author: DOWNEY, Judge.

text:
    Jean Florin ALBERS, Administratrix Ad Litem for the Estate of Edgar H. Albers, Jr., Deceased, Appellant, v. George A. DASHO, Appellee.
    No. 76-1048.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 15, 1978.

      John W. Williams, Jr., of Montgomery, D’Aiuto & Williams, St. Petersburg, for appellant.
    Edward A. Perse of Horton, Perse & Ginsberg, and Nance & Cacciatore, Miami, for appellee.
   DOWNEY, Judge.

Appellant’s decedent, Edgar H. Albers, Jr., was driving east across a bridge on State Road 520 in the City of Cocoa Beach, Florida, at approximately 12:12 a.m. As he proceeded across the bridge the plaintiff, George A. Dasho, and a companion were crossing the bridge on foot from north to south and Dasho and companion were hit by Albers’ car and severely injured. This suit by Dasho resulted and he was awarded a gross jury verdict of $375,000 and he was found to be 66% negligent.

At the time of the accident it was, of course, dark; there were no lights for illumination constructed on the bridge; the bridge consisted of two lanes of traffic in each direction separated by a striped median; there were a number of people fishing or shrimping from the bridge and Albers was familiar with the location and presence of people on the bridge. The speed limit on the bridge and for 100 feet west thereof was 45 miles per hour. To the west of that area the speed limit was 55 miles per hour.

Albers was deceased at the time of trial, but his deposition was introduced into evidence. He testified that he was proceeding east at about 50 miles per hour. When he approached the bridge he reduced his speed to about 35 miles per hour with his lights on low beam. “A split second” before impact he saw Dasho and his companion. He slammed on his brakes but was unable to avoid colliding with them.

Albers’ wife, Jean, was following behind him in another car. She corroborated the fact that he had his lights on and she estimated his speed at about 40 miles per hour. She testified that all of a sudden two people in a trot darted out in front of her husband’s car.

Another witness, John Saterides, was standing on the south side of the bridge near the point of impact. He was watching Dasho and his companion crossing the bridge toward him. He testified that Dasho’s female companion was leading Dasho and they were in like a trot, or a fast walk. They were kind of skipping. She was laughing and Dasho was telling her something.

For purposes of this opinion the crucial part of Saterides’ testimony was that, as Dasho and companion were crossing the bridge, there was traffic approaching from the west because he could see the headlights of automobiles. In describing the speed of Albers’ car, Saterides made the following statements in response to questions from counsel:

“Q. All right, then what happened, when they got across the center lines?
“A. She was leading him. They was like in a trot, a fast walk, and I was standing, looking at them, and I was thinking about the net and the boy, he — the boy was with me- — he was right behind me. I told him to stay there. When I turned back around and seen them coming, after they crossed this line, it’s like a car came out of nowhere and I heard a horn blow.
******
“Q. In the eastbound lanes, were there any cars right in the immediate area, other than the Volkswagon
******
“A. No, there wasn’t nothing coming.
“Like I said, this guy come out of nowhere, because I was standing way out, looking. I would have spotted the lights, and when I looked at this angle, like this, I just took a quick glance. .
“Q. Did the Volkswagon have its lights on, if you know?
“A. Here’s what I saw. I seen like a picture, seen like lights, brakes and two people getting hit an instant later. That’s what it — I can’t recall if he come up the road without lights, or with lights. I can’t say that.
* * * * * *
“Q. Okay, fine. Now, Mr. Saterides, my question was — did you have an opportunity to form an opinion as to the speed of the Volkswagon?
******
“A. The speed limit by there is about forty-five and I’d say the guy was going about forty-five or fifty-five. That’s the way all that traffic goes in there.
******
“Q. Okay, did you have an opportunity to form an opinion as to the speed of the Volkswagon?
“A. Yes, I did.
******
“Q. The next question, what—
“A. Some insurance man asked me, when I was working at Florida Bulk Transport Trucking. Some — I took a rough guess that the Volkswagon was going anywhere — about fifty, I guess.
******
“And the guy came to where I was working, and he asked me those questions, you know. I more or less just gave him a statement of what I saw, and he asked me — the way he put it is if I could take a rough guess on how fast the Volkswagon was going. I said I believe it was forty-five or fifty.
“Q. My question is what is your opinion as to the speed of the Volkswagon?
“A. I’d say fifty.
“Q. All right. Fine.
“A. Because he hit them pretty hard.
******
“I can’t recall, because it’s just about that time is when the car came and I spotted the car, so I couldn’t tell which way they was looking. I think I didn’t even get my throat half cleared, when the car hit him — just hit the brakes and smashed her all up.
“Q. You said you heard a horn, is that right?
“A. Yes.
“Q. Did you hear the horn before you saw the car?
“A. I heard the horn about — it was about two feet away from them— three feet.
“Q. Did all this happen just like the snap of a finger?
“A. Yes. What I got to see was like a picture of it.
“Q. Just a sudden flash?
“A. It wasn’t a sudden flash.
“Q. As I understand it, you said you had a picture in your mind of seening lights, hearing brakes and two people getting hit. Was that essentially your testimony?
“A. Yes.
******
“Q. When you first saw the Volks-wagon, it had its lights on, did it not?
“A. Like I said, that Volkswagon came from nowhere.
******
“When I first seen it, it was about three feet away from them, with its lights on and blowing its horn. I don’t know where it came from.
******
I can’t recall. I can’t recall which way he was looking. All I know is I think they both spotted the car at the same time I did.
“Q. Okay.
“A. Like I said, she turned and looked right at the car, and he was jerking her back. I still say I’d like to know where that guy came from.
* SjS * * * *
“Q. When you looked to the west, did you see the Yolkswagon?
“A. No. No, I didn’t see any Volks-wagon. The only time I seen that Volkswagon was when it hit them, and after it hit them, I went and looked at it.”

Appellant has presented for our consideration four points on appeal, all of which pertain to jury instructions except one which has to do with the admission of witness Saterides’ testimony. We find no error in the jury instructions, but do find error in the admission of Saterides’ testimony. The evidentiary question involved in the admission of his testimony is whether its admissibility was a question of competence or weight. Predictably, appellant says it’s one of competence and appellee opts for weight.

The rule governing the admissibility of opinion evidence as to speed is no better stated anywhere than in 31 Am.Jur.2d, Expert and Opinion Evidence § 157, wherein the text writer states:

“An estimate of the speed at which a conveyance or other object was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object.
* * * * * *
“Speed being a physical phenomenon difficult of accurate ascertainment with respect to a moving object in plain view, an interval of time of sufficient length to give the critical faculties an opportunity to function in formulating a judgment with respect to it must elapse ; that time element should be of such reasonable duration as to warrant a conclusion that the opinion is grounded in probability and removed from the realm of speculation. In some cases, therefore, where the witness had only a brief view of the vehicle in question, his opinion as to its speed has been held inadmissible. But under the circumstances of other cases, even though the witness had only a brief opportunity to observe the speed of the vehicle in question, his opinion as to its speed was held admissible, and the fact that he had only a brief time to observe the vehicle was regarded as affecting only the weight of his testimony and not its competency.” (Footnotes omitted.) (Emphasis supplied.)

These questions are more easily answered in the abstract than when applying them to concrete factual situations. But if we are going to pay more than mere lip service to the rule that before one can render an opinion he must have had sufficient opportunity to observe the subject matter about which his opinion is rendered, then in the first instance the court must be the arbiter of the competency of the witness to state an opinion. To suggest otherwise would allow anyone to venture an opinion about anything and let the jury determine what weight to ascribe to it.

Our careful study of this record and in particular Mr. Saterides’ testimony convinces us that Mr. Saterides’ testimony was subject to objection on the grounds of competency. It is clear to us that reasonable men could not differ on the question of his opportunity to observe Albers’ car a sufficient time to give a reliable estimate of its speed. Saterides only saw the car the instant before impact. His opinion is based upon such unreliable factors as “that’s the way the traffic goes in there” and “because he hit them pretty hard”. In arriving at this conclusion we have not overlooked the propensity of witnesses to say “I guess” or “I would say about” when they are stating a firm opinion. Taking Saterides’ testimony in context his “I guess” was literally a guess and that sort of testimony is not competent.

