text:
    Eddie Lee SHARP, Appellant, v. The STATE of Florida, Appellee.
    No. 75-721.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1976.
    Rehearing Denied April 1, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Eddie Lee Sharp was charged by information on September 20, 1974, with assault and battery upon the person of Bradford Swink, a City of Miami police officer, and with resisting with violence, arrest for the crime of assault and battery. Following a non-jury trial, Sharp was convicted of resisting arrest without violence and sentenced to one year in the Dade County Jail. From the conviction and sentence, he takes this appeal.

The facts leading up to the filing of the information are that on August 29, 1974, City of Miami police officers Swink and Rimes responded to a shooting call. The victim, Benjamin Pratt, pointed to Sharp as the person who had shot him. The officers proceeded across the street to arrest Sharp for the shooting of Pratt. After they advised Sharp that he was under arrest, a struggle ensued for several minutes. Sharp was then subdued and taken to the station. At a preliminary hearing, the charge against the defendant of assault with intent to commit murder against Pratt was dropped. The cause proceeded to trial on the charge of resisting with violence, arrest for the crime of assault and battery upon Officer Swink. During the trial, Officer Swink testified that he “stated to Mr. Sharp he was under arrest for the shooting of Mr. Pratt.” When asked “And what was your purpose for crossing the street?, Officer Rimes said: “Arresting the subject for aggravated assault or assault with intent to commit murder.” At the close of the State’s case, defendant moved for a judgment of acquittal on the grounds that a lawful arrest with probable cause had not been shown. The motion was denied. The trial court found the defendant guilty of resisting arrest without violence and adjudged him guilty. The defendant’s motion for a new trial was denied, and he was sentenced to one year in the Dade County Jail. This appeal follows.

The question presented to this court is whether the trial court erred in denying Sharp’s motion for a judgment of acquittal at the close of all the evidence where there was a material variance between the allegations in the information and the proof. Although the information alleged that Sharp resisted arrest while being arrested for the crime of assault and battery against Officer Swink, the evidence showed that he resisted arrest for the crime of assault with intent to commit murder against Benjamin Pratt.

Based upon the testimony of Officers Swink and Rimes that they were proceeding under information supplied to them by the victim, we find that there was probable cause to arrest Sharp for the shooting of Pratt. Thus, the State proved that Sharp resisted arrest for the shooting of Pratt, not for the alleged assault and battery of Swink. Hence, there is a variance between the allegata and the probata as to the arrest which Sharp resisted. “No principle of criminal law is better settled than that the State must prove the allegations set up in the information or the indictment.” Lewis v. State, Fla.1951, 53 So.2d 707, 708. As the Supreme Court held in the Lewis case, “. . .to let down the bar of strictness . . . would be too conducive to looseness in criminal prosecutions that might become intolerable to due process.”

We cannot reverse on that basis, however, since Sharp waived a defective information by failing to raise an objection in the trial court. This court must confine itself to a review of those questions which were before the trial court. Silver v. State, Fla.1966, 188 So.2d 300.

A variance in an information is fatal only if the record reveals a possibility that the defendant may have been misled or embarrassed in the preparation or presentation of his defense. Fitzgerald v. State, Fla.App.1969, 227 So.2d 45. It is provided in Rule 3.140(c), RCrP, that,

“No indictment or information . shall be dismissed ... or new trial granted on account of any defect in the form of the indictment or information . unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense

In our opinion, even had Sharp raised the issue of a variance in the trial court, scrutiny of the record reveals that he was neither misled nor embarrassed in the preparation or presentation of his defense.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Herbert W. TANNENBAUM, as Trustee, Appellant, v. IMPERIAL HOUSE CONDOMINIUM INC., and Cabot, Cabot & Forbes Land Trust, et al., Appellees.
    No. 75-1622.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Snyder, Young, Stern, Barrett & Tan-nenbaum, North Miami Beach, and William L. Rogers, Miami, for appellant.
    Cypen & Nevins, Wayne A. Cypen, Walton, Lantaff, Schroeder, Carson & Wahl, Miami Beach, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. Daytona Development Corporation v. Bergquist, Fla.App.1975, 308 So.2d 548; § 711.05, Fla.Stat.


text:
    James T. McGUIRE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1594.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Rehearing Denied April 1, 1976.
    James T. McGuire, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

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


text:
    Eugene GATES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-883.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied April 1, 1976.
    Aram P. Goshgarian and A. John Gosh-garian, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. Walker v. State, Fla.App. 1969, 222 So.2d 61; O’Berry v. Wainwright, Fla.App.1974, 300 So.2d 740; Rule 3.153, RCrP; Rule 6.7g, F.A.R.


text:
    Anthony CURELLA, Appellant, v. OTIS ELEVATOR COMPANY, a Foreign Corporation, and Employers Commercial Union Insurance Company, its insurer, Appellees.
    No. 75-643.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied April 1, 1976.
    Laurence D. Faye, Coral Gables and Harold A. Lassman, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Fullerton Metal Company v. Abell Howe Company, Fla.App.1974, 299 So.2d 151; Carter v. Sims Crane Service, Inc., Fla.1967, 198 So.2d 25; Street v. Safway Steel Scaffold Company, Fla.App.1962, 148 So.2d 38.


text:
    Luke RADER, M.D., and the Employers Fire Insurance Company, Appellants, v. VARIETY CHILDREN’S HOSPITAL, and the Continental Insurance Company, Appellees.
    No. 73-743.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes and Robyn Greene, Miami, for appellees.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL, Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 2, 1974 (293 So.2d 778) affirming the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed November 26, 1975 (323 So.2d 564) and mandate now lodged in this court vacated this court’s judgment and remanded the cause for further consideration;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 20, 1974 is withdrawn, the judgment of this court entered herein on April 2, 1974 is vacated, and pursuant to the said opinion and judgment of the Supreme Court of Florida this cause will be further considered in light of Section 768.31 Florida Statutes, and Lincenberg v. Issen, Fla.1975, 318 So.2d 386.


text:
    Luke RADER, M.D., and the Employers Fire Insurance Company, Appellants, v. VARIETY CHILDREN’S HOSPITAL, and the Continental Insurance Company, Appellees.
    No. 73-743.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes and Robyn Greene, Miami, for appellees.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The opinion and decision of this court in this cause, reported at 293 So.2d 778, has been vacated by the Supreme Court of Florida. See Rader v. Variety Children’s Hospital, Fla.1975, 323 So.2d 564. In its opinion, the Supreme Court ordered: “The cause is remanded for further consideration in light of Section 768.31, Florida Statutes, and Lincenberg v. Issen, Fla.1975, 318 So.2d 386.”

In order to effectuate the further consideration ordered, this court withdrew its mandate, vacated its prior opinion and directed the parties to file supplemental briefs for the court’s consideration. Upon review of the arguments presented and upon consideration of Fla.Stat. § 768.31, and Lincenberg v. Issen, supra, we have reached the conclusion that further directions to the trial court are unnecessary.

Accordingly, the opinion of the Supreme Court in this cause is adopted as the opinion of this court; the judgment appealed is reversed and the cause is remanded to the trial court with directions to follow the procedures set forth in Fla.Stat. § 768.31, as interpreted by the opinion of the Supreme Court of Florida in Lincenberg v. Issen, supra.

Reversed and remanded.


text:
    George Hernando FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-796.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied April 1, 1976.
    Gerald Kogan and Robert H. Newman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

George Hernando Fernandez, defendant in the trial court, was charged by a two-count indictment with involuntary sexual battery in the first count, and with lewd, lascivious or indecent assault upon a female minor under the age of fourteen years without intent to commit rape in the second count. He was tried by the court without a jury and found guilty of lewd, lascivious or indecent assault upon a female minor under the age of fourteen years without intent to commit rape, as a lesser degree of Count I of the indictment, and guilty of Count II as charged. From an adjudication of guilt and sentence of S years in the state penitentiary, Fernandez appeals.

Fernandez contends (1) that the alleged victim, a 6-year-old child, the state’s sole witness to the acts charged in the indictment, was incompetent to testify, and (2) that the evidence was insufficient to support a conviction.

The record reflects that both counsel participated in a voir dire examination of the 6-year-old witness. The prosecutor made inquiry as follows:

“Q . . . do you know what it means to tell the truth?
A Yes.
Q Do you know what it means to tell a lie?
A Yes.
Q What happens if you tell a lie ?
A Get a licking.
Q Who gives you a licking?
A My dad and in part, my mother.
Q Who, your daddy and your mother?
A Yeah.
Q Are you going to tell us the truth today ?
A Yes.”

Counsel for the defendant objected “to the witness testifying on the grounds that I do not honestly feel that the state has established that this particular witness is competent to testify,” and on the grounds “that the child obviously does not know what the definition or know what a lie is, merely to say she gets spanked for telling a lie doesn’t help . . .” The judge overruled the objections and stated:

“I think the questions of what is truth and what is a lie are questions that scholars can debate for many hours and the young lady has testified that she knows to tell the truth is to tell something as it happened, and if she lies about something she gets a licking. And she knows, she stated her age, she stated her name, her mother’s name, she’s described the schools she’s gone to, and the Court is of the opinion she is qualified.”

A decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and to appreciate the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 1907, S3 Fla. 98, 43 So. 312; Swain v. State, Fla.App.1965, 172 So.2d 3; Davis v. State, Fla.App.1972, 264 So.2d 31. Furthermore, the prime test of testimonial competency of a young child is intelligence rather than age. Bell v. State, Fla,1957, 93 So.2d S75, 577; Swain v. State, supra; Davis v. State, supra. From the totality of the record, including voir dire examination and the child’s answers to the questions of the prosecutor and of defense counsel on direct and cross-examination we find that there was sufficient evidence to warrant the judgment of the trial court that the child was competent to testify.

A judgment of conviction comes to this court with a presumption of correctness. Crum v. State, Fla.App.1965, 172 So.2d 24. In determining whether there is sufficient evidence to support the conclusion of the trier of fact, an appellate court need only find substantial, competent evidence to support the verdict. Crum v. State, supra, Wetherington v. State, Fla. App.1972, 263 So.2d 294. Conflicts in evidence, and that it might have been susceptible of differing inferences and presented the trier of fact with questions as to credibility of witnesses and weight to be accorded testimony and other evidence presented, will not establish insufficiency of the evidence to sustain a judgment of conviction when the record discloses there was competent substantial evidence sufficient in law for its support. Wetherington v. State, supra.

Affirmed.


text:
    W. KLANG & SON, INC., a corporation, Appellant, v. MILAR GALLERIES, INC., Appellee.
    No. 75-1518.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied April 1, 1976.
    Norman F. Solomon, Miami, for appellant.
    Nat Gursten, North Miami, Batchelor, Brodnax, Guthrie & Kindred, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ-, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal involves the propriety of an order denying a motion to intervene. Milar Galleries, Inc., a retail jewelry dealer, filed an action against its insuror, following a loss from burglary. Included in the lost property involved were certain items owned by the appellant W. Klang & Son, Inc., a manufacturer and wholesaler of jewelry, which the record shows the latter had sold to the former on consignment. Intervention by the appellant would enable it to be apprised of proceedings in the action, and to timely and effectively assert its claim to any portion of the proceeds or payment resulting from the action to which it would become entitled in event it was found therein that the insurance covered the loss, including Klang’s consigned property. As the owner-consignor of property for loss of which its consignee sought recovery from the in-suror, Klang had an interest in the litiga-tioh sufficient to entitle it to intervene. See Morgareidge v. Howey, 75 Fla. 234, 78 So. 14, 15; Miracle House Corporation v. Haige, Fla., 96 So.2d 417.

The order appealed from is reversed.


author: CAWTHON, VICTOR M., Associate Judge.

text:
    George WERNER and Werner Industries, Inc., a corporation, Appellants, v. John HARPER, Appellee.
    No. V-15.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Rehearing Denied April 8, 1976.
    Calvin W. Wilson, Pensacola, for appellants.
    James E. Hertz, Fisher, Hertz & Bell, Pensacola, for appellee.
   CAWTHON, VICTOR M., Associate Judge.

The record in this case reveals that the plaintiff Harper and the defendants, as well as the plaintiff’s assignor, a group referred to as the Levin Group entered into a contract on October 1, 1969, the pertinent provisions of which were as follows:

(1.) All prior agreements between Wer-ner, Industries, Harper, Harper-Smith, and the Levin Group are hereby revoked.
(2.) That the Levin Group has paid approximately Eighteen Thousand Dollars ($18,000.00) prior to this time, performed a number of legal services as well as other services, and they further promise to pay Twelve Thousand Dollars ($12,000.00) cash immediately upon the execution of this agreement and an additional Twelve Thousand Dollars ($12,-000.00) cash within ninety days, said monies to be used for the expenses of Werner in attempting to develop the retrievable bit drilling system and for the expenses incurred in developing the retrievable bit drilling system.
(3.) Harper and Harper-Smith agree to exert all efforts necessary to help in the development of the retrievable bit drilling system and further in the event that more monies are needed, to help get said monies for the purpose of development of the retrievable bit drilling system.
(4.) That as soon as practicable after the execution of this agreement, Werner shall transfer any and all rights which he may own in the retrievable bit drilling system and all component parts thereof, including any and all patent rights, into Industries; and
(5.) That in return for the above considerations, Industries shall issue to Werner fifty (50%) percent of its original authorized capital stock, Industries shall issue to the Levin Group eighteen (18%) percent of its original authorized capital stock; and Industries shall issue to Harper, seven (7%) percent of its original authorized capital stock; and it is agreed that any additional authorized capital stock up to one million shares shall likewise be divided with fifty (50%) percent to Werner, eighteen (18%) percent to the Levin Group and seven (7%) percent to Harper.

The complaint as amplified by a more definite statement alleged payment of $25,000.00 by the Levin Group toward the purchase of the stock, in Industries the assignment of the rights of the Levin Group to the plaintiff and that the securities were not registered as required by Chapter 517 Florida Statutes. The answer denied the material portions of the complaint and neither pleading was ever amended.

At the conclusion of the non-jury trial the trial court entered a final judgment for the plaintiff and against the defendants in the amount of $28,250.00, but the judgment was bare of any findings of law or fact.

Neither the final judgment nor the briefs of the parties made any reference to Chapter 517 Florida Statutes, but the record and Rule 1.190(b) Florida Rules of Civil Procedure permit us to speculate that the issues tried by the implied consent of the parties were probably one, some or all of the following:

A. Whether or not plaintiff as the as-signee of the Levin Group had a right to rescind the contract because of the defendants’ failure to deliver for inspection certain books and records?

B. Whether or not a tender by the Levin Group of the balance of the amount they contracted to pay for the stock was a prerequisite to a finding that the defendants had breached the contract?

C. Whether or not a recognition of an obligation in the corporate defendant’s prospectus would estop either or both defendants from denying the obligation ?

It is our conclusion that there is no substantial evidence that the failure of the defendants to deliver the books and records was a breach, and in any event such a material breach, of the contract — which' incidentally had no written provisions relating to that delivery — as would excuse the Levin Group from making the tender referred to in B. above as a prerequisite to rescission.

It is clear that the law and the written provisions of the contract would have required, in the absence of special circumstances, such as renunciation, repudiation, or inability to perform on the part of the defendants, a tender of performance by the Levin Group as a prerequisite to an action for rescission.

There is no hint in the record of any such special circumstances nor of a tender. The contract required the Levin Group to make two $12,000.00 payments, one immediately and the other within ninety days and the evidence showed that only $10,250.-00 was paid on the first payment and nothing on the second.

The record does reveal testimony by Lefferts L. Mabie, Jr., one of the Levin Group, “that as a condition to the signing of said agreements, Mr. Werner represented and promised that he would forthwith deliver the corporation’s stock books.”

While Mr. Mabie’s signature is not one of those that appear on the agreements, since the record does not reflect any eviden-tiary rulings, his testimony should, for the purpose of this appeal, be accepted as evidence of a condition precedent and therefore excepted from the parol evidence rule under the principle stated by the District Court of Appeal, Second District in Chappell v. Hasche, Fla., 98 So.2d 808.

From the foregoing it might be argued that the judgment of the trial court could be' sustained if we assumed that it found that the contract never came into existence because the condition precedent testified to by Mr. Mabie was never met. This proposition has never been advanced and is negated by the recitation in the court prepared reconstruction of testimony that “plaintiff was entitled to a judgment . . . for breach of contract.”

If the contract did exist, we do not understand how the delivery.of the books and records could be a condition precedent to the payment or tender of all of the first $12,000.00 payment which the written contract1 required be made “immediately upon the execution of this agreement.”

Insofar as estoppel is concerned we do not feel that there has been any showing that any party relied to its detriment on the representations in the prospectus of the corporate defendant and therefore neither it nor the individual defendant would be estopped to deny the obligation.

Although it is this court’s opinion, because of the foregoing legal and factual considerations, that the judgment appealed from cannot be sustained on the record submitted, we are conscious of the strong presumptions which favor judgments entered by the trial courts where they sit as the finders of fact and we are also conscious of the likelihood that the record before us, which was compiled without benefit of a transcription by the court reporter whose death precluded the preparation of such a transcript, may have omitted evidence which would have materially influenced our opinion and for that reason the final judgment appealed from is hereby set aside and the order of the lower court denying the defendants’ motion for a new trial is hereby reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded for a new trial.

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


text:
    The WILLARK HOUSE, S.A., a Panamanian Corporation, Appellant, v. Evelio ESPINOSA, Appellee.
    No. 75-479.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied April 1, 1976.
    Levine, Helman & Reckson, and Robert S. Geiger, Miami, for appellant.
    Harold J. Cohen, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, the Willark House, S.A., appeals from a final judgment after non-jury trial foreclosing a defaulted mortgage and notes evidencing the debt. The court ordered a judicial sale of defendant’s property to satisfy the debt to the plaintiff, Eve-lio Espinosa. Espinosa cross-appeals on the amount of the debt.

