author: KEHOE, Judge.

text:
    John Errol LEE, Appellant, v. BOWLERAMA ENTERPRISES, INC., Appellee.
    No. 78-793.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Rehearing Denied April 9, 1979.

      Long & Smith and Harold Long, Jr., Miami, for appellant.
    Greene & Cooper and Marc Cooper, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, defendant and counterclaim-ant below, brings this appeal from an order dismissing his counterclaim. Appellee, plaintiff below, cross-appeals from a final judgment entered pursuant to a jury verdict in favor of appellant. We affirm in part and reverse in part.

Appellant, as lessee, entered into an agreement with appellee, as lessor, to lease a building known as Bowlerama. On January 8, 1975, a lease agreement, option to purchase, and an addendum were executed by the parties. Among the provisions of the lease agreement were the following, paraphrased: the premises were to be used and occupied by the lessee as a nightclub, and for no other purpose; the lessee undertook to occupy the premises subject to city, county, and state regulations and covenanted to comply with all applicable regulations and licensing requirements; and the parties agreed that lessee’s failure to pay the rent due or to fully perform any act required of him in the performance of the lease would constitute a default entitling the lessor to collect any rent due, plus attorney’s fees and costs incurred if legal action was required. Further Section 19 of the lease provided:

“ZONING. Lessor covenants and warrants that the zoning of the property does allow for a liquor and nightclub license.”

The addendum stated in Section 4 as follows:

“ZONING. That a condition precedent to this contract shall be that zoning for the site, which is the subject matter of this contract, shall be properly zoned so as to support the establishment of a nite [sic] club on the premises.”

After entering into the agreements, appellant paid $11,024 for the first and last month’s rent, $10,000 for the right to purchase the property, and $60,000 for security, for a total amount of $81,024. Also, appellant expended sums for architectural fees, insurance premiums, and equipment.

The record shows that the subject property is located in the general commercial district of the City of Miami, designated C-4 in the City’s zoning laws. This type of zoning supports the operation of a nightclub; however, there are additional zoning requirements for the operation of a nightclub in the C-4 zone that specify the number of parking spaces which must be provided based on the size of the building and which also limit the distance which must exist between business establishments which sell liquor before a certificate of occupancy will be issued.

The record further shows that appellant planned to open a nightclub with a 1200 person capacity; however, he was unable to obtain variances from the zoning board to provide parking spaces for the number of patrons he desired to accommodate. The zoning board’s decision was not appealed to either the planning board or the city commission. Appellant could have obtained city approval for a nightclub with a smaller number of patrons without pursuing any appeals, but chose not to do so.

There is more than one type of liquor license available in the City of Miami. A 4-COP license mandates certain distance requirements from other establishments which sell liquor. In this case, appellant could not meet these requirements; however, he could have applied for a special use SRX license. This type of license contains no distance limitations. A SRX liquor license requires only sufficient parking, a minimum dimension of 4000 square feet, accommodations for 200 patrons, equipment to serve full course meals, 400 square feet of dance floor, and live music. Although nothing in the record shows that the requirements for a SRX liquor license could not be met, appellant never attempted to obtain one.

Appellant’s affirmative defenses and counterclaim were based on the same theory; he contended that although the premises were zoned to support a nightclub, his inability to obtain approval for the number of parking spaces he desired or the type of liquor license he sought obviated the lease agreement.

During the course of the proceedings below, appellee moved for summary judgment and attacked the applicable zoning and licensing regulations. The trial court granted it a partial summary judgment which reads, in pertinent part, as follows:

“2. The court finds that there are no material issues of fact to be tried concerning the question of zoning of the property involved in this cause.
“3. As a matter of law the Court finds that the property is in fact zoned for a nightclub.”

Thereafter, appellant petitioned for a rehearing on the order which was denied; however, the trial court permitted appellant to try the issues raised in his counterclaim and affirmative defenses. At the close of the evidence, the trial court ruled that appellant was not entitled to rescission. Ap-pellee then moved for a directed verdict on appellant’s counterclaim and the trial court granted its motion. Appellee then moved for a directed verdict on its complaint for rent due contending that the dismissal of appellant’s counterclaim also disposed of his affirmative defenses, thereby entitling it to a judgment on the complaint. This motion was denied. The trial court allowed appellant to argue his affirmative defense that frustration of purpose vitiated his obligation to pay rent. Thereafter, the jury entered a verdict for appellant and specified that no further payments were due. The trial court then entered a final judgment in favor of appellant on March 24, 1978. From the order dismissing his counterclaim, appellant appeals; and from the trial court’s denial of its motion for judgment in accordance with its motion for a directed verdict, appellee cross-appeals.

Appellant raises two points on appeal: (1) that the trial court erred in dismissing his counterclaim for rescission of the contract and for damages before submitting the case to the jury, and (2) that the trial court erred in failing to order the return of his deposit for the option to purchase because the condition precedent under the contract had not been met.

Appellee’s point on its cross-appeal is that the trial court erred in failing to order a directed verdict awarding it the full amount due under the lease.

In our opinion the trial court was correct in refusing to submit appellant’s counterclaim to the jury. The lease agreement provided that appellee would lease the subject property to appellant for the sole purpose of operating a nightclub. In addition, appellee warranted that the zoning of the property allowed for a liquor and nightclub license. The trial court in its partial summary judgment ruled that the zoning of the property did allow for a liquor and nightclub license. The record shows that appellant planned to open a nightclub with a seating capacity of 1200 persons. When his efforts to obtain parking spaces for that number of persons were blocked, he neither pursued any appeals or tried to get approval for a lesser number of spaces to operate a nightclub accommodating fewer than 1200 persons. Appellant tried to obtain a 4-COP liquor license, but failed to do so because the property was too close to another business which sold liquor. He never sought, as an alternative, a SRX liquor license which had no distance requirements, although the zoning would have permitted him to do so. Thus, the record shows, as the trial court found, that the zoning conditions of the lease and addendum were met by appellee. The subject property could be used for a nightclub, albeit not for one as large as desired by appellant. Under these circumstances the trial court correctly dismissed appellant’s counterclaim for rescission and damages. See Fla.R.Civ.P. 1.510(d). Also, because the conditions precedent under the agreements had been met, the trial court, under the facts of this case, was correct in refusing to order the return of appellant’s deposit on the purchase agreement because neither the doctrine of impossibility or economic frustration were applicable as a defense. See, e. g., Shore Investment Co. v. Hotel Trinidad, 158 Fla. 682, 29 So.2d 696 (1947); Donelly v. Marriott Corp., 266 So.2d 183 (Fla. 3d DCA 1972); City of Miami Beach v. Championship Sports, Inc., 200 So.2d 583 (Fla. 3d DCA 1967); City of Tampa v. City of Port Tampa, 127 So.2d 119 (Fla. 2d DCA 1961); and cf. Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569 (Fla. 2d DCA 1976) (performance of contract specifically conditioned upon procurement of building permits).

However, because of our determination above that appellee did not breach the lease, we believe that the trial court erred in not directing a verdict for appellee and asking the jury to determine the amount of any damages, i. e., rent, due it. See Warner v. Rice, 97 So.2d 267 (Fla.1957).

Accordingly, the judgment of the trial court dismissing appellant’s counterclaim is affirmed; however, the trial court’s order denying appellee’s motion for judgment in accord with its motion for directed verdict is reversed and the cause is remanded to the trial court with directions to enter judgment for appellee and to properly ascertain the amount of damages due appellee.

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


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    MILLER YACHT SALES, INC., Appellant, v. A. L. LEE, Appellee.
    No. 76-1194.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied April 12, 1979.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    Davis W. Duke, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, Ft. Lauderdale, and Richard P. Kenney, Miami, for appellee.
   MOORE, Judge.

In this plenary appeal Defendant seeks reversal of a final judgment for damages in favor of the Plaintiff entered subsequent to a jury trial. We affirm.

Planning to form a yacht club for which a yacht would serve as the clubhouse Plaintiff ordered the yacht from the Defendant. It was to be constructed in accordance with Plaintiff’s specifications and bear a purchase price of $270,000. A deposit on the purchase price was given. Originally, the yacht was to be delivered in October 1973; however, construction was delayed for various reasons and the parties agreed to late delivery. In so doing, the Defendant prepared a “purchase agreement” in October 1974 which reflected the terms of purchase and which the Defendant now alleges to be an “offer of settlement.” This document was never signed by the parties and now forms the sole issue on appeal worthy of consideration.

Shortly after delivery of the yacht an electrical fire damaged it, whereupon the Plaintiff returned it to the selling Defendant. In December 1974, the Plaintiff commenced this action for damages based upon the delay in delivery and poor construction. The complaint sought to recover the deposit, expenses incurred in furnishing the yacht and incidental expenses incurred in entertaining prospective yacht club members. The jury returned a verdict in favor of Plaintiff in the amount of $57,743.36.

Defendant contends that the trial court erred by admitting into evidence the October 1974 “Purchase Agreement” because embodied therein was a settlement offer. We disagree. Examination of the agreement reveals explicit acknowledgement of the receipt of the $18,500 deposit and the expenditure by the Plaintiff of $18,600 for furnishings and decorations for the yacht. Under its terms the agreement also allowed the Plaintiff to dock the yacht at his residence for one month prior to final closing for the purpose of inducing prospective members to join the yacht club. That portion of the agreement which Defendant contends is an “offer of settlement” merely states that if the purchaser, for any reason, fails to make payment, the deposit (less $2,400 for one month’s use of the vessel) and the $18,600 expended for furnishings would be returned to the purchaser and both parties would be relieved from further obligation. The Plaintiff sought to admit this document to prove the receipt of the deposit and the acknowledgement by the Defendant of the $18,600 expenditure.

The relevant legal principles pertaining to settlement offers have been clearly stated in numerous cases:

“It has long been the law of this state that an offer to settle or compromise a claim or dispute between parties is not admissible as an admission against the party making the offer as to the amount of liability.” Hill v. City of Daytona Beach, 288 So.2d 306, 308 (Fla. 1st DCA 1974).