It is suggested in appellee’s brief that even if not admissible the admission of Saterides’ testimony was harmless error at worst. But this testimony goes to one of the core questions affecting liability and we can not say with any certitude that it did not affect the percentage of negligence attributed to Albers and consequently the amount of damages.

In view of the foregoing, the judgment appealed from is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

ANSTEAD and MOORE, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James HORTON, as Personal Representative of the Estate of Clementine B. Horton, Deceased, Appellant, v. UNIGARD INS., CO., of the Unigard Ins., Group, and Joseph McAllister and Government Employees Ins., Co., and Raymond A. Horton, Appellees.
    Nos. 76-1368, 76-1622.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Denise Davis Schwartzman of Schwartz-man & Quinones, Hialeah, for appellant.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellees-Government Employees Ins. Co. and Raymond A. Horton.
   DOWNEY, Judge.

This ease involves an application of the doctrine of interfamily immunity.

Clementine Horton was killed in an accident while a passenger in an automobile driven by her husband, Raymond Horton. The personal representative of Clementine’s estate brought a wrongful death action against Clementine’s husband for the benefit of Clementine’s estate and Clementine’s two minor children. McAllister, the driver of the other vehicle involved in the accident, was also joined as a defendant as were the insurance carriers insuring Horton and McAllister. The trial court entered a final judgment dismissing the complaint against Raymond Horton and his insurance carrier, and the personal representative perfected this appeal in Case No. 76-1622.

Appellant contends that neither the doctrine of interspousal immunity nor the doctrine of interfamily immunity precludes appellant from maintaining this wrongful death action on behalf of the deceased wife’s estate and the minor children. Ap-pellees, on the other hand, argue that the doctrine of interspousal immunity does preclude the personal representative from maintaining the suit on behalf of Clementine’s estate and that interfamily immunity prevents maintenance of the suit on behalf of the minor children.

With regard to the wrongful death action on behalf of the wife’s estate we hold that such an action can not be maintained because of the doctrine of inter-spousal immunity.. Because of the doubts which seem to have been engendered by some recent decisions, we recently held in the case of Blanton v. Blanton, Opinion filed January 24, 1978, Fourth District Court of Appeal Case No. 76-2678, 354 So.2d 430, that the doctrine of interspousal immunity is alive and well in this jurisdiction. Having established that the doctrine is still viable we must decide whether there is something unique about a wrongful death action which would exempt such an action from the application of the doctrine. We hold there is not and that the interspousal immunity doctrine is applicable to a wrongful death action by a deceased wife’s personal representative against her husband. In Orefice v. Albert, 237 So.2d 142 (Fla.1970), the Supreme Court of Florida stated:

“It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.” Id. at 145.

Appellant says the quoted statement from Orefice, supra, is obiter dictum and we concede that it is. However, it is obiter dictum from the highest court in this State and that is no ordinary dictum! The rule seems to be that dictum in an opinion by the Supreme Court of Florida, while not binding as precedent, is persuasive because of its source. Town of Lantana v. Pelczynski, 290 So.2d 566 (Fla. 4th DCA 1974); O’Sullivan v. City of Deerfield, 232 So.2d 33 (Fla. 4th DCA 1970); Weber v. The Zoning Board of Appeals of the City of West Palm Beach, 206 So.2d 258 (Fla. 4th DCA 1968); Milligan v. State, 177 So.2d 75 (Fla. 2d DCA 1965); 8 Fla.Jur., Courts § 168. Suffice to say we are persuaded by the dictum in Orefice, supra, because we perceive no reason not to apply the doctrine of interspousal immunity to a wrongful death claim by the personal representative of a deceased wife’s estate against her erstwhile husband. Section 768.19, Florida Statutes (1975), provides, among other things, that when a death is caused by the wrongful act or negligence of a person and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued the person guilty of the wrongful act or negligence shall remain liable notwithstanding the death of the person injured. Clearly Clementine could not maintain an action and recover damages against her husband Raymond had she survived her injuries.

Turning now to the wrongful death claim on behalf of the two minor children against their father, we hold that action is barred by the doctrine of interfamily immunity. We do not reach this conclusion without some difficulty because in Shiver v. Sessions, 80 So.2d 905 (Fla.1955), the Supreme Court held that a wrongful death claim could be maintained on behalf of minor children against their stepfather for the wrongful death of their mother. In the Shiver case the stepfather killed the mother and then committed suicide. The wrongful death action was instituted on behalf of the minor children against the deceased stepfather’s estate. The trial court dismissed the suit apparently on the grounds that such an action could not be maintained because the wrongful death statute provided that as a condition of suit the wrongful act or negligence resulting in death must be such as would, had death not ensued, have entitled the party injured thereby to maintain an action and recover damages therefor. In reversing that ruling the Supreme Court held that:

“We hold, then, that it cannot reasonably be implied from the terms of the Act that the Legislature intended that the wife’s disability to sue her husband should be a bar to a suit under the Act by the wife’s surviving children against the deceased husband’s estate, and that the lower court erred in so holding”. Id. at 908.

The Shiver court went on to say that it would be unreasonable to conclude the Legislature intended to bar the right of action created by the Act on account of a disability to sue which is personal to a party having an entirely separate and distinct “right of action” which does not inhere in the tort or cause of action upon which each separate cause of action is based. So it is quite clear in Shiver the court was considering as a possible bar to the suit only the doctrine of interspousal immunity. No allusion whatsoever is made to the doctrine of interfamily immunity and so we can only assume that it was not considered by the Supreme Court in the disposition of the case. It might be that interfamily immunity was not discussed because the court felt the doctrine was not applicable, since both the mother and father were dead and there was no family as such to be disrupted by maintenance of a suit- by minor children against the deceased parent’s estate. If this speculation is correct the same principle would not apply here because in the case at bar we do have a viable family relationship, i. e., a living father and minor children.

There are numerous authorities acknowledging the existence in Florida of the doctrine of interfamily immunity. Generally, they hold that a tort action may not be maintained between a father and an un-emancipated child because it has long been the policy of the law to encourage family unity and the maintenance of family discipline,, Meehan v. Meehan, 133 So.2d 776 (Fla. 2d DCA 1961), and surely we don’t need less of that today. Once again, we can see no valid reason why that doctrine should not prevail in this case and preclude maintenance of the personal representative’s wrongful death claim on behalf of these minor children against their father.

For the foregoing reasons we affirm the judgment appealed from in Case No. 76-1622, and dismiss the appeal in Case No. 76-1368, for lack of jurisdiction.

ALDERMAN, C. J., and LETTS, J., concur.

      . The complaint failed to- allege that Clementine and Raymond were married. However, at oral argument the parties conceded they were married and counsel for appellant advised the court he did not seek reversal on that technical oversight.

      . Appellant also filed a notice of appeal from the order of April 12, 1976, granting the motion to dismiss of Raymond Horton and his insurance carrier. That order was not subject to an interlocutory appeal and must be dismissed.

      . Orefice v. Albert, 237 So.2d 142 (Fla.1970); Wright v. Farmers Reliance Insurance Company of New Jersey, 314 So.2d 641 (Fla. 3rd DCA 1975); Webb v. Allstate Insurance Company, 258 So.2d 840 (Fla. 3rd DCA 1972); Denault v. Denault, 220 So.2d 27 (Fla. 4th DCA 1969); Rickard v. Rickard, 203 So.2d 7 (Fla.2d DCA 1969); Meehan v. Meehan, 133 So.2d 776 (Fla. 2d DCA 1961).


author: PER CURIAM.

text:
    Victor ZIMMERMAN, Appellant, v. Fred E. GARDNER, Ramona D. Borovic-ka, Central Bank and Trust Company, as trustee, et al., Appellees.
    No. 76-2416.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Paul E. Gifford of Kenworthy & Gifford, Coral Gables, for appellant.
    C. William Laystrom of Allsworth, Dou-mar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellee-Borovicka.
   PER CURIAM.