A detailed recitation of the complicated facts surrounding the transaction forming the basis of the mortgage foreclosure action giving rise to this appeal would serve no purpose except to lengthen the opinion. The essence of the defendant’s argument on appeal is that Espinosa, the plaintiff, was not the owner and holder of the notes in question. The defendant claims that its attorney held the notes in escrow pursuant to an oral agreement and, therefore, the trial court erred in entering judgment of foreclosure in favor of Espinosa based on the notes. In support of its position, the defendant sets forth the rule of law that “a mortgage is a mere incident of, and ancillary to, the note or other obligation secured thereby.”

We recognize and fully agree with this statement of the law, but find it to be inapplicable to the facts presented in this case. It appears from the evidence adduced at trial that the alleged escrow agreement was not proven. In its final judgment, the trial court found Espinosa, the plaintiff, to be the owner and holder of the notes. We find nothing in the record to warrant a reversal of this finding.

There is no question, and the defendant admits that the indebtedness is due and owing. The defendant contends, however, that since other individuals and another corporate entity (not parties to the litigation) claim to or do have an interest in the proceeds of the notes, it refuses to pay unless Espinosa provides releases from those parties. In upholding the trial court’s finding that Espinosa is the owner and holder of the notes, we find that the defendant, Willark House, S.A., must make the payments to Espinosa. The matter of the other corporation and persons allegedly interested in the proceeds of the notes should be determined by and between Espinosa and those parties.

Espinosa’s cross appeal is without merit. The evidence in the record does not support his claim to an additional $5,000.

Affirmed.

      . Sobel v. Mutual Development, Inc., Fla.App.1975, 313 So.2d 77, 78.


text:
    Dolores Mae GUTHRIE, as Executrix of the Estate of Edward James Guthrie, Deceased, Appellant, v. AETNA STEEL COMPANY and Continental Casualty Co., Appellees.
    No. 75-872.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Rehearing Denied April 9, 1976.
    Michael Jeffries, Neill, Griffin, Jeffries & Lloyd, Fort Pierce, for appellant.
    Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for appellees.
   PER CURIAM.

We conclude that the amended complaint states a cause of action both in negligence (Count I) and implied warranty (Count II) and it was therefore error to dismiss the same with prejudice.

Reversed and remanded.

WALDEN, C. J., and OWEN and MA-GER, JJ., concur.


author: OWEN, Judge.

text:
    Wallace OGLESBY, as administrator of the Estate of William Oglesby, on behalf of the Estate of William Oglesby, and Wallace Oglesby, as administrator of the Estate of William Oglesby, on behalf of Wallace Oglesby and Lula Oglesby, natural parents of the Deceased William Oglesby, Appellant, v. SEMINOLE COUNTY BOARD OF PUBLIC INSTRUCTION, a political subdivision of the State of Florida, et al., Appellees.
    Nos. 74-1799 and 75-373.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.

      James Michael Matthews and James C. Fisher, Law Offices of James C. Fisher, Altamonte Springs, for appellant.
    O. H. Eaton, Jr., Stenstrom, Davis & McIntosh, Sanford, for appellee-Seminole County Bd. of Public Instruction.
    J. Richard Caldwell, Jr., Pitts, Eubanks, Ross & Rumberger, Orlando, for appel-lees-Horace Mann Ins. Co. and Dan Pel-ham.
   OWEN, Judge.

Where a public school student with known violent propensities is suspended from school, and subsequently after school hours assaults another student at an off-campus location unconnected with any school-related facility or program, does the school and the school’s supervising principal incur a legal liability to the victim on the basis of a failure to properly supervise the suspended student? We answer this in the negative.

Appellant’s minor son, William, died as a result of injuries sustained when a fellow student of Sanford Middle School, one Samuel Geter, assaulted and beat him while he was walking home from school. Geter, who had a history of prior violent conduct involving other students and teachers, had been suspended and dismissed from school an hour earlier as a result of a classroom disturbance that day. The incident occurred at a location which was off the school campus and unconnected with any school facility or program. Appellant’s suit against the Seminole County Board of Public Instruction and the principal of Sanford Middle School, ap-pellee/Pelham, alleged the defendants breached their duty to properly supervise the students of Sanford Middle School. By separate orders the trial court granted the school board’s motion to dismiss and the principal’s motion to dismiss. The respective appeals taken from such orders have been here consolidated.

The incident occurred at a time when the school board enjoyed sovereign immunity. Appellant’s amended complaint alleged that the school board had waived immunity by virtue of having procured liability insurance pursuant to Fla.Stat. § 455.06 and Fla.Stat. § 230.23, subd. 9(d) (2) (1973). On a. motion to dismiss, these allegations would be taken as true. However, at oral argument counsel for appellant stipulated that the school board had not, in fact, procured liability insurance providing coverage for the board’s alleged negligence, and therefore conceded that no useful purpose could be accomplished by a reversal as to the school board, since it would in any event prevail ultimately on the basis of sovereign immunity.

Be that as it may, our decision in this case is on a broader basis under which, even absent sovereign immunity neither the school board nor the school’s supervising principal have any legal liability to appellant. We simply hold that where a public school student has been suspended from a school and has been removed from the school grounds and all school related facilities and programs, neither the school board nor the supervising principal of the school have any further duty to supervise or oversee the conduct of such suspended student at locations which are off campus and which are nonschool related. Appellant cites the cases of King v. Dade County Board of Public Instruction, 286 So.2d 256 (3rd DCA Fla.1973); Gallagher v. City of New York, 30 A.D.2d 688, 292 N.Y.S.2d 139 (1968), and Hanson v. Reedley Joint Union High School Dist., 43 Cal.App.2d 643, 111 P.2d 415 (1941), but they are all factually distinguishable in that each involves a failure to supervise student conduct on or within school grounds or school related facilities or programs. Our holding in this case relates solely to the duty to supervise students’ conduct at off-campus locations which are unrelated to school activities or programs.

Both appellee/school board and appellee/Pelham asserted in their respective motions to dismiss, as well as in their respective briefs before this court, that liability could not be imposed in any event because the allegations of the amended complaint show that there was no causal connection between the alleged negligence of the defendants and the injuries sustained by young William Oglesby, the intervening criminal act of Geter being, as a matter of law, an efficient intervening cause. Appellees cite a number of cases in support of their position but we find it unnecessary to discuss this point as our holding here does not in anywise turn upon the applicability of such principle. We would note, however, that in the case of King v. Dade County Board of Public Instruction, supra, the court held sufficient a complaint against the school wherein a minor and his parent sought damages for injuries occurring as a result of an assault upon the minor by fellow students occurring within the school facility.

The amended complaint did not allege a cause of action against the appellees. There was no error in dismissing the amended complaint with prejudice after appellant declined to further amend.

AFFIRMED.

DOWNEY, J., and LEE, J. CAIL, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Esther TAX and Burton Tax, Appellants, v. Lester KEISER d/b/a Las Brisas Apartments, South and Aetna Insurance Company, Appellees.
    No. 75-939.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Stanley M. Rosenblatt, P.A., Miami, for appellants.
    Nancy Little Hoffmann, of Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

On November 1, 1972, appellants as lessees and appellee Keiser as lessor entered into a written lease for an apartment in appellee’s building. The lease contained an exculpatory provision wherein the tenants waived any claim against the landlord for negligence arising out of the defective condition of the premises. Although the term of the written lease was to begin December 1, 1972, appellants entered into possession of the apartment on November 21, 1972, and Mrs. Tax promptly injured herself by falling over an allegedly improperly lighted step.

By amended answer appellees affirmatively pleaded that the exculpatory clause of the written lease constituted an absolute defense. Appellants did not reply to said defense, and upon appellees’ motion the trial court granted appellees a summary judgment.

The record before the trial court reflects that the written lease was not effective on its face until December 1, 1972. The record is silent as to whether there was some other agreement between the parties covering the period between November 21, 1972, and December 1, 1972, which could have rendered the exculpatory clause inapplicable. Thus there may well be a genuine issue of material fact existing between the parties hereto. However, appellants did not reply to the affirmative defense as they were required to do by Rule 1.100(a) RCP. Therefore entry of the summary judgment was appropriate.

The error which we perceive came about when the trial court did not allow appellants to amend their pleadings by way of a reply to set forth facts which the record indicates may be available to avoid appellees’ affirmative defense. We believe the record before the trial court when the motion for summary judgment was heard required appellants be afforded that opportunity.

Accordingly, the entry of the summary judgment for appellees is affirmed. However, this affirmance is without prejudice to the plaintiff-appellants within a time to be set by the trial court, to move for leave to file a reply, if they are able, to the defendant-appellees’ affirmative defense. Roberts v. Braynon, Fla.1956, 90 So.2d 623; Gold Coast Crane Service, Inc. v. Watier, Fla.1971, 257 So.2d 249.

It is so ordered.

WALDEN, C. J„ and LEE, THOMAS E., Associate Judge, concur.

      . Section 83.47 F.S.1973 became effective July 1,1973.


text:
    Emmanuel George ZAMMAS, Appellant, v. Jill Barrie ZAMMAS, Appellee.
    No. 75-691.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Ullman, Kimler & Entin, Miami, for appellant.
    Gold & Fox, Coral Gables, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By a judgment rendered in January of 1971, the parties were divorced. Approved therein was a property settlement agreement they had made, in which the parties had agreed upon an adjustment of their property rights, and, in the event of divorce, that the wife should have custody of the two children, then aged two and seven; that the husband would pay $200.00 per month child support, and alimony of $200.00 per month for six months after which the alimony would be at the rate of $125.00 per month. Included was a provision whereby the husband deeded his equal interest in the home property to the wife, to be held in trust for the benefit of the children.

