions (Civil), at xx (1967). Some commentators, having less confidence in the dialectic of the adversary process, propose more and more judicial comment on the evidence. E, g., ABA Standards Relating to Trial by Jury, § 4.7 Summary of and Comment on Evidence (Tentative Draft, May 1968), deleted by the House of Delegates Aug. 6, 1968 (September 1968 Supp.).

      . “[W]e may say that a court may properly tell the jury that the possession by a party of stolen goods is a fact from which his complicity in the larceny may be inferred. But the possession must be personal; must be recent; must be unexplained ; and must involve a distinct and conscious assertion of property by the defendant. If the explanation involves a falsely disputed identity or other fabricated evidence, the inference increases in strength . . . . ” (footnotes omitted).

      . In Ard v. State, 108 So.2d 38 (Fla.1959), rendered when sensitivity to the accused’s right of silence in custody was perhaps less than in post-Miranda years, the prosecutor argued that the accused, arrested with two stolen cases of cigarettes, had given no “reasonable explanation of how he got into it.” Error was found in the prosecutor’s implication that the accused had not testified at trial. The Court took care to say that the accused’s burden to explain does not arise at trial but rather “when he is first under a duty to speak after such recently stolen property is discovered in his possession.” 108 So.2d at 41, quoting and approving Crowell v. State, 195 Miss. 427, 15 So.2d 508, 512 (1943). See also Romanello v. State, supra, 160 So.2d at 534; McClain v. State, supra, 185 So.2d at 708; Shaw v. State, infra, 209 So.2d at 479.

      .When the accused takes the stand to testify in his own behalf, however, he puts his credibility in issue and subjects himself to searching cross-examination concerning his failure to explain, or his inadequate explanation of, his possession of stolen goods. Lebowitz v. State, 313 So.2d 473 (Ela.App.3d, 1975).

      . “I now employ the expression ‘Legal Fiction’ to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.” H. Maine, Ancient Law 25 (3rd Am. ed. 1875).

      . In 1888, by its first Young decision, supra, 24 Fla. at 151, 3 So. at 882, the Supreme Court cited 1 Greenleaf, Evidence § 44 (14th ed., 1882), which at 60-61 stated:
      “Presumptions of fact . . . are, in truth, but mere arguments, of which the major premise is not a rule of law .... They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections, which are shown by experience, irrespective of any legal relations .... [T]hese merely natural presumptions are derived wholly and directly from the circumstances of the particular ease, by means of the common experience of mankind, without the aid or control of any rules of law whatever. Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered” (emphasis added).
      One of the law’s ironies is that judges dare not charge on the compelling inference last mentioned by Greenleaf, but do not hesitate to do so when the inference, whether weaker or stronger in fact, arises from possession of recently stolen property.

      . As long as the accused’s failure to give a satisfactory explanation remains a formal part of the. inference and of the charge, it would seem, given an explanation by the accused which arguably raises a reasonable doubt of his guilt, that the accused is entitled to a balancing charge that his possession does not infer guilt unless the State disproves the explanation. Collier v. State, supra, 45 So. at 753; McDonald v. State, supra, 47 So. at 486.


author: McCORD, Judge. RAWLS, Judge

text:
    Gary G. BOOKER, by and through his father and next friend, William G. Booker, et al., Appellants, v. OKALOOSA BOARD OF PUBLIC INSTRUCTION et al., Appellees.
    No. X-327.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Ferrin C. Campbell, Sr., Crestview, for appellants.
    T. Sol Johnson, of Johnson, Johnson & Green, Milton, for appellees.
   McCORD, Judge.

This is an appeal from a summary judgment entered in favor of the Okaloosa Board of Public Instruction and the Travelers Indemnity Company, appellees (defendants below), in a negligence action.

The undisputed facts as evidenced by the depositions and affidavit on file show that Gary L. Booker, an 18-year-old high school student, along with several other students were, on November 28, 1971, working during normal school hours under supervision of their faculty sponsor on a math club float to be used in the school homecoming parade. The sponsor told the students to go to his home and bring some lumber back for the float if they could get a truck. One of the students, Michael Lundy, obtained his father’s pickup -truck and the students got in the truck — four in the cab and three (including Gary) in the back. Gary sat on the side of the truck body with his back to the cab. In the course of the trip, the student driving the truck let it move over the center line and upon noticing this, he jerked it back into the proper lane. As a result of this maneuver, Gary fell from the truck and was injured.

§ 230.23(9) (d) 1, Florida Statutes authorizes a school board to :

“Carry insurance on every school building in all school plants including contents, boilers and machinery, except buildings of three classrooms or less which are of frame construction and located in a tenth class public protection zone as defined by the Florida inspection and rating bureau; and on all school buses and other property under the control of the school hoard or title to which is vested in the school board, except as exceptions may be authorized under regulations of the state board.” (Emphasis supplied)

Paragraph 2 of the foregoing subsection provides in pertinent part as follows:

“In consideration of the premium at which each policy shall be written it shall be a part of the policy contract between the company and the named insured that the company shall not be entitled to the benefit of the defense of governmental immunity for the insured by reason of exercising a governmental function on any suit brought against the insured. Immunity of the school hoard against liability damages is waived to the extent of liability insurance carried by the school board. . . . ” (Emphasis supplied).

