author: SACK, MARTIN, Associate Judge. BOYER, Chief Judge

text:
    Mary BATES, Appellant, v. STATE of Florida, Appellee.
    No. W-444.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Rehearing Denied Feb. 6, 1976.
    J. Robert Hughes, of Barron, Redding, Boggs & Hughes, Panama City, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   SACK, MARTIN, Associate Judge.

Appellant, defendant below, appeals her conviction for second degree murder and resulting 20 year sentence on the basis of the sufficiency of the evidence.

At trial, the State presented the following undisputed facts: Sometime after midnight in the 'early morning of May 21, 1973, two neighbors of the defendant, Mr. and Mrs. Richard Herrlinger, were disturbed by loud sounds emanating from appellant’s home across the street. Mrs. Herrlinger heard the first loud noise some fifteen to twenty minutes after 2:00 a. m. No more than a minute later, she and her husband heard another loud noise which both identified as a gunshot. About five minutes later, they both heard an additional shot. At 2:30 a. m., Patrolman Ramer of the Parker Police Department arrived at- the scene and was told by the appellant that she had killed her husband but had not meant to. Investigator Charles Robinson of the Bay County Sheriff’s Office examined the decedent who was lying in bed and had bullet wounds in his upper right chest, his shoulder, and the left side of his face. He also found a .357 single-shot pistol from which five bullets had been fired and one was unfired. Not surprisingly, this pistol was later determined to be the weapon which caused the decedent’s death. Further investigation of the scene of the crime revealed that a bullet had been discharged on the floor of the kitchen, and another had been discharged in the hallway. The State also presented to the jury appellant’s written statement given to Investigator Robinson some two hours after the shooting in which she claimed that she shot and killed her husband only in self-defense of the life of her baby. When the State closed its case, appellant’s attorney-moved for judgment of acquittal or, in the alternative, that the charges be reduced to manslaughter. Both motions were denied.

Appellant never denied' she shot and killed her sixth husband, John, some six days after their marriage. She does contend, as she contended at trial, that the shooting was necessitated in order to protect the life of her 21-month old child, Tracy Marie. In presenting her case, defendant called a friend of hers of 16 years who stated that the appellant was afraid of her husband. Appellant’s mother, Mrs. Myer, testified that appellant called her immediately after the shooting and told her what she had done. When Mrs. Myer arrived at the scene, she stated that the baby did not look like herself as her hair was all messed up, her gown had something poured on it, and she was nervous and fidgety. Finally, appellant testified in her own behalf. She stated that she had been very ill with a reoccurrence of thrombo-plebitis on the day before the shooting and begged her husband to take her to the hospital which he initially refused to do because he was extremely jealous and did not want anyone looking at her. He finally took appellant to the hospital where the doctor gave her a mild medication. Later, that evening, a friend of the decedent’s and a young boy arrived at the house, and the three began to drink beer. When appellant put the baby to bed at 8:30 p. m., the baby cried. The decedent began yelling about the baby crying whereupon his friend and the young boy left. The decedent grabbed the baby and poured cough syrup and a handfull of baby aspirin down her throat. He obtained a belt with which the appellant thought the decedent was going to beat the child. Instead, the decedent tried to tie the baby to the bed. When appellant fought the decedent off, the decedent beat the appellant with the belt. He then went to his bedroom. Although appellant attempted to quiet the baby, she continued to cry whereupon the decedent yelled, “If you don’t shut the baby up, I’m going to shut her up for good.” After more crying, the decedent again yelled, “Shut her up or I’m going to come out there and shut her up for good.” At this point, appellant went to the baby’s room, laid the baby down, and went to the kitchen where she got the gun out of the cupboard. Because she had never fired a gun before, it somehow went off in the kitchen which scared her. She then walked down the hall and, figuring that she had to pull the hammer back to make it shoot, did so, and the gun fired again in the hallway. She testified that by this time, she was hysterical. As she walked into the marital bedroom, she saw her husband in his undershorts on the bed. She fired three shots, dropped the gun, picked it up, and placed it in the kitchen before calling the Bay County Sheriff’s Office and the Parker Police. She told the jury that the only reason that she shot her husband was that she was afraid that he was going to kill her baby. She testified that during the time before they were married but while they were living together, the decedent had beaten the baby with a ruler when the baby would cry over going to bed at night. She further stated that she did not mean to kill her husband as she still loved him.

Appellant now argues that, based on the foregoing evidence, her conviction of second degree murder could not be sustained. More specifically, she asserts that the evidence establishes her theory of justifiable homicide as defined by F.S. § 782.-02 (2) (b). However, the foregoing statute provides that a homicide is justified when committed in the lawful defense of one’s child “. ‘ . . When there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;” (Emphasis added) Amplifying on the words of the statute; the Second District Court of Appeal opined:

“[IS, 16] In order to justify a homicide on the ground of self defense the sitúation must be such as to induce a reasonably prudent person to believe that danger was imminent and that there was a real necessity for the taking of life. O’Steen v. State, 1927, 92 Fla. 1062, 111 So. 725. When threats are considered in relation to the defense that the accused killed in self protection, there must be evidence of an overt act which would induce a reasonable belief that the threatened person will lose his life or sustain serious bodily injury unless he immediately takes the life of his adversary. State v. Coles, Fla.1956, 91 So.2d 200. The law disparages the kind of ‘self defense’ which would subject human life-to ‘the mercy of cowardice or capricious impulse of one whose easily awakened fear prompts him, who is armed with a deadly weapon, to strike upon what at best may be called a hostile demonstration on his victim’s part.’ Collins v. State, 1925, 88 Fla. 578, 102 So. 880, 881.” Darty v. State, Fla.App. 2nd 1964, 161 So.2d 864, cert. den., Sup.Ct.Fla.1964, 168 So.2d 147.

Sub judice, there is ample evidence in the record from which the jury could have found that the appellant’s fear of harm to her infant daughter was unreasonable. While the appellant stated that her husband threatened the baby with bodily harm, she testified that the decedent took absolutely no steps to implement his threats after they were made. In fact, from the time that decedent issued his threat to the time that appellant shot him, the decedent remained in the marital bed.

Appellant heavily relies on Harris v. State, Fla.App. 2nd 1958, 104 So.2d 739. That case, however, is factually distinguishable in that the decedent there knocked the defendant’s daughter down on the driveway and followed the daughter into the defendant’s house cursing and abusing her. After being repeatedly ordered to leave, the decedent did go to the steps of the house but then turned to start back into the house, announcing that he was going to cause plenty of trouble, at which point the defendant killed him. The crucial factual distinction between the instant case and the Harris case is that here, the decedent made no move to inflict harm on the infant but was, to the contrary, flat on his back. In the Harris case, the decedent had taken action which could reasonably be interpreted as an attempt to enforce his previously issued threats of violence.

Appellant further asserts that a further circumstance which the jury might well consider in arriving at its decision is the length of time involved. Appellant stated that after the decedent attempted to kill the baby by overdosing it with aspirin and cough syrup, and had issued threats from the bedroom, she laid the baby in her bed and walked to the kitchen to get the gun. Two shots were then fired, (one in the kitchen and one in the hallway) and were about five minutes apart, according to the Herrlingers. Even after these two shots and the length of time, the decedent, according to the appellant herself, remained in the bedroom and made no threatening action toward the baby or herself. The jury might have well concluded that, during the period when appellant and the child were in the livingroom at the front of the house and appellant’s husband was in a rear bedroom, appellant could have taken other action to avoid the threatened injury to the child. She might have simply walked out the front door with the child, as she testified she thought of doing. She might have called the police. She might have called her mother to come for the child. There was ample evidence from which the jury could have found that the means of retreat were open to her.

We, therefore, conclude that there is sufficient evidence in the record from which the jury could have found the appellant guilty of second degree murder, thereby rejecting appellant’s claim of justifiable homicide.

Affirmed.

SMITH, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. The facts recited in the majority opinion do not, in my view, prove second degree murder. That the decedent was appellant’s sixth husband and the marriage was of six-days duration has no legal relevance. The pistol was not a single shot, it was a single action. It did not require reloading after each shot, only recocking. Considering the evidence in a light most strongly against appellant, including inferences and suspicions, (which I do not conceive to be the law of this State) it proves at most manslaughter and not even that beyond and to the exclusion of a reasonable doubt.

In my view appellant was justified in her actions. By their very nature mothers are expected to protect their young. The decedent had already demonstrated his viciousness toward appellant’s 21-month-old child by forcibly pouring down its throat a large quantity of cough syrup accompanied by a handful of aspirin. We can and should take judicial notice that an overdose of aspirin can be lethal. Those actions on the part of decedent accompanied by his repeated statements that he would “shut her up for good” certainly would lead a reasonably prudent person to believe that danger was imminent. (Darty v. State, supra) The parties resided in a small house and there was no evidence that appellant had a reasonable opportunity to escape with her baby without her husband being in hot pursuit. On the contrary the evidence revealed that she feared her husband and for good cause. At trial she testified as follows:

“Q If you were truly afraid that this man was • about to kill your child, Mrs. Bates, and he was in the back of the house and you were sitting next to the front door, why did not you take the baby out for a walk and be gone, if you’re truly afraid that the man is about to kill a 21-month-old girl child ?
“A Because I knew he would come after us.
4* jfc 4s ‡
“Q (Mr. Jones continuing) Then what did he do that would indicate that if you went for a walk and kept on going to your mother’s house that he would follow you all the way over there to kill the child ?
“A I knew him, and I knew what he would do.”
“Q Was there anything to stop you from walking out the front door?
“A He would have come after me. He would have killed me and the baby.
“Q Well, Mrs. Bates, if you couldn’t go to your mother’s house, if you were afraid to walk out of there, that he would come get you, and the door was wide open, and you had the feeling when you walked back with the gun he was going to kill your baby, well then what alternative did you have but to kill him ?
“A I wanted to scare him.
:jí 4c 4* 4* sj«
“A I never meant to fire the gun in him.”