Approximately four years thereafter the husband moved for modification of the judgment, seeking to have the alimony terminated or “substantially reduced”, alleging as changes of circumstances that the wife was gainfully employed and by inheritance had received a one third interest in a mortgage and $9,325.19. The wife also moved for modification, seeking an increase in the child support. On the hearing it was brought out that the wife’s earnings had increased from $6,848.45 per year to $8,378.75 per year, and that the value of her inheritance was $17,000.00. Also, it was shown that in the intervening period the husband’s income had progressed from $10,400.00 per year to approximately $13,000.00 per year.

The trial court entered an order denying both petitions for modification. On this appeal by the husband and cross assignments of err by the wife the parties claim error in the denial of their petitions for modification.

On consideration thereof we are impelled to affirm the challenged order. The matters presented by the petitions for modification called for the exercise by the court of its sound judicial discretion, and the order entered by the court thereon should not be disturbed on appeal in the absence of a showing of clear abuse of discretion, of which we find none has been made to appear.

The order appealed from is affirmed.


author: PER CUÍ1IAM.

text:
    Harold A. SCHULER, Jr., Appellant, v. Roberto FABRICIO and the Miami Herald Publishing Company, a Florida Corporation for profit, Appellees.
    Nos. 75-776, 75-777.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Sams, Anderson, Alper & Post and Edward B. Greene, Miami, for appellant.
    Paul & Thomson, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CUÍ1IAM.

Affirmed. See: McCormick v. Miami Herald Publishing Company, Fla.App. 1962, 139 So.2d 197; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789; Washington Post Company v. Keogh, 1966, 125 U.S.App.D.C. 32, 365 F.2d 965; Bon Air Hotel, Inc. v. Time, Inc., 5th Cir. 1970, 426 F.2d 858.


author: . PER CURIAM.

text:
    Johnnie Lee JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-826.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    John T. Chandler, Florida Legal Services Inc., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   . PER CURIAM.

Affirmed. See Fuller v. Wainwright, Fla.1970, 238 So.2d 65; Nelson v. State, Fla.App. 3rd 1973, 281 So.2d 49.


text:
    Harry WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-994.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Phillip A. Hubbart, Public Defender, Bennett H. Brummer, Asst. Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Randolph v. State, Fla. App.1974, 292 So.2d 374 and cases cited therein.


text:
    Clarence RAHMING, and Annie Rahming, his wife, Appellants, v. CORNELIUS & SONS, INC., a Florida Corporation, et al., Appellees.
    No. 75-1535.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Kuvin, Klingensmith & Lewis, Miami, for appellants.
    Alexander L. Martone, Miami, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

The appellees having filed a confession of error in this cause, the order dated September 2, 1975 dismissing plaintiffs’ cause of action with prejudice be and the same is hereby reversed, and this matter is hereby returned to the trial court for further proceedings.

Reversed and remanded.


text:
    J. M. D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1122.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian and William M. Grodnick, Asst. Attys. Gen., for appellee.

      Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, a 17-year-old child, was charged in a petition for delinquency with the commission of two felonies, to-wit : robbery and use of a weapon in the commission of a felony. The prosecution filed a motion for waiver of juvenile jurisdiction, and certification of the case for trial as if the child were an adult, as provided in § 39.09(2) (a), Fla.Stat.

A waiver hearing was held. The judge of the circuit court, juvenile division entered an order of transferral to the criminal division, finding that there is probable cause to believe that the child did commit the felonies; that the public interest would be best served by the transfer and that there do not exist reasonable prospects for rehabilitation of the child prior to his majority.

We have studied the entire record with particular emphasis on the transcript of the testimony adduced at the waiver hearing, and we conclude that there is ample evidence to support the conclusions of fact set forth in the order of transferral. Further, we find that the juvenile court complied in all respects with Rules 8.100(c) and 8.-110(b), RJP, and we find no abuse of discretion in its decision to transfer the appellant to the criminal division for trial as an adult. Accord W. B. v. State, Fla.1975, 313 So.2d 711; see Davis v. State, Fla. 1974, 297 So.2d 289. The elements and factors required to be considered by the juvenile court are set out in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L. Ed.2d 84 and in § 39.09(2) (c), Fla.Stat.

The order of transfer is affirmed.


author: PEARSON, Judge.

text:
    EDWARD J. GERRITS, INC., a Florida Corporation, and the National Fire Insurance Company of Hartford, a Foreign Corporation, Appellants, v. ASTOR ELECTRIC SERVICE, INC., a Florida Corporation, Appellee.
    Nos. 75-525 and 75-644.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.

      Richard M. Gale, Miami, Cypen & Nev-ins, Miami Beach, for appellants.
    Therrel, Baisden, Peterson, Stanton & Stillman and Fred R. Baisden, Jr., Miami Beach, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

These appeals are by the defendants from a summary final judgment and an amended summary final judgment respectively. The difference in the two judgments is that the second fixed attorney’s fees for the plaintiff. The defendants are Edward J. Ger-rits, Inc., the general contractor for the construction of the Cedars of Lebanon Hospital in Miami, and The National Fire Insurance Company of Hartford, the general contractor’s surety. The appealed judgment held that the general contractor must pay the plaintiff subcontractor, Astor Electric Service, Inc., the balance of its unpaid subcontract even though the owner is insolvent and the general contractor may be forced to accept an agreement by the receiver for payment of 62% of the amount due on the contract.

The question presented on this appeal arises out of the following provision in the contract between the contractor and the subcontractor:

“SECTION IV — Payments: The General Contractor agrees to pay to the Subcontractor for the performance of his work the sum of ONE MILLION, TWELVE THOUSAND, FOUR HUNDRED FORTY Dollars and no/100 ($1,012,440.00) which amount includes all work in Section II of this contract, all permits that must be taken out for the performance of his work, all taxes, licenses, fees, etc. The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.” (Emphasis added)

The contractor relies upon the rule that where a promise to pay is conditioned upon the realization of a particular fund, then the promise may not be enforced unless the fund is realized. Cohen v. Mohawk, Inc., Fla.1962, 137 So.2d 222; see Mascioni v. I. B. Miller, Inc., 261 N.Y. 1, 184 N.E. 473 (1933).

The subcontractor urges that the provision for payment to it “at such times as the General Contractor receives it from the owner” is a provision as to time of payment and is not a condition of payment. The subcontractor further points out that in such circumstances, some courts have held that the debt still exists and must be paid within a reasonable time. See Mock v. Trustees of First Baptist Church of Newport, 252 Ky. 243, 67 S.W.2d 9, 94 A.L.R. 716 (1934); Thos. J. Dyer Co. v. Bishop International Engineering Co., 303 F.2d 655, (6th Cir. 1962).

We hold that the better reasoned view is that expressed by the Court of Appeals of New York in Mascioni v. I. B. Miller, Inc., 261 N.Y. 1, 184 N.E. 473 (1933). The court dealt there with a provision in a contract providing for “payments to be made as received from the Owner.” The provision in the present contract is a very similar one providing for “The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.” In each case, the subject is not a debt already in existence but an obligation to pay upon a contract which created the obligation. The contract may be reasonably interpreted as shifting to the subcontractor the risk of the owner’s failure to pay.

We recognize that every contract is to be construed in accordance with the intention of the parties. On the motion for summary judgment, the contractor, by its affidavit, has introduced into this cause the issue of the intention of the parties. The subcontractor has maintained as to the summary judgment that the intention is immaterial, but this does not bar a litigation of the issue if it is found to be material.

In addition, as pointed out, it appears from the record that the prospects are that there will be a payment of 62% of the balance due on the general contract from a settlement by the bankruptcy court.

We, therefore, reverse the summary final judgment for the plaintiff subcontractor and remand the cause for a trial on the issue of the construction of this contract upon the evidence that may be presented, and for such further proceedings as may be proper in the light of the views expressed herein.

We have examined the appellant’s assignments of error as to the awarding of attorney’s fees and the appellee’s cross-assignments of error as to the failure of the trial court to award interest as a part of the amended summary final judgment, and find that no error is presented.

Reversed and remanded.

      . “ ‘A contract or promise to pay may be restricted to a particular fund, so as to make the raising or the sufficiency of the fund a condition precedent to the liability, and in such case the promise cannot be enforced until the fund is realized, unless the failure to realize or eolleet the fund from which payment is made is due to the neglect, or to the unreasonable refusal to act, of the promisor, or is otherwise attributable to him.’ (Emphasis that of the District Court.)” Cohen v. Mohawk, Inc., Fla.1962, 137 So.2d 222, 224; accord Ballas v. Lake Weir Light & Water Co., 1930, 100 Fla. 913, 130 So. 421.