At the time of the aforesaid accident, the school board had a comprehensive automobile general liability insurance policy issued by appellee insurance company which contained the following statement of coverage:

“The compa'ny will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage C, bodily injury or
Coverage D, property damage
to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, of any automobile, ...”

The coverage of the policy and the waiver of sovereign immunity under the above statute insofar as is pertinent to this accident is limited to bodily injury and property damage caused by an occurrence arising out of the use of any automobile which the school board is legally obligated to pay. The policy creates no additional liability beyond indemnification of the school board for such damages. We, thus, come to the ultimate question of whether or not the trial court was correct in its ruling that from the pleadings, depositions and affidavit on file, there is no material issue of fact and there is no liability of the school board for this accident. We find that the summary judgment must be reversed for the reason which we will hereinafter set forth.

Appellant contends that the school board is liable for this accident because the accident arose out of the use of the automobile for school purposes. Such a ruling would be entirely too broad. The school board would only be liable for any negligence of its employee, the faculty supervisor, which was a legal cause of the accident. The doctrine of dangerous instrumentality is not applicable to the school board in this case because the school board was not the owner or lessee of the truck. The dangerous instrumentality (truck) was put in the hands of the student driver by the driver’s father (the owner of the truck) and not by the school board.

Appellants alleged in their complaint that the board was negligent in allowing Michael Lundy to transport young students on the back of the pickup truck. We do not consider that riding in the back of a pickup truck or allowing high school students to ride in the back of a pickup truck would necessarily constitute negligence. In considering appellees’ motion for summary judgment, there is a dearth of evidence at this point to show either that the faculty supervisor was or was not in any way negligent in connection with Gary Booker’s riding in the back of the pickup truck (or in the position he was in) or on the question of whether or not the manner in which Gary was riding was negligent.

The record at this point does not contain sufficient facts to determine on summary judgment the question of whether or not the school board, through the acts of the faculty sponsor, can be charged with negligence in connection with Gary Booker’s riding on the back of the truck. While there is an inference from the depositions that the faculty sponsor neither directed the students to sit in the back of the truck nor had any knowledge that they were sitting in the back of the truck, there is no affirmative showing that such was the case. On summary judgment, the party moved against has the benefit of all favorable inferences reasonably justified by the evidence and the movant does not have the benefit of inferences favorable to him. Graff Enterprises v. Canal Insurance Company, Fla.App. (1st), 213 So.2d 738.

Reversed for further proceedings not inconsistent herewith.

BOYER, C. J., concurs, and RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

The majority, in my opinion, correctly hold that the dangerous instrumentality doctrine is not applicable to the school board and that allowing high school students to ride in the back of a pickup truck would not necessarily constitute negligence.

Gary Booker testified on deposition as follows:

“We were working on a Math Club float for homecoming, you know, and we needed some lumber and Mr. Harrelson was our math teacher. I can’t remember —I think it was Algebra 1—
* * * * * *
“And he said if we could get a truck, to go down to his house. And Mike Lundy was in the Math Club and he took us. And when we got down there we got the lumber and was coming back and he was talking in the front and let his truck get over the line a little bit and he jerked it back; and when he jerked it I fell over the side and caught the side of the truck and slid for a pretty good while.
******
“I was leaning against the cab.”

Testimony of other witnesses reflect without contradiction that the boys had picked up the lumber from their sponsor’s home and were returning to the place where the float was located when the accident occurred. The school sponsor did not accompany them on this trip. I have difficulty in finding the “dearth of evidence” that the faculty supervisor was or was not in any way negligent in connection with Gary Booker’s riding in the back of the pickup truck.

I would affirm the summary judgment.


text:
    Virginia WATT, Appellant, v. STATE of Florida, Appellee.
    No. V-379.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1975.

      Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   SMITH, Judge.

Here there is a disparity between the court’s written order of probation, signed and filed by a former judge on January 6, 1972, and the court reporter’s transcript of his notes of the proceedings in court that day. The order fixes appellant’s probationary term at two years. The transcript quotes the judge as announcing that appellant would be placed on probation for three years. The probation officer’s notes corroborate the transcript. Now, more than two but less than three years later, another judge of the same court has undertaken to amend the original probationary order, nunc pro tunc, to specify a three year period. That done, the court revoked appellant’s probation and ordered her placed on probation for two more years.

The formal order of probation, filed in the cause and directed for recordation in the minutes, cannot be impeached and its substantial terms made more stringent upon the probationer by reference to a transcript of the proceedings. The court’s order did not consist of words spoken from the bench, nor of the reporter’s record of those words, but rather of the written, signed, filed and recorded order. Ellis v. State, 100 Fla. 27, 129 So. 106 (1930); Shargaa v. State, 102 So.2d 809 (Fla.1958); Pickman v. State, 155 So.2d 646 (Fla.App.3d, 1963), cert. den. 164 So. 2d 805 (Fla.1964); Roy v. State, 207 So.2d 52 (Fla.App.2d, 1968), cert. dism. 211 So.2d 554 (Fla.1968); Falagan v. Wainwright, 195 So.2d 562 (Fla.1967).