First, we find that Defendant waived its right to object to the admissibility of the “purchase agreement” because defense counsel initially broached the subject of the agreement through examination of his own witness. More cogently, however, we determine that this agreement was not an offer of settlement. An offer of settlement presupposes that a dispute exists between the parties. At the time the purchase agreement was prepared there was no dispute and no litigation contemplated. The parties still expected the sale to be completed and the Defendant was not attempting to settle a legal claim which the Plaintiff had asserted. The public policy of encouraging settlements by rendering settlement offers inadmissible therefore is not involved and not contravened in the instant case. See, Mutual Benefit Health & Accident Association v. Bunting, 133 Fla. 646, 183 So. 321 (Fla.1938). See also, Frank v. Ruwitch, 318 So.2d 188 (Fla. 3d DCA 1975).

The defendant having failed to demonstrate error the final judgment should be affirmed.

AFFIRMED.

BERANEK, J., concurs.

CROSS, J., dissents without opinion.


author: KAPNER, Associate Judge.

text:
    STATE of Florida, Appellant, v. Edward DUDA, Appellee.
    No. 77-2433.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied April 11, 1979.

      Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    L. Van Stillman of Bass & Stillman, Fort Lauderdale, for appellee.
   KAPNER, Associate Judge.

Appellee (defendant below), along with a co-defendant, was arrested on January 29, 1977, and charged with delivery of cocaine and carrying a concealed weapon. On April 1, 1977, an information charging these offenses was filed and trial was scheduled for June 2, 1977.

On May 26, 1977, a hearing was held on defendant’s motion for discovery. At that hearing, the case was continued to July 25, 1977, which was within the 180 day period mandated by Rule 3.191(a)(1), Fla.Rules of Criminal Procedure.

Prior to the trial date, appellee’s co-defendant hired new counsel who filed a motion to continue and to sever. The court granted his motion to continue but denied his motion to sever. On the court’s own motion, the court continued appellee’s case, along with that of the co-defendant.

Subsequently, on August 12th, the State notified appellee (but not the co-defendant) that the trial against the appellee would commence on August 25, 1977. Appellee moved to strike the case from the trial docket, and he also moved for discharge. The court granted his motion to strike, but denied his motion for discharge. The practical effect of granting appellee’s motion to strike was to continue the case from the August 25th date.

The next trial date was set for September 22, 1977, but was continued at the State’s request and reset for November 7, 1977. On October 24, 1977, defendant filed a motion for discharge and this motion was granted on the grounds that the defendant’s right to a speedy trial was denied.

The issue before this Court is whether the trial court erred in concluding that appellee did not waive his right to a speedy trial.

The proceedings on May 26, 1977 before the trial court were as follows:

“THE COURT: All right, file a motion for disclosure then.
MR. BASS (DEFENSE COUNSEL): I think what we are going to have to do, if we can work out a negotiated plea, then (sic) that would be fine. If not, we will probably ask for a continuance of the case to take some further discovery and things like that.
THE COURT: Is this the first time it has been up now?
MR. BASS: Yes.
MR. GOLDSTEIN (ASSISTANT STATE ATTORNEY): Yes, I think it is up—
MR. BASS: A week from today.
THE COURT: All right.
MR. GOLDSTEIN: No objection.
THE COURT: All right, we will continue it then.” (Emphasis added.)

It seems clear that although appellee did not explicitly move for a continuance, the court and the State took his (appellee’s) reference to “possibly” asking for a continuance as a specific request to continue the case. Had defendant objected at the time it may well have been that the court would not have continued the case but, by remaining silent, appellee in effect acquiesced in the understanding of all the parties that appellee was seeking a continuance.

Additionally, appellee’s motion to strike, filed August 28, 1977, must be categorized as a motion for continuance since it had the inevitable effect of continuing the case.

Thus, the defendant twice moved to continue the case, thereby waiving his right to a trial within the 180 day period (Rule 3.191(a)(1), Fla.Rules of Criminal Procedure). State v. Kurtz, 354 So.2d 890, (4th DCA 1978); State v. Abrams, 350 So.2d 1104 (4th DCA 1977). The only remaining ground for discharge would be an unreasonable and prejudicial delay pursuant to Rule 3.191(d)(2), Fla.Rules of Criminal Procedure. Such a delay has not been shown in this case.

The purpose of the speedy trial rule is to require the State to bring a defendant to trial within a specified or reasonable time. Such a rule presupposes a defendant who wishes to be tried within that time period. Where, as here, a defendant has twice requested that his case be tried at a time subsequent to the scheduled date, he should not then be heard to complain that the delay has been unreasonable and prejudicial.

For these reasons we conclude that appel-lee waived his right to a speedy trial and the court erred in discharging him. Accordingly, this case is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

LETTS and BERANEK, JJ., concur.


author: BERANEK, Judge.

text:
    Mary G. ALBY, Appellant, v. PALM BEACH GARDENS COMMUNITY HOSPITAL, Appellee.
    No. 78-250.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Rehearing Denied April 12, 1979.
    Raymond G. Ingalsbe of Saylor & In-galsbe, North Palm Beach, for appellant.
    Lewis W. Fishman of Sheldon M. Simons, P.A., Miami, for appellee.
   BERANEK, Judge.

This is an interlocutory appeal from an order of the trial court dismissing one count of a complaint with prejudice and transferring two other counts to the County Court on the ground that the amount in question was below the jurisdictional level of the court. The controversy relates to plaintiff’s having been fired from her job by defendant. The court concluded the complaint did not state a cause of action in certain respects and dismissed it with prejudice. Two counts were transferred to the County Court. We have reviewed the matter and conclude the trial court was correct. We would affirm in toto were it not for the fact that the order in question of January 23, 1978, apparently contains a typographical error. In the first paragraph of the order and in all other portions of the record it appears that the court had previously dismissed Count II with prejudice. In the third paragraph of the order appealed Count II is transferred to the County Court. We believe the third paragraph was intended to read that Counts I and III (not Count II) are transferred to the County Court. The order is modified in this regard and affirmed as modified.

AFFIRMED AS MODIFIED.

CROSS and DAUKSCH, JJ., concur.


author: PER CURIAM.

text:
    WISCONSIN LIFE INSURANCE COMPANY, a corporation, Appellant, v. Nora A. SILLS, Appellee.
    No. KK-499.
    District Court of Appeal of Florida, First District.
    March 8, 1979.
    Rehearing Denied April 18, 1979.

      John F. MacLennan of Kent, Watts, Dur-den, Kent & Mickler, Jacksonville, for appellant.
    F. R. Brock and A. August Quesada, Jr. of Wildt, Quesada, Brock & Skinner, Jacksonville, for appellee.
   PER CURIAM.

Wisconsin Life Insurance Company appeals from a Circuit Court Judgment awarding appellee Sills, beneficiary of a life insurance policy on her deceased husband’s life, interest, costs, and attorneys’ fees aggregating $7,054.80. The death benefit, in the amount of $21,000, was paid by the insurer simultaneously with the filing of appellee’s complaint, on September 16,1977, to recover the death benefit, costs and attorneys’ fees.

The benefit in issue was payable if the insured became totally disabled on or before April 22, 1976, while his insurance was in effect, and if he remained so disabled uninterruptedly until his death on July 2, 1976. The trial court found by summary judgment that proofs to that effect were submitted to Wisconsin Life on July 5, 1977. We agree with that finding and consequently hold that the death benefit was then payable, failing which interest began to accrue and did accrue until the benefit was paid on September 19, 1977. Because the insurer was not obliged to pay the death benefit in question until proper proofs were submitted on July 5, 1977, we respectfully disagree with the trial court’s decision that interest was payable from the date of death.

Because the death benefit was payable in July, 1977, the complaint filed September 16, 1977, was not premature under Section 627.428(2), Florida Statutes (1977), which disallows attorneys’ fees in suits on life policies “commenced prior to expiration of 60 days after proof of the claim was duly filed with the insurer.” Attorneys’ fees were properly assessable against the insurer. By the Final Judgment entered in July, 1978, the trial court awarded fees based on an evaluation of the services of the beneficiary’s lawyer throughout the litigation until the time of the Judgment. Yet on October 31, 1977, scarcely two weeks after the litigation began and the death benefit was paid, the insurer filed an offer of judgment under Fla.R.Civ.P. 1.442. The insurer offered “to allow judgment to be taken against it in this action, in the amount of $1,540.00, together with costs accrued to this date.” The plaintiff beneficiary did not accept the offer. The sum of $1,540.00 exceeded the interest at the legal rate payable either from the date of death or from the date proofs were filed in July, 1977, but did not exceed the sum of both interest and attorneys’ fees, which the trial court finally assessed at $5,500.00.

We hold that the offer of judgment was effective to arrest costs as of October 31, 1977, and therefore that the insurer’s liability for attorneys’ fees did not accrue beyond that date. The efficacy of the offer of judgment was not lessened by its failure to include in the stated dollar sum an estimate for attorneys’ fees incurred to that point, or by the insurer’s failure to submit explicitly to a judgment for attorneys’ fees as well as for costs. The purpose of Rule 1.442 is to encourage defendants to acquiesce in claims discovered during litigation to be meritorious and to shift to the claimant the financial burden of carrying on litigation beyond the point where an appropriate offer of judgment on the merits is made.

The terms of Rule 1.442 do not require that the defendant concede liability for attorneys’ fees, either in fact or in amount. The purposes of the rule would appear to be better served by allowing attorneys’ fees, like costs, to be determined by the Court independently of the merits. A defendant would require prophetic powers to estimate the amount of fees to be awarded for his adversary’s services. Moreover, an insurer defendant who correctly estimates and offers to concede its liability for the benefit in issue should not be required to acquiesce also in liability for attorneys’ fees accrued to the date of the offer of judgment or else incur continuing liability for still more fees. Rule 1.442 permits the defendant both to settle on the merits and to contest all costs, including attorneys’ fees. See Hernandez v. Travelers Ins. Co., 331 So.2d 329 (Fla. 3d DCA 1976).