      . “The time of performance is sometimes made to depend upon the doing of some specified act other than that which the parties to the contract agree to do or it is made to depend upon the happening of some event which the parties to the contract do not covenant to cause to happen. , The tendency of the courts is to hold that unless the contract shows clearly that such an action is an express condition, the provision with reference to such act is inserted in order to fix the time of performance, but not to make the doing of such act or the happening of such event a condition precedent. If this is the intention of the parties, the fact that such act is not performed or that such event does not happen, does not discharge the contract, and the act which the parties agree to do upon the performance of such act or upon the happening of such event, is to be performed in at least a reasonable time. This principle has been applied to a promise to pay when the maker has finished a church then building; or to pay when a certain dispute is settled; or ‘as soon as the crop can be sold or the money raised from any other source.’” 303 F.2d 665, 660 (6th Cir. 1962)

      . Affiant Patrick Gerrits stated the following:
      “3. Prior to the execution of the subcontract attached to the complaint as Exhibit A, your affiant and representatives of the plaintiff corporation engaged in negotiations concerning the proposed subcontract. That portion of Section IV of the contract which reads as follows:
      ‘Payments: The General Contractor agrees to pay to the Subcontractor for the performance of his work the sum of ONE MILLION, TWELVE THOUSAND, POUR HUNDRED FORTY Dollars — and no/100 — ($1,012,440.00) which amount includes all work in Section II of this contract, all permits that must be taken out for the performance of his work, all taxes, licenses, fees, etc. The money to be paid in current funds and at such times as the General Contractor receives it from the Owner.’
      was discussed with representatives of Astor. It was clearly pointed out to Astor and understood by its representatives that payments under the subcontract would be made by the defendant to the plaintiff when and as received from the owner or construction lender and not otherwise. The plaintiff executed the subcontract having full knowledge and understanding of the provisions of the subcontract.”


text:
    Paul H. ZIMMER, Appellant, v. Jean W. ZIMMER, Appellee.
    No. 75-1150.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    John L. O’Brien, of Clarke, O’Brien & Wutt, Deerfield Beach, for appellant.
    Marshall G. Curran, Jr., of English, McCaughan & O’Bryan, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant seeks review of an order denying his petition to modify certain provisions of a property settlement agreement pertaining to alimony.

We affirm the order appealed from as to the refusal to modify the provision for payment of lump sum alimony since that character of alimony is not subject to modification pursuant to § 61.14 F.S. 1973. Gordon v. Gordon, Fla.App.3d, 1967, 204 So.2d 734; Horne v. Horne, Fla.App. 2d, 1974, 289 So.2d 39.

We also affirm the order appealed from as to the periodic alimony because we feel it was within the trial court’s discretion to determine that any non self-created financial problems appellant encountered may be only temporary. If after a more reliable period of time appellant can demonstrate that the condition persists, then he may reapply for relief.

AFFIRMED.

WALDEN, C. J., and ANDREWS, JOHN S., Associate Judge,- concur.


text:
    Joey MURCHISON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-115.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    David Cerf, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., and ■Joseph F. Iracki, Legal Intern, for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Sullivan v. State, Fla. 1974, 303 So.2d 632; State ex rel. Harris v. McCauley, Fla. 1974, 297 So.2d 825; Richardson v. State, Fla.1971, 246 So.2d 771; Jefferson v. Sweat, Fla. 1954, 76 So. 2d 494; Cornelius v. State, Fla.1950, 49 So.2d 332; Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Ramirez v. State, Fla. App.1970, 241 So.2d 744; Buttler v. State, Fla.App.1970, 238 So.2d 313; Giamo v. State, Fla.App.1971, 245 So.2d 116, cert. den. 251 So.2d 878 (Fla.1971).


text:
    Helen L. YELVINGTON, Individually, and Broward Sand Co., a Florida Corporation, Appellants, v. Irving J. DENMARK et al., Appellees.
    Nos. 75-336, 75-346.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.

      Ryan & Shahood, Dania and Ralph R. Quillian, Hollywood, for appellants.
    Richard Karl Goethel, Coral Gables, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appeals of the defendant, Helen L. Yelvington and Broward Sand Co., from a final summary judgment for plaintiffs have been here consolidated.

A dissertation of the facts giving rise to the lengthy contractual agreements between the parties would serve no useful purpose. Suffice it to say, that the plaintiffs, Irving J. Denmark, and others, leased land to Elijah Yelvington for exploitation of sand, fill and muck. Elijah assigned the contract to Broward Sand Co. Elijah died and thereafter Broward Sand breached the contract. The sole issue as to Helen Yelvington’s appeal is whether or not the terms and provisions of the contracts and addenda thereto, relating to this transaction, create and impose individual liability upon her where no judgment arising out of the contracts was entered against Elijah, her deceased husband.

The pertinent part of the contract, dated March 10, 1964, is as follows:

* * * * * * “Helen Yelvington . . . the wife of ELIJAH ANDERSON YELVING-TON, . . . acknowledges that she is executing this acknowledgment not for the purpose of entering into the foregoing contract between the parties thereto, but for the specific purpose of subjecting any property which she may own jointly or by the entirety with her husband, ELIJAH ANDERSON YELVINGTON, to a lien of execution should any exist based on litigation between the Vendors [Denmark et al] and Vendee [Elijah Yelvington] in the aforementioned contract, and if in the event there is any litigation, that a judgment be entered against her husband, ELIJAH ANDERSON YELVINGTON. It is the purpose of this acknowledgment to provide that as against the Vendors in this contract, such property is to be deemed to be held as a tenancy in common with her husband as opposed to a tenancy by the en-tireties so as to allow the Vendors, if they become judgment creditors, to enforce their judgment against the husband’s share of the property held by the entireties . . . ”

The salient parts of the assignment contract dated July 18, 1964, are:

“2. THAT WHEREAS the Vendors [Denmark et al] are consenting, in accordance with the terms of the aforementioned Agreement, to this assignment upon the sole condition that the Assignors [Elijah and Helen Yelvington] remain fully and primarily liable as though they were to continue each and every single condition and covenant and agreement as contained in the aforementioned contract, the addenda and modifications thereof; and
4. It is agreed that by the execution hereof, ELIJAH A. YELVINGTON and his wife, HELEN L. YELVING-TON, specifically agree and acknowledge that they are, in consideration of the Vendors consenting to this agreement, to be bound to each term and covenant of the contract dated March 10, 1964, the addenda and subsequent modifications, together with the execution of all subsidiary and ancillary documents to the same force and extent as they are primarily.”

Helen Yelvington’s property became subject to levy on execution only in the event of a judgment against Elijah. We find that the language of the agreements creates no individual liability on Helen L. Yelvington for the reason that there was at no time any judgment against Elijah, and her later agreement imposes no further or additional liability than she contracted for originally.

Turning to the summary judgment against Broward Sand, the record reflects that there is a genuine issue of material fact with regard to a set-off for fill stockpiled on the property at the time of the breach by Broward Sand.

Therefore, the summary judgment against Helen Yelvington and Broward Sand is reversed with directions to proceed consistent with this opinion.

Reversed.


text:
    Michael H. FORREST and J. K. Marketing Associates, Inc., Appellants, v. Joel KORNBLATT, d/b/a J. K. Marketing Associates, Appellee.
    No. 75-537.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.

      Fink & Syna, Miami, for appellants.
    Wolfson & Lichter, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff Michael Forrest appeals a final judgment dismissing his breach of contract action against the defendant Joel Korn-blatt. Two orders are appealed. The first is a partial summary judgment holding a covenant not to compete unenforceable. The second is a judgment in the nature of a directed verdict for defendant entered during the progress of the trial on the ground that plaintiff had not proved the written contract.

The partial judgment, holding the covenant not to compete unenforceable, is affirmed. The contract was made in Georgia and included that state as well as the state of Florida in the territory restricted. The trial judge correctly determined that the covenant was unenforceable in Georgia. See Taylor Publishing Company v. Jones, 226 Ga. 832, 177 S.E.2d 655 (1970). We recognize that the enforceability of the covenant in the courts of Florida must be determined by the law of this state. State-Wide Insurance Company v. Flaks, Fla.App. 1970, 233 So.2d 400. Under Fla.Stat. § 542.12, the trial judge is called upon to exercise a sound judicial discretion in determining whether such a covenant is conscionable and is reasonably limited in time and area. See the rule in Atlas Travel Service, Inc. v. Morelly, Fla. App.1957, 98 So.2d 816. This record does not show an abuse of discretion under the circumstances of this case. The partial summary judgment will be affirmed.

After the entry of the partial summary judgment there remained for trial the issue of plaintiff’s claim of damages for the alleged breach of the remaining portions of the contract. At trial, the judge sustained defendant’s objection to the admission into evidence of a signed, typewritten, second copy of the contract on the ground that only the typewritten original was the best evidence of the contract. Thereupon, the plaintiff moved for a continuance of trial which was denied. Plaintiff was given an opportunity to take a non-suit and when he declined, the cause was dismissed with prejudice.

The trial judge’s ruling that a duplicate original was not admissible in evidence was error. The ruling was in error upon the further ground that a copy of the contract had been identified by the defendant upon deposition. A copy of the contract was attached to the complaint and admitted to be the contract of the parties by the answer. See R.C.P. 1.140(h).

Therefore, the judgment dismissing plaintiff’s complaint is reversed and the cause remanded for trial of the issues raised by the pleading except those relating to the covenant not to compete.

Affirmed in part, reversed in part and remanded.