Courts are authorized to correct clerical errors in their orders and judgments within or beyond the term. Boggs v. Wainwright, 223 So.2d 316 (Fla.1969). But there is little reason in this case to conclude that the formal order, rather than the oral announcement or the reporter’s record of it, was in error. If the conflict between the trial court’s apparent announcement and its formal order were otherwise inexplicable, we would yet presume that the trial court was empowered to order and intentionally did order a probationary period shorter than that announced. The lower court’s jurisdiction terminated at the end of appellant’s probation on January 6, 1974. Sec. 948.04, F.S.1973. We reverse the probationary order entered March 14, 1974, and discharge appellant.

Reversed.

BOYER, C. J., and RAWLS, J., concur.


text:
    STATE of Florida ex rel. Amidi ZUBERI, Relator, v. Richard P. BRINKER, Clerk of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, and Honorable Gene Williams, Administrative Judge, Circuit Court, Criminal Division of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondents.
    No. 75-1280.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rex Ryland, Jr., Miami, for relator.
    Robert L. Shevin, Atty. Gen., Gus Efthi-miou, Jr., Miami, Richard E. Gerstein, State’s Atty., and Janet Reno, Asst. State’s Atty., for respondents.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is a mandamus proceeding to require the respondents to comply with certain local court rules. Following the filing of the petition, we issued the alternative writ. We have reviewed the returns to the writ, original briefs, and directed the filing of supplemental briefs.

This cause arises out of the following circumstances. Subsequent to the effective date of the revised judicial Article V to the State constitution, the judges of the Eleventh Judicial Circuit in and for Dade County, Florida, promulgated certain local court rules which they duly submitted to the Supreme Court of Florida for approval pursuant to Rule 1.020(e), R.C.P. Local Rule 2 provided for the assignment of cases in a random or blind fashion. Prior to August of 1974, this rule was complied with in the random filing of cases in the Criminal Division of the Eleventh Judicial Circuit, and once a case was blindly assigned to a trial judge within the Criminal Division it stayed with said judge unless reassigned pursuant to another local rule.

However, in August of 1974, the Administrative Judge of the Criminal Division [the respondent Williams] promulgated a Directive changing the method of assignment of cases in the Criminal Division for trial, in effect creating what is termed a Master Calendar, for one-half of the cases that are filed in the Criminal Division. This Directive, creating the so-called Master Calendar, was not submitted to the Supreme Court of Florida for approval, it being the contention of the respondents that they were not required to do so. Subsequent to the adoption of the Master Calendar, the relator in the instant case was charged with a felony in the Circuit Court of the Eleventh Judicial Circuit. The matter was duly filed in the Criminal Division and was one of those cases assigned to the Master Calendar.

This action was subsequently instituted by the relator, seeking to have his case assigned under the random or blind filing rule and contending that the adoption of the so-called Master Calendar Directive deprived him of the selection of a trial judge by a random method and submitted his case to being tried by a judge arbitrarily selected by the Master Calendar Assignment Judge.

Under the original blind assignment rule, as approved by the Supreme Court of Florida, a criminal defendant was assured of the fact that there would be no arbitrary action in the selection of a judge to try his particular case and that, barring a reassignment pursuant to Rule 5, supra, the cause as originally randomly assigned to a judge in the Criminal Division would remain there. However, in that percentage of cases which are assigned to the Master Calendar system [by the very wording of the Directive] the trial judge who will ultimately determine the case of a criminal defendant is selected not in a random fashion but by direct assignment by the Master Calendar Assignment Judge. This is not to say that the Master Calendar Assignment Judge will arbitrarily assign a particular defendant to a particular judge, but it is to say that this system differs from that as approved by the Supreme Court of Florida in the ratification of the random system rule [Rule 2, supra], and gives an opportunity for concern about arbitrary action in assignment in the Master Calendar segment of the felony cases for a trial. We do not find arbitrary action on the part of the Master Calendar Assignment Judge; we only find the opportunity for such action. No such opportunity exists under the rule as approved by the Supreme Court.

It is not the function of this court to determine which is the better system for the trial judges of the Eleventh Judicial Circuit to adopt; it is only our function to determine that all defendants charged with felonies be treated alike, in accordance with the local rule approved by the Supreme Court. Therefore, until such time as the judges of the Eleventh Judicial Circuit adopt [in accordance with Rule 1.-020(e), R.C.P., supra] a new rule providing for assignment of felony matters, defendants charged with felonies shall be accorded the procedures afforded them under local Rule 2, supra, relating to random selection of assignment. Compare City of Coral Gables v. Blount, 131 Fla. 36, 178 So. 554.

We will refrain from issuing the preemptory writ in the confidence that the respondent Williams will carry out the mandate of this opinion without the necessity of same.

      . “(e) Local Rules. Local rules concerning, but not limited to creation of divisions of courts, the division of work among judges, assignment of actions, removal and return of court files, and the scheduling and location of proceedings, and other administrative procedures necessary for the efficient operation of all courts within the circuit, except municipal courts, may be adopted, if consistent with these rules, to become effective after approval by the supreme court. Requests for the adoption of local rules shall be filed, without cost, with the clerk of the supreme court.”