A conviction of murder may not rest on speculation and conjecture. Had appellant failed to heed her husband’s threats to “shut her up for good” and had he in fact done so, appellant would have been justifiably subject to severe criticism for failure to act in defense of her baby’s life. The record is totally devoid of any evidence that appellant acted other than in defense of her baby in a situation such as would have induced any reasonable and prudent person to believe that danger was imminent. She well knew that once he undertook to carry out his threats she would be powerless to stop him. It would then be too late. In her words: “He would have come after me. He would have killed me and the baby.”

It is easy for us now, in a mindful, comfortable and relaxed atmosphere, to theorize on what appellant should have done and what alternate courses may have been considered by her. But she did not enjoy the luxury of such an opportunity for reflection. She acted, according to the un-contradicted evidence, in defense of her child. I would reverse.


source: Caselaw Access Project

author: McNULTY, Chief Judge.

license: Public Domain

text:
    EMMCO INSURANCE COMPANY, a corporation, Appellant, v. MARSHALL FLYING SERVICE, INC., Appellee.
    No. 75-521.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
    Rehearing Denied Feb. 9, 1976.
    Timothy F. Prugh, Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Sherryll Martens Dunaj, Frates, Floyd, Pearson, Stewart, Proenza and Richman, Miami, for appellee.
   McNULTY, Chief Judge.

Appellee Marshall Flying Service, Inc., a crop dusting company, is a defendant in this pending action for damages alleging wrongful destruction of property by chemical spray. Appellant Emmco Insurance Company issued a policy to appellee Flying Service which afforded only hull insurance on the latter’s airplanes together with general liability coverage. The Flying Service’s application for insurance had expressly requested chemical damage coverage, but unbeknown to it such coverage was excluded by the terms of the policy. The Flying Service nevertheless called upon Emmco to respond for such coverage.

Appellant Emmco thereupon intervened in the main action requesting a declaratory judgment as to its obligation under the policy with respect to the plaintiff’s claim for chemical damage. The trial court ultimately granted summary judgment in favor of the Flying Service and this appeal ensued.

The question of coverage turned on: (1) whether a proper application was made by appellee Flying Service for such chemical coverage to a proper agent of appellant Emmco and (2), if so, whether such agent knew or should have known of such request. Given affirmative answers, the court then concluded that, as a matter of law, Emmco was responsible for chemical damage coverage if its agent failed to provide such coverage or failed to notify the Flying Service that the policy which in fact issued excluded such coverage. He found that there were no material issues as to the two operative facts and that therefore summary judgment for the Flying Service was proper. Upon a careful review of the record we have concluded that on this point appellant has not made error clearly to appear. We therefore, as to that, affirm.

We note here that the summary judgment was entered before appellant had an opportunity under procedural rules to assert a set-off for the difference between the premiums actually charged for the limited coverage given and those which would have been chargeable had the additional coverage for chemical damage claims been given. We think this was improper and that appellant should have an opportunity to avail itself of this set-off. Accordingly, with respect to that aspect of the summary judgment, and insofar as it precludes appellant from asserting such set-off, it should be reversed for further proceedings not inconsistent herewith.

Affirmed in part, reversed in part.

BOARDMAN and SCHEB, JJ., concur.

      . Concerning an insured’s failure to read Ms own policy, see Liberty Mutual Fire Insurance Co. v. Sanderman (Fla.App. 3d, 1973), 286 So.2d 254, in wMcli it was held not to be fatal, given affirmative answers to the criteria set forth in the body hereof.


author: PER CURIAM.

text:
    VOLUSIA COUNTY, a political subdivision of the State of Florida, Appellant (Defendant), v. DEPARTMENT OF BUSINESS REGULATION, etc. and Atlantic International Investment Corporation, a corporation, Appellees (Plaintiffs).
    No. Y-520.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
    Warren 0. Tiller, William K. Howell, Jr., and John R Godbee, Jr., DeLand, for appellant.
    Sam Spector, Cynthia S. Tunnicliff, Vance Kidder, Tallahassee, George W. Es-tess and D. L. Middlebrooks, Levin, War-field, Middlebrooks, Graff, Mabie, Rosen-bloum & Magie, Pensacola, for appellees.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the interlocutory appeal is dismissed.

BOYER, C. J., MILLS, J., and AGNER, ROYCE, Associate Judge, concur.


text:
    Henry P. GILMORE, Appellant (Plaintiff), v. Barney BURKS et al., Appellee (Defendant).
    No. Y-177.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
    Louis K. Rosenbloum and Roderic G. Magie of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Don J. Catón, Pensacola, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error. Unused annual leave payments should not be considered compensation in computing pension benefits under the provisions of Firemen’s Relief and Pension Fund of the City of Pensacola, Florida, and under the facts presented by the record in this case.

Accordingly, the final judgment is affirmed.

BOYER, C. J., MILLS, J., and CAW-THON, VICTOR M., Associate Judge, ■ concur.


author: MILLS, Judge.

text:
    Dorothy C. HAYES, Appellant (Respondent), v. Jerry L. HAYES, Appellee (Petitioner).
    No. Y-33.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.

      John E. Venn, Jr., Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    Louis K. Rosenbloum and David H. Lev-in, Levin, Warfield, Graff, Mahie & Ro-senbloum, Pensacola, for appellee.
   MILLS, Judge.

Appellant appeals from a final judgment in a dissolution of marriage case which denied her claim for permanent or for reha-bilitiative alimony. Appellant contends the trial court erred in refusing to award her either permanent or rehabilitative alimony, and in failing to reserve jurisdiction to award appropriate alimony at a future date, if sought, and if allowable.

Because the judgment is clothed with a presumption of correctness, and because the trial court has broad discretion, we find no error in its denial of alimony. However, it is our opinion that the judgment should have specifically reserved jurisdiction to award alimony at a future date, if applied for, and if allowable. Nichols v. Nichols, 304 So.2d 497 (Fla.App. 1st, 1974).

Affirmed in part and reversed in part with directions to modify the judgment to specifically reserve jurisdiction to award alimony at a future date, if applied for, and if allowable under Chapter 61, Florida Statutes.

BOYER, C. J., and CAWTHON, VICTOR M., Associate Judge, concur.


author: SACK, MARTIN, Associate Judge:

text:
    Earl L. DAUGHTREY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. W-517.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    Rehearing Denied Feb. 6, 1976.
    Richard W. Ervin, III, Public Defender, Louis G. Carres, Asst. Public Defender, Jeffrey H. Savlov, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   SACK, MARTIN, Associate Judge:

This is an appeal from a conviction for armed robbery and assault with intent to commit first degree murder.

The defense was an alibi, and the appellant took the stand on his own behalf, testifying as to his alleged whereabouts and persons whom he had seen during the day. During the prosecutor’s closing remarks the following took place:

“. . . The Defendant has taken the stand and says he was not there either time. One time he says, T was asleep in the bed and my wife came and woke me up and I decided not to go to work because it was raining and then I went on to work.’ He gave me the names of people who were there, his supervisor, and the fact that he had punched in a time clock. Where is it? That is evidence folks. That’s what he could bring to you to show you we got him wrong.
MR. WEED: We object to this your Honor, the comments on where are these people. The Defendant’s not required to prove anything.
THE COURT: Sustained.
MR. WILLIS: Your Honor, I can comment on the lack of evidence. He brought the evidence of alibi forth. Lack of evidence in this regard is certainly a relevant and proper area to comment on in the alibi defense.
MR. WEED: I believe the Defense may comment on the lack of evidence, the State’s lack of evidence of proving the innocence of this Defendant, there is no such thing.
MR. WILLIS: The reasonableness of his defense though, it’s fair comment on evidence which has or has not been presented.
THE COURT: Sustained.
MR. WEED: Would you please instruct the Jury to disregard those comments ?
THE COURT: Members of the jury disregard the comments which just occurred, just heard by you from the State Attorney. Do not consider them in arriving at your verdict.
MR. WILLIS: The Defendant testified from the stand that he had a supervisor and he gave you a name. The Defendant testified from the stand and the evidence is before you that he had a time clock that he had to punch. Now that’s before you. You heard that from the stand. He has testified that on the day that he, that Mrs. Register was shot, that he had been at home and had tended to his child and then he had gone down and played pool at a poolhall. He had names he give you. The man who ran the place and the person he was with there and who he played pool with. He testified to those names. He knows them. He further testified that he supposed that’s right where they were. He testified to the name of a store where he went and bought some, a drink or something like that, during the day of the 11th of December, in the trailer park where he lived. He testified to that to you. Names that he gave to you. Think about that when you consider his defense and his alibi . . .”

Thus, the main point on appeal is whether this was fair comment on the defendant’s testimony, it being ufged by appellant that the prosecution was barred from mentioning or challenging the failure of the appellant to produce corroborative witnesses. Our decision here is based solely upon the defense of alibi (an affirmative defense) and the facts of this case.

In Jenkins, Jr. v. State, 317 So.2d 90 (Fla.App.1st, 1975) this court said:

“Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant’s failure to produce the witness is properly a subject of comment by the prosecutor ..."

We see no reason why the same rule should not be applied-in this case. There have been' sufficient safeguards erected through the years to fully insure a fair trial in these criminal cases, and we know no reason for erecting a barrier to the State’s comment on the appellant’s failure to produce competent and available witnesses in support of his claimed alibi. Since alibi is an affirmative defense in which the defendant is supposed to carry the burden of proof, why shouldn’t his credibility be the subject of fair comment where the supporting witnesses are competent and available ?