      . “The rule requiring a party to introduce the best evidence of which the nature of the case admits and which it is within his power to produce is subject to an exception in the case of duplicate originals.” 29 Am.Jur.2d Evidence § 487 (1967).


text:
    Mark Wesley FOWLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-890.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Joseph C. Brannen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, Mark Wesley Fowler, was charged by information with breaking and entering and resisting policewoman Niki Cipriani with violence to her person. Following a jury trial, he was found guilty of resisting an officer with violence to his (her) person and sentenced to serve one year in the Dade County stockade. Defendant appeals his adjudication of guilt.

Police Officer James Pannella, off duty at the time, at approximately 1:15 A.M. observed the defendant pulling his arm out of a window of a drugstore and kicking some of the broken glass alongside the building. Pannella summoned for assistance, ordered the defendant, who had begun walking from the scene, to halt and identified himself as a police officer. The defendant at first submitted to a weapons search by Pannella, but then began to resist the officer. The two wrestled each other to the ground, at which time Officer Niki Cipriani, who was in uniform, pulled up in a marked police car, jumped out and clamped one handcuff on the right hand of the defendant. Suddenly the defendant broke loose and struck Officer Cipriani on the side of her stomach with the handcuff. Several other officers came to their aid and during the affray, Officer Cipriani was kicked by the defendant several times. Eventually the officers subdued him.

Defendant urges as error the denial by the trial court of his motion for judgment of acquittal on the count of resisting an officer with violence to (her) person in that he was not informed he was under arrest and Officer Cipriani never identified herself as a police officer.

The record demonstrates that Officer Cipriani, whom defendant was charged with resisting, emerged from a clearly marked police car and was in full uniform at the time. In addition, it was not until after defendant had gotten to his feet, that he momentarily broke loose and struck Officer Cipriani. Under the circumstances, we find there was no requirement that she identify herself as a police officer. Further, the facts indicate that defendant was well aware that Officer Cipriani had arrived on the scene to aid in his arrest. Cf. Smith v. State, Fla.App. 1974, 292 So.2d 69. Thus, this point must fail.

We also reviewed defendant’s argument on appeal that the trial court erred in declining to answer a question posed by the jury after it had retired to deliberate, and conclude it is without merit. See Alford v. State, Fla.App.1973, 280 So.2d 479.

Affirmed.


text:
    Louise E. MEYER, Appellant, v. Danny B. MEYER, Appellee.
    No. 75-388.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 1, 1976.

      William John Mason, Miami, for appellant.
    Louis Winter, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the wife and a cross-appeal by the husband from portions of a final judgment of dissolution of marriage relating to the court’s adjudication of certain property rights between the parties to the action.

The grounds relied upon for reversal have been carefully considered in the light of the record and briefs and we have found no reversible error has been shown. The decision of the chancellor comes to us with a presumption of correctness, and appellant’s burden is to show that the judgment was clearly erroneous.

Affirmed.


text:
    Glenn D. SCHERER, Appellant, v. The CLUB, INC., d/b/a Kings Bay Yacht and Country Club, Inc., a Florida Corporation, Appellee.
    No. 75-1243.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellant.
    Leland E. Stansell, Jr. and Robert A. Glassman, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

By this interlocutory appeal plaintiff seeks reversal of the trial court’s order setting aside the default entered against the defendant for its failure to serve or file an answer or other pleadings to plaintiff’s complaint for damages.

On February 6, 1975, proper service was made on the defendant, The Club, Inc. d/b/a Kings Bay Yacht and Country Club, Inc. Ten days after defendant’s answer was due a default was entered pursuant to plaintiff’s motion.

On March 17, 1975, plaintiff filed a notice for trial and sent a copy to defendant’s resident agent. On May 28, 1975, almost three months after the entry of the default, the defendant by and through its attorneys moved to set aside the default on the grounds of excusable neglect. The motion was supported by affidavits from Doug Hetherington, underwriter for Hull & Co. and Al Ives, Casualty Claims Supervisor for Devonshire Coverage Corporation. The trial court entered its order on June 30, 1975 setting aside the default.

Appellant contends that the trial court erred in the entry of the order because the affidavits in support of defendant’s motion were legally inadequate to support the motion and because, based on the facts of the case, the defendant’s excuse for failure to answer plaintiff’s complaint in a timely fashion was legally insufficient to justify the setting aside of the default.

It is apparent from the record that the defendant, The Club, Inc., filed no affidavit on its own behalf by any officer or agent seeking to justify its failure to respond to plaintiff’s complaint. The only affidavits filed were by agents of the defendant’s insurance company seeking to justify that insurance company’s failure to take action to respond to the complaint.

We find merit in appellant’s contention that the affidavits in support of defendant’s motion were legally inadequate to support the motion to set aside the default. As we said in Winky’s, Inc. v. Francis, Fla.App.1970, 229 So.2d 903, “Before a trial judge may vacate a default, a corporate defendant must allege and prove excusable neglect of an officer or agent.” Since neither an affidavit or other proof appear in the record to show excusable neglect by an officer or agent of the defendant nor was it made to appear that the defendant had a meritorious defense, the motion should have been denied. Chaney v. Headley, Fla., 90 So.2d 297.

Therefore, for the reasons stated, the order setting aside the default is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: NATHAN, Judge. PEARSON, Judge

text:
    BODIN APPAREL, INC., a Florida Corporation, Appellant, v. SUPERIOR STEAM SERVICE, INC., a Florida Corporation, et al., Appellees.
    No. 75-442.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.

      Stephens, Thornton & Schwartz and Lawrence A. Fuller, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by Bodin Apparel, Inc., defendant and third party plaintiff in the trial court, from an order granting with prejudice, the motion of third party defendants, Superior Steam Service, Inc., and Clarence H. McMillen, Mary C. Mc-Millen and Lena A. Harley, to dismiss the third party complaint filed against them in a wrongful death action.

The action commenced when the plaintiff, Lena A. Harley, as wife and adminis-tratrix of the estate of Norman T. Harley, deceased, filed a complaint for damages for the death of Norman T. Harley by electrocution when he came in contact with an uninsulated high voltage power line while working installing equipment on the roof of Bodin Apparel, Inc.’s premises. The complaint alleged that the deceased, as vice president of Superior Steam Service, Inc., was engaged by Bodin Apparel to install equipment on the roof. Harley was performing work on Bodin Apparel’s roof, as an employee of Superior Steam, when he was electrocuted. The complaint alleged active negligence on the part of Bod-in Apparel. Bodin answered the plaintiff’s complaint and filed a third party complaint against Superior Steam Service, Inc., as employer of the deceased, and against its officers and board of directors, individually, one of whom is Lena A. Harley, the plaintiff. The third party defendants filed a motion to dismiss, the motion was granted with prejudice and this appeal ensued.

Bodin Apparel contends that the trial court erred in dismissing the third party complaint. We agree in part. In Central Truck Lines, Inc. v. White Motor Corporation, Fla.App.1975, 316 So.2d 579, we held that a defendant is not “locked in” by an allegation in the plaintiff’s complaint that the defendant is the active tort-feasor, thus precluding the defendant from alleging in a third party complaint that he is but a passive tort-feasor and that the third party defendant is the active tort-feasor and defeating the maintenance of a third party claim in the same action. The fact that plaintiff Harley alleged that Bodin Apparel was the actively negligent party, does not preclude defendant Bodin from filing a third party claim alleging that, if it (Bodin) was negligent, its negligence was merely passive, in contrast to the active negligence of the third party defendant(s) and that, therefore, it (Bodin) is entitled to be indemnified.

We find, however, that the McMillens and Lena Harley, the officers and directions of Superior Steam, Inc., are not subject to individual liability on any of the allegations of the third party complaint under the facts presented in this case. See Gordon Finance, Inc. v. Belzaguy, Fla.App. 1968, 216 So.2d 240; Plaza Del Prado Condominium Association, Inc. v. GAC Properties, Inc., Fla.App.1974, 295 So.2d 718, and compare Ramel v. Chasebrook Construction Company, Fla.App.1961, 135 So.2d 876; CIC Leasing Corporation v. Dade Linen and Furniture Company, Fla. App.1973, 279 So.2d 73.

One of the allegations of the third party complaint is that the third party defendants, Superior Steam Service Inc., Clarence H. McMillen, Mary McMillen, and Lena A. Harley, jointly and/or severally, negligently failed to provide workmen’s compensation insurance to the original plaintiff, the decedent, Norman T. Harley, and that had workmen’s compensation insurance been provided, the defendant-third party plaintiff, Bodin Apparel, would be covered thereby and would be immune from suit as not being a third party under Chapter 440, Fla.Stat. Since the McMillens and Lena Harley, the officers and directors, are not responsible as individuals for any of the claims in the third party complaint, they are not individually responsible for failure to have workmen’s compensation insurance. Also, we are not aware of any authority for holding the corporate defendant, Superior Steam Service, Inc., to respond in negligence on the claim for failure to have workmen’s compensation insurance.

Accordingly, we hold that the trial court correctly dismissed the third party complaint as to the individual defendants but erred in dismissing it as to Superior Steam, Inc. This opinion is not to be considered as passing on the merits vel non of certain allegations in the third party complaint against Superior Steam Service, Inc., including failure to have workmen’s compensation insurance.