We hold, accordingly, that Wisconsin Life’s offer of judgment was effective to arrest its liability for costs and attorneys’ fees as of October 31,1977. The fee assessment to be made on remand should include an allowance for services required on remand to establish the fee award for services prior to October 31, 1977. The trial court will include in the new judgment interest from July 5, 1977, to September 19, 1977.

REVERSED.

McCORD, C. J., and SMITH and MELVIN, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    THUNDEREAL CORPORATION, a corporation, and Master Hosts-Thunderbird, Inc., a Florida corporation, as partners of Thunderbird Associates, a Florida partnership, d/b/a Thunderbird Motor Hotel, and Aetna Casualty and Surety Company, a corporation, Appellants (Defendants), v. Ann Sothern STERLING, Appellee (Plaintiff).
    No. FF-214.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Rehearing Denied April 11, 1979.

      William M. Howell of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.
    Thomas M. Baumer and Dana G. Bradford, II, of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   MILLS, Acting Chief Judge.

Appellants seek reversal of a final judgment entered in favor of appellee following a jury trial in a personal injury action.

Their main contention is that the trial court erred in denying their motion for a directed verdict on the ground that the exclusive remedy for Sothern’s injuries was provided by the Florida Workmen’s Compensation Act. They also contend that the trial court erred in ruling that each side had six peremptory jury challenges, erred in making a number of adverse rulings on the admissibility of testimony and evidence and erred in permitting prejudicial closing argument by Sothern’s attorney.

Sothern alleges that while performing at the Thunderbird Dinner Theater as an independent contractor she was injured by Thunderbird’s negligence and that Aetna provided Thunderbird with liability insurance coverage for the accident.

Thunderbird and Aetna deny Sothern’s allegations and affirmatively allege that the exclusive remedy for Sothern’s injuries was provided by the Florida Workmen’s Compensation Act because compensation insurance had been provided for her under Section 440.04(2), Florida Statutes.

Sothern, an actress, was performing in a play at the Dinner Theater under a contract between Thunderbird and Sothern that provided that Sothern was to perform for four weeks commencing 11 August 1973.

Sothern acknowledges in the contract that she executed it as an independent contractor. The contract provides that the rules and regulations of Actors’ Equity Association shall be applicable to the contract. Rule 32(A) of the Association states that “The manager agrees to obtain and maintain workmen’s compensation insurance coverage for all actors in his employ.” The contract was signed by the manager of Thunderbird and Sothern.

On 21 May 1973, when Thunderbird assumed the ownership of the Motel and the Dinner Theater went into operation, it procured a workmen’s compensation insurance policy from Aetna, effective for one year. The policy covered the operation of “motels, motor courts, tourist courts or cabins.”

Thunderbird’s manager testified that he dealt with Aetna’s agent in procuring the policy, had discussions with him concerning coverage and premiums, was familiar with how the premium was calculated and gave Aetna the projected budget for each department, including the actors and actresses. Anyone who was employed by Thunderbird was included in the policy, and they had discussions concerning the fact that the Dinner Theater employed outside actors and actresses. Outside actors and actresses were specifically considered and included in arriving at the premium. However, the manager also stated that he did not know the amount of the premium paid for the policy, how the premium was calculated and had no personal knowledge or business records to prove any of the facts concerning Thunderbird’s application for coverage of Sothern.

Thunderbird and Aetna admit that Soth-ern is an independent contractor, thus, the issue before us is limited to whether her exclusive remedy is provided by Chapter 440, Florida Statutes.

An independent contractor is exempt from the provisions of Chapter 440. Section 440.02(2)(d)l, Florida Statutes (1973). Section 440.04(2), Florida Statutes (1973), permits an employer to waive the exemption, however, and provide workmen’s compensation insurance for an independent contractor. In pertinent part, this Section provides:

“When any policy or contract of insurance specifically secures the benefits of this chapter to any person not included in the definition of ‘employee’ or whose services are not included in the definition of ‘employment’ or who is otherwise excluded or exempted from the operation of this chapter, the acceptance of such policy or contract of insurance by the insured and the writing of same by the carrier shall constitute a waiver of such exclusion or exemption and an acceptance of the provisions of this chapter with respect to such person . . .”

Although Thunderbird’s manager indicated it was his intention that Sothern be covered by Aetna’s policy, the declarations section of the policy classifies the operations of Thunderbird as motels, motor courts, tourist courts or cabins. No reference is made to coverage of a dinner theater or its operations, to actors or actresses or to other dinner theater employees.

The policy was issued on an Aetna standard form on 21 May 1973. Sothern was not engaged to perform at the Dinner Theater until 18 July 1973, the date the contract was executed. Neither the record nor the policy reflects an endorsement providing coverage for independent contractors, actors, actresses or Sothern.

Thunderbird’s and Aetna’s reliance on Allen v. Estate of Carman, 281 So.2d 317 (Fla.1973), and Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d 445 (Fla.1965), is misplaced.

The Allen case did not involve an independent contractor. There was no dispute that the plaintiff was an employee of the defendant’s decedent. The Supreme Court held in Allen that an employer could purchase a workmen’s compensation insurance policy and avail himself of the Workmen’s Compensation Act. There was no issue of whether the benefits had been specifically secured for the employee, because there was no dispute that a policy had been purchased, and that the policy had been purchased for the one individual working for him.

In the Strickland case, Strickland was an independent contractor, and he had notice of his coverage under the Workmen’s Compensation Act, because he had actually paid the premiums for the insurance coverage by deductions from his earnings. The Supreme Court held that the insurance company could not deny that benefits had been specifically secured for Strickland after writing a policy and accepting his premiums.

The facts presented by this record show an ambiguous policy and conflicting testimony regarding workmen’s compensation coverage for Sothern. Other facts which required the submission of this issue to the jury are discussed later in this opinion.

The direction of a verdict should be cautiously given and all inferences of fact should be construed most strictly in favor of the nonmovant. Lustig v. Feinberg, 285 So.2d 631 (Fla. 1st DCA 1973). The trial court properly denied Thunderbird’s and Aetna’s motion for a directed verdict and submitted the disputed fact of coverage to the jury.

At the request of Sothern and over the objection of Thunderbird and Aetna, the court ruled that each side would have six peremptory jury challenges. This was error because the three defendants had a community of interest which limited the peremptory challenges to three per side. But the error was harmless because Thunderbird and Aetna do not claim prejudice or that the jury was not impartial, and the record does not reflect prejudice or lack of impartiality. Bailey v. Deverick, 142 So.2d 775 (Fla. 2d DCA 1962).

Two witnesses, the former stage manager and the former technical director of the Dinner Theater, were called by Soth-ern, and over objection of Thunderbird and Aetna permitted to testify as adverse witnesses, although they were no longer employed by Thunderbird. This was error because the determination of whether a witness is an adverse witness is governed by his affiliation with the adverse party on the trial date. Direct Transport Co. of Fla. v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964). The error was harmless, however, because the testimony of the two witnesses was cumulative and concerned the issue of negligence which Thunderbird and Aetna have not raised by this appeal.

Sothern testified, over objection of Thunderbird and Aetna, that she did not know of or accept any workmen’s compensation insurance policy. This was not error because the testimony related to issues raised by the pleadings and evidence adduced by Thunderbird and Aetna in support of their theory of the case. The issues were whether Sothern was an independent contractor or employee; whether the contract required Thunderbird to provide workmen’s compensation coverage for Sothern; whether Thunderbird procured workmen’s compensation coverage; and whether Section 440.04(2) was unconstitutional because it allowed an employer and carrier to unilaterally waive the common law right of action of an independent contractor against the employer without notice. The testimony elicited was relevant because the interpretation of the contract was in dispute, the policy provisions were in dispute and coverage was in dispute.

Thunderbird and Aetna attempted to adduce the testimony of witness John Houser, an attorney for Aetna, the workmen’s compensation carrier of Thunderbird, that although Sothern was an independent contractor, she was covered by the workmen’s compensation policy under Florida law. His testimony was also proffered in rebuttal of and explanation of the Aetna inter-office communication introduced into evidence by Sothern and subsequently discussed in this opinion. The court sustained Sothern’s objection to the testimony. Although the reason for rejecting the testimony was incorrect, the rejection was correct. We are only concerned that there is a valid basis for the rejection. There was.

“The trial court has the responsibility of correctly instructing the jury regarding the law which is applicable to the facts of the case.” Starke v. Smith, 310 So.2d 334, 335 (Fla. 3d DCA 1975).
“Opinion testimony of expert lawyers upon legal questions, other than that as to the law of another jurisdiction, or expert or nonexpert opinion generally, that amounts to a conclusion of law, cannot be properly received in evidence, for the determination of such questions is exclusively within the province of the court.” 31 Am.Jur.2d Expert and Opinion Evidence, § 69 (1967).

Likewise, the court properly excluded Houser’s testimony explaining or interpreting Aetna’s inter-office communication. Houser was not a party to the communication and it was not shown that he even received 'a copy of it. Houser’s testimony was to show that Aetna’s manager incorrectly or erroneously reached the conclusions stated in the inter-office communication. Not only would Houser’s testimony have been based on hearsay but would have improperly invaded the province of the jury to decide the disputed facts and the authority of the court to instruct on the law.

The court correctly struck parts of the deposition testimony of Helene Tetrault because those parts were not competent to prove Thunderbird provided workmen’s compensation coverage for Sothern.

Mrs. Tetrault was employed by Actors’ Equity Association to handle compensation matters for its members. Sothern was a member. In this capacity, Mrs. Tetrault developed through third persons workmen’s compensation information on Sothern. Mutual of Omaha provided disability benefits to members of the Association supplementary to workmen’s compensation. Mrs. Tet-rault stated that Mutual of Omaha did not pay benefits unless workmen’s compensation paid benefits. Mrs. Tetrault developed information through third persons on Mutual of Omaha’s payment of benefits to Soth-ern.