We have examined the other points on appeal and find no merit in them.

Accordingly, the judgment is affirmed.

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


text:
    Don Harrold SUDDRETH, Appellant, v. STATE of Florida, Appellee.
    No. X-135.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 6, 1976.
    John Paul Howard, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

We have carefully considered the briefs, record and oral arguments and find no error in the rulings of the trial court with' the exception that appellant was sentenced without having been given psychiatric examinations as required by Section 801.051, Florida Statutes. See Wolf v. State, Fla.App.2nd, 282 So.2d 668. The sentence imposed upon appellant is, therefore, vacated and the case is remanded to the trial court for compliance with said statute.

McCORD, Acting C. J., and MILLS and SMITH, JJ., concur.


author: ALDERMAN, JAMES E., Associate Judge.

text:
    George STEVENS et al., Appellants, v. Theodore J. HORNE, Jr., and United States Fidelity and Guaranty Company, a Foreign Corporation, Appellees.
    No. 74-1231.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied and Mandate Stayed Feb. 3, 1976.

      Charnelle H. Summers, Jr., Edw. P. Swan and Charnelle H. Summers, Jr., Miami, for appellants Carl Gunderson, Berry Goodstein, Larry D. Lynch, Robert W. Higgins, Richard C. Sems, and George Stevens.
    Patrick M. Scanlon, Adair, Goldthwaite, Stanford & Daniel, P.A., Atlanta, Ga., and Ralph J. Ray, Jr., Naze & Ray, Fort Lauderdale, for appellant-Communication Workers of America, Local 3107.
    Martin J. Sperry, Carey, Dwyer, Austin, Cole & Selwood, P.A., Fort Lauderdale, for appellee U. S. Fidelity and Guaranty Co.
   ALDERMAN, JAMES E., Associate Judge.

Theodore J. Horne, Jr. filed a suit against Communication Workers of America, Local 3107, hereinafter referred to as the union and certain individual union members alleging tortious misconduct in the nature of assault, battery, false imprisonment, libel by effigy and intentional infliction of emotional distress.

The union had a special multi-peril policy of .liability insurance with United States Fidelity and Guaranty Company hereinafter referred to as USF & G. The union and the individual defendants notified USF & G of the pending litigation requesting that the insurance company defend the action. USF & G thereafter disclaimed any liability or responsibility for coverage under the policy. Both the union and the individual defendants filed third party actions against USF & G for failure to provide coverage under the contract of insurance issued in the union’s name.

Plaintiff Horne’s case commenced before a jury which rendered a verdict on behalf of the union and all individual members as to Count I (assault), Count II (battery) and Count III (false imprisonment), and against the union and six individual members on Count IV (libel by effigy) and Count V (intentional infliction of emotional distress). The trial court entered judgments in accordance with the jury’s verdicts. No appeals from these judgments were taken.

The remaining issues regarding insurance coverage were heard before the trial judge who entered his order denying coverage. Both the union and the individual members bring this appeal from that order.

The following facts are relevant to an understanding of the issues in this case. An economic strike was commenced by the union and its parent international union against Southern Bell Telephone and Telegraph Company. A picket line was established at Southern Bell’s North Dade plant facility in Miami, Florida. Horne, a nonunion employee of Southern Bell, did not participate in the strike. A scaffolding was erected by the strikers at or adjacent to the plant and a life-like dummy was hung by a noose. On the scaffolding was placed a sign entitled “Ted Horne, Super Scab”. The next day, the scaffolding and dummy were placed in the back of a pickup truck and were transported to Horne’s home in Broward County. A group of persons, including the individual defendants, accompanied the truck to Horne’s residence where they made several passes in front of his home.

USF & G initially refused to defend, alleging first that it had been prejudiced by late notice of the pending action; and second, that the policy provided no coverage because of an exclusionary clause which provided in part, as follows:

“This insurance does not apply: (b) to personal injury arising out of the willful violation of a penal statute or ordinance committed by or with the knowledge or consent of any insured.”

By agreement of the parties, the defense of late notice was tried first, prior to the trial of the main action, resulting in a ruling in favor of the union and the individual members. The remaining defense, based upon the exclusionary clause, was to be heard and determined by the court after the trial of the main action.

Counsel for USF & G then announced that it was going to defend the main action on behalf of the union, but not the individual members. Subsequently, counsel for USF & G tendered to the union a letter advising that while USF & G was affording the union a defense, it was doing so under a reservation of rights. The union then delivered to counsel for USF & G, written notification of its refusal to accede to the carrier’s defense with a reservation of rights. Nevertheless, counsel for USF & G continued to participate fully in the case and the trial court specifically found in its order that USF & G, immediately following the adverse ruling on the issue of prejudice by late notice, had undertaken the defense of the union.

The first issue to be determined is whether USF & G had a duty to defend plaintiff’s second amended complaint on behalf of the union and the individual members. On this issue, Florida law is clear that an insurer’s duty to defend an action against its insured by a third person is determined by the allegations of the complaint. Bennett v. Fidelity & Casualty Company of New York, Fla.App.1961, 132 So.2d 788; Consolidated Mutual Insurance Company v. Ivy Liquors, Fla.App.1966, 185 So.2d 187. Moreover, where only portions of a complaint fall within the coverage of the insurance policy and other portions fall outside the policy, the insurer has a duty to defend the entire suit. C. A. Fielland, Inc. v. Fidelity & Casualty Company of New York, Fla.App.1974, 297 So. 2d 122; St. Paul Fire and Marine Insurance Company v. Icard, Merrill, Cullis & Timm, Fla.App.1967, 196 So.2d 219.

Looking to the allegations of the complaint, we see that the complaint alleged alternate theories of liability on the part of the union. It first alleged that the individual defendants were members of the union and were acting as its agents, servants or employees. This theory is one of vicarious liability, requiring no willful misconduct on the part of the union. The alternate theory is one of direct liability in that the acts committed by the individual defendants were allegedly caused, procured or directed by defendant union.

We conclude, under the alternate allegation of vicarious liability, that USF & G did have a duty to. defend the union. This duty arose on June 2, 1972, when the union first notified USF & G of the pending litigation. Not until January 16, 1974, did USF & G tender a defense to the union. The union is entitled to reimbursement for all necessary expenses, including attorneys fees, which it reasonably expended in the defense of the main action from June 2, 1972. Upon remand of this case, the trial judge below upon hearing after notice shall determine and award these expenses.

We reach a contrary conclusion as to the individual union members. The complaint as to these defendants clearly and unequivocally alleged a willful violation of a penal statute or ordinance committed by them or with their knowledge or consent. USF & G was within its rights when it refused under the terms of its policy to defend these persons.

The court having found that USF & G had a duty to defend the union, it does not necessarily follow that it has a duty to indemnify. While the duty to defend turns on the allegations of the complaint, the duty to indemnify is based upon the facts established at trial, and the possible application of any exclusionary clauses contained in the insurance agreement.

The union contends that USF & G did not meet its burden of proving the applicability of the exclusionary clause. The union primarily argues that the particular conduct complained of was “protected activity” within the meaning of federal labor law, and therefore not violative of a state penal statute. Its argument is based upon the U.S. Supreme Court case of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). In that case, a union, in an effort to organize members of a bargaining unit who did not belong to the union, published a “List of Scabs”, together with a defamatory definition of the word “scab”. Three of the non-union letter carriers who were named on the “List of Scabs” filed a st'ate court libel action which resulted in money judgments against the union. In reversing the state court decision, the U.S. Supreme Court held that the use of the epithet “scab” was protected under federal labor law and could not be the basis of a state libel judgment.

We believe that the present case is factually distinguishable from Letter Carriers v. Austin, supra. The trial court below found as a matter of fact that the acts complained of in Count IV and Count V were clearly violative of Florida Statutes Section 447.09, and further that all the testimony presented to the court showed that the statute was willfully violated.

Much more is involved in the present case than the use of the epithet “scab”. Appellants exceeded the use of mere intemperate, abusive, or insulting language to express their contempt for a person who chose not to join the union. Their action was not limited to just publishing the words “Ted Horne, Super Scab”. The hanging of Ted Horne in effigy with the implied threat of violence to him is a clear violation of Florida Statute, Section 447.09(11), which provides:

“It shall be unlawful for any person:
(11) To coerce or intimidate any employee in the enjoyment of his legal rights, including those guaranteed in § 447.03, or to intimidate his family, picket his domicile or injure the person or property of such employee or his family.”

The carrying of the effigy to Horne’s domicile in Broward County to intimidate him and his family was a further violation of the statute.

We recognized the supremacy of federal labor laws in the area of state regulations and that a state may not prohibit the exercise of rights protected by federal law. However, we believe federal law does not grant to a union or union members the legal right to coerce or intimidate non-union employees in the enjoyment of their legal rights. Likewise there is no legal right granted to a union or union members to intimidate the family, picket the domicile or injure the person or property of non-union employees or their families. Such conduct is made a crime in Florida, and the record in this case supports the trial judge’s finding that appellants violated this penal statute.

The final point to be determined is whether USF & G waived its defense regarding indemnity coverage when it- undertook the defense of the union on the commencement of the main trial.

The union contends that in order to preserve the ultimate question of indemnity coverage and meet its duty to defend, USF & G must have obtained a reservation of rights agreement. It is the union’s position that if it had agreed to the reservation of rights, then USF & G could have defended without abandoning the ultimate question of indemnity liability. However, since it refused to agree, it argues that USF & G waived its defenses or is estopped to assert them. The trial judge held that there was no waiver of defenses.

