author: DOWNEY, Judge.

text:
    Willie Foy ROBBINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1764.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Warner S. Olds, Public Defender, and Robert S. Horowitz, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

After pleading nolo contendere to criminal charges pending against him appellant was placed on probation for three years. Thereafter, appellant was charged with violating three conditions of his probation. After holding a hearing, the trial court entered an order of revocation of probation finding that appellant had

“. . . violated the conditions of his probation in a material respect by
II. Violation of Special Condition (K), Order of Probation, by failing to pay Public Defender’s fee of $350.00 at the rate of $25.00 per month through the Florida Parole & Probation Commission in Bro-ward County, Florida.
III. Violation of Special Condition (L) Order of Probation, by failing to participate in a drug rehabilitation program selected by his Probation Officer.”

At the revocation hearing appellant denied that he had not participated in a drug rehabilitation program. The only evidence adduced by the State on the charge of violation of Special Condition (L) was hearsay, objected to by appellant. The rule is that probation may not be revoked solely upon hearsay evidence. Sharp v. State, Fla.App.1974, 303 So.2d 56; White v. State, Fla.App.1974, 301 So.2d 464. Therefore the finding as to Special Condition (L) was improper.

With reference to the violation of Special Condition (K), there was no evidence that appellant was able to make the payments in question. Therefore the finding as to Special Condition (K) was improper. See Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).

We believe a trial court has the power to provide as a condition of probation that a defendant pay a reasonable sum as atto-ney’s fees to the State for the services of a public defender under the broad grant of authority contained in § 948.03, F.S.1973. However, before a defendant’s probation can be revoked for violation of such a condition the court must determine that the probationer has failed to make the required payments when he had the ability to do so. To revoke a defendant’s probation for failure to make required payments when he was unable to do so would bring into grave doubt the constitutionality of § 27.56, F.S. Fuller v. Oregon, supra; cf. Gryca v. State, Fla.App.1975, 315 So.2d 221 (First District).

Since this cause must be remanded, we deem it appropriate to treat the second point on appeal:

“THE TRIAL COURT ERRED REVERSIBLY IN DENYING DEFENSE COUNSEL’S MOTION TO WITHDRAW BECAUSE OF AN APPARENT CONFLICT OF INTEREST WHERE ONE OF THE ALLEGED VIOLATIONS WAS FAILURE TO PAY INSTALLMENTS OF THE PUBLIC DEFENDER FEE AWARD: DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL.”

Members of the office of the Public Defender for the 17th Judicial Circuit represented the appellant at the original criminal proceedings, at the probation revocation proceedings, and on appeal from the order revoking probation. The assistant public defender who represented the appellant at the revocation proceedings moved to withdraw on the ground that he could not defend a man who supposedly owed money to the public defender’s office. The court denied the motion. Under the circumstances of this case, that denial was proper.

To begin with, a defendant represented by a public defender does not owe any money to the public defender; he owes it to the state. § 27.56(1), F.S.1973. It is true that § 27.56(1) provides that liens for the services of the public defender “shall be enforced on behalf of the state by the [public defender]”; however, it is also true that there was no showing in this case that the public defender’s office which was representing appellant made any attempt to enforce any lien against appellant under § 27.56(1), or that it sought to collect any debt from appellant under § 27.56(2) (c), F.S.1973. Under such circumstances we fail to see any conflict of interest between the public defender’s office and the appellant.

It should be noted that a public defender has no absolute duty to pursue any indigent on behalf of the state, since the legislature has provided that, as an alternative to § 27.56(1), the appropriate board of county commissioners has the authority under § 27.56(2) (b) to enforce any debt owed to the state pursuant to § 27.56. By refraining from engaging in any financial actions against its client, a public defender’s office can avoid any conflict or appearance of conflict.

Accordingly, the order revoking appellant’s probation is reversed and the cause is remanded for a new hearing on the alleged probation violations.

Reversed.

CROSS and MAGER, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Robert J. COATES, etc., and Richard L. Wormer, etc., et al., Appellees.
    No. 75-158.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 2, 1975.
    Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    J. C. Cheatwood, of Cheatwood & Terry, P. A., and William T. Keen, Tampa, for appellees.
   SCHEB, Judge.