The order of dismissal is affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

PEARSON, Judge

(dissenting in part).

I agree with the decision except that I would hold that there is no cause of action stated for “failure to have workmen’s compensation insurance.”


text:
    L. Edward McCLELLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-791.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.

      Rentz, McClellan & Haggard, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Upon a hearing held on a citation of the appellant for contempt of court, judgment was entered in favor of the respondent-appellant absolving him of the charged contempt. However the court ordered that costs in a certain amount be paid by the respondent, from which latter ruling the respondent appealed. We find error and reverse.

The taxing or charging of costs against the successful party in that proceeding was not authorized. See §§ 57.041 and 939.06 Fla.Stat., F.S.A. Wood v. City of Jacksonville, Fla.App.1971, 248 So.2d 176; Lillibridge v. City of Miami, Fla.1973, 276 So.2d 40, 41.

The judgment and order for payment of costs by the respondent-appellant are reversed.


text:
    Harvey Robert WILLINSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-942.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied April 1, 1976.
    Philip Carlton, Jr., and Ronald C. Dres-nick, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was found guilty by a jury of the sale or delivery of a controlled substance, cocaine. The point of this appeal is the alleged error of the trial court in allowing the following question and answer during cross-examination:

“Q. Mr. Willinsky, you never told anybody at the preliminary hearing this story, did you?
“A. I never had a chance to testify in my preliminary hearing, but the young lady was there, in fact, Miss Danzinger.”

The error, if any exists, does not clearly appear because the record does not show an objection, motion to strike or motion for mistrial. Nevertheless, we do not decide the case on that basis because it is apparent that if error did arise during cross-examination, it was harmless. See Fla.Stat. § 924.33, and Corbin v. State, Fla.App. 1972, 259 So.2d 543.

Affirmed.


author: MILLS, Judge.

text:
    FIRST GUARANTY BANK AND TRUST COMPANY OF JACKSONVILLE, as Administrator of the Estate of Silla Margaret Copeland, Deceased, Appellant (Plaintiff), v. Willie Frank WILLIAMS and Rudolph Williams, Appellees (Defendants).
    No. Y-55.
    District Court of Appeal of Florida, First District.
    March 23, 1976.
    Howell & Deas, Jacksonville, for appellant.
    John H. P. Helms, Jacksonville Beach, for appellees.
   MILLS, Judge.

By interlocutory appeal, plaintiff seeks reversal of the trial court’s order dismissing its amended complaint.

The allegations of the amended complaint are as follows:

In 1968, the decedent deeded certain real property to the defendants. The deeds were recorded. No consideration was paid for the deeds. At all times thereafter, the decedent considered the property to be her property and exercised complete control over it. The defendants never exercised any right of ownership.

In 1973, the property was sold. The decedent paid the seller’s closing costs and attended the closing along with one of the defendants. The purchaser paid for the property by giving a $9,642.34 check to each of the defendants. One of the defendants endorsed the check payable to him and delivered it to the decedent. The decedent placed this check along with the other check in her pocketbook. Several days later, the decedent died. One of the defendants removed the checks from the decedent’s pocketbook, keeping his check, and delivering the other check to its payee, the other defendant.

Plaintiff seeks to recover the value of the two checks on the theories of conversion, unjust enrichment, and constructive trust.

Plaintiff alleges that the defendants converted the checks to their own use, that the defendants are unjustly enriched, because they negotiated the checks for their own use, and that defendants hold the funds paid for the property as constructive trustees, because they held the property as constructive trustees. In further support of the constructive trust theory, it is alleged that as a result of fraud, undue influence and abuse of confidence, defendants will be unjustly enriched unless the court imposes a constructive trust on the proceeds of the checks.

The trial court properly granted the defendants’ motion to dismiss. Although the plaintiff alleges that the checks were the property of the decedent, it does not allege facts to support this conclusion. In addition, the plaintiff fails to allege facts to support its allegations of unjust enrichment, and fraud, undue influence and abuse of confidence. These factual allegations are essential. Particularly is this necessary when the allegations affirmatively indicate an inter vivos gift from the decedent to the defendants.

It should be pointed out that the trial court gave leave to plaintiff to file a second amended complaint, but plaintiff chose not to do so.

The action taken by the trial court is affirmed, and the interlocutory appeal is dismissed.

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


author: SMITH, Judge.

text:
    Tarralene BURROUGHS and Charles Burroughs, her husband, Appellants, v. BOARD OF TRUSTEES OF ALACHUA GENERAL HOSPITAL and Herbert Wagemaker, M.D., Appellees. Dottie HARMON, a minor, by her parents, Roger Harmon and Doris Harmon, et al., Appellants, v. Grace E. WILLARD et al., Appellees.
    Nos. Z-285, Z-437.
    District Court of Appeal of Florida, First District.
    March 11, 1976.

      John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, and Joe C. Miller, II, of Miller, Perry, & Miller, Palatka, for appellants.
    William M. Howell, and Robert 0. Wilhelm, of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, and William C. O’Neal, of Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, for appellees.
   SMITH, Judge.

Plaintiffs appeal from summary judgments entered for defendants, the trustees of Alachua General Hospital and Dr. Wagemaker. Plaintiffs’ claims are that, as a result of defendants’ negligence, plaintiffs Tarralene Burroughs and Dottie Harmon were injured in February 1973, when the automobiles they occupied were struck by one driven by a patient of the defendants. The patient, who suffered from depression associated with alcoholism, had .voluntarily placed herself in the hospital and in Dr. Wagemaker’s care under the terms of The Florida Mental Health Act, also known as The Baker Act. Ch. 71-131, Fla.Laws; § 394.451, et seq., F.S.1971. Defendants allegedly were negligent in permitting the patient to leave the hospital on a day pass when they knew or should have known that she would attempt to operate an automobile under the influence of alcohol or prescribed medication and that she could not safely dd so. The sufficiency of the allegations of negligence and causation are not before us. We therefore assume but do not decide that the complaints stated causes of action.

The 1971 Baker Act was a compendium of rights of persons confined for the treatment of mental illness. It recognized their rights to individual dignity, to quality treatment, to communicate and visit with persons outside the facility, to possess personal effects, to vote, to be educated if a child, to confidentiality of treatment, to the benefits of habeas corpus and to State-paid transportation on court order, if necessary for treatment. As originally enacted and at the time these plaintiffs were injured, § 394.459, subsection (12), F.S.1971, provided:

“(12) Liability for violations.' — Any person who violates or abuses any rights or privileges of patients provided by this act shall be liable for damages as determined by law. A physician, law enforcement officer, attorney, health officer, or hospital officer or employee, whether employed by a private hospital or at facilities operated by the state, a political subdivision of the state, or -a hospital authority, who acts in good faith in compliance with the provisions of this part, shall be immune from civil or criminal ■liability for his actions in connection with the admission, diagnosis, treatment, or discharge of a patient to or from a facility.”

Upon undisputed proof that the patient had been admitted to the hospital and treated by Dr. Wagemaker under The Baker Act, the circuit court held as a matter of law that, absent allegations of “bad faith” on the part of the defendants, the quoted statute immunized them from civil liability for their allegedly negligent acts and omissions.

In the legislative session following enactment of The Baker Act, the 1973 Legislature renumbered subsection (12) and amended it to read as it now does:

“(13). Liability for violations. — Any person who violates or abuses any rights or privileges of patients provided by this act shall be liable for damages as determined by law. Any person who acts in good faith in compliance with the provisions of this part shall be immune from civil or criminal liability for his actions in connection with the admission, diagnosis, treatment, or discharge of a patient to or from a facility. However, this section shall not relieve any person from liability if such person is guilty of negligence.” [emphasis added]. ch. 73-133, § 3, Fla. Laws; § 394.459, F.S. 1973.

The 1973 Act unambiguously took away an immunity which the 1971 Act granted. We cannot adopt plaintiffs’ argument that the 1973 Legislature merely sought to clarify what it considered to be the existing effect of the 1971 legislation, and so made certain that which was previously doubtful. See State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1974). The 1971 Legislature may have acted inconsistently in granting specified persons immunity from suit in connection with negligent treatment of Baker Act patients and simultaneously withholding immunity for negligent treatment of patients under the Comprehensive Alcoholism Prevention, Control and Treatment Act, ch. 71-132, Fla. Laws; § 396.-1515, F.S.1971. But the existence of such a legislative inconsistency and its redress in the next session does not authorize the court to ignore the earlier legislation and give retroactive effect to the harmonizing act. The immunity from tort suit contemplated by the 1971 Act was in full effect until it was withdrawn in 1973.

We find no purpose in the 1971 Act, however, to grant anyone immunity for negligent or otherwise actionable conduct as it affects persons other than the patient, his family and any others who may claim by and through the patient. In our view, the Act has no application to the claims of strangers to the relationship of patient, hospital and doctor who may suffer injury as a result of negligent conduct arising out of that relationship.