Victor Zimmerman, a judgment creditor, appeals from an order of the trial court which determined that a certain residence was the exempt homestead of his judgment debtor, Ramona D. Borovicka. The determinative issue is whether Mrs. Borovicka qualified as “head of a family” within the meaning of Article X, Section 4 of the Florida Constitution. We find that she did not and reverse.

The facts were stipulated in the trial court and are not in dispute. Mrs. Borovic-ka is divorced and resides in her residence with the aunt of her former husband. She still regards the aunt as a relative. Her 31 year old son also stays with them from time to time, but his occasional presence is not significant in the determination of this case. Mrs. Borovicka’s claim that she is the head of a family is based upon the fact that she maintains the residence both for herself and her “aunt” who is elderly and unable to care for herself. Mrs. Borovicka is a nurse and takes care of her “aunt,” who pays no rent but does pay for her food and care.

We conclude that these facts fail to establish that Mrs. Borovicka is the head of a family. She is to be commended for providing care to an elderly person, but she has no legal or moral obligation to care for her former husband’s aunt and she can terminate the relationship at any time she desires. In re Estate of Kionka, 113 So.2d 603 (Fla. 2d DCA 1959).

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS and MOORE, JJ., concur.


text:
    FORD MOTOR COMPANY, a Delaware Corporation, Petitioner, v. Glenda Dale NELSON, Yvonne McClean, Gladstone Granza, Herman Nelson, Jessie Hollingsworth and Yvonne Freeman, Respondents.
    No. 77-505.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for petitioner.
    Wallace B. McCall of Johnson, Ackerman & Bakst, West Palm Beach, for respondents.
   DOWNEY, Judge.

By Petition for Writ of Certiorari Ford Motor Company seeks review of an order of the trial court striking Ford’s affirmative defense of failure to use available seat belts in a suit arising out of an automobile accident.

The question presented arises as a result of an interlocutory order in a case formerly cognizable at law. Thus it may be reviewed by Writ of Certiorari if the action of the trial court constitutes a departure from the essential requirements of law and there is no full, adequate and complete review available to petitioner by plenary appeal from the final judgment.

From petitioner’s viewpoint the operative word here is “adequate” because petitioner states in its brief:

“If Ford must wait until after final judgment for review of this matter, it faces the possible expense of two trials. Cer-tiori should lie to review the order as it would be a waste of judicial time and labor for review to be delayed until after final adjudication.”

But that argument is applicable in almost every erstwhile common law action in which a pleading has been stricken or such a motion denied. If the ruling is error and it could have affected the outcome of the case, then a second trial may be necessary. The cases are not entirely consistent on this point, but this court has answered petitioner’s contention in a number of recent cases. Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975); Simpson v. Broward County, 241 So.2d 193 (Fla. 4th DCA 1970). We see no reason not to follow those eases which adhere to the traditional concepts of review by common law certiorari.

Accordingly, the petition for writ of cer-tiorari is denied.

DENIED.

DAUKSCH and MOORE, JJ., concur.


text:
    CITY OF FORT LAUDERDALE, Petitioner, v. Edward J. FOWLER, Respondent.
    No. 77-860.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Bryson K. Lovejoy and Sydney H. McKenzie III, Fort Lauderdale, for petitioner.
    No appearance for respondent.
   DOWNEY, Judge.

The City of Fort Lauderdale petitions for a Writ of Certiorari to review an order of the Industrial Relations Commission which held that Respondent, Edward J. Fowler, was entitled to Unemployment Compensation benefits even though he was retired from and receiving retirement benefits from said City.

It appears that Fowler became employed as a fireman with the City of Fort Lauder-dale in January 1956 and remained in that occupation until his retirement in January 1976. In 1957 the City of Fort Lauderdale established a pension plan for city employees including firemen. In 1963 the City established a supplementary pension plan for members of the fire department. Fowler voluntarily joined both plans. In January 1976 Fowler had accumulated twenty years with the City and was over 50 years of age and thus he was required under the plan to retire. During the period of time that Fowler was a member of the plan both he and the City were required to make periodic contributions thereto.

Shortly after retirement and while being paid his pension of $721.37 per month Fowler made an application for unemployment compensation. The Claims Examiner denied this application; the Appeals Referee affirmed that decision. However, the Industrial Relations Commission reversed the Appeals Referee and held Fowler was entitled to unemployment compensation benefits. That order is the subject of this review. In its Order the Commission stated:

“The claimant was mandatorily retired from his employment on February 1, 1976. The claimant is receiving a pension from a base period employer amounting to $721.37 per month. Prorated to a weekly basis, the claimant receives $166 per week in pension benefits. The Referee found the claimant disqualified from receipt of benefits because the retirement benefits he is receiving from a base period employer exceed his weekly benefit amount of $82.
“The record indicates that the claimant contributed $7,346.14 to the pension plan. Therefore, the retirement benefits the claimant is presently receiving is merely a recapture of his own funds. We have consistently held that retirement benefits based on the claimant’s contributions should not be offset against the weekly benefit amount in determining the claimant’s entitlement for benefits. Therefore, the decision of the Appeals Referee must be reversed. This is but one further example of the injustice and inefficiency that must necessarily follow a policy wherein supposedly fair and impartial hearings are conducted by persons who submit to dictates imposed by their administrative superiors — and, further, as is the case here, when those superiors select, arbitrarily, what law the Hearing Officer should honor and what law he should not.”

We note with interest the Commission’s comment that it has consistently held that retirement benefits based upon a claimant’s contribution should not be offset against the weekly benefit amount in determining the claimant’s entitlement to benefits. However, we are unable to find any support for this tradition. Any such commission policy in any event would appear to be inappropriate today in view of the express provisions of Section 443.06(8), Florida Statutes. The pertinent part of that section provides:

“443.06 Disqualification for benefits.— An individual shall be disqualified for benefits:
(8) For any week with respect to which he has received, or is eligible to receive, from a base period employing unit, income from a retirement, pension or annuity program embodied in a union contract or either a public or private employee benefit program. Provided, however, that for any week in which income from a retirement, pension or annuity program as referred to in this subsection when combined with income from the retirement provisions of the United States Social Security Act is less than the weekly benefits which would otherwise be due under this chapter he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the income from the retirement, pension, or annuity program combined with the United States Social Security Act retirement income, pro-rated to a weekly basis. For the purpose of this subsection benefits from the United States Social Security Act, a disability benefit program, a supplemental unemployment benefit program, or any other program not specifically designated either in the union contract or a company benefit program as being retirement, pension or annuity income shall not be disqualifying. . . . ”

The manner in which we are charged to construe the Unemployment Compensation Act cannot be better described than it was in Williams v. State of Florida, Department of Commerce, 260 So.2d 233 (Fla. 1st DCA 1972), wherein the Court said:

“. . . [T]he Unemployment Compensation Law is remedial, humanitarian legislation and should be liberally and broadly construed.” Id. at 234.

With that admonition in mind we interpret Section 443.06(8) as controlling in the case at bar. The language of that subsection clearly provides that in the factual situation presented here that Fowler is not entitled to unemployment benefits unless his pension amounts to less per week than those benefits. We are unable to find any statutory exception carved out of subsection (8) which allows a pensioner to collect unemployment benefits for that period of time when he might be considered to-be receiving a return of his contribution to the pension fund. Surely had the legislature intended to allow a pensioner to receive benefits for that period of time when he could be considered to be recouping his contribution to the retirement plan it could easily have so provided.

As noted above, the Industrial Relations Commission stated in the order we are reviewing that the first $7,346.14 which Fowler received under his pension rights was simply a return of his contribution and thus should not be credited against his unemployment benefits. As proof of the soundness of that position Fowler relies on the asserted fact that under the Internal Revenue Code no pension payments are taxable until the pensioner has recaptured all of his contribution to the pension fund. This is not a novel argument as a study of the various case authorities indicates. However, we are not impressed with the soundness of the position.