The rule in Florida appears to be contrary to that urged by the union. The Third District, in the case of Midland National Insurance Company v. Watson, Fla.App., 188 So.2d 403 (1966), recognized and applied the rule that, “an insurer may, by timely notice to the insured, reserve its right to claim that the policy does not cover the situation at issue, while defending the action.” The authority cited for this rule was the New York case of O’Dowd v. American Surety Co. of New York, 3 N.Y.2d 347, 165 N.Y.S.2d 458, 463, 144 N.E.2d 359, 363 (1957), and the cases cited therein. The Fifth Circuit in Duke v. Hoch, 468 F.2d 973, 984 (1972) has applied the rule as expressed in Midland National Insurance Company v. Watson, supra, as the law of Florida.

Based upon the circumstances of this case, we cannot say that USF & G waived its defenses regarding indemnity coverage when it undertook, after notice of reservation of rights, but without a waiver of rights agreement, the defense of the union on the commencement of the main trial.

This case is remanded to the trial court for the purpose of determining and awarding to the union reimbursement for all necessary expenses, including attorneys fees, which it reasonably expended in the defense of the main action from June 2, 1972. In all other respects the judgment is affirmed.

Affirmed, in part, reversed, in part, and remanded.

WALDEN, C. J., and OWEN, J., concur.


author: SMITH, Judge.

text:
    Emmitt V. McWHIRTER, Appellant, v. STATE of Florida, Appellee.
    No. Y-297.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.

      Richard W. Ervm, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

The information charged that Mc-Whirter “did buy, receive or aid in the concealment” of credit cards stolen from the pocketbook of a woman with whom he danced at the Gold Nugget Lounge in Panama City. Sec. 811.16, F.S. In his defense, McWhirter testified that his friend Rusty also danced there that evening, that he and Rusty drove away from the bar in McWhirter’s car and that Rusty abruptly left the car and disappeared when Mc-Whirter was arrested later that night — erroneously, as the authorities concede — for car theft. An inventory search of the impounded car revealed the stolen credit cards in a purse concealed under the right side of the front seat.

McWhirter insists that the jury could not lawfully convict him of the offense charged. It is true that, if Rusty and McWhirter or McWhirter alone stole the cards, McWhirter could not be convicted of a charge that he “did buy, receive or aid in the concealment” of them. Johnson v. State, 226 So.2d 884 (Fla.App.2d, 1969); Ketelsen v. State, 211 So.2d 853 (Fla.App. 3d, 1968); E. C. v. State, 280 So.2d 492 (Fla.App.3d, 1973). But if, as Mc-Whirter’s evidence implies, Rusty stole the cards while McWhirter danced with the victim, McWhirter could be convicted if the jury believed also that McWhirter was “a confederate of the actual thief who was present aiding and abetting in the larceny and who received the stolen property.” Bargesser v. State, 95 Fla. 404, 407, 116 So. 12, 13 (1928). See also Adams v. State, 60 Fla. 1, 53 So. 451 (1910). That McWhirter was found in personal possession of still other credit cards not in his name was a collateral circumstance tending to show his guilt. Given two hypotheses of guilt, one of an offense charged and another of an offense not charged, it is unnecessary to a conviction that the circumstantial evidence be inconsistent with the offense not charged.

Affirmed.

BOYER, C. L, and MILLS, L, concur.


text:
    Ralph YANNOTTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-62.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas M. Carney, Asst. Atty. Gen., and James T. Connolly, Legal Intern, State Attorney’s Office, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, convicted of both false imprisonment and robbery, raises as his sole point on appeal the sufficiency of the evidence to sustain the conviction of robbery. The point is without merit. The record discloses sufficient evidence to sustain the conviction of appellant under the aider and abettor statute, Fla.Stat. § 776.011 (1973). See, Davis v. State, 275 So.2d 575 (Fla.App. 1st 1973).

Affirmed.

OWEN, MAGER and DOWNEY, JJ., concur.


text:
    Kenneth PETTIGREW, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-411 to 74-413.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   ON MOTION TO RECALL MANDATE AND GRANT APPELLEE’S PETITION FOR REHEARING

PER CURIAM.

Subsequent to the filing of the opinion and the issuance of the mandates, this case was overruled by our court in Roberts v. State, Fla.App.2d, 1975, 320 So.2d 832. In the meantime, the state had filed a petition for certiorari in the Supreme Court of Florida. Upon the issuance of our opinion in Roberts, the state filed a motion to recall our mandate and grant its petition for rehearing. The motion was denied, subject to reconsideration if the Supreme Court relinquished jurisdiction to this court. The Supreme Court has now entered an order temporarily relinquishing jurisdiction to this court. In view of our holding in Roberts, our opinion in the instant case is. hereby withdrawn, 316 So.2d 69, all three judgments entered below are affirmed, and the mandate in Case No. 74-412 shall be amended accordingly.

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


text:
    John SANKEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1417.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

The State having confessed error in that the evidence adduced in the trial court was insufficient to convict the appellant of a felony, the final judgment and sentence under review be and the same is hereby reversed and the cause is remanded to the trial court for the entry of a judgment and sentence upon a conviction for a second degree misdemeanor, as provided in § 832.-05(2), Fla.Stat.

Because the appellant was originally sentenced as a convicted felon, he has already served more time than the maximum provided for in the above section. Therefore, no petition for rehearing will be permitted to this opinion and the mandate will issue forthwith.


author: OWEN, Judge.

text:
    Harold MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 74-649.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1976.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks, Asst. Public Defender, and Daniel T. O’Connell, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of (1) possession of a controlled substance and (2) possession of paraphernalia. The State’s case rested upon proof of constructive possession, since the evidence established that the controlled substance and the paraphernalia were not in the actual possession of appellant but were found in a car jointly occupied by appellant and its owner, a code-fendant.

The law relative to the proof necessary to establish constructive possession where the contraband is found on premises or property under joint control or occupancy has been stated in numerous cases, e. g., Thomas v. State, 297 So.2d 850 (Fla.App. 4th 1974); Hilding v. State, 291 So.2d 111 (Fla.App. 4th 1974); Amato v. State, 296 So.2d 609 (Fla.App. 3rd 1974); Griffin v. State, 276 So.2d 191 (Fla.App. 4th 1973); Medlin v. State, 279 So.2d 41 (Fla.App. 4th 1973); Smith v. State, 276 So.2d 91 (Fla.App. 4th 1973); Chariott v. State, 226 So. 2d 359 (Fla.App. 3rd 1969); Frank v. State, 199 So.2d 117 (Fla.App. 1st 1967).

Our review of the record satisfies us that the State’s evidence did not meet the standard as repeatedly announced and recognized in the foregoing cases. The judgment is reversed and this cause remanded with directions that appellant be discharged.

Reversed and remanded.

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


text:
    Maryan Frances BARKER and Florence M. Palen, Co-Executrixes of the Estate of LeRoy Clements, Deceased, Appellants, v. The FIRST NATIONAL BANK IN PLANT CITY, Appellee.
    No. 75-859.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
    Frank P. Riggs, Sun City Center, for appellants.
    Charles S. White, of Edwards & Sawyer, Plant City, for appellee.
   PER CURIAM.

The appellee (Bank) had issued a certificate of deposit to LeRoy Clements in the amount of $17,000. After Mr. Clements’ death, appellants (executrixes) sought to obtain the funds represented by the certificate, but they were unable to locate the certificate itself. The executrixes and the Bank could not agree on the nature of the indemnity which the Bank should be given as protection against possible losses it might suffer in the event the certificate was ever produced. The basis for the argument centered around the question of whether the certificate was negotiable or nonnegotiable. Consequently, the execu-trixes brought suit for payment of the certificate with the request that the court determine the indemnity, if any, which should be given the Bank as protection.

After the denial of their motion to dismiss, the Bank filed an answer asserting the negotiability of the certificate and asked the court to determine that its requirement of indemnification for the payment of the certificate be held to be reasonable to protect the Bank from double liability. The Bank attached a copy of the original certificate to its answer. After the case was set for trial, but within twenty days of the filing of the answer, the Bank filed an amended answer raising the affirmative defense that no cause of action had accrued because the certificate did not mature until July 26, 1979. After hearing arguments of counsel, but before the taking of testimony, the judge indicated he was inclined to the view that the complaint should be dismissed because the certificate of deposit had not matured. However, he permitted both parties to file memoranda on the subject. Following the submission of memoranda, the court entered final judgment for the Bank.

The real controversy seems to be over the nature of the indemnity which should be required for protection against the lost certificate. As an afterthought, the Bank has raised the defense of the nonmaturity of the certificate. Limited to the face of the certificate, the defense looks good. However, in their memorandum the executrixes stated that they were prepared to introduce additional writings executed or delivered as part of the transaction in which the certificate of deposit was issued. The executrixes further manifested the desire to introduce verbal statements and evidence of custom and usage to prove that the decedent was led to believe that the certificate could be redeemed prior to maturity, subject to an appropriate interest penalty. It would be premature to pass upon the admissibility of the various types of proffered evidence, except to observe that parol evidence is admissible to connect several written instruments and show that they were all parts of one transaction. Northwestern Bank v. Cortner, Fla.App.2nd, 1973, 275 So.2d 317.

Much of the discussion in the briefs relates to the vehicle whereby the judge determined to dismiss the complaint. The judge, himself, characterized the amended affirmative defense as a motion -to dismiss. This seems inappropriate since a copy of the certificate of deposit with its maturity date was first attached to the an-’ swer, while a motion to dismiss is directed to matters contained in the complaint. H. E. Temples v. Florida Industrial Construction Co., Inc., Fla.App.2nd, 1975, 310 So.2d 326. We are reluctant to consider the order as a judgment on the pleadings since the Bank made no such motion and the ex-ecutrixes’ proffer contained in the execu-trixes’ memorandum was in the nature of a reply.