Mrs. Tetrault’s testimony concerning workmen’s compensation coverage was inadmissible hearsay. She was neither a party to the policy nor familiar with its contents. Likewise, this applies to her testimony concerning the policy of Mutual of Omaha which, in addition, was never produced. See Williams v. Johntry, 214 So.2d 62 (Fla. 1st DCA 1968), and Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla.1976).

Thunderbird and Aetna objected to the admissibility of an Aetna inter-office communication which questioned Aetna’s payment of compensation because it appeared Sothern was an independent contractor and not an employee. The communication was properly received in evidence because it was relevant to the issue of coverage and was an admission against interest concerning this issue. Gard on Florida Evidence, Rule 197.

Thunderbird and Aetna objected to the admissibility of the answer they filed in the California workmen’s compensation proceeding brought by Sothern arising out of the accident giving rise to this case. The answer denied that the workmen’s compensation policy in controversy here provided coverage for Sothern and affirmatively alleged that she was not covered because she was an independent contractor. The answer was properly admitted in impeachment of the position taken by Aetna through its witnesses and evidence during the trial of this case. Davidson v. Eddings, 262 So.2d 232 (Fla. 1st DCA 1972).

The court did not err in permitting Soth-ern, over objection of Thunderbird and Aet-na, to read Dr. David Levinthal’s deposition into evidence.

Thunderbird and Aetna noticed and took Dr. Levinthal’s deposition in California. Their attorney limited his questions to matters occurring prior to the accident in question. Sothern’s attorney examined Dr. Lev-inthal with respect to her medical history and treatment since the accident.

At trial, the entire deposition was offered on behalf of Sothern and Thunderbird and Aetna objected to all questions dealing with the treatment of Sothern subsequent to the accident in question, claiming that since they limited their examination of Dr. Lev-inthal to matters occurring prior to that time, any other testimony was beyond the scope of direct examination. The court overruled the objection.

The rule that a party may not cross-examine a witness on matters which were not brought out on direct examination is based upon the fact that the person offering a witness’ testimony may not be required to vouch for the witness’ credibility on matters he does not present.

A deposition offered at trial is different, however. The party noticing and taking the deposition does not make the deponent his witness. If another party uses the deposition at trial, he makes the deponent his witness, and vouches for and is bound by the witness’ testimony. Florida Rule of Civil Procedure 1.330(c) provides in pertinent part:

“A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part of it for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition . . .

Sothern introduced the deposition. Accordingly, Dr. Levinthal became her witness. Thunderbird and Aetna were not required to vouch for the credibility of any of the matters brought out in the doctor’s testimony, therefore, their objection was properly overruled.

In his closing jury argument, Soth-ern’s attorney said that Aetna had been pushing Sothern around for two or three years, and continued as follows:

“It’s time for the day of reckoning, and it’s time that this lady got what she is entitled to and not all this inconsistent positions that are being taken by Aetna, the great big insurance company that has got so many people — ”

Thunderbird’s and Aetna’s attorney objected and moved for a mistrial. The court denied the motion for a mistrial and instructed Sothern’s attorney to speak to matters appropriate for argument. The court had previously instructed the jury that the attorney’s remarks were to be treated as argument, not as evidence. The denial of the motion was appropriate. Miami Coin-O-Wash, Inc. v. McGough, 195 So.2d 227 (Fla. 3d DCA 1967).

The attorney for Aetna had previously made his closing argument and discussed the benevolence of Aetna and the ease with which Sothern could apply for and receive maximum workmen’s compensation benefits. The evidence showed that Aetna had personnel in three states working on this case from its inception to date of trial and it was still pending. In the context in which the remark was made, it was proper comment.

Jury arguments will not be considered grounds for a mistrial nor will they serve as a basis for reversing a judgment unless they are highly prejudicial and inflammatory. Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla. 3d DCA 1975). Under the circumstances here the remarks were not highly prejudicial or inflammatory. In fact, the attorney for Thunderbird and Aetna does not make such a contention. He refers to the remarks as “this was a cheap shot”, which is not a legal ground for reversal of a judgment.

The final judgment appealed is affirmed.

SMITH and ERVIN, JJ., concur.


text:
    HIALEAH, INC., and Hialeah Park, Inc., Intertrack Transportation, Inc., and Gulfstream Park Racing Association, Inc., a Florida Corporation, Appellants, v. B & G HORSE TRANSPORTATION, INC., a Florida Corporation, Appellee.
    No. 78-2144.
    District Court of Appeal of Florida, Third District.
    March 9, 1979.
    Rehearing Denied April 9, 1979.

      Abrams, Anton, Robbins, Resnick, Schneider & Mager and David S. Romanik, Hollywood, Adams & Ward and Robert C. Ward, Miami, for appellants.
    Milledge & Hermelee and James D. Whisenand, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

This is an interlocutory appeal from a temporary injunction entered by the circuit court pursuant to the authority of Section 323.24, Florida Statutes (1977), which provides that an injunction may be entered against any motor carrier that operates upon the highways of this state without first having obtained a certificate, permit or license from the Florida Public Service Commission. We think the determinative issue is whether the trial court in this case correctly found that it had jurisdiction where the complaint does not allege actual operation but rather an intended and planned operation which is not denied by the defendants.

B & G Horse Transportation, Inc., the plaintiff-appellee, has certificate No. L-62 from the Florida Public Service Commission, which was issued in accord with Section 323.03, Florida Statutes (1977). The intertrack transportation service provided by plaintiff B & G, pursuant to authority granted by the Florida Public Service Commission, consists of transporting race horses between Hialeah, Gulfstream and Tropical Park [actually Calder] race tracks, all of which were defendants below.

Defendants Hialeah, Gulfstream and Tropical Park race tracks organized Inter-track for the purpose of providing an inter-track transportation service. Intertrack will transport race horses only to and from Gulfstream and Hialeah. The defendants have stated that their operating expenses will be substantially reduced. All expenses associated with Intertrack will be equally divided between Gulfstream and Hialeah race tracks.

It is disputed whether the appellants (In-tertrack Transportation, Inc.; Gulfstream Park Racing Association, Inc.; Hialeah, Inc.; and Hialeah Park, Inc.) formally applied to the Florida Public Service Commission for a certificate of public convenience and necessity. Some type of inquiry was made by the defendants to the Commission because, on July 13, 1978, a staff counsel wrote a letter to an attorney for Hialeah, Inc., in which it was stated: “It is our opinion that if your client conducts transportation under the circumstances described above, it does not need a certificate of public convenience and necessity from this Commission.

B & G filed a complaint on October 20, 1978, against the appellants and Tropical Park, Inc. The complaint contained a prayer for a “ . . temporary injunction enjoining the Defendants . . . pending the final hearing and determination of this section, from providing intra-track transportation services without certifications or approval from the Florida Public Service Commission.”

A hearing on B & G’s Motion for Temporary Injunction was held on October 27, 1978. At the hearing, the defendants filed motions to dismiss and to strike. A temporary injunction was issued on October 30, 1978, enjoining the defendants as follows:

“The defendants, Intertrack Transportation, Inc., Hialeah Park, Inc., Hialeah, Inc., Gulfstream Park Racing Association, Inc., and Tropical Park, Inc., their agents, employees, attorneys and all other persons in active concert and participation with them are enjoined and restrained from transporting race horses on or between race courses they own, lease, manage or operate unless a certificate of public convenience and necessity is obtained pursuant to § 323.03, Florida Statutes, or unless, pursuant to § 323.23(12) [323], Florida Statutes, both the point of origin and the point of destination are within the corporate limits of the same city or town.”

B & G was required to, and did, post a $50,000.00 bond prior to noon, November 2, 1978. On November 16, 1978, the defendants filed a notice of appeal of the non-final injunctive order.

In the case at bar, the trial court issued the temporary injunction upon a finding that plaintiff had met the requirements of Florida Rule of Civil Procedure 1.610, and Section 323.24, Florida Statutes (1977). Section 323.24 provides:

* * * * * *
“Any motor carrier which operates upon the highways of this state or any transportation broker who operates within this state, without first having obtained from the Public Service Commission a certificate, a permit, or a license as prescribed by this part, or who so operates after such certificate, permit, or license is can-celled, or who violates any of the provisions of this part, or any order, decision, rule or regulation, direction, demand or requirement, of the commission in relation thereto or any part or provision thereof, may be enjoined by the courts of this state, from any such violation or such unlawful or unauthorized operation within this state, at the instance of the commission or any citizen or taxpayer of this state. Provided further, that in said injunction proceedings the court may order and require such motor carrier to render an account showing the amount of road taxes which it should have paid the state for the operations sought to be enjoined, and the courts shall have power and jurisdiction to enter appropriate judgment to enforce or compel the payment of any road taxes found to be due, including the entry of a money judgment for the amount of such taxes.”

A reading of Section 323.24 evidences that the statute provides the circuit court with jurisdiction to enjoin the operation of a vehicle without a certificate of convenience or from any violation of Chapter 323. The statute does not provide the circuit court with jurisdiction to enjoin motor carriers from preparing to operate or from doing anything short of operating a vehicle in violation of Chapter 323, Florida Statutes (1977). This reading of the statute is supported by the well-recognized proposition that:

“Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resort to the rules on statutory interpretation. . . . Where the words used, and the grammatical construction employed, are clear the legislature is presumed to have meant what it said. That is, when the terms and provisions of the statute are plain, there is no room for judicial or administrative interpretation.” Leigh v. State ex rel. Kirkpatrick, 298 So.2d 215 (Fla. 1st DCA 1974).

Further, a court may not invoke a limitation or add words to a statute not placed there by the legislature. Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209, 215 (Fla.1974). Section 323.24, Florida Statutes (1977), clearly and unambiguously limits the jurisdiction of the circuit court to issue injunctions to the restraining of motor carriers who are, in fact, operating vehicles in violation of Chapter 323. Construing Section 323.24 to provide jurisdiction for the enjoining of persons who intend to or are preparing to operate a vehicle in violation of Chapter 323, requires the court to extend the meaning of the section beyond that intended by the legislature, and requires the addition of words to the section.