In Rogers v. District Unemployment Compensation Board, 290 A.2d 586 (D.C. Cir. 1972), the Petitioner retired from the United States Postal Service. He filed a claim for unemployment benefits and argued that the initial payments made to him from the pension fund represented a return of his own contributions and that those payments should not be deducted from his potential unemployment benefits until he had recovered his full contribution to the fund and began to receive benefits based upon his employer’s contribution. As authority for his contention petitioner cited 26 U.S.C.A. § 72(d) (1970) which permits an individual to exclude from gross income “an amount equal to the consideration for the contract (annuity) contributed by the employee.”

The District of Columbia Unemployment Compensation Code provision provided:

“Benefits payable to an individual with respect to a week shall be reduced, under regulations prescribed by the Board, by any amount received with respect to such week as a retirement pension or annuity under a public or private retirement plan or system provided, or contributed to, by any base period employer . . . .”

The Rogers court disposed of petitioner’s contention as follows:

“. . . [Petitioner argues that the initial payments made to him from the Fund represent a return of his own contributions, and that these payments are not to be used as a deduction against his potential benefit amount until he has recovered the full amount of his contribution to the Fund and begins to receive payments based on his employer’s contribution. In support of this contention petitioner relies on a section of the federal tax laws, 26 U.S.C.A. § 72(d) (Í970), which permits an individual to exclude from gross income ‘an amount equal to the consideration for the contract [annuity] contributed by the employee.
“We do not find this reliance on the Internal Revenue Code persuasive. We agree with the Superior Court of Pennsylvania’s analysis of the same issue.
‘This provision of the Revenue Act [§ 72(d)] is applicable only when the aggregate amount receivable by the employe in the first three years is equal to or greater than the amount contributed by the employe. It does not mean that the payments received by the appellant constitute a return of his own funds until the sum which he contributed is exhausted. It is an arbitrary exception to § 72(b) of the Internal Revenue Code which establishes a formula based upon the taxpayer’s contribution to the fund from which the pension is paid. [Yeager v. Unemployment Compensation Board of Review, 196 Pa.Super. 162, 173 A.2d 802, 804-805 (1961).] [Emphasis supplied.]’ ”

A similar argument has been made and rejected in other cases. See: Bullerman v. Michigan Employment Security Commission, 25 Mich.App. 242, 181 N.W.2d 330 (1970); Yeager v. Unemployment Compensation Board of Review, 196 Pa.Super. 162, 173 A.2d 802 (1961); Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970).

Holmes, supra espouses a further argument contradicting petitioner’s position. That argument is that if the intent of the legislature in enacting 443.06(8) was other than to disqualify all who receive pension payments from a base period employer it would discourage the establishment of pension or retirement plans by employers. If after contributing to a pension plan providing for payment of a pension, an employer were further penalized by being required to make contributions for unemployment compensation benefits to that same retired employee, there would be a chilling effect upon the employer’s willingness to contribute to a pension fund. There would be a chilling effect because the employer who did not contribute to a pension or retirement fund would only be liable to contribute to the unemployment compensation fund. He would escape the double contribution.

The only Florida case called to our attention which is of interest on the subject is St. Joe Paper Company v. Gautreaux, supra. In that case Gautreaux was retired from St. Joe Paper Company under a plan contained in a union bargaining contract with the company, which plan required retirement at age sixty-five. Gautreaux’s pension amounted to less than the amount he would have received as unemployment benefits. The Florida Industrial Commission granted benefits and the District Court affirmed. The court held that Gautreaux had not voluntarily left his employment and therefore he did not fall within the purview of Section 443.06(1), Florida Statutes and was not disqualified for benefits. The District Court took pains to review authorities from all over the United States because of the great diversity of opinion on the subject, and we certainly find no fault with the decision. However, nowhere in the extensive opinion does that court mention section 443.06(8) which we find is now decisive of the question. No doubt the reason subsection (8) was not mentioned is that it probably was not applicable since the legislature first enacted subsection (8) during the 1965 legislative session.

In any event, we hold that Section 443.-06(8), Florida Statutes (1975) is dispositive of this case and that it disqualifies Fowler from receiving unemployment compensation benefits since his weekly pension benefits are greater than the unemployment benefits.

Accordingly, the Petition for Certiorari is granted, the order of the Industrial Relations Commission is quashed and the cause is remanded to the Industrial Relations Commission with directions to affirm the Order of the Appeals Referee.

ANSTEAD and LETTS, JJ., concur.

      . See St. Joe Paper Company v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965).

      . This case does not involve any benefits payable to Fowler under the “United States Social Security Act, a disability benefit program, a supplemental unemployment benefit program, or any other program not specifically designated either in the union contract or a company benefit program as being retirement, pension or annuity income . . Section 443.-06(8), Florida Statutes.

      . On the eve of publication of this opinion we note the case of Florida Department of Commerce Division of Employment Security v. Todd, 353 So.2d 662 (Fla. 2d DCA 1978), Opinion filed Jan. 4, 1978, in which that Court came to the same conclusion which we do in the case at bar.

      . The Department of Commerce, Division of Employment Security filed a waiver of its right to file a brief in this case. We have sorely missed the assistance which such a brief may well have furnished this court.


author: ALDERMAN, Chief Judge.

text:
    The FOUNTAINS OF PALM BEACH CONDOMINIUM, INC. NO. 5, a Florida Corporation not for profit, Appellant, v. Carolyn FARKAS, Appellee.
    No. 77-1002.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.
    Herbert L. Gildan of Nason, Gildan & Yeager, West Palm Beach, for appellant.
    Michael B. Small of Law Offices of Michael B. Small, P.A., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The plaintiff condominium association appeals from a final judgment denying its prayer for injunctive relief and dismissing its complaint against a unit owner who built a patio on the condominium’s common elements. We reverse.

The defendant owner’s husband testified that he attempted to obtain permission for the construction of a patio on the common elements. He went first to the management firm, where he was told that while the firm had no objections to the proposal, a transition was underway in which the condominium association was taking over, so that he should raise the matter at an association meeting. He attended a meeting of the board of directors of the condominium association. The board informed him that they had no legal status and were therefore unable to grant or deny permission. The owner went ahead with construction, after which the condominium association brought this action for a mandatory injunction requiring the removal of the patio slab from the condominium elements at the owner’s expense.

Section 718.303(1), Florida Statutes (Supp.1976), mandates that unit owners shall be governed by the declaration of condominium, the documents creating the condominium association, and the association bylaws. The same statutory section authorizes a condominium association to bring an action for damages or for injunctive relief against a unit owner for noncompliance. In the present case the unit owner was governed by the following provisions of the Declaration of Condominium:

IV. OWNERSHIP OF COMMON ELEMENTS
Each of the unit owners of the Condominium shall own an undivided interest in the common elements. .
XIV. MAINTENANCE AND ALTERATIONS
C. Each unit owner agrees as follows:
2. Not to make or cause to be made any structural addition or alteration to his unit or to the limited common elements or common elements.
3. To make no alterations, decoration, repair, replacement or change of the common elements . . . without the pri- or written consent of the Management Firm and the Association. .
D. In the event the owner of a unit fails to maintain the said unit and limited common elements, as required herein, or makes any alterations or additions without the required written consent, or otherwise violates . . . the provisions hereof, the Association, or the Management Firm on behalf of the Association, and on its own behalf, shall have the right to proceed in a Court of equity for an injunction to seek compliance with the provisions hereof .

This court has previously held that Declarations of Condominium ought to be construed strictly. Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685, 688 (Fla. 4th DCA 1971). It is undisputed that the unit owner in the case now before us failed to get prior written consent from the management firm and the association, as required by the Declaration of Condominium, before altering the common elements. The owner argues that the failure of the management firm and the association to object to her intentions should operate as an estoppel or as a waiver of the association’s right to complain now that the patio slab has been laid. We disagree. The statement by the board of directors that it had no legal authority to give its permission was not a form of assent, nor even an intimation of tacit approval. Neither can the noncommittal, though apparently rather favorable, attitude of the management firm be said to have justified any belief by the owner that she could safely ignore the requirement of the Declaration of Condominium that she obtain the prior written consent of both management and the association before altering the common elements.