Under the circumstances, we believe the judgment should be reversed and the case remanded for the parties to recast their pleadings so that the issues can be decided on the merits and in an orderly manner. Should the court decide to permit the reestablishment of the lost certificate, the issue will then become whether such extrinsic evidence as may be admissible is sufficient to prove that the cause of action has matured. Should this obstacle be overcome, the court will then be in a position to determine the issue of appropriate indemnification, which, presumably, will be governed in large part by the court’s view of the negotiability of the certificate.

Reversed and remanded.

BOARDMAN, A. C. J„ and GRIMES and SCHEB, JJ., concur.


author: HARDING, M., Associate Judge. McCORD, Judge

text:
    SEXTON COVE ESTATES, INC., Petitioner, v. STATE of Florida POLLUTION CONTROL BOARD, Respondent.
    No. W-382.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.

      William J. Roberts, and David Linn, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and William P. White, Jr., Asst. Atty. Gen., for respondent.
   HARDING, M., Associate Judge.

This is a petition for writ of certiorari to review an order of respondent State of Florida Pollution Control Board.

Petitioner purchased land in 1969 on Key Largo and in 1970 platted it for and began development of it as a mobile home subdivision. Back in the 1920’s a series of upland canals had been dug on this property. Some were dead-end canals connected to the waters of Sexton Cove (Blackwater Sound). In 1970, after enactment by the Congress of U.S. Public Law 91-224, petitioner deepened the canals and constructed an additional canal. That law requires that any applicant for a federal permit to conduct any activity which may result in any discharge into navigable waters shall provide the permitting agency with a certification from the state that there is reasonable assurance that such will not violate reasonable water standards. (Subsequently amended by Public Law 92-500, effective October 18, 1972, 33 U.S.C. § 1251 et seq., and likewise requiring such certificate showing compliance with certain water standards specified in said law.) Petitioner made no application for federal permit before or during construction but after completing its canal work, applied to the Division of Florida Land Sales for registration of the subdivision to sell interstate. That division required a determination from the U.S. Army Corps of Engineers that the canals would remain connected to navigable waters for the protection of lot purchasers. The Corps of Engineers, in turn as a prerequisite to issuing such a permit, required that petitioner, pursuant to Public Law 91-224, supra, obtain an after-the-fact certification from respondent that water quality standards would not be (were not) violated by the canals. Petitioner then made application to respondent for such certification.

In the meantime, during the pendency of the application for certification, § 403.-087(1), Florida Statutes, 1971 (Ch. 71-203, § 1, Laws of Florida) had become effective on January 1, 1972. It provided that no stationary installation which would reasonably be expected to be a source of water pollution could be operated, maintained, -onstructed, expanded or modified without an appropriate and currently valid permit issued by respondent. § 403.031(8) define? “installation” as any structure, equipment, facility, or appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of respondent. On February 3, 1972, the staff' of respondent by letter denied the certificate stating in part as follows:

“Based on a review of your application for certification and an inspection of the facility by our Regional Personnel, this Department considers that the project will have definite adverse effects on the water quality of Blackwater Sound (Sexton Cove). The dead-end canals which are several hundred feet in length and ten feet in depth are a potential trap for sediments associated with urban run-off. Based on the above this Department hereby denies your request for certification as there is not reasonable assurance that water quality will not be affected.”

Thereafter, on July 14, 1972, a conference was held between petitioner and representatives of various state agencies, including the Board of Trustees of the Internal Improvement Fund and respondent, relative to petitioner’s dredging operations. Subsequently, at the request of petitioner’s attorney, the Executive Director of the Board of Trustees of the Internal Improvement Trust Fund advised petitioner by letter of September 22, 1972, that he had caused a thorough examination of all of that department’s records relating to Sexton Cove Estates to be made and that these records reflected no violation of state law or of any regulation of the Trustees of the Internal Improvement Fund by Sexton Cove Estates or by anyone acting on its behalf. On August 7, 1973, petitioner requested that it be allowed to present its case to the full Pollution Control Board for its decision. After considerable delay, the Board advised that a hearing examiner would be appointed and hearing would be held on October 19, 1973. Ten days before the hearing, on October 9, 1973, respondent served notice of violation of § 403.087(1), supra, upon petitioner and the hearing was held on both petitioner’s request for review of the denial of certification and on the notice of violation. Respondent thereafter considered the findings of the hearing examiner and denied petitioner’s request for certification. Although it found petitioner to be in violation of § 403.087(1), supra, it took no penal action on the violation.

It is clear from the record that in denying the certification, the Respondent used standards that had been established subsequent to the filing by the petitioner of the application for certification. While there may be sufficient evidence to support noncompliance with those standards, this court is reluctant to give its approval to a failure to grant a certification because an application does not meet standards that were not in existence when the application was filed. It is well known that many installations, such as those dredged by the petitioner, which have been completed down through the years in the development of waterfront land in Florida would not meet the standards now in existence. We are not called on to make judgment on the propriety of such standards and do not do so.

Yet, while the petitioner may have acted at its own peril in not securing a proper permit before dredging, we will not hold that such peril would include a denial of certification for failure to comply with subsequently imposed standards. For that reason this cause is remanded for a determination on the application with directions that the standards and regulations, if any, in existence af the time the application was filed be the standards upon which the granting or rejection of the certification is based.

Certiorari is granted and this cause is remanded for hearing and disposition consistent with this opinion.

RAWLS, Acting C. J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

There is competent substantial evidence to support respondent’s denial of certification and its finding that petitioner is in violation of § 403.031(1), Florida Statutes. I agree with respondent that petitioner’s canals are stationary installations under the definition of “installation” contained in § 403.031(8), Florida Statutes. Further, there is competent substantial evidence that the depths of the canals are excessive; that they lack circulation, become anaerobic and' tend to accumulate undesirable materials; that toxic effects can be expected ; that a combination of factors combine to pose a serious threat to future recreational use of the canals; and that the canals are a source of water pollution. It is apparent that respondent cannot truthfully certify to the U.S. Corps of Engineers that petitioner’s canals will not discharge pollutants into the waters of Sexton Cove. I do not agree with the majority opinion that the Florida law and regulations as they existed at the time of petitioner’s application should be applied. At such time, petitioner was in violation of U.S. Public Law 91-224 in that it had deepened existing canals and had constructed a new one all without obtaining a federal permit. Also, at that time, the above mentioned certification of respondent was required, but Florida had not established the procedure for making such certification.

I note that pursuant to the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. §§ 403 and 406) the United States District Court for the Southern District of Florida, on February 6, 1975, entered a final judgment in United States v. Sexton Cove Estates, Inc., D.C., 389 F.Supp. 602, ordering among other things that petitioner fill the two canals excavated and opened into Blackwater Sound to a depth of six feet at the mouth, sloping upwards to five feet at the upland ends; fill completely those five tidal canals left unopened to Blackwater Sound with material of the same permeability as that removed; replant the red mangrove fringe along' the banks of the restored canals; and present within 30 days adequate plans and a timetable for accomplishing the foregoing. Such judgment is presently on appeal; if it becomes final, the issues involved in this ‘proceeding will be moot.


author: KAPNER, Associate Judge. KAPNER, Associate Judge.

text:
    Dorothy L. VAN ARSDALE, formerly Dorothy L. Groover, Appellant, v. DIMIL LAND COMPANY, a Florida Corporation, Appellee.
    No. 74-653.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1975.
    Rehearing Denied Oct. 31, 1975.

      Robert M. Sturrup of Faircloth, Sturrup & Della-Donna, P.A., Fort Lauderdale, for appellant.
    J. Patrick Dyal of Rogers, Morris & Ziegler, Fort Lauderdale, for appellee.
   KAPNER, Associate Judge.

This is an appeal from a final judgment of the Circuit Court, Broward County, Florida, in an action for specific performance.

Plaintiff and defendant entered into a contract whereby they agreed to trade certain parcels of real property. By the terms of the contract, plaintiff agreed to furnish title “insurable in the usual form subject to easements and restrictions common to the subdivision.”

Plaintiff’s property was subject to a reservation to the Trustees of the Internal Improvement Fund of certain oil and mineral rights, and defendant claims that such reservation prevents the title from being "insurable in the usual form.”

This case was originally decided by the circuit court by a summary judgment entered in favor of plaintiff. This judgment. was reversed by this court on June 30, 1972, with the court noting at 264 So.2d 85:

“This suit deals with the interpretation to be given a real estate trade agreement and, more specifically, the provision ‘. . . titles to be insurable in the usual form subject to easements and restrictions common to the subdivision . . . ’. Does the fact that there was a reservation of certain mineral and petroleum rights render the title not insurable as contemplated by the agreement? . . ."

On remand, the trial court, after a full hearing, found that plaintiff’s title is “insurable in the usual form” and granted plaintiff specific performance of the trade agreement. Defendant appeals from this judgment. We affirm.

This case involves an interpretation of the terms of the contract and a determination of the intent of the parties when they entered into'that contract. The trial court, resolving this factual dispute in favor of plaintiff, found that the parties intended that' the reservation of oil and mineral rights did not prevent the title from being insured in the usual form as that term was used by the parties. Such a factual determination comes to this court with a presumption of correctness.

Two factors in particular give added support to this presumption. First, the agreement uses the phrase “subject to easements and restrictions common to the subdivision.” Technically, it is true, this particular property is not part of a “subdivision” since it is open acreage; however, if the words are to be given any effect at all, it is not unreasonable to conclude that the parties intended them to apply to the area surrounding the subject property. (The reservation was common to the surrounding area.)