      . Rule 2 reads in part as follows :
      “Assignment of Cases. All cases filed in the Criminal Division of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, shall continue to be assigned to the various Sections of this Court by the Clerk thereof under the ‘blind filing system’ presently utilized in making such assignments or any similar method which will result in such cases being filed equally among the various Sections of the Court in an unpredictable manner.”
      ******

      . “Rule 5 Reassignment of Cases. After the initial assignment of cases to the individual Judges by the Clerk under the blind filing system, there shall be no transfer of cases from one Section to another except through the Administrative Judge or, in his absence, an Acting Administrative Judge. “Whenever it appears to a Judge that a case should be transferred from his Section by reason of recusal or disqualification of the Judge or for any other reason upon good cause being shown to the Administrative Judge, such case shall be brought to the attention of the Administrative Judge by one of the following methods:
      (1) The transferring Judge shall instruct the Clerk to place the case upon the calendar of the Administrative Judge for the following day for re-assignment.
      (2) If it appears in the best interest of justice that an immediate transfer be made, the transferring Judge shall immediately send the file to the Administrative Judge, who shall take the proper action as soon as practicably possible.”

      .This Directive reads, in part, as follows:
      “Directive August 6, 1974
      “To: All Concerned Parties and Agencies
      “Re: Master Calendar Plan Effective
      Date : August 19th, 1974
      “From: Gene Williams, Administrative Judge
      Criminal Division, Circuit Court
      ‡ % >¡í %

      “Effective the above date, the Criminal Division of the Circuit Court will institute a new assignment and calendaring procedure involving some Sections of the Criminal Division, as follows:
      1. All Judge Satin’s pending cases shall be transferred to Judge Gene Williams’ Section (except those cases in which defendants have been found guilty and not sentenced).
      2. Thereafter, all new cases which would formerly have been assigned to Judge Satin’s Section shall be assigned to Judge Williams’ Section. (In other words, the two Sections will be combined and all cases will be initially processed by Judge Williams.)
      3. Create two (2) new Sections, to wit:
      Harold G. Featherstone
      Arden M. Siegendorf
      4. No cases shall be assigned to those Sections except specially by Judge Williams for trial or otherwise.”
      * * * * *
      On March 26, 1975 an additional Directive was issued by respondent Williams, which provides in part as follows:
      ‡ Sji sjs sj«
      “ * * * all cases assigned to the Master Calendar Section shall specify, ‘MASTER CALENDAR SECTION,’ in all appropriate places rather than Judge Williams, Judge Cowart or otherwise, except and until the Master Calendar Assignment Judge assigns a case to a Judge in the Master Calendar Section for trial or other final disposition.
      * * * * *

      . Following argument and the submission of the original briefs in this case, we directed counsel to file supplemental briefs addressed to the following question: “In the assignment of criminal cases for pretrial matters and trials, is it not a violation of the equal protection provisions of the State and Federal constitutions to treat one group of defendants different from another?”
      We have now considered those briefs, as filed by respective counsel, and have come to the conclusion that it may be a denial of equal protection of the law, as provided for the protection of the citizens of this State by the State and Federal constitutions, for felony defendants in the Criminal Division of the Eleventh Judicial Circuit to be treated in two different methods. However, we do not need to reach this point because this matter may be settled on the simple issue that the Supreme Court of Florida has not approved the Directive establishing a Master Calendar for one-half of the felony cases in the Eleventh Judicial Circuit.

      . There are arguments to be made for both systems. The blind assignment of cases, where a cause remains with an individual judge from its filing through final hearing and disposition, enables one judge to be familiar with the entire matter which should hasten a matter to conclusion. It also enables the public to determine if a particular trial judge is discharging his responsibilities of office with a reasonable degree of dispatch. There are other arguments that in a large metropolitan area, in order not to inconvenience witnesses and jurors, that as cases mature a pool of judges should be available through a Master Calendar system in order that as the cases are ripe for decision an assignment judge may designate a particular judicial officer to conduct the trial of the matter regardless of whether or not he has had any previous connection with the cause. As previously indicated, it is not the function of this court to dictate our individual preferences to the trial judges of the Eleventh Judicial Circuit; this is a decision that is to be made subject to the approval of the Supreme Court of Florida. Our only concern is that whatever system they adopt all felony defendants be treated alike.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Larry SNAIL, Appellee.
    No. 75-483.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Wilbur C. Smith, III, of Smith & Carta, Fort Myers, for appellee.
   SCHEB, Judge.

The trial judge dismissed a three-count information charging the defendant/appellee with possession of marijuana, sale of marijuana, and possession of psilocybin, a hallucinogenic compound. The state appeals. We hold the trial judge was correct in dismissing the information as to the sale charge but erred in dismissing the possession charges.