REVERSED and REMANDED.

DOWNEY and LETTS, JJ., concur.


text:
    ATLANTIC STEEL FABRICATORS, INC., Appellant, v. CONDOR SALES, INC., a Florida Corporation, Appellee.
    No. 77-1008.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.

      Robert D. Edwards of Atlantic Steel Fabricators, Inc., pro se.
    No appearance for appellee.
   DOWNEY, Judge.

This is an appeal from an adverse summary final judgment in favor of the appel-lee.

Appellee sued appellant to recover commissions allegedly due and attached an exhibit to the complaint which purported to represent appellant’s admission of the amount due. Appellant answered the complaint and denied any amount due and denied that the exhibit attached to appellee’s complaint was an admission of commissions due. Appellant also filed a counterclaim for damages which appellee denied.

Appellee then filed a motion for summary judgment and a supporting affidavit which in pertinent part stated that the exhibit attached to the complaint “is an identical copy of business records maintained by [appellant] during the normal course of their business, and indicates the amount of commission earned by Condor Sales, Inc./Robert De Lizza”. Appellant filed a counter-affidavit which stated the exhibit was not genuine; that it was not a record of commissions owed but of commissions projected or anticipated. The affidavit also asserted that appellant had been injured by appel-lee’s conduct causing appellant to lose work.

And so we have a routine, garden variety motion for summary judgment with affidavit . and counter-affidavit clearly demonstrating a genuine issue of fact both as to the complaint and as to the counterclaim. No reference whatsoever was made by ap-pellee to the counterclaim yet it too seems to have been eliminated by the summary final judgment.

Accordingly, the judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

DAUKSCH and MOORE, JJ., concur.


text:
    Jack Douglas GARDNER, Petitioner, v. HIGHWAY OIL COMPANY, INC., and Florida Department of Commerce, Division of Employment Security, Respondents.
    No. 77-1073.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    George E. McCarthy, Indian Harbour Beach, for petitioner.
    Eugene N. Betts of Pomeroy, Betts & Weiderhold, Fort Lauderdale, for respondent-Highway Oil Company, Inc.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondent-Florida Department of Commerce, Division of Employment Security.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

CROSS, DAUKSCH and MOORE, JJ., concur.


author: LETTS, Judge.

text:
    Richard MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 77-1120.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Patrick C. Rastatter of Glass, Krathen, Rastatter, Stark & Tarlowe, P. A., Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The question here is whether the facts made out a prima facie case against the appellant who pled nolo contendere reserving his right to appeal the denial of his motion to dismiss. We say no and reverse.

The appellant was charged with actual or constructive possession of marijuana based on the undisputed facts of his arrest. The appellant was arrested upon entering, and sitting behind the wheel of, a parked automobile (which the police had under surveillance) with four other companions. A search of the vehicle revealed 2V2 ounces of marijuana in the unlocked center console.

If the premises on which drugs are seized are not in exclusive, but only joint possession of the accused, knowledge of the presence of drugs will not be inferred but must be established by other evidence. By other evidence we mean evidence other than the evidence of the accused’s non-exclusive possession of the premises. Medlin v. State, 279 So.2d 41 (Fla. 4th DCA 1973). No such “other evidence” was presented here.

Appellant, in our view, had only joint possession and control over the automobile, Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974); cf. Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1972), and there was no direct evidence that he knew the marijuana was in the unlocked center console, to which the other passengers had equal access. See Nogar v. State, 277 So.2d 257 (Fla., 1973). The mere fact that appellant was in the driver’s seat of a jointly occupied vehicle in which drugs are found would not be sufficient to allow a jury to find him guilty of the offense charged. Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974); Hively v. State, 336 So.2d 129 (Fla. 4th DCA 1976). In Hively, supra, marijuana was found in a pipe lying on the center console of a vehicle driven by defendant with one Leslie Bardon in the passenger seat. Notwithstanding the fact that appellant had borrowed the automobile to take Bardon home, this court held that a jury issue was not created as to defendant’s knowledge of the presence of marijuana in the automobile. We note that there was no showing as to who owned the automobile in the instant case, but we are of the opinion that proof of appellant’s ownership of the vehicle would not have cured the defect in the case at bar.

Cases involving ownership combined with joint possession are sparse. The Nogar, supra, case dealt with a distinguishable factual situation where the passenger claimed ownership of the drugs. In Russ v. State, 279 So.2d 92 (Fla. 3d DCA 1973), a defendant-owner’s conviction for possession of drugs found under the dash board was affirmed, but he was alone at the time of his arrest (he argued that the car had been used earlier by another person). See also Zicca v. State, 232 So.2d 414 (Fla. 3d DCA 1970). The courts in Florida have implied in similar, although factually distinguishable situations, that mere proof of ownership alone, does not infer knowledge of the presence of contraband. Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977); Tomlin v. State, 333 So.2d 501 (Fla. 2d DCA 1976); Medlin v. State, supra. One case outside this jurisdiction is Commonwealth v. Wisor, 466 Pa. 527, 353 A.2d 817 (Penn.1976). In Wisor, a defendant was charged with possessing marijuana in a pipe lying in the space between the front right passenger seat of a car occupied by six persons including defendant who was the owner-driver thereof. The court held that “the fact of ownership does not support the inference that appellant knew the pipe was under the seat.” Id at 818. We agree.

In the light of all the foregoing, we cannot infer that the appellant was in actual or constructive possession of the marijuana.

REVERSED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Kenneth E. HOAG, Appellant, v. STATE of Florida, Appellee.
    No. 77-1141.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Richard W. Springer of Kohl, Springer & Springer, Palm Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Dove v. State, 287 So.2d 384 (Fla. 1st DCA 1974); Darby v. State, 216 So.2d 29 (Fla. 3d DCA 1968); Taylor v. State, 199 So.2d 517 (Fla. 3d DCA 1967).

CROSS, DAUKSCH and LETTS, JJ., concur.


text:
    Randall J. CONLEY, Petitioner, v. The FLORIDA REAL ESTATE COMMISSION and Harold T. Mooney, Respondents.
    No. 77-1223.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.

      Herbert R. Swofford, Orlando, for petitioner.
    Howard Hadley, Winter Park, and Manuel E. Oliver, Altamonte Springs, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

CROSS, DAUKSCH and MOORE, JJ., concur.


author: DAUKSCH, Judge.

text:
    COMBANK/UNION PARK, Appellant, v. Donald D. GIBSON and Rolla E. Taylor, Individually, and d/b/a Holopak Sales, sometimes known as Holopak Mobile Home Sales, a partnership, Appellees.
    No. 77-1260.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Jack B. Nichols and R. Wayne Evans of Nichols & Tatich, P. A., Orlando, for appellant.
    James E. Foster of Fishback, Davis, Dominick & Simonet, Orlando, for appellee Rolla E. Taylor.
   DAUKSCH, Judge.

A long discourse on the procedural matters which give rise to this appeal would be unnecessarily burdensome. Suffice it to say the trial court dismissed an amended complaint when the deficiency in the complaint was obviously one of clerical error on the part of the lawyer. In our opinion, he should have been allowed to file an amended complaint in accordance with his oral motion and therefore we reverse the judgment appealed and the amended judgment appealed and remand with directions to permit the appellant to file its amended complaint to include the bonding company as a party.

REVERSED AND REMANDED.

CROSS and LETTS, JJ., concur.


text:
    Seymour HECKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1503.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.

      Alan I. Karten of Grusmark, Jaffe & Karten, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed on authority of State v. Zawistowski, 389 So.2d 315 (Fla. 1st DCA 1976).

REVERSED.