Secondly, these reservations are based upon Florida Statute 270.11, which provides that the Trustees of the Internal Improvement Fund hold, on behalf of the State, a three-fourths oil and mineral reservation in the subject property as well as on most other undeveloped property in the State. As such, the reservations “become a part of the agreement as if they were expressly referred to and incorporated therein.” Saunders v. Cities Service Oil Co., 46 So.2d 597 (Fla.1950). See also Normandy Beach Properties Corp. v. Adams, 107 Fla. 583, 145 So. 870 (1933); Thomas v. Wood, 37 F.2d 856 (5th Circuit, 1930); Mortenson v. Financial Growth, Inc., 23 Utah 2d 54, 456 P.2d 181 (1969).

We have considered appellant’s other points and have found them to be without merit. Accordingly,

We affirm.

WALDEN, C. J., and OWEN, J., concur.

ON PETITION FOR REHEARING

KAPNER, Associate Judge.

On a petition for rehearing appellant has contended that the trial court did not make a finding of fact that “the parties intended that the reservation of oil and mineral rights did not prevent the title from being insured in the usual form as that term mas used by the parties.” * Although it is true that the trial judge did not specifically use this language, it is our feeling that by necessary implication the lower court so found.

When this case was reviewed by this court in 1972, the court specifically stated:

“This suit deals with the interpretation to be given a real estate trade agreement and, more specifically, the provision ‘. . . titles to be insurable in the usual form subject to easements and restrictions common to the subdivision .’. Does the fact that there was a reservation of certain mineral and petroleum rights render the title not insurable as contemplated by the agreement ? *

In our decision we pointed out two factors touching on the issue of the parties’ intent: 1) The use of the term “subject to easements and restrictions common to the subdivision” and 2) the fact that these reservations were a matter of law and, therefore, the parties are “charged with knowledge of them, and . . . conclusively presumed to have contracted with reference to them.” Normandy Beach Properties Corp. v. Adams, 107 Fla. 583, 145 So. 870 (1933).

These factors, plus the testimony of the experts as to the common usage of this term, plus the absence of any evidence of a contrary intent, were sufficient to convince us that the trial court concluded that the parties intended that the reservations of oil and mineral rights did not preclude the title from being insured in the “usual form” as contemplated by the parties. It is thereupon.

Ordered that the petition for rehearing is denied.

WALDEN, C. J., and OWEN, J., concur.

       Emphasis supplied.


text:
    J. E. T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1529.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    J. E. T., in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    A. D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1527.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    A. D., a juvenile, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    WORTHINGTON CORPORATION, a Delaware Corporation, Appellant, v. FEDDERS CORPORATION et al., Appellees.
    No. X-292.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    George L. Hudspeth, Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellant.
    Wilfred C. Varn, Ervin, Va'rn, Jacobs & Odom, Tallahassee, Harry Lewis Michaels, Michaels & Patterson, Tallahassee, Robert A. Horn, Weisman, Celler, Spett, Modlin & Wertheimer, New York City, Gary B. Tullís, Ulmer, Murchison, Ashby & Ball, Jacksonville, Thayer M. Marts, Watkins & Hill, Richard C. Stoddard, Bryant, Dickens, Rumph, Franson & Miller, Jacksonville, H. O. Pemberton, Keen, O’Kelley & Spitz, J. Marshall Conrad, Ausley, McMul-len, McGehee, Carothers & Proctor, Tallahassee, for appellees.
   PER CURIAM.

We have carefully examined the record on appeal and the briefs filed by able counsel. Based thereon we find that the learned trial judge did not err. Please see American Baseball Cap, Inc. v. Duzinski, Fla.App. 1st 1975, 308 So.2d 639 in which is cited Zirin v. Charles Pfizer & Co., Fla.1961, 128 So.2d 594 and Gordon v. John Deere Company, Fla.1972, 264 So.2d 419.

Affirmed.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    B. J. H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1246.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant seeks reversal of his adjudication of delinquency for violation of § 811.-16, Fla.Stat, F.S.A. [buying, receiving or aiding in the concealment of stolen property, to wit: a calculator].

The State having confessed error inasmuch as appellant was taken into custody in violation of the Fourteenth Amendment to the United States Constitution and the prosecution having failed in its burden to establish the voluntariness of appellant’s confession obtained after the illegal arrest, appellant’s adjudication of delinquency is reversed.

So ordered.


author: WALDEN, Chief Judge. WALDEN, Chief Judge.

text:
    DATA LEASE FINANCIAL CORP., Appellant, v. BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois Corporation, and Andrew Machata, Appellees. BLACKHAWK HEATING & PLUMBING CO., INC., and Andrew Machata, Appellants-Petitioners, v. DATA LEASE FINANCIAL CORP. et al., Appellees-Respondents.
    Nos. 75-323, 75-1564.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 30, 1976.

      Robert T. Scott, Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellant-appellees-respondents.
    F. Kendall Slinkman, Farish & Farish, and John A. Gentry, III, Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, for appellees-appellants-petitioners.
   WALDEN, Chief Judge.

These are consolidated interlocutory appeals. We deal first with Appeal No. 75-323, in which Data Lease Financial Corp., the defendant in the trial court, appeals the referral of the cause to a Special Master. Historically, Data Lease had prevailed in the trial court when that court refused to grant plaintiff Blackhawk’s request for specific performance of a certain option agreement. This court affirmed in 287 So. 2d 118 (4th DCA Fla.1973); the Supreme Court reversed in 302 So.2d 404 (Fla.1974), and remanded to the trial court for the purpose of determining the rights of the parties under the contract.” Upon remand, plaintiff Blackhawk filed a motion to comply with mandate, and hearings on that motion resulted in the referral to a Special Master now being appealed by de fendant Data Lease. We reverse that order of referral with respectful directions that the trial court make such order, if it wishes, after the cause is at issue.

Data Lease argued persuasively that the cause is not yet at issue, and so the referral is premature, citing to 28 Fla.Jur., References § 34 (1968):

“Masters in chancery are appointed by order of the court only after all the issues are properly made up. . . .” Id. at US.

and Rountree v. Rountree, 72 So.2d 794 (Fla.1954):

“Until all of the defendants had filed answers or had decrees pro confesso entered against them, the cause was not at issue, and the plaintiffs could not be entitled to an order of reference . . . .” Id. at 79S.

Florida Rule of Civil Procedure 1.440(a) provides, with regard to the time at which a cause is to be considered at issue:

“An action is at issue after any motions directed to the last pleading served have been disposed of or if no such motions are served, 20 days after service of the last pleading.”

When the court referred the cause to a Special Master there had been no responsive pleadings to an amended complaint entered by plaintiffs. That amended complaint, permitted by the trial court, added as parties defendants the First National City Bank and an individual, Mr. Roy Taimo. The defendant First National City Bank had not been served with a summons or a copy of the amended complaint before the order of reference was entered, and Mr. Taimo was served on the very day the order of reference was entered. As the defendants had had no opportunity to respond to the amended complaint, the cause was not literally at issue. Plaintiffs concede this fact, but urge that the issues were “formed” by past pleadings. This contention cannot be approved as the fact remains that the two new defendants had no opportunity to be heard prior to the entry of the order of reference.

Further, the amended complaint is based on new facts, including, as it does, new parties. The appealed order shows the Master has been directed to consider and make findings concerning transactions between Mr. Taimo and First National City Bank. It is not proper that such an order be entered before all pleadings on these issues are had.

Defendant Data Lease has also objected to the scope of the reference order. While our remarks on this account are dicta and totally gratuitous inasmuch as we have just said the whole order was premature, we academically comment nonetheless. We do so in the hope that our view may be of some assistance to the parties and trial court and perhaps contribute to speeding the ultimate disposition of this prolonged litigation. We find the reference order to be proper in scope. Defendant objected to that paragraph of the reference order requiring the Special Master to ascertain what benefit Data Lease or Roy Taimo has received by its use of the Miami National Bank funds, the profit total, indirect or direct, derived from Data Lease’s ownership of Miami National Bank stock and the increase in net income (or decrease in net loss) to Data Lease on both cash and accrual basis as a result of any of certain enumerated transactions between Data Lease and First National City Bank. Defendant cited to Slatcoff v. Dezen, 74 So.2d 59 (Fla.1954), for the proposition the reference order was an improper delegation of the trial court’s duty to determine the case — as the essence of the controversy is the amount due from Blackhawk to Data Lease in order to obtain a transfer of the bank stock to Blackhawk. In Slatcoff v. Dezen, supra, the court held in accord with various textbook authorities that, except upon the agreement of both parties, a reference to a Master should not encompass all issues, both fact and law. We agree with that premise but are not persuaded the reference order here encompassed all issues to the exclusion of the trial court’s final determination. The issue that the defendant Data Lease must transfer the stock to Blackhawk for an amount to be paid by Blackhawk has already been determined by the Supreme Court in Fla., 302 So.2d 411. The amount to be paid by Blackhawk must be determined, and that determination is affected, according to the law of the case, by a consideration of the profits gained by Data Lease by virtue of having had possession of the disputed stock. As complicated matters of finance are involved, the trial court was within proper bounds when it requested a Special Master to determine, by questions designed by the trial court, how Data Lease had fared financially with respect to the stock in question. That information will not fully determine the result. The trial court is permitted to use the financial expertise of the Special Master to determine what factual results the monetary transactions have had. See Powell v. Weger, 97 So.2d 617 (Fla.1957):

“Nothing herein is to be construed as precluding the Chancellor from referring a case to a special master or examiner for the performance of a ‘particular service’ if such is necessary to aid the Court in an expeditious disposition of the cause.”