Pursuant to Rule 3.190(c)(4) RCrP, the defendant moved to dismiss the information on the ground that the defendant was entrapped, as a matter of law, into committing the crimes alleged. In this motion, as amended, the defendant contended that when he was at the Outrigger Bar in an intoxicated condition, he went to the restroom where:

“ . . .he discovered two (2) men who were not known at that time, smoking what he believed to be a marijuana cigarette. That a portion of that cigarette was offered to the Defendant and that at this time a fourth (4th) male, known to the Defendant, as ANDREW ALTMAN, who later became a Co-Defendant, entered the rest room and was invited to join in the smoking of the marijuana cigarette. That upon leaving the rest room, one of the unknown men asked the Defendant if he knew where he could buy some marijuana and the Defendant said that he had some. However, the Defendant made no further statement and returned to his activity which was attempting to persuade a young lady in the bar to accompany him home for the evening. The unknown male who made this request later was identified as AGENT COBALS. The Defendant then returned to the Bar and directed his efforts at attempting to persuade the young lady to accompany him. For approximately the following sixty (60) minutes, AGENT COBALS made repeated trips to the Bar where he attempted to get the Defendant to leave and to sell him marijuana. That after approximately sixty (60) minutes of constant pressuring, thé Defendant finally consented to ‘let AGENT COBALS have two (2) ounces of marijuana which he did not want. That the Defendant and MR. ALTMAN left with AGENT COB-ALS and MR. SIMCOE and went to MR. ALTMAN’S house where AGENT COBALS hand-rolled a marijuana cigarette and smoked the same with MR. SIMCOE, MR. ALTMAN, and the Defendant. Following this episode, the Defendant sold two (2) baggies of marijuana for twenty-eight ($28.00) Dollars.’ ”

The state traversed the defendant’s motion and while not disputing the initial encounter alleged to have taken place in the rest room, it specifically denied that Agent Cobals made repeated trips to the bar pressuring the defendant to sell marijuana, or that Agent Cobals and Mr. Simcoe “smoked” a marijuana cigarette. Specifically, the state alleged the defendant said to Cobals before leaving the rest room, “I have a few (baggies) I’d like to get rid of,” and further alleged that at the defendant’s request, Cobals rolled a marijuana cigarette and “we simulated smoking

On March 14, 1975, a few days prior to the scheduled trial, the court granted the defendant’s motion to strike Agent Cobals as a state’s witness after the prosecution acknowledged it could not locate him for trial. Thereafter on March 18, 1975, the court granted the defendant’s motion to dismiss the information stating:

“. . . the facts show, and it has not been traversed by the State, that he was intoxicated, that Cobals was smoking marijuana .... I feel that the State was engaged in an illegal act „ which entrapped him and the seed of the illegal act came from the State’s action and not from the actions of the Defendant.
* * * * * *
. . . The State’s agent was smoking or simulating smoking, I don’t care which. At any rate, the Defendant thought he was smoking. And the agent, as an agent of the State, the State could or should be able to produce him. Secondly, it was the agent, the State’s agent that asked that an illegal act be committed.”

The state could not supply Cob-als’ address so he could be subpoenaed for discovery purposes. More importantly, the state acknowledged to the court that it had no expectation of being able to produce Cobals for trial. This was a sufficient basis for the trial judge to strike his name as a witness and obviated the need for further inquiry. See Bradford v. State, Fla. 1973, 278 So.2d 624. Likewise, the state could not produce the “other man” who allegedly accompanied Cobals to the rest room on their encounter with the defendant, as the trial judge determined by interrogating Mr. Simcoe, another police detective who participated with Agent Cobals in the case. Finally, it became apparent to the trial judge that there was no available testimony to rebut the defendant’s sworn affidavit of entrapment on the charge of the sale of marijuana which showed he was lured by an officer of the law to commit a crime he did not otherwise intend to commit. Thus, it is patent from the record the state lacked the ability to produce evidence necessary to convict the defendant on charge of sale. Therefore, it was not error for the court to dismiss the information as to charge of sale. See Roundtree v. State, Fla.App.4th 1972, 271 So.2d 160.

The defendant’s affidavit concerning entrapment, however, related only to the charge of sale, and not to the charges of possession of marijuana or psilocybin. There is no evidence in the record before us from which we can conclude as a matter of law that the state lured the defendant into possession of either the marijuana or psilocybin that he was charged with possessing. The following quotation from this court’s opinion in Koptyra v. State, Fla.App.2d 1965, 172 So.2d 628, is relevant to this point:

In determining whether or not there is evidence tending to prove entrapment, the distinction to be observed on the facts in this case is whether there was evidence tending to show that the inspector enticed the defendant to possess the marijuana in question when the defendant would not .have possessed without such enticement, thus showing the requisite elements, or whether the defendant, while engaged in the unlawful enterprise of possession of marijuana, was merely enticed to possess it in the presence of the inspector so that his possession could be proven by direct evidence.

A viable issue of fact on the possession charges remains and the state should not be precluded from pursuing these charges.

Accordingly, we affirm the trial court’s judgment dismissing the information on the sale charge, but we reinstate the information on the two possession charges.

McNULTY, C. J., and GRIMES, J., concur.


text:
    Abraham FELDMAN a/k/a Al Feldman, Appellant, v. SOUTHEAST BANK OF DADELAND, a state banking association organized and existing under the laws of the United States et al., Appellees.
    No. 75-1014.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 13, 1976.

      Brian R. Hersh, Miami, for appellant.
    Friedman, Britton & Stettin and Arnold D. Schatzman, Miami, for appellees.
    Before BARKDULL, C. J., and HA-VERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by defendant contesting an order denying his motion to dismiss the complaint as to him for insufficiency of service of process and lack of jurisdiction over his person.