CROSS and DOWNEY, JJ., and WEAVER, SIDNEY M., Associate Judge, concur.


text:
    OLIVER-HOFFMANN CORPORATION, a Foreign Corporation, Petitioner, v. OCEAN HARBOR ASSOCIATION, INC., a corporation not-for-profit, in its own behalf and on behalf of its members, and Carl W. Heinle and Mariett Heinle, his wife, Individually and on behalf of all apartment unit owners of Ocean Harbor, a condominium, as a class, the City of Deerfield Beach, Florida, a Municipal Corporation, and J. J. Arnau, Individually, and in his capacity of Chief Building Inspector of Deerfield Beach, Respondents.
    No. 77-1690.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    F. Kendall Slinkman, III, of Farish & Farish, West Palm Beach, for petitioner.
    Stephen N. Lipton of Becker, Poliakoff & Sachs, Miami Beach, for respondents.
   DOWNEY, Judge.

Oliver-Hoffmann Corporation, a foreign corporation, has filed a Petition for Writ of Certiorari to review an order of the trial court, dated July 6, 1977, wherein, among other things, the court denied the petitioner’s motion for summary judgment.

Respondent, Ocean Harbor Association, Inc., and several condominium unit owners, filed a suit against Oliver-Hoffmann Corporation, the City of Deerfield Beach and J. J. Arnau, individually, and as Building Inspector of the City of Deerfield Beach, for damages arising out of the defective construction of the condominium building and appurtenances. An answer was filed, apparently without service of process upon it, by Oliver-Hoffmann Corporation. Thereafter, the plaintiffs in the suit moved to strike certain affirmative defenses, which was denied in part. A motion for summary judgment was then filed by Oliver-Hoffmann Corporation, Inc., supported by an affidavit signed by Paul W. Hoffmann, as President of Oliver-Hoffmann Corporation, an Illinois corporation. Plaintiffs then moved to amend their pleadings to reflect that the intended defendant developer was Oliver-Hoffman Corp. of Deerfield Beach, a Florida corporation, rather than Oliver-Hoff-mann Corporation.

The trial court denied petitioner’s motion for summary judgment as counsel for the plaintiff conceded that the proper defendant was Oliver-Hoffman Corp. of Deerfield Beach, a Florida corporation, and that the parties had no intention of suing Oliver-Hoffmann Corporation, an Illinois corporation. And, as a matter of fact, the trial court found that Oliver-Hoffmann Corporation, an Illinois corporation, was not a named party to this suit.

In this posture of the case it seems to us that petitioner voluntarily filed an answer in this litigation when it was not properly named; that the plaintiff never intended to sue Oliver-Hoffmann Corporation, an Illinois corporation; that the pleadings have now been amended to name the developer of the condominium improvements as a defendant. The mission of petitioner’s motion for a summary judgment was to eliminate the Illinois corporation from the suit. The trial court found that the Illinois corporation was never a party to the suit and we think properly so. Therefore, it appears to us that the petitioner has no cause to complain here because the trial court’s order settled any question about the Illinois corporation’s being a party to the suit.

Accordingly, the Petition for Writ of Cer-tiorari is denied.

DAUKSCH and MOORE, JJ., concur.


text:
    Gloria Stean Jefferson WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 77-1894.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    Richard L. Jorandby, Public Defender, West Palm Beach and Charles D. Peters, Asst. Public Defender, Latana and Louis R. Bowen, Jr., Public Defender, and Steven Jablon, Asst. Public Defender, Kissimmee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

ANSTEAD and DAUKSCH, JJ., and CRAWFORD, GRADY L., Associate Judge, concur;


text:
    The CINCINNATI INSURANCE COMPANY, Appellant, v. Dr. James Donaldson MOODY, Appellee.
    No. 77-2031.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.

      Gary M. Ketchum of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    Robert W. Olsen, Orlando, for appellee.
   DAUKSCH, Judge.

Appellant suffered a Summary Judgment and has appealed. Because we find there were factual issues raised in the answer precluding the entry of the Summary Judgment we must reverse. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Kash ‘N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla.3d DCA 1969); Egan v. Washington General Insurance Corporation, 240 So.2d 875 (Fla.4th DCA 1970).

REVERSED.

CROSS and LETTS, JJ., concur.


text:
    MAJOR MARKETING CORPORATION, Petitioner, v. William HAYNES, Respondent.
    No. 77-2063.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1978.
    James M. Corrigan of Maguire, Voorhis & Wells, Orlando, for petitioner.
    T. M. Burke of Pitts, Eubanks, Ross & Rumberger, P.A., Orlando, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    Nell RUCKER and the Federal Land Bank of Columbia, Appellants (Defendants), v. STATE EXCHANGE BANK, a Florida Banking Corporation, Appellee (Plaintiff).
    No. CC-195.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1978.
    Rehearing Denied March 14, 1978.

      Prank M. Gafford, Lake City, for appellants.
    Edwin B. Browning, Jr., of Davis, Browning & Hardee, Madison, W. Roderick Bow-doin of Jopling, Darby, Peele, Page & Bow-doin, Lake City, Randell H. Rowe, Jr., Madison, Ray L. Lilley, for appellee.
   MILLS, Acting Chief Judge.

The issue raised by this appeal is whether a real estate mortgage securing a promissory note becomes a secured transaction under Article 9 of the Uniform Commercial Code when it is assigned, along with the note, as collateral for a bank loan. Rucker and Land Bank contend that under Section 679.102(3), Florida Statutes (1975), it is a secured transaction. Exchange Bank contends that under Section 679.104(10), Florida Statutes (1975), it is not a secured transaction.

Rucker and Land Bank appeal from a judgment foreclosing a real estate mortgage on land owned by Rucker and assigned by the mortgagee, Harrell, along with the note it secured, to Exchange Bank as collateral for loans made by Exchange Bank to Harrell. If the contention of Rucker and Land Bank is correct, we must reverse the judgment. If the contention of Exchange Bank is correct, we must affirm the judgment.

On 17 April 1974, South 41 Corporation (South 41) purchased seventy-five acres of land from Harrell and gave Harrell a note secured by a purchase money mortgage. On 18 April, South 41 deeded the land to Rucker subject to the mortgage.

On 7 May and 9 July, Harrell obtained loans of $24,000.00 and $5,000.00 from Exchange Bank and assigned the South 41 note and mortgage to it as collateral for the loans. The Exchange Bank promptly recorded the assignment and gave notice of the assignment to South 41. It did not give notice to Rucker. It did not perfect a security interest.

On 23 July, Rucker mortgaged the land to Land Bank and paid to Harrell the entire sum due on the South 41 note and mortgage. Although Rucker obtained a satisfaction from Harrell, which she promptly recorded, she did not ascertain if the mortgage had been assigned by him nor did she demand that he surrender the mortgage to her.

On 2 January 1975, Harrell defaulted in the payment of the loans which were then due the Exchange Bank and no payment was made on the South 41 note and mortgage. The Exchange Bank brought foreclosure proceedings against Rucker based on the South 41 mortgage held by it. The trial court entered a judgment in favor of Exchange Bank; and Rucker and Land Bank appeal.

Section 679.9-102(3) provides:

“The application of this chapter to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this chapter does not apply.”

Amended Comment 4 under this section states:

“The owner of Blackacre borrows $10,000 from his neighbor, and secures his note by a mortgage on Blackacre. This Article is not applicable to the creation of the real estate mortgage. Nor is it applicable to a sale of the note by the mortgagee, even though the mortgage continues to secure the note. However, when the mortgagee pledges the note to secure his own obligation to X, this Article applies to the security interest thus created, which is a security interest in an instrument even though the instrument is secured by a real estate mortgage. This Article leaves to other law the question of the effect on rights under the mortgage or delivery or nondelivery of the mortgage or of recording or non-recording of an assignment of the mortgagee’s interest. See Section 9-104(j). But under Section 3-304(5) recording of the assignment does not of itself prevent X from holding the note in due course.”