This interlocutory appeal is from the trial court’s determination that the policy issued by the appellant, Insurance Company of North America (INA), provided liability coverage for Bob C. Jones as the owner and operator of a personal vehicle involved in a serious accident which resulted in extensive damages to the appellees.

The facts pertinent to this appeal are as follows:

Jones is President of Red Barn, Inc., a corporation engaged in the restaurant business, owned by his family. His personal vehicles and the Corporation vehicles were both formerly insured with the Reserve Insurance Company (Reserve), but on October 6, 1972, Clifford Morgan, the insurance agent for both Jones and the Corporation, switched the Corporation vehicles over to a policy issued by appellant INA. Red Barn, Inc. was the named insured on this policy, which because of Jones’ poor driving record, contained the following exclusion insisted upon by INA:

It is agreed that the insurance afforded by this policy shall not apply while any automobile is being personally driven by Bobby Charles Jones.

Also, because of Jones’ driving record, INA refused to insure Jones’ personal vehicles, which Morgan had also attempted to transfer to an INA policy.

The INA policy defined the insured vehicle as “the motor vehicle or trailer described in this policy or, if none so described any private passenger automobile owned on the effective date of this policy by the named insured. . . .” The policy as issued described certain automobiles owned by the Red Barn, Inc.

Red Barn’s policy from INA also contained a paragraph entitled “Use of Other Automobiles.” This paragraph began, “If the named insured is an individual .” and went on to describe the coverage afforded for use of non-owned vehicles. Nothing in the policy provided any non-owned vehicle coverage if the named insured was a corporation.

In February, 1973, Jones requested Morgan, his insurance agent, to provide coverage on a pick-up truck. Since the truck was driven by employees of the Red Barn, Inc., Morgan added it to the INA policy, effective February 23, 1973. The parties disagree whether the truck was owned by Jones or by the corporation. Nevertheless, Morgan believed it was owned by Jones, and at the request of both Jones and the bank financing the vehicle, Morgan added Jones as a named insured under the INA policy. At the same time at the bank’s request, Morgan added a loss payable endorsement in its favor. No additional premium was charged by INA for the additional coverage.

Jones continued to insure his personal vehicles with Reserve. He purchased a Chevrolet Monte Carlo on March 31, 1973, and it was listed as one of the insured vehicles on the Reserve policy effective April 4, 1973. The Monte Carlo, however, was never listed in the INA policy.

On August 31, 1973, while driving the Monte Carlo, Jones was involved in an accident, causing injury to appellees. No one has challenged the court’s implicit finding that Jones was on corporate business at the time of the accident, transporting liquor for Red Barn, Inc. On September 4, 1973, Morgan reported the accident to Reserve. He made no report of the accident to INA.

Appellees filed suit against INA, Reserve, Jones and the Red Barn, Inc. Reserve settled for its policy limits of $300,000. INA contested coverage, and following a non-jury trial on that issue, the court held the INA policy covered Jones’ liability for the accident.

The primary question presented is:

Did the INA endorsement of February 23, 1973, which added a truck, but did not list the Monte Carlo involved in the accident, and which changed the named insured to Red Barn, Inc. and Bob C. Jones, vitiate the effect of the prior policy provision excluding coverage while any automobile was driven by Jones?

We hold it did not. Accordingly, we reverse the judgment of the trial court.

Red Barn accepted its policy from INA with knowledge of the endorsement excluding coverage as to any vehicle operated by Jones. It is basic that such policy must be construed as modified by the exclusionary endorsement. Fla.Stat. § 627.419(1). Moreover, the validity of such a provision is well established even when the excluded driver is a named insured. Ohio Casualty Co. v. Keller, Fla.App.2d 1967, 199 So.2d 343.

Appellees argue the only reason for INA to have added Jones as a named insured under Red Barn’s policy was to afford him coverage found by the trial court. Neither the contract nor the testimony support this contention.

Morgan, the insurance agent, testified that Jones requested the pick-up truck be added to his policy. Then the bank requested the name “Bobby C. Jones’’ appear on that policy and asked Morgan to provide a “loss payable” endorsement to protect its security interest. According to Morgan, the endorsement including Jones as a named insured was added to protect Jones’ liability as an owner, comply with the bank’s requirements as to its security interest, and cover any possible problem which máy arise should Jones acquire 100 percent of the capital stock of Red Barn, Inc.