On June 21, 1974, Kendall Jeweler’s & Galleries, Inc. executed and delivered a $6,000 promissory note to the Southeast Bank of Dadeland. The note was signed by appellant Abraham Feldman as vice president of Kendall Jeweler’s and personally endorsed by him. In addition, appellant and Jerome Klein executed and delivered to Southeast Bank personal guarantees of the promissory note. In September, Kendall Jeweler’s delivered a renewal of the promissory note, which was again signed by appellant as vice president. Kendall Jeweler’s failed to pay the note and renewal when due on December 18, and the Southeast Bank filed suit against Kendall Jeweler’s, Klein and the appellant who is a resident of California. Personal service on the appellant was effected by mailing a summons and a copy of the complaint to a California sheriff who personally served the appellant at his California residence. Appellant moved to dismiss the complaint as to him for insufficiency of service of process and lack of jurisdiction over his person. The motion was denied and defendant appeals.

We find that § 48.193(1) (g), Fla.Stat., F.S.A. is dispositive of this appeal inasmuch as appellant personally executed the contract of guaranty in Florida and breached it by failing to pay the Southeast Bank pursuant to the terms of the guaranty.

The order denying appellant’s motion to dismiss is affirmed.

      . “48.193 Acts subjecting persons to jurisdiction of courts of state
      “(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      * * * * *
      “(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.”


author: PER CURIAM. SMITH, Judge

text:
    Chris ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. X-446.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was convicted of all counts of a three count information. Count I charged robbery of one Catherine Kite. Count II charged an aggravated assault upon one Maude Severance and Count III charged use of a firearm during the commission of a felony. Appellant contends that all three charges were part of the same transaction or crime involving the robbery and that the sentences for the lesser of the three offenses cannot stand. We agree that Count III was a part of the same transaction or crime as Counts I and II but disagree that Count I was a part of the crime committed in Count II or that Count II part of the crime committed in Count I. Counts I and II were crimes upon different persons. See Robinson v. State, Fla.App. (1st), Case No. X-452, 323 So.2d 62, opinion filed September 23, 1975; and opinion on petition for rehearing granted therein filed this date.

We have considered the other point raised by appellant and find it to be without merit. See Bunch v. State, Fla.App. (1st), 303 So.2d 705 (1974); and Wilson v. State, Fla., 304 So.2d 119 (1974).

Affirmed in part and reversed in part and remanded with directions that the sentence below to 15 years imprisonment for use of a firearm during the commission of a felony be vacated.

RAWLS, Acting C. J., and McCORD, J., concur.

SMITH, J., concurs specially.

SMITH, Judge

(concurring specially):

Although count three of the information in this case has the same infirmities that, in my view, invalidate one count of the information in another case against Robinson disposed of today on petition for rehearing, Robinson v. State, 323 So.2d 62 (Fla. App.1st, 1975, Case No. X-452), no attack was made upon the sufficiency of the information in this case. I therefore concur in the Court’s opinion and decision.


text:
    MAULE INDUSTRIES, INC., Appellant, v. CENTRAL RIGGING & CONTRACTING CORPORATION, Appellee.
    No. 74-1460.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 12, 1976.
    Horton, Perse & Ginsberg, Miami, Papy, Levy, Carruthers & Poole, Coral Gables, for appellant.
    George V. Lanza, and John A. Finn, Coral Gables, Jeanne Heyward, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Maulé Industries, Inc., defendant and third-party plaintiff in the trial court, appeals from an adverse final judgment on its third party complaint against Central Rigging & Contracting Corporation, third-party defendant, seeking indemnity in compensating one Hessler, a worker in the employ of Central Rigging, allegedly injured as a result of the negligence of Maulé.

Hessler brought suit for personal injuries against Maulé, the construction project owner, alleging negligence on the part of Maulé. Maule’s third party complaint against Central Rigging is predicated upon an indemnity agreement entered into by McDonald Engineering Company, the general contractor, and Central Rigging, a sub-contractor. Maulé claims to be a third party beneficiary of such agreement. The pertinent portion of the agreement is:

“The policy shall provide for Protective Liability with respect to operations of Sub-subcontractors and shall include Contractual Liability coverage for the following Indemnity Agreement, which Indemnity Agreement is hereby made a part of this contract:
‘The Subcontractor hereby agrees to indemnify, defend, and hold harmless the General Contractor and Owner from all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorneys’ fees (herein called claims) and from all expense in defending claims, including without limitation court costs, attorneys’ fees, the amounts of any judgments recovered, and any other expenses resulting from claims for bodily injury, sickness or disease, including death resulting therefrom sustained by any person and/or resulting from injury to or destruction of property, including loss of use thereof, caused by, arising from, incident to, connected with or growing out of the performance of this contract, including without limitation, the act or omission of the Sub-contractor, his agents, servants or employees and/or by any Sub-subcontractor, his agents, servants or employees and/or by the General Contractor, his agent, servants or employees, and/or by the Owner, his agents, servants or employees.’ ”

The trial court determined that the indemnity agreement was unenforceable because it was ambiguous and unclear. Summary judgment was entered in favor of third party defendant, Central Rigging, and this appeal ensued. The question now before us for consideration is whether or not the clause is ambiguous and unclear.