We now consider Appeal No. 75-1564. It is an interlocutory appeal directed to a trial court order which granted a Motion to Strike or Dismiss the plaintiff’s Motion for Recusal (suggestion of disqualification). It appears from the record that plaintiff’s attorney learned of such grounds of disqualification, as were asserted, on May 2, 1975. The motion in question was filed more than thirty days thereafter. This lack of timeliness constitutes a waiver. Fla.Stat. § 38.02 (1973); See 18A Fla.Jur., Judges, §§ 54 and 62 (1971).

Reversed as to Case No. 75-323; affirmed as to Case No. 75-1564.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.

WALDEN, Chief Judge.

UPON PETITION FOR REHEARING

In our initial opinion we held:

“We now consider Appeal No. 75—1564. It is an interlocutory appeal directed to a trial court order which granted a Motion to Strike or Dismiss the plaintiff’s Motion for Recusal (suggestion of disqualification). It appears from the record that plaintiff’s attorney learned of such grounds of disqualification, as were asserted, on May 2, 1975. The motion in question was filed more than thirty days thereafter. This lack of timeliness constitutes a waiver. Fla.Stat. § 38.02 (1973); See 18A Fla.Jur., Judges, §§ 54 and 62, (1971).”

Appellants correctly point out our error, which we here acknowledge. Instead of relying on Fla.Stat. 38.02 with the thirty day time limit as we supposed, appellants relied upon Fla.Stat. 38.10 in challenging the qualification of the trial judge.

And so we newly consider the appellate issue.

Fla.Stat. § 38.10 (1973) requires that the affidavit for disqualification be filed, “not less than ten days before the beginning of the term of court, or good cause shown for the failure to so file same within such time.”

Our view and holding is that the trial court was correct in declining disqualification.

The trial court in dismissing or striking the motion for recusal recited that,

“The court believes that there was a sufficient, goodfaith compliance with Canon 2 when Judge Kapner, on May 2, 1975, raised the matter in issue. The Plaintiffs should not have waited until after an unfavorable ruling to proceed to request recusal.”

We believe that the appellant having failed to file not less than ten days prior to the beginning of the term of court, did totally fail to show good cause for such failure in light of the time sequences shown in the record and fact that that delay was made after knowledge until such time as appellant had suffered an adverse ruling. Hence, the motion was legally untimely, State ex rel. Jensen v. Canon, 163 So.2d 535 (3rd DCA Fla.1964); Oncay v. Oncay, 183 So. 2d 878 (3rdDCA Fla.1966).

We do hereby amend our original opinion to conform with this stated view upon rehearing. Having done so, the petition for rehearing is

Denied.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    Laura BROOKS, Appellant, v. SOUTH BROWARD HOSPITAL DISTRICT, a special tax district d/b/a Memorial Hospital, et al., Appellees.
    No. 74-213.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing and Certification Denied Feb. 4, 1976.
    Jeanne Heyward, and Harold West, of Meltzer, West, Friesner & Goldman, Miami, for appellant.
    Rex Conrad of Fleming, O’Bryan &' Fleming, Fort Lauderdale, for appellees South Broward Hospital District and Continental Ins. Co.
   OWEN, Judge.

The tragic facts of this case can be stated quite succinctly. Appellant, while a patient in the appellee-hospital delivered her baby, which, being premature, expired the following day. No negligence is charged to the hospital for the death of the child. However, the hospital through its negligence misplaced and never again located the child’s body, as a result of which appellant suffered severe mental anguish and emotional disturbance. There was no evidence of any physical impact or physical injury to appellant, nor any evidence of wantonness, wil fullness or malice on the part of appellee-hospital. Although permitting the case to go to the jury, the court reserved ruling on the hospital’s motion for directed verdict and subsequently, after the jury had returned a verdict for the plaintiff, the court granted the defendant-hospital’s motion for judgment N.O.V. Appellant assigns that order as error and appellees cross-assign error to one of the jury instructions.

In a line of cases commencing with Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941) and culminating in Gilliam v. Stewart, 291 So.2d 593 (Fla.1974), the courts of this state have consistently held that there can be no recovery for mental anguish or emotional distress unaccompanied by any physical impact or physical injury to the plaintiff, in the absence of wantonness, wilfullness or malice. See, e. g., Herlong Aviation, Inc. v. Johnson, 291 So.2d 603 (Fla.1974); Crane v. Loftin, 70 So.2d 574 (Fla.1954); Kirksey v. Jernigan, 45 So.2d 188, 17 A.L.R.2d 766 (Fla.1950); Carter v. Lake Wales Hospital Association, Inc., 213 So.2d 898 (2nd DCA Fla.1968) ; Kimple v. Riedel, 133 So.2d 437 (2nd DCA Fla.1961).

We are unable to make any meaningful distinction between the facts of this case and those of the several cases cited above insofar as application of this principle of law is concerned. We therefore conclude that the trial court quite correctly granted the defendant’s motion for judgment N.O. V. It is unnecessary for us to decide the issue raised by appellees’ cross-assignment of error.

Affirmed.

WALDEN, C. J., and CROSS, J., concur.


text:
    William WITTEN, as Administrator of the Estate of Michael David Witten, Deceased, Appellant, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 75-564.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    West, Friesner & Goldman, Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Benton v. State Farm Mutual Automobile Insurance Company, Fla.App.1974, 295 So.2d 344.


author: DOWNEY, Judge. WALDEN, Chief Judge DOWNEY, Judge.

text:
    William C. THOMPSON, Appellant, v. Mary M. THOMPSON, Appellee.
    No. 75-35.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 16, 1976.

      Phillip T. Crenshaw, Hamilton, James, Merkle & Young, Boynton Beach, for appellant.
    Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant husband seeks review of a final judgment of dissolution of marriage which awarded appellee lump sum and periodic alimony and charged appellant with the responsibility for all reasonable and necessary medical, dental and hospital expenses incurred by appellee.

The parties, both approximately 80 years of age, had been married for some twenty years when they separated. Both before and during the course of the marriage the husband had accumulated substantial property in his own name, including a mobile home park and motel. The trial court found that appellee “contributed her best efforts to the marriage and assisted generously with her services without complaipt in the parties’ operation of a motel and other rental properties.”

The evidence further showed that in 1970 appellant established a trust in the State of Illinois, the corpus of which was comprised of virtually all of his property. Appellee joined in the trust instrument in order to release her dower rights. An Illinois bank was named trustee and appellant’s children by prior marriages were the ultimate beneficiaries, with appellant receiving the current income therefrom and a return of principal amounting to $355 per month. After the institution of this suit appellant made Substantial gifts to his children from the trust corpus and he amended the trust instrument making it an irrevocable, spendthrift trust, specifically not accessible to alimony payments.

At final hearing appellant’s remaining assets were an undivided half interest in the home of the parties, worth approximately $40,000, an insurance policy with a cash surrender value of $26,000, $100 in cash, and a jointly owned automobile. Ap-pellee’s financial affidavit in evidence indicates she owns an undivided one-half interest in the marital home and the above mentioned automobile, an'd $12,800 in cash and stocks. Appellee’s income was shown to be $140 per month from Social Security, while her expenses ran approximately $1,000 per month. The appellant’s net distributions from the trust, including income and principal, was shown to be'$1227 per month.

While there was little dispute that appellant had divested himself of the bulk of his estate in favor of his children in order to preclude the appellee from any fair participation therein, it should be noted that we are not dealing here with a situation in which the wife sought to set aside as fraudulent prior conveyances by the husband; if it were the court might have taken those conveyances into consideration in fixing the alimony award. See cases at 27 A C.J.S. Divorce § 233(3), pg. 1049 ; 27B C.J.S. Divorce §§ 272-273.

The record supports the trial court’s finding that appellee had generously rendered services in the operation of appellant’s properties during their twenty years of marriage. Now in her twilight years, appellee has a demonstrated need for alimony which in view of appellant’s divestiture of his property, should be protected by lump sum alimony in addition to an award of periodic alimony. At first blush it might appear that appellant is unable to comply with the award of $10,000 lump sum alimony because of his inadequate cash position. However, the record reflects that appellant owns an undivided one-half interest in the marital domicile and a life insurance policy with a cash surrender value of $26,000. At least the latter should be readily available to raise the funds necessary to pay the lump sum award.

With regard to the periodic alimony award of $1200 per month, it is not justified by the record. Appellee’s needs amounted to approximately $1,000 per month. Her income was $140 per month from Social Security, with perhaps something additional from her stocks. In any event' that leaves a substantial disparity between her demonstrated need' and the award of $1200. The husband’s distributions from the trust amounted to $1227 per month and even though he is entitled to little sympathy from the court, $27 per month for him to exist on is unacceptable, particularly since her need is less than the $1200 awarded. In the interest of time and judicial labor we deem it appropriate to reduce the award of periodic alimony to a level justified by the record. Posner v. Posner, Fla.1972, 257 So.2d 530.

Relying on Peteler v. Peteler, Fla.App.1962, 145 So.2d 291, appellant suggests it was error to charge him with responsibility for appellee’s reasonable and necessary medical, dental and hospital expenses. We do not agree. Surely in determining the amount of alimony which was warranted, the trial judge could have included therein some amount for either estimated medical, dental, and hospital expenses or insurance premiums to cover the costs thereof. Instead he chose to award the actual accrual of such expenses, limited in all events to those reasonable and necessary. Subsequent to the decision in Pete-ler, supra, the same court approved a judgment requiring the husband to pay for major medical insurance for the wife in Lyons v. Lyons, Fla.App. 1968, 208 So.2d 137. And in Perkins v. Perkins, Fla.App. 1975, 310 So.2d 438, we approved an allowance in the final judgment for hospitalization insurance for the wife.

Accordingly, the provision of the final judgment awarding the sum of $1200 per month as periodic alimony is modified so as to provide for an award of $860 per month as periodic alimony, and as so modified the final judgment appealed from is affirmed.