A circuit court is authorized to issue an injunction pursuant to Section 323.-24, Florida Statutes (1977), only if the plaintiff alleges that a motor carrier is, in fact, operating a vehicle in violation of Chapter 323. See Merryman v. Southern Tours, Inc., 120 Fla. 440, 162 So. 897, 899 (1935); and cf. Beckerman v. Finley, 183 So.2d 535, 536 (Fla.1966), holding that Section 466.29 of the Florida Statutes gives the circuit court power to enjoin the practice of dentistry in Florida without a license, and in order to invoke the injunction power of the court, the board must establish a prima facie case that the person claimed against has been practicing dentistry in the state without a license. The plaintiff has not alleged that the defendants are operating vehicles in violation of Section 323.24 and the trial court did not find that defendants had so acted. In fact, the allegations in the complaint negate any operation. Plaintiff specifically alleged that “on information and belief,” the defendants have agreed to provide intertrack transportation services.

Because the plaintiff could not proceed under Section 323.24, Florida Statutes (1977), it was required to show that it would suffer irreparable injury if the temporary injunction was not issued. See Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 885 (Fla.1972). General allegations of irreparable harm are insufficient to state a claim for the issuance of a temporary injunction; the complaint must allege facts which disclose that irreparable injury can reasonably be inferred. The complaint fails to meet this pleading requirement.

The plaintiff further failed to establish that it would, in fact, suffer irreparable injury if the injunction was not issued. Finally, because the trial court improperly proceeded under Section 323.24, Florida Statutes (1977), the plaintiff was not required to establish irreparable injury and, therefore, there could not have been a determination that the plaintiff would suffer irreparable injury. The issuance of the temporary injunction pursuant to Section 323.24 thus constituted reversible error.

Large portions of the briefs filed on this appeal deal with the defendants’ claim that the circuit court should not enter an injunction or entertain a complaint for declaratory judgment because the Florida Public Service Commission had previously acquired jurisdiction over the matter. It is not necessary for us to decide this question, and we do not do so. Nevertheless, because we do not direct the dismissal of the complaint, we hold that the trial court has jurisdiction to proceed to factual determinations in the controversy. Cf. Merryman v. Southern Tours, Inc., 120 Fla. 440, 162 So. 897 (1935).

The procedural points urged for reversal need not be considered, and we hold that no error has heen shown under the defendants’ point directed to the amount of the bond. See the principle of law in International Brotherhood, etc. v. Miami Retail Grocers, Inc., To So.2d 491 (Fla.1954).

Accordingly, the temporary injunction appealed is reversed.

Reversed.

      . We will use the word “intertrack” throughout this opinion, inasmuch as we understand this word to signify “between” or “among” tracks, instead of using the word “intra-track,” which signifies “within” a track and which we believe has been misapplied by certain of the parties.

      . ******
      “Re: Undocketed — Application of Hialeah, Inc. for a permit to transport horses and grooms between Calder and Gulfstream race tracks to Hialeah race track.
      “Dear Mr. Ward:
      “This letter is a confirmation of our telephone conversation of yesterday. I indicated that we are returning Hialeah’s for-hire permit application per our earlier letter in which we indicated that since July 1977 we no longer issued for-hire permits as the Legislature changed F.S. 323.05. The present permit statute, 323.05, F.S., does not apply to the type of transportation in which your client plans to engage. I am requesting the clerk to have the Comptroller issue a check for a refund of the $100 filing fee. It usually takes two to three weeks for the checks to be issued, at which time it will be forwarded to you.
      “You also asked our opinion as to whether your client needs a certificate of public convenience and necessity pursuant to F.S. 323.-03. You indicated that Hialeah, Inc. plans to transport horses and grooms between the Calder and Gulfstream race tracks to and from Hialeah race track and that Hialeah, Inc. would not charge any compensation, as defined in § 323.01(10), F.S., for those services. F.S. 323.01(10) says, in part:
      (10) ‘For compensation’ as used in these definitions and in this part means a return in money or in property or in anything of value for service in transporting persons or property by motor vehicles over public highways, whether paid, received or realized, directly or indirectly, .
      “It is our opinion that if your client conducts transportation under the circumstances described above, it does not need a certificate of public convenience and necessity from this Commission.”
      ******

      . The present appellants filed a petition for prohibition in this court, which was denied without opinion. See Intertrack Transportation, Inc. v. Rivkind, Fla.App., 366 So.2d 900, order of dismissal filed January 9, 1979. The basis for the petition was:
      ******
      “The doctrines of First Assumption of Jurisdiction, Choice and Election of Remedies, and Exhaustion of Administrative Remedies precluded the trial court from entertaining B & G’s Complaint, and effectively divested the trial court of any jurisdiction, including the jurisdiction to enter or enforce a temporary injunction.”


author: SCHWARTZ, Judge.

text:
    CITY NATIONAL BANK OF MIAMI, N. A., Appellant, v. Deborah F. WERNICK, Appellee.
    No. 77-2517.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 12, 1979.

      Bretan & Marks and Howard R. Hirsch, Miami, for appellant.
    Fried, Weil & Scheer and Richard A. Daar, Miami Beach, for appellee.
    Before KEHOE and SCHWARTZ, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

This case presents the question of whether a person whose name appears as the payee on a check, which is never delivered to her but which is thereafter deposited and credited to the identical account of the maker upon which the check had been drawn, may recover the face amount of the check from the collecting-and-drawee bank. The trial judge, by entering summary judgment below for the plaintiff “payee,” answered yes. We say no and order judgment entered for the bank.

The scenario involved here opens in February, 1973, when the plaintiff, Deborah Wernick, made an investment of $13,500.00 with the Guardian Mortgage & Investment Corporation. Under their arrangement, Guardian was to “service” a mortgage with the Jupiter Financial Corporation in which Ms. Wernick had purchased an interest, by forwarding payments to her of 1% percent of her investment per month. In fact, Guardian faithfully sent $135.00 monthly checks to Ms. Wernick until March, 1976, when the payments abruptly ceased, and Guardian became effectively defunct.

After that occurred, and only then, Ms. Wernick, through her counsel, discovered the facts which gave rise to this action. It seems that on May 14, 1973, Guardian, through its president, Archie Struhl, wrote a check payable to Ms. Wernick for $13,-500.00 on its trust account with the present appellant-defendant below, City National Bank of Miami. Three months later, after someone who is unknown but who was definitely not Ms. Wernick had indorsed her name on the check, and it had been also indorsed by Guardian through the use of a “for deposit only” stamp, it was deposited at City National into the self-same Guardian trust account from which it had been drawn. Three things are undisputed: (1) Ms. Wernick did not sign the cheek; (2) Ms. Wernick never had possession of the check nor the faintest intimation either of its existence or her connection with it until years later; and (3) the entire transaction represented no more than a complete “wash” reflected only by bookkeeping entries of a simultaneous credit and debit, each of $13,500, to the Guardian Mortgage trust account at the bank.

Nonetheless, in 1977, Ms. Wernick sued the bank to recover $13,500 plus interest for conversion of the check. She based this claim below (and bases it here) on the theory that, as the named payee, she had the right to possession of the check and thus the ability to maintain an action for its conversion, and that the bank indeed converted the instrument when the check was “paid on a forged indorsement,” under Section 673.3-419(l)(c), Florida Statutes (1975). In response, the bank basically contended (and contends) that Ms. Wernick never acquired an enforceable interest in the check. Both parties moved for summary judgment. The trial court denied the defendant’s motion and granted the plaintiff’s. We have concluded that, under the particular and (to say the least) peculiar facts of this case, no effective delivery of the check ever took place. Since such a delivery is a prerequisite to the existence of Ms. Wer-nick’s rights to possession and ownership of the check, and therefore to her right to recover for its conversion, we reverse the judgment below.

The rule that the “delivery” of an instrument is indispensible to its effectiveness is one of the most ancient and basic in commercial law. 10 C.J.S. Bills and Notes § 202 (1938). As the Florida law was expressed by the fifth circuit in City of New Port Richey v. Fidelity & Deposit Co. of Maryland, 105 F.2d 348, 350 (5th Cir. 1939):

“As between the immediate parties and all others not holders in due course,[] delivery is essential to the existence of the instrument as a legal obligation. Until put in operation by delivery, the original instrument and indorsements of it are, as to such parties, incomplete and revocable, and a delivery may be shown to have been conditional or for a special purpose.”

Accord: e. g. Johnson v. Smith, 84 So.2d 722 (Fla.1956); Curry v. Wright, 101 Fla. 1489, 134 So. 508 (1931), reh. denied, 101 Fla. 1489, 136 So. 643 (1931). As to the specific application of the delivery requirement to the issue involved in this case — the right of Ms. Wernick to maintain an action for conversion of the check — it is said in 11 Am. Jur.2d, Bills and Notes, § 270, p. 298 (1963), that

“As a general rule, a negotiable instrument, like any other written instrument, has no legal inception or valid existence as such until it has been delivered in accordance with the purpose and intention of the parties. Until that is done, it is a nullity and not the subject of ownership. The payee acquires no rights in the instrument prior to delivery.” [emphasis supplied]

In this case, it is clear that no delivery ever took place. The check itself remained in the physical possession of Guardian until it was deposited, obviously by Guardian itself, in its own trust account at the bank. It is true, as the appellee argues, that a manual delivery of the instrument is not required when a valid, so-called “constructive” delivery has occurred. This rule applies, however, only when “. . the maker in some way

evinced an intention to make it an enforceable obligation against himself, according to its terms, by surrendering control over it and intentionally placing it under the power of the payee or of some third person for his use.”

11 Am.Jur.2d, Bills and Notes, § 276, p. 302 (1963). There is simply no evidence of such an intention evinced by any acts or conduct of Guardian in its handling of the check. Compare First National Bank in Fort Lauderdale v. Hunt, 244 So.2d 481 (Fla. 4th DCA 1971).