Under the law of Florida, intent to indemnify the indemnitee for his own negligence must be specifically set out in the indemnity contract in clear and unequivocal terms. Gulf Oil Corporation v. Atlantic Coast Line Railroad Company, Fla.App.1967, 196 So.2d 456; University Plaza Shopping Center, Inc. v. Stewart, Fla.1973, 272 So.2d 507; Ivey Plants, Inc. v. PMC Corporation, Fla.App.1973, 282 So.2d 205.

We note that it clearly appears from the record that Maulé paid an additional premium for the coverage provided in the indemnity agreement, thus meeting the requirement of § 725.06(2), Fla.Stat. We further note that the indemnity clause does specifically provide in clear and unequivocal terms that Maulé, the owner, is to be indemnified. We have studied the clause using both interpretations of the “and/or” language as follows:

The indemnity clause purports to indemnify Maulé

“for claims . . . arising from . this contract . . . including without limitation, the act or omission of Central . . . and McDonald . and Maulé,”
“for claims . . . arising from . this contract . . . including without limitation, the act or omission of Central ... or McDonald . . . or Maulé.”

When an indemnity agreement is reasonably susceptible of two equally fair interpretations, one which will provide indemnity and one which will deny it, the interpretation which provides liability must be applied. Da Costa v. General Guaranty Insurance Company of Florida, Fla.1969, 226 So.2d 104; Lake v. Fidelity and Deposit Company of Maryland, 5th Cir. 1970, 430 F.2d 1251.

For the reasons stated and on the authorities cited, the summary final judgment herein appealed is reversed.

Reversed.


text:
    Anisa JONES, Administratrix of the Estate of Raymond D. Jones, Deceased, Appellant, v. BUCYRUS-ERIE COMPANY, a Delaware Corporation, licensed to do business in the State of Florida, et al., Appellees.
    Nos. 74-1682, 74-1683.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 12, 1976.
    Horton, Perse & Ginsberg, Miami, Cohen & Cohen, Miami Beach, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman; Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Corlett, Merritt, Killian & Mascaro and Tully Scott, Miami, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

In this wrongful death action, plaintiff administratrix appeals an adverse judgment for defendants D. D. Kennedy, Inc. and Hendrickson Mfg. Co. entered pursuant to a jury verdict, and a judgment for Bucyrus-Erie Company entered in accordance with its motion for directed verdict.

The deceased, Raymond Jones, was an oiler on a crane and one of his duties was to keep the crane clean and free from oil drippings. On the day of the accident, Jones was working on the crane when the crane operator, who did not see Jones, climbed up into the cab and started the crane. As the crane began to swing, it struck Jones, who became caught between the upper and lower structure of the crane, and killed him.'

His widow, Anisa Jones, as administra-trix of his estate, filed a wrongful death action against Bucyrus-Erie Company which designed and manufactured the upper structure of the crane (the boom and the cab), Hendrickson Manufacturing Company which designed and manufactured the lower part, the carrier, and D. D. Kennedy, Inc. the assembler of the upper and lower structures. Plaintiff alleged that her husband was killed due to the negligent design, manufacture and/or assembly of the crane by the defendants in that Jones at the time of his death was standing in a large hole or cavity in the framework of the upper structure, which was a blind spot to the operator of the crane; there were no mirrors on the cab to see Jones; no warning devices that the crane was going to swing; and no shell mesh covering the cavity in which he was standing.

The cause was tried and the jury retired to deliberate. During the deliberation, the jury sent the following question to the trial judge:

“If we agree that there were no set safety standards, in 1966, and those safety devices recommended were not in use in the industry, can we find the defendants guilty ?
“P.S. We just want the point of law on this item.”

The judge responded in the negative and returned the case to the jury. Approximately 40 minutes later the jury again came back and indicated:

“Is this the final answer.
“If this is your last word on the subject, we have reached a verdict.”

The trial judge did not change his ruling and the jury rendered its verdict finding for the defendants. Nevertheless, upon a polling of the jury, two jurors denied that the verdict was theirs. The jury returned to deliberate again and reached a verdict finding in favor of defendants D. D. Kennedy and Hendrickson Mfg. However, the jurors could not agree on a verdict with respect to the plaintiff’s claim against defendant Bucyrus-Erie. The trial judge entered final judgment in favor of D. D. Kennedy and Hendrickson Mfg. Thereafter, the judge entered final judgment for Bucyrus-Erie in accordance with its motion for directed verdict on which he had reserved ruling.

With respect to the judgment entered in favor of Hendrickson Mfg. and D. D. Kennedy, plaintiff contends that the trial court committed reversible error in answering incorrectly the jury's question (set out above), and thereby confusing and/or misleading the jurors resulting in the denial of a fair trial.

It is of the utmost importance that a trial judge correctly charge the jury. These charges are the very core or heart beat of the case inasmuch as they are all the jury has to guide them in their assessment of the facts. Rodriguez v. Gonzalez, Fla.App. 1963, 157 So.2d 848. In reaching a determination that a jury was misled or confused by a jury charge, the appellate court must inquire whether a jury might reasonably have been misled by the charge or instruction. Florida Power & Light Co. v. McCollum, Fla.1962, 140 So.2d 569.