Section 679.9-104(10) provides:

“This chapter does not apply:
“Except to the extent that provision is made for fixtures in § 679.313, to the creation or transfer of an interest in or lien on real estate, including a lease or rents thereunder;”

Coogan, Kripke and Weiss state:

“The status under article 9 of the assignment of a note secured by a real estate mortgage has been widely discussed in New York and was among the subjects that the New York financial bar wanted clarified by legislation. The title companies in New York have insisted that for ‘mortgage warehousing’ — the situation in which a mortgage banker or broker makes a real estate mortgage loan and pledges the mortgage to a bank until he finds a permanent mortgagee — not only must the note (or bond) and mortgage be delivered and the assignment of the mortgage recorded under real estate law, but a financing statement with respect to the transaction must also be filed under article 9. Insofar as we understand the argument of the title companies, it rests on two separate bases:
(a) The persons demanding clarification argue that, even though section 9-104(j) [§ 679.104(10)] excludes from the Code the transfer of an interest in or lien on real estate, the matter is not clear because of three facts: the real estate mortgage is itself personal property, presumably a general intangible; the pledge of the note is expressly brought under article 9 by section 9-102(3) [§ 679.-102(3)]; and Official Comment 4 to that section specifically states that article 9 is applicable to the security interest created in the note and mortgage.
(b) Another argument is that the note and the real estate mortgage together are something more than they are separately. Just as a note and chattel mortgage together constitute a new form of collateral to which the Code applies the title ‘chattel paper’ and for which it sets forth special rules, so the note and real estate mortgage together may constitute a ‘general intangible,’ which is defined to include all personal property not otherwise classified. If either of the arguments is sound, a security interest in the mortgage could be perfected only by filing.
“We are satisfied that this view is unduly fearful. The clear intent of section 9-104(j) [§ 679.104(10)] to exclude transfers of liens on real estate would be completely nullified if the argument were accepted that the lien, as a form of wealth, is personal property, a security interest in which is subject to article 9. Likewise, we feel that the argument that a note and real estate collateral could, in combination, be a general intangible under the Code is inconsistent with the fact that, when the Code intended to give special status to a combination of this nature (the chattel paper case), it expressly provided for it. If the theory advanced by the title companies were sound, it would apparently drag back into the Code all the other matters excluded by section 9-104 [§ 679.104], when transferred with a note for which they were collateral. There is, in our opinion, no danger that a court could read the statute in any such fashion. Because of the express language of section 9-104(j) [§ 679.104(10)], we do not feel that Official Comment 4 to section 9-102 [§ 679.102] should cause any real confusion or doubt, but there can be no objection to a revision by the Permanent Editorial Board of the sentence that has been called into question, and we recommend this measure.”

79 Harvard Law Review, 270-271.

Professor William D. Hawkland is of the opinion that the draftsmen of Article 9 did not intend to cover real property interests other than fixtures [679.104(10)] but undercut this effort to some extent by [679.-102(3)] illustrated by Official Comment 4. 3 Commercial Law Journal 83.

At the time Coogan, et al. and Hawkland wrote their articles, Comment 4 read as, follows:

“An illustration of subsection (3) is as follows:
The owner of Blackacre borrows $10,000 from his neighbor, and secures his note by a mortgage on Blackacre. This Article is not applicable to the creation of the real estate mortgage. However, when the mortgagee in turn pledges this note and mortgage to secure his own obligation to X, this Article is applicable to the security interest thus created in the note and the mortgage. Whether the transfer of the collateral for the note, i. e., the mortgagee’s interest in Blackacre, requires further action (such as recording an assignment of the mortgagee’s interest) is left to real estate law. See Section 9 — 104(j).”

Comment 4 was amended in 1966 and the 1966 Amendment is set forth above. As stated in In Re Bristol Associates, Inc., 505 F.2d 1056 (3d Cir. 1974):

“The changes in wording produced two effects. First, deletion of the references to mortgages distinguishes between the pledge of a note, a separate and distinct contract, and the underlying real estate mortgage. Where a promissory note and mortgage together become the subject of a security interest, only that portion of the package unrelated to the real property is now covered by section 9-102 [§ 679.102]. Second, the added language makes explicit that the promissory note itself falls within the scope of Article 9 by virtue of its status as an instrument. . . ."

A broad reading of Section 679.104(10) which would exclude the real estate mortgage here from Article 9 is consistent with the views of authorities in the commercial field and is not inconsistent with the language used by the legislature.

“Where language is susceptible of two reasonable meanings, a court, in the commercial field, should choose that interpretation which comports with current universal practice in the business world." In Re Bristol Associates, Inc., supra. Generally, the banking industry in Florida does not consider real estate mortgages as covered by Article 9. Rather, it considers that its interest in a real estate mortgage is protected by recording the assignment as' required by Section 701.02, Florida Statutes (1975). The recording of the assignment gives constructive notice of its interest in the mortgage to the world.

We hold, therefore, that the assignment of a real estate mortgage securing a promissory note as collateral for a bank loan is not a secured transaction under Article 9 of the Uniform Commercial Code because it is specifically excluded by Section 679.104(10).

There is good reason for doing this. If the court were to hold that a real estate mortgage assigned as collateral comes under Article 9, the status of all such mortgages would be called into question. This would generate considerable litigation. Undertaking to file all outstanding security interests in such mortgages would be time consuming and expensive. Chaos would result. We must not burden the business world with further chaos. We must not burden either the consumer or the business world with additional financial burdens.

In the case before us, as the Exchange Bank properly recorded the assignment of the mortgage from Harrell, Rucker satisfied the mortgage at her peril because she was on constructive notice of Exchange Bank’s interest. In addition, when Rucker satisfied the mortgage she did not require that the mortgage be surrendered to her nor did she determine if it had been assigned by Harrell. As stated by our Supreme Court in Garrett v. Fernauld, 63 Fla. 434, 57 So. 671 (1912):

“This is not a case where one of two equally innocent parties must suffer by the act of a third person. It is a case where a purchaser of land suffers because he did not require the surrender or cancellation of, or proof of the satisfaction by or from, the real owner of the mortgage obligations of which he knew, thereby causing a loss to himself. The loss was caused, ... by the failure to have the mortgage surrendered or to ascertain whether it had been assigned before its maturity.”

We affirm the judgment.

SMITH and ERVIN, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT and International Speedway Corporation, Appellants, v. VOLUSIA COUNTY et al., Appellees.
    No. GG-241.
    District Court of Appeal of Florida, First District.
    Feb. 14, 1978.
    Rehearing Denied March 9, 1978.
    Thomas T. Cobb of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, and S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellants.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Tallahassee, and William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appel-lees.
   SMITH, Acting Chief Judge.

Daytona Beach Racing and Recreational Facilities District, a public agency, and International Speedway Corporation, which operates the Daytona Speedway on land leased from the District, appeal from a summary judgment of the Volusia County Circuit Court rejecting appellants’ claims for exemption from 1976 ad valorem real property taxes assessed by Volusia County. Appellants urge (1) that an exemption exists under Section 196.199(2)(a), Florida Statutes (1975), because International holds a leasehold granted by an agency or public body corporate of the state and “serves or performs a governmental, municipal, or public purpose or function” as defined by Section 196.012(5), Florida Statutes (1975); (2) that Chapter 73-647, Laws of Florida, unconstitutionally impairs the obligation of a contract of the State of Florida, in violation of Article I, Section 10, United States Constitution, by repealing the explicit tax exemption granted the District’s racing and recreational facilities by Chapter 31343, Section 13, Laws of Florida (1955); and (3) that, irrespective of those questions, the trial court erred in refusing appellants leave to amend their complaint to attack the valuation of the property taxed. We affirm.

We concede the existence of some question concerning our jurisdiction. The trial court did not explicitly reject appellants’ constitutional attack on Chapter 73-647. But the Florida Supreme Court has exclusive jurisdiction of appeals from circuit court judgments initially passing on the validity of a state statute, including judgments that necessarily and inherently pass on such questions. Article V, Section 3, Constitution of Florida; Simmons v. State, 354 So.2d 1211 (Fla.1978). Appellees properly called the jurisdictional question to our attention but urge that the constitutionality of the 1973 repealing act has been determined or is otherwise so lacking in substance that it does not impede our exercise of jurisdiction. See Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959). Appel-lees urge also that, because of earlier litigation between these parties bn the questions presented, the trial court did not “initially” pass on the constitutionality of the repealing statute. The presence of that substantial question and of other questions unrelated to exemption leads us to accept jurisdiction and decide the case. We shall certify to the Supreme Court that our decision on the merits passes on a question of great public interest. If our retention of jurisdiction of the constitutional question is in error, our decision on the peripheral issue may be given such effect as the Supreme Court may wish to give it, and our certificate may be treated as transferring the case to the Supreme Court on issues which we have no jurisdiction to decide. Further proceedings in this court, such as in Simmons, may thus be rendered unnecessary.