Nor did the physical transfer of the check to the bank amount to a valid delivery. A parting with actual possession must be accompanied by an intention to pass title or to give effect to the instrument. Leverett v. Awnings, Inc., 97 Ga. App. 811, 104 S.E.2d 686 (1958); W. H. Barber Co. v. Hughes, 223 Ind. 570, 63 N.E.2d 417 (1945). In this case, the act of depositing the check to the maker’s own account demonstrates quite the opposite intention. The bank, in handling the check and making the bookkeeping entries in Guardian’s account which reflected the “wash” involved was therefore acting as an agent, not for Ms. Wernick, but for Guardian itself. And it is well-settled that a transfer to the maker’s own agent is not a lawful delivery. Aughtry v. Keary, 112 Fla. 609, 150 So. 804 (1933); Caviness v. Andes & Roberts Brothers Construction Co., 508 S.W.2d 253 (Mo.App.1974).

Under the applicable law, Ms. Wernick did not acquire rights to the check merely because of the fortuity that her name was written upon it after the words “pay to the order of . . . ” The judgment below is reversed and the cause remanded with directions to enter judgment for the defendant.

Reversed and remanded.

      . The face of the check bore the legend “Paid off in full mortgage with Jupiter Fin. Corp.”

      . So far as the record shows neither Ms. Wer-nick’s investment, which ostensibly continued to bear interest for two and a half years thereafter, nor the existence of the Jupiter loan itself had been affected in any way.

      .The plaintiff cites, among other cases, Lewis State Bank v. Raker, 138 Fla. 227, 189 So. 227 (1939) and Jett v. Lewis State Bank, 277 So.2d 37 (Fla. 1st DCA 1973).

      .By the time this case was filed Guardian, a Ponzi-type enterprise, was in receivership and its principals, including Struhl, who drew the check, were facing multiple charges of grand larceny. They each took the fifth amendment and refused to be deposed in this litigation. There was thus no evidence in the record as to Guardian’s motivations for engaging itself in the almost surreal transaction reflected in the record. Nor does the record show, see n.2, supra, whether the plaintiffs mortgage investment had in fact been paid to Guardian, as the face of the check indicated. We do not know therefore whether Guardian ever intended to repay her investment through the means of the check. If it did not, and if Guardian’s motives had to do only with demonstrating on paper a larger volume of investment and reinvestment by presumably satisfied customers, § 673.3-405(l)(b), Fla.Stat. (1975) would bar her recovery. Under that code provision
      “(1) An indorsement by any person in the name of a named payee is effective if: ******
      (b) A person signing as or on behalf of a maker or drawer intends the payee to have no interest in the instrument; . . . ”
      See McConnico v. Third National Bank in Nashville, 499 S.W.2d 874, 885 (Tenn.1973); Phoenix Die Casting Co. v. Manufacturers and Traders Trust Co., 50 Misc.2d 152, 269 N.Y. S.2d 890 (1966); Aritor Corp. v. Chase Manhattan Bank, 44 Misc.2d 672, 254 N.Y.S.2d 899 (1964); cf., Florida National Bank at St. Petersburg v. Geer, 96 So.2d 409 (Fla.1957); Johnston v. Exchange National Bank of Tampa, 152 Fla. 228, 9 So.2d 810 (1942).

      . Seiff v. Presto Brick Machine Corp., 168 So.2d 700 (Fla. 3rd DCA 1964), cert. denied, 174 So.2d 31 (Fla.1965); Allen v. Universal C.I.T. Credit Corp., 133 So.2d 442 (Fla. 1st DCA 1961); Independence Discount Corp. v. Bressner, 47 A.D.2d 756, 365 N.Y.S.2d 44 (1975).

      . Non-delivery is no defense to a holder in due course. See § 673.3-306(3), Fla.Stat. (1975).

      . While this case, as well as most of the other authorities cited in this opinion, were decided under the pre-U.C.C. Negotiable Instruments Law, it seems clear that the Code does not affect either the necessity of establishing a “delivery,” see Caviness v. Andes & Roberts Brothers Construction Co., 508 S.W.2d 253 (Mo.App.1974); 11 Am.Jur.2d, Bills and Notes, § 270 (1963); 6 FIa.Jur.2d, Bills and Notes, § 143 (1978), or the standards which determine whether a lawful delivery has actually taken place. Billingsley v. Kelly, 261 Md. 116, 274 A.2d 113 (1971), and cases cited.

      . Ms. Wernick’s brief contends that Guardian was acting as her fiduciary and thus that a constructive delivery of the check occurred, in effect, as soon as it was written. We cannot agree. While Guardian was plainly acting as the plaintiff’s agent in the collection of the proceeds of the mortgage, there is no evidence that it acted in that capacity by “receiving,” on her behalf, the check which it itself drew to her order.

      . See Stone & Webster Engineering Corp. v. First National Bank & Trust Co. of Greenfield, 345 Mass. 1, 184 N.E.2d 358, 362 (1962). (“Had the checks been delivered to the payee ., the defendant might have been liable for conversion to the payee.”).


author: PER CURIAM. SCHWARTZ, Judge

text:
    James STITELY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-408.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 12, 1979.

      Bennett H. Brummer, Public Defender and Kurt Mamar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., and Clifford Miller, Legal Intern, for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.

SCHWARTZ, Judge

(dissenting).

The appellant Stitely was a passenger on a motorcycle which was stopped for a minor traffic violation by officer McClain of the Public Safety Department. As McClain approached, Stitely placed an object, which he had been previously holding in his cupped right hand, down the front of his pants. After asking the defendant what was' in his waistband, McClain ordered him to spread eagle against the police car. The officer then went directly to the bulge in the defendant’s trousers and pulled out a plastic bag containing over five grams of marijuana for the possession of which Stitely was convicted below.

I think that Stitely’s motion to suppress the cannabis should have been granted. McClain had no objective reason to believe that the defendant was “armed with a dangerous weapon” so as to justify the search of his person pursuant to Section 901.151(5), Florida Statutes (1977), and Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). Although the officer said at the hearing that he believed the object Stitely had in his possession was a weapon, when the trial judge asked him why he thought so, he answered only that “I don’t know your Honor.” This obvious and admitted absence of any “specific and articulable facts which . . . reasonably warranted] . . . ” the search, Terry v. Ohio, supra, at 392 U.S. 21 at 88 S.Ct. 1880, 20 L.Ed.2d 905, requires, I believe, a determination that it was constitutionally unjustified. Conner v. State, 349 So.2d 709 (Fla. 1st DCA 1977); cf. Perry v. State, 296 So.2d 505 (Fla. 3d DCA 1974).

Furthermore, the search in question was an impermissibly broad one. Assuming McClain was in fact reasonably concerned that Stitely had a weapon, that concern would have been immediately dissipated had he conducted a “pat down” of the bulge in the defendant’s pants and thus discovered that it was a “soft” object which was patently not a gun, knife, or blackjack. McClain’s action in intruding directly into Stitely’s person therefore went beyond the “carefully limited search of the outer clothing . . .” authorized by Terry, supra, at 392 U.S. 30, at 88 S.Ct. 1885, 20 L.Ed.2d 911, see Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), and went further than “. . . the extent necessary to disclose . . . the presence of such weapon,” under Section 901.151(5). The search was therefore invalid for this reason, as well.

On these grounds, I would reverse the judgment under review.


text:
    Freddie L. WESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-467.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Rehearing Denied April 9, 1979.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from his judgment of conviction and sentence following a jury trial. We reverse.

Appellant was adjudicated and sentenced on, February 2, 1978. Notice of appeal was filed on March 3, 1978. Subsequently, on May 15, 1978, this court relinquished jurisdiction to the trial court for reconstruction of the record of the trial in this case. Such reconstruction was necessary because of the unavailability of the stenographic notes of the trial. Thereafter, on August 24, 1978, appellant filed a motion for a new trial asserting that the reconstructed record provided an insufficient basis for appellate review. This court denied the motion on September 12, 1978, without prejudice to raise the issue in appellant’s brief.

The documents before this court establish that the stenographic notes of the trial in this cause cannot be located and that a trial transcript cannot be provided. In the light of these facts, appellant contends that the record, as reconstructed, before this court does not provide an adequate basis for appellate review, thereby denying him his right to a direct appeal and his right to the effective assistance of counsel.

Our review of the record in this cause leads us to agree with appellant’s contentions. Because of the unfortunate absence of the trial transcript from the trial court proceedings, in our opinion, the record is insufficient for review of the points raised by appellant on appeal. Accordingly, the judgment and sentence appeal must be reversed and the cause remanded for a new trial. See, e. g., Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964); Osborne v. State, 290 So.2d 93 (Fla. 1st DCA 1974); Yancey v. State, 267 So.2d 836 (Fla. 4th DCA 1972); Simmons v. State, 200 So.2d 619 (Fla. 1st DCA 1967); and Bennett v. State, 196 So.2d 449 (Fla. 1st DCA 1967).

Reversed and remanded.


text:
    COMMUNITY BANK OF NORTH LAUDERDALE, Appellant, v. DEPARTMENT OF BANKING AND FINANCE, Appellee.
    No. KK-162.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 18, 1979.
    Larry Levy and Clyde M. Taylor, Jr., Tallahassee, for appellant.
    William L. Lyman, Tallahassee, for appel-lee.
   PER CURIAM.

On consideration of the briefs, record and argument of counsel, we fail to find abuse of discretion on the part of the Comptroller as Head of the Department of Banking and Finance, in denying the Appellant’s application for a state chartered bank. Bigler v. Department of Banking & Finance, 368 So.2d 449 (Fla. 1st DCA 1979).

Accordingly, the order sought to be reviewed is AFFIRMED.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.


author: EASTMOORE, E. L., Associate Judge.

text:
    Lynwood G. WILLIS and Jane I. Willis, his wife, Hampton J. Walker and Stephanie S. Walker, Syndicate, Appellants, v. Gordon BRENT, Appellee.
    No. KK-229.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Thomas M. Baumer and Alan Chipper-field of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    Douglas D. Chunn of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   EASTMOORE, E. L., Associate Judge.