Affirmed as modifed.

OWEN, J., concurs.

WALDEN, C. J., concurs in part and dissents in part.

WALDEN, Chief Judge

(concurring in part, dissenting in part).

I concur in the majority opinion, except as to that portion which approves the award of $10,000 as partial lump sum alimony and suggests that the husband has the ability to pay same via his undivided one-half interest in the marital domicile or by cashing in his life insurance.

Implicit in the majority opinion, at least as I read it, is the notion that somehow the husband was guilty of dirty work at the crossroads and should be penalized for it because he created a trust and made substantial gifts to his children from the trust corpus (which he had the clear, legal right to do) so as to leave him with the limited assets and income available for alimony purposes. I fail to see it that way. It should be emphasized that the wife freely and voluntarily joined in the trust instrument. The only rights she thereby released were those of dower- — she had no fee or other interest in the property. Furthermore, I fail to see in the pleadings or elsewhere that the wife attacked the trust agreement or charged fraud or misrepresentation or sought to implead the children and void the gifts. Furthermore, I fail to see fraud from the proofs and feel that the husband’s actions were normal and to be expected from an eighty year old man who wanted to provide for his children of an earlier marriage.

Weighing the husband’s ability to pay against the need of the wife, I feel that an alimony obligation to the wife is fully met by the periodic payments discussed by the majority.

In conclusion, it is my view, respectfully recorded, that the lump sum alimony award was nothing more or less than an improper, undeserved penalty visited against the husband.

ON PETITION FOR REHEARING

DOWNEY, Judge.

On petition for rehearing appellant has pointed out our error in stating that appellant was the owner of a life insurance policy with a cash surrender value of $26,000.00, whereas the record shows he owns only a one-third interest therein. Accordingly, we correct our opinion published December 12, 1975 to reflect that corrected factual situation.

We see no reason to change the substance of our decision because appellant’s undivided one-half interest in the domicile appears adequate to satisfy any judgment for the lump sum award of alimony.

Petition for rehearing denied.

WALDEN, C. J., and OWEN, J., concur.


text:
    Moises S. HERNANDEZ, Appellant, v. Sheila I. HERNANDEZ, Appellee.
    No. 75-1614.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.

      Papy, Levy, Carruthers & Poole and Sheridan K. Weinstein, Coral Gables, for appellant.
    Dubbin, Schiff, Berkman & Dubbin, Alan E. Greenfield and Evan J. Langbein, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The question presented by this appeal is whether the circuit court has jurisdiction to modify as to amount of alimony an agreement which was entered into by the parties during the pendency of the cause and was subsequently adopted and incorporated into the final judgment.

After the dissolution was entered, and prior to the expiration of the time for the payment of periodic alimony, the wife brought a Petition for Redetermination of Alimony. In addition to the alimony provision, the agreement provided for the payment of child support, some expenses and an agreement by the wife to vacate the “husband’s home.”

We hold that Fla.Stat. § 61.14 authorizes the consideration of the wife’s petition. By this holding, we do not express any opinion as to the merits thereof. See Lee v. Lee, Fla.App.1975, 309 So.2d 26; and Cantor v. Cantor, Fla.App. 1975, 306 So.2d 596.

Affirmed.

      . The final judgment of dissolution provides as follows:
      * * * * *
      “2. The Parties heretofore having entered into a Property and Alimony Settlement Agreement and the Court having examined same, hereby adopts same and incorporates it into this Order of Final Judgment. The said Property and Alimony Settlement Agreement is attached to this Final Judgment as Exhibit T.’ ”
      * * * * *

      . The agreement provided as to alimony as follows:
      ?}! * * ■ * *
      “2. The Husband shall pay to the Wife as alimony, the sum of Five Hundred and No/100 ($500.00) Dollars per month in advance on the first (1st) day of each month, beginning on October 1, 1971, and continuing for the next twenty-four (24) consecutive months. Following such period, the husband shall pay to the wife the sum of Four Hundred and No/100 ($400.00) Dollars per month, in advance, on the first Cist) day of each month, beginning on October 1, 1973, and continuing for the next consecutive twenty-four (24) months. In addition thereto, the Husband shall pay to the Wife the sum of Three Thousand Nine Hundred and No/100 (3,900.-00) Dollars, within three (3) days of the signing of this Agreement.”
      * sjt sjt * *
      “All payments as outlined in this paragraph shall cease upon either the death or remarriage, of the Wife. In the event of the Husband’s death, his Estate shall be liable for the alimony payments called for in this paragraph.”
      * * * * * * *


author: PER CURIAM. DOWNEY, Judge.

text:
    Melvin WILLIAMS, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
    No. 74-586.
    District Court of Appeal of Florida. Fourth District.
    Oct. 10, 1975.
    On Rehearing Dec. 19, 1975.
    Petition for Writ of Habeas Corpus granted delayed full appellate review; Court of Record, Broward County; M. Daniel Futch, Jr., Judge.
    Richard L. Jorandby, Public Defender, and Elliot R. Brooks and Channing Brack-ey, Asst. Public Defenders, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

On petition for writ of habeas corpus we granted petitioner delayed full appellate review of (1) a judgment adjudging him guilty of (a) assault with intent to commit murder in the second degree and (b) attempted robbery, and (2) consecutive sentences of IS years and 5 years. Having now considered the briefs and record, and having found no error, we affirm the judgment and sentences.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.

ON PETITION FOR REHEARING

DOWNEY, Judge.

During the pendency of this appeal, upon motion of the state we struck petitioner’s Point II from his brief. In that point petitioner contended that the trial court erred in pronouncing sentence without first obtaining a presentence investigation as required by Rule 3.710, RCrP, because petitioner was under the age of 18 years. The thrust of the state’s motion was that at the time petitioner was sentenced there was no requirement that the trial judge obtain a presentence investigation prior to sentencing a felon under the age of 18 years. We now recognize our error in striking that point from petitioner’s brief.

We are most reluctant to reverse a trial judge for not taking some action not required of him at the time. However, we are obligated by precedent to apply the law as it exists at the time the case is decided in this court. Collins v. Wainwright, Fla.App.1975, 311 So.2d 787.

Accordingly, our opinion published October 10, 1975, is vacated and this cause is reversed and remanded with directions to re-sentence petitioner after obtaining a presentence investigation as now mandated by Rule 3.710, RCrP.

WALDEN, C. J., concurs.

OWEN, J., dissents without opinion.


text:
    Ansel L. HARGRAVES et al., Appellants, v. Cecil G. COSTIN, Jr., et al., Appellees.
    Nos. V-57, W-324 and W-336.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1975.
    Rehearing Denied March 6, 1975.
    Joseph C. Jacobs, LeRoy Collins and Robert J. Angerer, Ervin, Varn, Jacobs & Odom, Tallahassee, for appellants in V-57 and W-324, and appellees in W-336.
    Robert L. Shevin, Atty. Gen., Donald D. Conn and Baya Harrison, III, Asst. Attys. Gen., for appellees in V-57 and appellants in W-336. '
    Thomas R. Ellinor, Lynn Haven, Cecil G. Costin, Jr., Port St. Joe, Ernest E. Welch and Mayo C. Johnston, Davenport, Johnston, Harris, Gerde & Harrison, Panama City and Michael B. Mann, Lynn Haven, for appellees.
   PER CURIAM.

We here for a second time consider a case which has been aptly and colorfully described by the parties in their briefs as a “can of worms”. The facts are sufficiently recited in our prior opinion wherein we said:

“The only issue for our determination is whether or not the instant suit qualifies as a class action under Florida Civil Procedure Rule 1.220, 30 F.S.A.”
“ * * * It is our conclusion that the appellants’ contentions are sound and that this suit shotild not and cannot be maintained as a class action.
“We therefore reverse the order of the trial court denying appellants’ motion for an order declaring that this suit cannot be maintained as a class action and remand this case with directions to enter a final judgment dismissing the complaint, but without prejudice to allowing further amendment to conform to this decision.” (Emphasis added; 283 So.2d at pages 376 and 377)

Despite the clear and explicit holding in our prior decision appellants insisted in the trial court, and again here, that they should be permitted to amend their complaint and proceed in a class action. The trial court correctly held that we meant what we said in our prior opinion and. that they could not do so.

Appellants also urge that the trial court erred in entering a summary final judgment, but we find no merit to that contention.

We have also carefully considered the other points raised by appellants and find them to be without merit.

Accordingly, the summary final judgment here appealed is affirmed.

BOYER, Acting C. J., and McCORD and MILLS, JJ., concur.

      . Costin v. Hargraves, Fla.App.1st 1973, 283 So.2d 375.


text:
    501 CORPORATION d/b/a Moulin Rouge, Petitioner, v. DIVISION OF BEVERAGE OF the DEPARTMENT OF BUSINESS REGULATION et al., Respondents.
    No. W-402.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1975.
   PER CURIAM.

Petition for writ of certiorari denied.


text:
    Robert Henry HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. X-313.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    L. T. DANFORD, Petitioner, v. COUNTY OF DADE, State of Florida, Respondent.
    No. 75-1285.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    John E. HERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-356.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1975.
   PER CURIAM.

Appeal quashed.


text:
    INTERCONTINENTAL GROUP, INC., a Florida Corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, and South Florida Regional Planning Council, Appellees.
    No. 75-1699.
    District Court of Appeal of Florida, Third District.
    Dec. 4, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Ronald GRIMES, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-1337.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Julia VILLANUEVA, Appellant, v. S. C. JOHNSON & SONS, INC., et al., Appellees.
    No. 75-1386.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Ester PENICHET, Appellant, v. AETNA INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 75-1101.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 1975.
   PER CURIAM.