We consider that the Supreme Court determined both the effect of Section 196.-199(2)(a) and the constitutionality of Chapter 73-647, Laws of Florida, in Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla.1977), and that appellants cannot prevail here on their claims of tax exemption. We do not read the Supreme Court’s decision as holding only that International does not “perform a function or serve a governmental purpose which could properly be performed or served by an appropriate governmental unit.” Fairly read, the decision also denies International an exemption on the alternative statutory ground which is the source of appellants’ claims here that International has been “demonstrated to perform a function or serve a purpose which would otherwise be a valid subject for the allocation of public funds.” Section 196.012(5), Fla.Stat. (1975). If as appellants assert the Supreme Court’s decision on the constitutional issue has since been undercut by United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977), we shall leave the overruling of its decision to the Supreme Court.

The trial court did not err in declining to permit an amendment to appellants’ complaint, proposed belatedly at the hearing on appellees’ motion for summary judgment, because the tendered amendment alleging an excessive valuation was foreign to the exemption issues pleaded by the complaint. United Tel. Co. v. Mayo, 345 So.2d 648 (Fla.1977).

AFFIRMED. We certify that this decision passes on a question of great public interest. Art. V. § 3(b)(3), Fla.Const.

ERVIN and BOOTH, JJ., concur.


text:
    Byron BRADLEY, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a Foreign Corporation, Appellee.
    No. 76-2320.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 10, 1978.
    Michael P. Maguire, Coral Gables, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The plaintiff Byron Bradley appeals an adverse final judgment entered upon a directed verdict in favor of the defendant Seaboard Coast Line Railroad Company in a personal injury action brought under the Federal Employers’ Liability Act [45 U.S.C. § 51 et seq.] before the Dade County Circuit Court. The plaintiff contends that it was error to direct a verdict against him because there was some evidence of employer negligence, however slight, which played a part in the injury which is the subject matter of this suit. We agree and reverse based on the following authorities: Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Atlantic Coastline Railroad v. Barrett, 101 So.2d 37 (Fla.1958); McCloskey v. Louisville & Nashville Railroad, 122 So.2d 481 (Fla. 1st DCA 1960). See also McCalley v. Seaboard Coastline Railroad, 265 So.2d 11 (Fla.1972). We find no merit in the plaintiff’s second contention on appeal.

The judgment appealed from is reversed and the cause remanded for a new trial.


author: HUBBART, Judge.

text:
    ALL CARGO TRANSPORT, INC., Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.
    No. 76-2859.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Rehearing Denied March 10, 1978.
    Richard F. Ralph, Miami, for appellant.
    Stephen T. Onuska, Miami, John W. Humes, Jr., St. Augustine, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

This is an action for conversion of money which was dismissed by the Dade County Circuit Court. The plaintiff appeals.

The question presented for review is whether it constitutes the tort of conversion for a creditor to receive from a debtor certain funds specifically designated by the debtor for payment on a particular debt, to apply such funds in full payment of the designated debt but refuse to return to the debtor any overpayment of funds made thereon, and to apply the overpayment funds on another debt which the creditor claims is owed to him by the debtor. We hold that under such circumstances it constitutes conversion of the overpayment funds for the creditor to refuse to return such funds to the debtor and to apply them to another alleged debt contrary to the specific directions of the debtor. Accordingly, we reverse.

Plaintiff All Cargo Transport, Inc. filed a complaint sounding in conversion against the defendant Florida East Coast Railway Company. The complaint alleges that the plaintiff sent a check in the amount of $4,807.79 to the defendant which check was specifically designated and earmarked as applicable to a certain outstanding account owed by the plaintiff to the defendant, that by mistake an overpayment of $2,711.69 on such account was made, that the defendant applied the forwarded money to the outstanding charge as designated, that the defendant thereafter applied the overpayment of funds to another debt claimed by the defendant to be owed to the plaintiff in the amount of $2,278.62, and that the defendant offered to return the balance of $438.07 to the plaintiff. The plaintiff through a series of letters allegedly objected to this application of overpayment of funds, contested the validity of the debt to which the overpayment of funds was applied, and demanded the full return of the $2,711.69 overpayment. The defendant allegedly refused this demand. The trial court dismissed the plaintiff’s complaint upon motion of the defendant and this appeal follows.

It is the established law of this state that money may be the subject of conversion, but before a party may be held guilty of such conversion, it must be shown that there was exercised a positive, overt act or acts of dominion or authority over the money inconsistent with and adverse to the rights of the true owner. Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948); S. S. Jacobs Co. v. Weyrick, 164 So.2d 246, 250 (Fla. 1st DCA 1964); Armored Car Service, Inc. v. First National Bank of Miami, 114 So.2d 431, 434 (Fla. 3d DCA 1959).

The law is equally well-settled that where a debtor sends money to his creditor without specifically designating to which debt the funds should be applied, the creditor is free to apply such undesignated funds to whatever debt or debts are owed to him by the debtor. Randall v. Parramore, 1 Fla. 409 (1847); Winchester v. Florida Electric Supply, Inc., 161 So.2d 668, 669 (Fla. 2d DCA 1964); Atlantic and Gulf Properties, Inc. v. Palmer, 109 So.2d 768, 769-70 (Fla. 3d DCA 1959). A debtor may, however, specifically designate a certain debt or debts to which he wishes his forwarded funds applied. Upon receipt of such funds so designated, the creditor must apply the funds as directed or return the money. The creditor is not privileged to apply the funds to other claimed debts contrary to the debtor’s instructions. Alford v. Leonard, 88 Fla. 532, 102 So. 885 (1925); Consolidated Naval Stores Co. v. Wilson, 82 Fla. 396, 90 So. 461 (1921); Petroutsa v. H. C. Shrader Co., 76 Fla. 574, 80 So. 486 (1918); Battle v. Jennings Naval Stores, Co., 74 Fla. 12, 75 So. 949 (1917); S. S. Sllberblatt, Inc. v. United States, 353 F.2d 545 (5th Cir. 1965). It constitutes conversion for a creditor to apply such funds of the debtor in a way which is expressly contrary to the debtor’s specific instructions and thereafter to refuse return of the funds upon the debtor’s demand. See Prosser on Torts 89-91 (4th ed. 1971).

In the instant case, the plaintiff debtor sent a certain check specifically designated to be applied on a particular account owed to the defendant. The defendant applied the funds as designated, but refused upon timely demand to return the overpayment. Instead, the defendant, contrary to the specific instructions of the plaintiff debtor, applied the overpayment funds to another alleged debt claimed to be owed by the plaintiff to the defendant. By refusing to return the overpayment of funds and applying such funds to another claimed debt contrary to the plaintiff’s instructions, the defendant in this case was guilty of conversion. It cannot be successfully argued that the overpayment of funds was undesignated as contended by the defendant. The entire check was designated for application to a particular debt, not just that portion which would pay off the debt. It is therefore our conclusion that it was conversion for the defendant to apply the overpayment of funds in this case to another claimed debt contrary to the express instructions of the plaintiff and thereafter to refuse to return the money.

It should be noted that the above facts are merely alleged in the plaintiff’s complaint. The narrow question before us is whether these facts, if true, constitute a cause of action in conversion against the defendant. We conclude that the complaint states such a cause of action but hasten to add that the plaintiff would not be entitled to recovery unless it is able to establish all of the essential elements of the tort of conversion as alleged in its complaint.

The order under review is reversed and the cause is remanded to the trial court for further proceedings.