Appellants, Willis and Walker, real estate developers, negotiated the purchase from Appellee, Brent, of a tract of land in Nassau County, bordering on the St. Marys River, at a sales price of $185,000 and containing “480 acres more or less”. The purchase agreement entered into required the buyers to bear the cost of a survey, “if they wish to have a survey done”. The sale was closed November 27, 1972. A purchase money mortgage to secure the purchase price was executed, with release clauses. The buyers finally surveyed the last portion of the property on September 8, 1975, which survey reflected that the tract contained not more than 400 acres. Thereafter, the buyers declined to make further payments and the seller filed an action to foreclose the mortgage. The testimony before the trial court revealed, and the trial court found in the final judgment, that the sale was in gross and not by the acre, that no warranty of acreage was made, and that the buyers actually had a superior knowledge of the property to that of the seller. The trial court found that there was no fraud or misrepresentation, that there was no mutual or gross mistake, and the trial court granted the relief of foreclosure. The buyers took this appeal from the judgment of the trial court.

Appellants place great reliance in this court’s holding in Platt v. Deese, 298 So.2d 578 (Fla. 1st DCA), cert. dismissed, 301 So.2d 780 (Fla.1974), wherein the Court referred to the Supreme Court Decision in Phifer v. Steenburg, 66 Fla. 555, 64 So. 265 (1914), concerning the right to recover the deficiency in sales by the tract when there is fraud or gross mistake. Such reliance is misplaced, for in Platt, the Court found that there was not only gross mistake, but gross misrepresentation. In the case sub judice both sides agree that no misrepresentation and no fraud were ever involved. In this case the trial judge had ample evidence upon which to base his decision that there was no guarantee of acreage, that the sale was in gross, and that the buyers had ample opportunity to have the property surveyed and the exact acreage ascertained, if they so desired. The facts before the trial court do not lend themselves to a finding that the purchase price was on a per acre basis. In fact, it would have been difficult to ascertain a per acre price for the reason that the property (which was purchased for development and re-sale) consisted of high land, low land and river frontage. The buyers quite obviously did not concern themselves with the total amount of acreage because of the time within which they surveyed the property.

Finding no reversible error, the judgment of the trial court is accordingly affirmed.

McCORD, C. J., and MELVIN, J., concur.


author: ANSTEAD, Judge.

text:
    John J. COLLINS, Plaintiff, v. ROYAL GLOBE INSURANCE COMPANY, Defendant.
    No. 78-338.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1979.
    Rehearing Denied April 16, 1979.

      Perry Douglas West, Merritt Island, for plaintiff.
    Dennis J. Wall and Robert E. Meale, of Rumberger, Kirk & Caldwell, Orlando, for defendant.
   ANSTEAD, Judge.

Under the provisions of Fla.App. Rule 4.6, the trial court has certified to us a question involving the construction of an exclusionary clause in a policy of casualty insurance.

The defendant issued a policy of insurance to the plaintiff, insuring, among other things, the plaintiff’s motor home from loss by theft. Possession of this motor home was voluntarily granted by the plaintiff to a party who had falsely represented his desire to rent the motor home. Subsequently, this individual and the motor home disappeared. The check given by the thief for rent was returned for insufficient funds. The defendant has stipulated that the thief intended to steal the motor home at the time he acquired possession from the plaintiff. However, when the plaintiff made a claim for the loss the defendant denied coverage on the basis of a provision which excludes from coverage:

. loss to the entire vehicle or any part thereof, due to conversion, embezzlement or secretion by any person in lawful possession of the automobile.

The insurance company claims that under the facts set out above, the thief was “in lawful possession of the automobile” at the time he converted the vehicle to his own use. In other words, the insurer defines “lawful possession” to mean possession voluntarily relinquished by the insured. The question certified by the trial court is whether the thief was in “lawful possession” under the provisions of the exclusionary clause.

First, we think that there is no ambiguity in the policy language as it applies to the agreed facts in this case. Under those facts the plaintiff’s vehicle was stolen. Fireman’s Fund Ins. Co. of San Francisco v. Boyd, 45 So.2d 499 (Fla.1950); United Services Automobile Ass'n v. Park, 173 So.2d 162 (Fla. 3d DCA 1965). And, since the thief intended to steal the vehicle at the time he acquired possession and all his representations to the plaintiff about rental of the vehicle were false and fraudulently designed to induce the plaintiff to deliver possession, the thief never acquired lawful possession of the vehicle.

We also note that if there is any ambiguity in the exclusionary provisions as they apply to the stipulated facts, those provisions must be construed in favor of the insured, and against the insurer who chose the specific language in drafting the policy. Fireman’s Fund Ins. Co. of San Francisco v. Boyd, supra. Applying this rule of construction supports our conclusion that the exclusionary clause does not apply.

The insurer cites the case of Aetna Casualty & Surety Co. v. Salyers, 294 Ky. 826, 172 S.W.2d 635 (1943) in support of its position. In coming to a contrary con-elusion the Kentucky court reasoned that the insured was in a superior position to determine to whom he would entrust his vehicle and therefore must assume the risk of loss if he voluntarily delivers possession to a thief. Such an “assumption of risk” theory may have merit, if it is presented to the insured by language in the policy which clearly and unequivocally informs the insured that he will not be covered for such risks. To most persons, a thief is a thief. And whether the thief elects to act by stealth in the night or by trick in the daylight makes little difference to the owner who suffers a loss of his property and seeks recovery on an insurance contract he purchased for just such an eventuality. If certain classes of thieves or types of theft are not to be covered by the theft insurance, the insurer must specifically exclude such losses in language that clearly defines the risks not to be covered. A thief acquires no lawful possession and if he was a thief from the start then his possession was unlawful from the start.

Accordingly, the certified question having been answered above, we remand this cause to the trial court for further proceedings consistent with this opinion.

LETTS, J., and JOHNSON, TOM, Associate Judge, concur.


author: MELVIN, Judge.

text:
    Terry MILLER, a/k/a Terry Dale Miers, Appellant, v. STATE of Florida, Appellee.
    No. II-288.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Rehearing Denied April 18, 1979.
    Joseph T. Garlovsky, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

The parties will be referred to as they were positioned in the court below. Defendant has perfected his appeal from the final judgment and sentence imposed upon him based upon a jury verdict finding him to be guilty of possession of more than 100 pounds of cannabis as charged in the information. Prior to trial, the defendant timely filed his motion to suppress any evidence as to any contraband found in the vehicle being driven by him and to which was attached an RV license tag. Following a warrantless search of such vehicle, a quantity of marijuana was found which was the subject matter of the prosecution.

The defendant drove the motor vehicle in question past an agricultural inspection station in Suwannee County, Florida, was chased and apprehended by a road guard inspection officer, who demanded the privilege of looking and inspecting the inside of such camper vehicle. This request was denied. Other officers were called to the station; one or more of the officers smelled outside the areas of the camper and perceived that they detected the odor of marijuana. Permission to search having been again refused, the back door of said camper was broken open and was searched. The contraband referred to was found.

At the time of the occurrences referred to, the applicable law of Florida with reference to the right of inspection officers to have access to motor vehicles was stated in Section 570.15(l)(a), Florida Statutes (1977), wherein it is provided that the Commissioner and his various designated officers and agents:

“. . . shall have full access at all reasonable hours to all:
7. Motor vehicles, other than private passenger automobiles with no trailer in tow or any vehicle bearing an RV license tag',” (emphasis supplied)

Section 570.15(l)(b) provides, in substance, if the owner or person in charge of a vehicle subject to such inspection shall refuse the officer the right to inspect, then the officer may apply for a search warrant as is provided by law relating to the obtaining of search warrants in other cases or that he may conduct a search of such vehicle without a warrant pursuant to Section 933.19, Florida Statutes. The provisions of Section 933.19 are not applicable as there was a complete absence of any probable cause to suspect that the motor vehicle apprehended was carrying any contraband. We note that the RV license tag vehicle referred to in subsection (7) was wisely eliminated from the provisions of Section 570.15 by Florida Statutes (1978). This case, however, must be decided by the law in effect at the time of the alleged assertion of right on the part of the agricultural inspection agent to stop and ultimately bring about the warrantless search of the exempt vehicle.

If through some process it may be concluded that the agricultural inspection agent had the right to stop the defendant and require him to return to the inspection station, there is a complete absence of exigent circumstances that would relieve the officers of their duty to obtain the search warrant that the inspection statute contemplates. They did not even attempt to obtain one. In such situation, a warrantless search is presumed to be illegal. Approximately two hours intervened between the time of defendant’s apprehension and the warrantless search of his RV tagged vehicle. See Hornblower v. State, 351 So.2d 716 (Fla.1977). At all times pertinent, this vehicle was detained at an inspection station which, the court was advised at oral argument, is less than ten miles from Live Oak, the county seat of Suwannee County.

We emphasize here that we do not have for consideration a statute in which the State of Florida has asserted its police power to conduct agricultural inspections of all vehicles capable of transporting any agricultural product and through such type agricultural inspection preserve the State’s interest in maintaining a high quality agricultural product offered to the general public. Such subject is one that is ripe for legislative consideration. It is, however, not a matter proper for judicial creation.

The order of the trial court denying the defendant’s motion to suppress the evidence relating to contraband found and removed from his vehicle is reversed, and the judgment and sentence here reviewed are reversed with directions that the defendant be discharged.

McCORD, C. J., and ERVIN, J., concur.


text:
    Manuel GARCIA and Elia Garcia, Appellants, v. JARVIS CORPORATION and Travelers Insurance Company, Appellees.
    No. 77-2348.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Duran, Cantera, Kalish, Schere & Press and Mark D. Press, Miami, for appellants.
    Adams & Ward and Amy Shield Levine, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The appellant, Manuel Garcia, was the plaintiff in the trial court where he suffered an adverse jury verdict on his complaint charging the Jarvis Corporation, the defendant-appellee, with negligence in the manufacture of a pneumatic saw purchased by Garcia’s employer. The single point raised on this appeal is:

“Did the trial court err by not permitting testimony as to the purpose and effect of alterations and modifications to the subject saw?”