We first take note that the trial judge, in effect, erroneously instructed the jury in replying “no” to its question of the absence of industry safety standards. See Homan v. Dade County, Fla.App.1971, 248 So.2d 235 and cases cited therein. After carefully scrutinizing the record, we believe the jury was misled and confused by the judge’s negative reply. This belief is reinforced by the jury’s reiterating to the court: “Is this the final answer If this is your last word on the subject, we have reached a verdict.” Cf. Casazza v. Emerson, Fla.App.1967, 194 So.2d 623. For this reason, the judgment entered for D. D. Kennedy and Hendrickson Mfg. is reversed and the case remanded for a new trial as to these defendants.

Plaintiff also argues that the trial court erred in granting a directed verdict for Bucyrus-Erie and entering judgment. We agree.

Reviewing the evidence in the light most favorable to the plaintiff, the non-moving party, we cannot say there was no evidence on which the jury lawfully could have found a verdict for her. See 2 Fla.Jur. Appeals § 302 (1963) and cases cited therein. Accordingly, the judgment in favor of Bucyrus-Erie is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Gary P. McDONALD, Appellant, v. Thomas Earl MOORE, M.D., Appellee.
    No. 74-1700.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 12, 1976.
    Milton Kelner, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Gary P. McDonald, plaintiff in the trial court, from a judgment on a jury verdict for compensatory damages in the amount of $5,000 in the plaintiff’s favor, in an action for malpractice against Dr. Thomas Earl Moore. McDonald contends that the amount of the verdict is inadequate due to the trial court’s striking his claim for punitive damages.

The plaintiff, a narcotics addict, underwent treatment by Dr. Moore, a psychiatrist. The treatment included daily prescriptions for methadone. McDonald agreed to permit Dr. Moore to perform a series of six electric shock treatments in order to cure his addiction to methadone without the pain of withdrawal. During the fifth treatment, McDonald complained of extreme pain in his left shoulder. The doctor minimized the importance of his complaint and convinced McDonald to proceed with the sixth treatment on the next day. After the sixth treatment, McDonald discovered that his shoulder had been dislocated and fractured by the shock treatments. The evidence showed that Dr. Moore failed to warn McDonald of the danger of a shoulder fracture and that he did not administer a muscle relaxant before the electric shock. One of the plaintiff’s medical'experts testified that it was not the usual practice to give shock treatments without utilizing the muscle relaxant; the other testified that such omission fell below the standard of care. They both testified that failure to advise the patient of the risk of fractures encountered with shock treatments was conduct <Relow the standard of care.

During the trial, after the plaintiff had presented all of his evidence relating to the issue of punitive damages, the trial court struck his claim for punitive damages.

In the recent case of Buie v. Barnett First National Bank of Jacksonville, Fla. 1972, 266 So.2d 657, 659, the Florida Supreme Court stated:

“Punitive or exemplary damagss are allowable, however, solely as punishment or ‘smart money’ to be inflicted for the malicious or wanton state of mind with which the defendant violated plaintiff’s legal right, and can only be imposed in cases where either by direct or circumstantial evidence some reasonable basis for an inference of wantonness, actual malice, deliberation, gross negligence, or utter disregard of law on defendant’s part may be legitimately drawn by the jury trying the case.” [Quoting Winn v. Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 222, 223.]

In Richards Company v. Harrison, Fla.App.1972, 262 So.2d 258, 262, the First District Court of Appeal also stated that punitive damages are allowable in circumstances where the defendant:

“ . . . acts willfully or with such gross negligence as to indicate a wanton disregard of the rights of others. Punitive damages need not flow from an intentional course of conduct or intent to inflict damages but may also be allowed in such cases where there is that entire want of care which would raise the presumption of a conscious indifference to the consequences of one’s action or inaction.”

The record presented in the instant case fails to demonstrate wanton disregard for the plaintiff’s rights or an entire want of care raising a presumption of conscious indifference to the consequences. Thus, we cannot say that the trial judge committed reversible error in striking the claim for, and refusing to charge the jury on, punitive damages.

McDonald’s other two points, as well as the points raised on appeal by Dr. Moore, are not well taken and will not be discussed.

Affirmed.


text:
    Charles Hubert COLEBROOK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-617.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 12, 1976.

      Engel & Mishkin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Joseph F. Iracki, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES A. CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

The defendant was charged with first degree murder. After a plea of not guilty, a jury trial was begun. At the close of the evidence, the court reduced the charge to second degree murder. Thereafter, the jury returned a verdict of guilty of third degree murder, whereupon the court entered judgment thereon and imposed sentence. This appeal followed.

Defendant urges that the cumulative effect of three rulings of the trial court was such that there was error in denying his motion for a mistrial. Defendant does not urge that any one of the occurrences during the trial was such that error is demonstrated in the record.

We agree that none of the occurrences constitute reversible error. In addition, our reading of the record convinces us that defendant received a fair trial and that the proof of the defendant’s guilt was shown beyond a reasonable doubt. Defendant’s point directed to the sufficiency of the evidence to sustain a conviction is not well taken. See CrPR 3.490; Killen v. State, Fla.1957, 92 So.2d 825; and Coppottno v. State, Fla.App.1968, 223 So.2d 68.

Affirmed.