We should be slow to give the Act a construction which would deprive Tarra-lene Burroughs, Dottie Harmon and others in like position of historic rights and remedies which they surely had prior to the enactment of ch. 71-131. Their right to seek redress for injuries done them by the negligent conduct of another is derived from the common law, but it is secured by Florida’s Declaration of Rights. Art. I, § 21, Fla.Const. It may be said that Florida’s mental patients and their families were extended substantial benefits by ch. 71-131 “in exchange for” the deprivation of certain common law rights of action, but the Act conferred no such similar benefit on strangers to those directly affected. Cf. Lasky v. State Farm Ins. Co., 296 So.2d 9, 13-15 (Fla.1974); Kluger v. White, 281 So.2d 1 (Fla.1973).

Neither the title nor the text of the legislation indicates a purpose to abolish rights of action which would otherwise be enjoyed by strangers to the patient and his treatment. The Act is a bill of rights for mental patients. Its statement of legislative intent asserts a purpose “that individual dignity and human rights be guaranteed to all persons admitted to mental health facilities.” Ch. 71-131, § 2, Fla. Laws. The title to subsection (12) is “LIABILITY FOR VIOLATIONS” and its first sentence addresses a legislative concern for the violation or abuse of “any rights or privileges of patients provided by this act.” Only by strained construction can an Act so intended and a subsection so entitled be found to immunize those whose negligence impairs rights unprotected and unaffected by the Act, such as those of plaintiffs. The case might be different if defendants’ complained of conduct had been done “in compliance with the provisions of this part,” but the negligence here alleged is wholly unrelated to the benefits reposed on the patient by the Act. Put another way, the Act created an immunity to “LIABILITY FOR VIOLATIONS” committed in good faith, but plaintiffs here assert no liability for violations of the Act.

We conclude, therefore, that the 1971 Act extended no immunity to the defendant trustees or Dr. Wagemaker on account of the matters alleged in the amended complaints, that the 1973 amendment was unnecessary to restore common law and constitutionally-protected rights to plaintiffs Burroughs and Harmon and that the summary judgments were erroneously entered.

REVERSED.

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


text:
    Wallace C. MORSE, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 75-571.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Marlow, Mitzel, Ortmayer & Shofi and Robert C. Timmons, Miami, for appellant.
    Talburt, Kubicki & Bradley and Robert J. Dickman, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff suffered a final judgment dismissing his complaint which claimed personal injury protection benefits pursuant to Fla.Stat. § 627.736. On this appeal, the single point presented urges that: “the absolute statutory denial of personal injury protection benefits to motorcycle riders deprives them of due process and equal protection of the law.” The point was not raised on the record before us. Plaintiff urges that we consider the application of the exemption set forth in Fla.Stat. § 627.-736(l) as fundamental error. See F.A.R. 3-7(i).

We have considered the record in the light of the briefs and oral argument and we hold that fundamental error has not been demonstrated. The Supreme Court of Florida thoroughly examined the act in question in Lasky v. State Farm Insurance Company, Fla. 1974, 296 So.2d 9, and held that with the exception of the property damage limitation of access to the courts, the personal injury aspects of the act were valid and constitutional. In this connection, we note that the Supreme Court specifically held that the exclusion of taxis, motorcycles, buses and commercial vehicles was not an arbitrary or capricious classification and thus does not violate the equal protection provision. See Lasky, supra, at 22.

Affirmed.

      . See also Fla.Stat. §§ 627.736(4) (d)l and 627.736(4) (d)4.


author: NATHAN, Judge.

text:
    LONG ISLAND INSURANCE CO., Appellant, v. Robert FRANK, Appellee.
    No. 75-783.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.

      Michael P. Weisberg, Miami, for appellant.
    Wilson & Burns, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

Defendant, Long Island Insurance Co., appeals from an adverse final judgment in favor of its insured, Robert Frank, the plaintiff in the trial court.

The pristine question here involved is whether or not plaintiff may recover personal injury protection (PIP) medical benefits from his own No Fault [Florida Automobile Reparations Reform Act] carrier as a result of injuries to his minor son while a member of plaintiff’s household and when such injuries were sustained while operating a motorcycle which collided with another motor vehicle not owned by the plaintiff. Section 627.736(4) (d) (3), Fla.Stat., provides that the insurer of a motor vehicle shall pay PIP benefits for:

“Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1, or subpara-graph 2, provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under §§ 627.-730-627.741.”

Turning to subsection (1) of Section 627.736(4) (d), Fla.Stat., it states that the insurer of a motor vehicle shall pay PIP benefits for:

“Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.”

In reading the above provisions of the statute together, the plaintiff insured cannot, on a derivative action, recover PIP benefits for medical expenses paid on behalf of his minor child under the insurance policy unless one of two situations exist. First, the child must be occupying a motor vehicle or second he must be in a situation where he was not an occupant of a motor vehicle or-a motorcycle. Clearly the child was not occupying a motor vehicle but was the occupant of a motorcycle.

Plaintiff relies on the rationale of Negron v. Travelers Insurance Company, Fla.App.1973, 282 So.2d 28; however, this case is readily distinguishable for the reason that in Negron, the claimant for PIP benefits was neither an occupant of a motor vehicle within the meaning of the Florida Automobile Reparations Reform Act, nor was he an occupant of a motorcycle.

The defendant herein has argued that the record reflects that the motorcycle being operated by the child collided with a vehicle and does not specifically allege nor does any evidence reflect that the collision was with a motor vehicle. This fact, however, was conceded at oral argument. For the purposes of this appeal, we are considering that the collision was between the motorcycle and a motor vehicle. Compare Morse v. State Farm, Fla.App.1976, 328 So.2d 542, opinion filed March 2, 1976.

Accordingly, the judgment is reversed and this cause is remanded to the trial court for proceedings consistent herewith.


text:
    John Robert MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-941.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Charles L. Hauck, Legal Intern, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, John Robert Miller, was indicted on a charge of first degree murder. Upon trial, a jury found him guilty of first degree murder. The trial court reduced the charge to second degree murder, entered judgment and sentenced appellant to life imprisonment.

Appellant seeks review of his conviction and sentence. The ground he relies on for reversal is insufficiency of the evidence to support a conviction of second degree murder, in that he acted in self defense. We have carefully considered this point in the light of the record and briefs and we find that no reversible error has been shown. The record discloses that the case was fully and fairly tried, and that the verdict of guilty of first degree murder, as reduced to second degree murder, is supported by the evidence. On appeal, this court will not substitute its judgment (of matters exclusively within the province of the jury such as the weight to be accorded evidence, and the credibility of the witness by whom it is adduced) for that of the jury, nor will it pit its judgment against that of the jury in the determination of factual issues presented at trial. Loprince v. State, Fla.App. 1969, 218 So.2d 212; Jefferson v. State, Fla.App.1974, 298 So.2d 465, 466.

Accordingly, the judgment and sentence is affirmed.


text:
    Cecil Mack THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-800.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Phillip A. Hubbart, Public Defender, Bennett H. Brummer, and Karen Gottlieb, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Cecil Mack Thomas was charged by information with assault with intent to commit murder. He was tried by jury, found guilty and sentenced to ten years in the state penitentiary.

Briefly stated, the facts are that Thomas shot Freddy Smart in the back twice while Smart was carrying Jo Ann Myers on his shoulders near her apartment. The evidence showed that Smart had been keeping company with Jo Ann Myers for several years. Cecil Mack Thomas, the defendant, had been dating her for a few weeks. During the trial, Jo Ann Myers testified over defense counsel’s objection that Thomas tried to persuade her to change her testimony :

“A. What was the conversation between me and him? I said he wanted me to change my testimony.
Q. To what?
A. To what he wanted me to say.
Q. What was that?
A. That he didn’t do the shooting or in that manner. He didn’t want — well, I wasn’t supposed to testify to the truth. I was supposed to tell a lie.”

Defense counsel made a motion to strike this testimony which was denied.

Defendant Thomas relies on two grounds for reversal. The first is that the trial court erred in denying his motion to strike Jo Ann Myers’ testimony as to the alleged inculpatory statement, quoted above, where the defendant timely filed a written demand for discovery pursuant to Rule 3.220 RCrP, and the prosecutor failed to comply and disclose such statement and the court failed to inquire into the circumstances surrounding the non-compliance and failed to determine that no prejudice was caused thereby. Rule 3.220 provides in pertinent part that within IS days after written demand by the defendant, the prosecutor shall disclose to defense counsel the substance of any oral statements made by the accused and known to the prosecutor, together with the name and address of each witness to the statement. The rule further provides that the prosecutor is under a continuing duty to disclose. In our opinion, it was error for the court to refuse to strike the testimony as to the inculpatory statement. Viewing the record in its totality, however, considering the overwhelming evidence of guilt adduced from the eye-witnesses and the expert witnesses, the error was harmless and does not warrant reversal.

The second point on appeal is that the trial court erred in denying the defendant’s motion to accept his waiver of trial by jury. We do not agree. Rule 3.260, RCrP, provides that a defendant may in writing waive a jury trial with the consent of the State. In this case, the State failed to consent. Therefore, the ruling of the trial court follows the rule. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630, it was held that the only constitutional right guaranteed to a defendant is to an “impartial trial by jury.” Neither the United States nor the Florida Constitution confers or recognizes the right of a defendant to have his case tried before a judge without a jury. Article III, § 2 and Amendment VI of the Constitution of the United States; Article I, § 22 of the Constitution of the State of Florida.

Accordingly, the judgment of conviction and sentence is affirmed.