Our review of the record in the light of the briefs and oral argument does not disclose the error claimed. The judgment is affirmed upon authority of the rule stated in Florida Power Corporation v. Willis, 112 So.2d 15, 20 (Fla. 1st DCA 1959):

“It is a sound rule that when physical situations or matters of common knowledge point so certainly to the truth as to leave no room for a contrary determination, based on reason and common sense, such physical situation and reasonable probabilities are not affected by sworn testimony which, in mere words, conflicts therewith.”

Affirmed.

SCHWARTZ, J., concurs in conclusion.


text:
    Neal H. DENSMORE, Appellant, v. The CITY OF BOCA RATON, a Florida Municipal Corporation, et al., Appellees.
    No. 77-1953.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.

      Richard E. Bosse, of Kurzinger & Hone-hell, P. A., Boca Raton, for appellant.
    M. A. Galbraith, Jr., City Atty., Cormac C. Conahan, Sr., and Robert A. Eisen, Asst. City Attys., Boca Raton, and D. Culver Smith, III, of Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.
   ANSTEAD, Judge.

The appellant, Neal H. Densmore, seeks reversal of a final summary judgment entered on appellant’s action for defamation and invasion of privacy in favor of appel-lees, Donald Crawford, the City of Boca Raton, and members of the city commission. We affirm.

Densmore was employed as a building inspector for the City of Boca Raton. In 1975 the city council instructed its attorneys to conduct an investigation of allegations of misconduct in the building department of the city. Subsequently the attorneys filed a written report containing the results of the investigation. That report contained allegations of misconduct on the part of Densmore in the performance of his duties as a building inspector. In a proceeding not involving the same parties this court held the report to be one of public record and hence subject to disclosure. The city council gave the report to the city manager, Donald Crawford, and instructed him to take whatever action he deemed necessary as a result of the findings in the report. One of the actions taken by Crawford was to discharge Densmore. He did so by writing Densmore a letter which contained some of the same allegations that were contained in the report. Crawford then made the contents of the letter public.

Densmore then sued Crawford and his employers for defamation and invasion of privacy based on Crawford’s release of the letter of discharge. In addition to other defenses Crawford claimed that his actions were absolutely privileged. After various discovery proceedings the appellees moved for summary judgment which was granted by the trial court. The parties agree that there are no factual disputes.

Densmore claims that the letter written by Crawford showed that a copy was to go to Densmore’s personnel file. As a result, he maintains that the letter became a confidential part of his employment record and that its release, absent his consent, constituted an invasion of his right to privacy. Densmore asserts that his right to privacy should prevail over the claim of privilege. In addition to claiming executive privilege, the appellees assert that Densmore enjoyed no right of privacy with respect to disclosure of the reasons for his discharge and that since this court has already held that the information contained in the letter, which was the same as that contained in the attorney’s report, was a public record, the letter itself could not be actionable.

First, since Densmore concedes that the same information contained in the letter was made public by our previous decision in a case involving the report upon which the letter was based, we fail to see how Crawford can be held legally liable for any public disclosure of what is now admittedly public information.

Secondly, while Densmore asserts that the primary issue is his right to a cause of action for breach of his constitutional right of privacy, we think the issue is more properly brought into focus by examining the Supreme Court’s rulings on executive privilege. In the landmark decision of McNayr v. Kelly, 184 So.2d 428 (Fla.1966) our Supreme Court extended the doctrine of absolute immunity from liability to executive officials with respect to defamatory publications made in connection with the performance of their official duties. The Court recognized that extension of the doctrine would infringe upon some constitutional rights:

Admittedly the question is a difficult one not only for the reasons heretofore stated in this opinion but because of the impact of constitutional provisions such as the provision of our Declaration of Rights which provides that the courts of this State shall be open so that every person for any injury done him in his lands, goods, person or reputation shall have remedy by due course of law and that right and justice should be administered without sale, denial or delay. In Barr v. Matteo [, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434,] the majority opinion adopted the language of Judge Learned Hand in Gregoire v. Biddle, 2 Cir., 177 F.2d 579-581, as the rationale upon which the basic decision was reached. This excellent dissertation so effectively presents and disposes of the arguments on both sides that it is again quoted in the footnote of this opinion. (Id. at 431) (Footnote omitted)

The statements of Judge Hand referred to recognize that a trade-off is involved in accepting the doctrine since some public officials are going to abuse the privilege and innocent persons are going to be harmed without recourse:

As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. (Id. at 431 n. 12)

Under the circumstances of this case we do not believe Densmore had an absolute right of privacy as to the reasons for his dismissal. Therefore, we do not feel it is necessary to determine whether or not Densmore’s right of privacy extends to the contents of his personnel file. In McNayr the Supreme Court recognized that the county manager of Dade County possessed an absolute privilege with reference to public statements he made in discharging the county public safety director. That is precisely the situation we have here. If in fact the city manager enjoys an absolute privilege in disclosing the reasons for his discharge of Densmore, surely such privilege cannot be extinguished by the fact that a copy of the letter setting out those reasons is filed in Dens-more’s personnel file. The fact that publication of the reasons for discharge may in fact defame the public employee was a sacrifice knowingly made when the doctrine of absolute immunity was adopted in Florida. McNayr, supra.

On the other hand, in order to invoke the doctrine the official must have been acting within the scope of his powers. McNayr, supra. For instance, if the city personnel rules prohibited the release of information concerning the discharge of an employee, the city manager would probably be acting beyond the scope of his duties if he disclosed such information. Likewise, if there was no official purpose, such as in explanation of the discharge of an employee, upon which to base the disclosure of personal information about an employee, then the official might not be able to invoke the privilege. But we have neither situation here. Here, as in McNayr, the city manager was entitled to disclose his reasons for discharging Densmore and to assert his executive privilege as to that disclosure.

In summary, the information claimed as defamatory and private has admittedly been held to be public in a separate proceeding; the city manager enjoyed an absolute privilege in disclosing the reasons for his discharge of Densmore; and the filing of a copy of a letter containing those reasons in the employee’s personnel file did not remove the privilege. We find no merit in the other points raised on appeal.

Accordingly, the judgment of the trial court is affirmed.

MOORE, J., and PACK, WALLACE, Associate Judge, concur.

      . State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1977).

      . Crawford made the contents public prior to this court’s decision in Veale.

      . Veale, supra note 1.


text:
    Danny C. McFARLAND, Appellant, v. STATE of Florida, Appellee.
    No. 77-2078.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.

      Edward R. Kirkland, P. A., Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant appeals a conviction on three separate counts of larceny of a motor vehicle under F.S. § 812.021. Defendant was charged with the larceny of a Plymouth automobile under Count I, a Chevrolet automobile under Count II, and a Cadillac automobile under Count III. It was charged that defendant took each automobile from the same owner. Verdicts of guilty were returned against defendant as charged on each count and defendant was convicted and sentenced on each count. We reverse.

The facts are that the defendant and his brother were involved in a used car business known as McFarland Motors. The used car business was operated by the brother as manager. On the day in question defendant/appellant went to an automobile company at his brother’s direction for the purpose of buying used cars. Defendant picked out three used cars and paid for them with “collection drafts” which were signed by defendant’s brother. It is uncontested that the drafts were not signed by defendant. These “collection drafts” are not included in the record on appeal but they are apparently a form of payment system peculiar to the used car sales business. By virtue of these drafts it appears that defendant’s brother promised to pay the amount stated on the face of the draft at a particular bank in the future. Payment was apparently conditioned on delivery of title. It is not at all certain whether the draft was actually an indication that the amounts on the face of the draft were on deposit in the bank.

The drafts turned out to be worthless and the issue of primary importance in this case is whether the defendant knew the drafts to be worthless at the time he acquired possession of the automobiles in exchange for them. Appellant’s position is that he did not know the drafts were worthless and acted only as a conduit on instructions from his brother who was running the business.

The intent of the defendant to permanently deprive the owner of the motor vehicles is without question a material element of an auto theft. Risebrough v. State, 313 So.2d 48 (Fla. 4th DCA 1975). It seems clear that defendant intended to obtain possession of the automobiles but we believe the evidence to have been insufficient on the issue of whether the defendant knew the drafts were worthless at the time he obtained possession of the automobiles.

The State relies upon events occurring after the transfer of the automobiles to sustain its burden of proof in this regard. It is true that McFarland Motors became defunct shortly after the three automobiles were purchased and that one of the automobiles in question was in fact sold to a subsequent purchaser at a figure slightly less than the purchase price. The defendant was never directly connected to this sale. These two pieces of evidence are not sufficient to show that the defendant knew his brother was not going to make good on the conditional drafts when they were presented for payment.

Defendant obtained possession of the automobiles in return for a written promise by his brother to pay for the cars at a future time. There is simply no evidence that defendant knew his brother was not going to honor this future conditional promise. The facts presented were entirely consistent with several reasonable hypotheses of innocence. See, Riutta v. State, 299 So.2d 620 (Fla. 2nd DCA 1974). This was not a prosecution for obtaining property in return for a worthless draft under § 832.-05(3) Fla.Stat. Indeed, under this Chapter the State would have had the advantage of § 832.07 which might well have provided a presumption or at least a prima facie case as to the element of intent. Here, the State did not charge under § 832.05 nor could they seek the aid of the evidentiary aspects of § 832.07. Instead this appellant was charged with grand larceny of the three automobiles. In lodging this charge the State assumed the very heavy and difficult burden or proving that appellant knew at the time of transfer that his brother did not intend to pay off on the drafts in the future. The State did not carry its burden in this regard and the judgment and conviction is reversed with directions to discharge the defendant.

REVERSED.

ANSTEAD, J., and SIEGENDORF, ARDEN M., Associate Judge, concur.

      . The defendant was charged under Chapter 812 with grand larceny. It would seem that the more appropriate charge might have been under § 832.05(3) relating to obtaining property in return for a worthless check or draft. The chapter also contains § 832.07 which provides that the delivery of a worthless draft is prima facie evidence of intent to defraud or knowledge of insufficient funds. This statutory provision was obviously intended to meet the problem encountered by the State herein.