Jones testified that when the INA policy was issued to Red Barn, he was told that no Red Barn vehicle he drove would be covered unless covered under his Reserve policy. Moreover, he testified the Monte Carlo was his personal car and he understood that his personal vehicles were insured with Reserve.

The reasons for adding Jones’ name as an insured were plausible; hence, neither the endorsement adding the pick-up truck nor the attendant inclusion of Jones as a named insured eliminated the prior clause excluding coverage while Jones was driving any. vehicle. Further, if the endorsement of February 23, 1973, could somehow be construed to remove the restriction on Jones’ driving, appellees still would have to overcome the problem that the Monte Carlo driven by Jones and involved in the accident was not listed on the itemized schedule of vehicles covered under the INA policy. The evidence did not reveal the existence of any exception to the general rule that liability coverage in a “scheduled” contract is limited to the vehicles therein described.

There is no merit to appellees’ contention that the “Use of Other Automobiles” clause in INA’s policy issued to a corporation, such clause being applicable only to policies with individual insureds, created an ambiguity which should extend coverage to Jones under Red Barn’s policy. Even assuming, arguendo, such clause could be construed to afford coverage, the Monte Carlo would not be covered since by express terms of the policy (Paragraph V(d)(l)) the clause in question does not apply “. . . to any automobile owned by or furnished for regular use to the named insured. . . .” Since Jones was the owner of the vehicle involved in the accident, the quoted clause would, in any event, exclude coverage.

Red Barn accepted its INA policy with the exclusion of Jones as a driver and no subsequent acts by INA either eliminated or waived the restriction. There was an abundance of testimony disclosing valid reasons for adding Jones as an additional insured while no testimony indicated any belief on Jones’ part that he considered himself covered as a driver under the policy INA issued to Red Barn. In fact, any ambiguity which may have been created by Jones being added as named insured under the INA policy was clearly dispelled by his own testimony. We must resist the approach of interpreting coverage as co-extensive with liability, cf. Ray v. Earl, Fla.App.2d 1973, 277 So.2d 73. This is no problem where, as here, the record sub ju-die e does not disclose any intent on Jones’ part to purchase, nor did he pay for any additional coverage and no waiver or es-toppel was demonstrated.

Accordingly the judgment of the trial court is reversed and the cause is remanded for proceedings consistent herewith.

HOBSON, A. C. J., and BOARDMAN, J., concur.

      . We are aware of appellees’ argument that the exclusionary provision, having been acknowledged in writing by Jones personally, did not indicate a corporate acceptance of the exclusion. The exclusion, however, was an endorsement to the original policy and delivered along with that policy. We find this contention devoid of merit.

      . In addition to protecting the bank’s security interest, Jones’ vicarious liability, and any possible personal liability from his acquisition of all of the stock of Red Barn, another obvious advantage for Jones to be a named insured would be to afford him collision and comprehensive coverages.


author: OWEN, Judge.

text:
    Bernard Eric WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 73-877.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rendell Brown of Bailey & Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant was convicted of (1) carrying: a concealed firearm, (2) third degree murder, and (3) assault with intent to commit murder in the third degree. Of the three points raised on this appeal, the first has merit, the second was abandoned at oral argument, and the third is without merit.

Appellant’s first point, and the only one with merit, questions the sufficiency of the evidence to sustain the conyiction for third degree murder. The State’s case aá to this charge was based solely upon circumstantial evidence. Appellant and one Lonnie Wilson a/k/a Lonnie Durham were involved in a crap game near Rolle’s Bar when they became involved in an argument. Appellant went outside and Wilson followed firing two shots from a pistol into the ground near appellant’s feet. One thing led to another and in a few minutea a crowd had gathered. Appellant and Wilson each had a gun and started firing at the other. Several persons in the crowd also drew guns and began shooting. A total of twenty to twenty-five shots were fired. When the shooting was all over, Wilson had been wounded and a by-stander, one Pop McKenzie, had been shot and killed. There was no direct evidence that the latter’s death resulted from a shot fired by appellant and the circumstantial evidence to support such, while consistent with appellant’s guilt, was not inconsistent with a reasonable hypothesis of his innocence, i. e., that the fatal bullet came from one of the several other guns fired during the melee. For this reason it was error not to grant appellant’s motion for judgment of acquittal on the murder charge and the judgment as to that count is reversed and the sentence thereon vacated.

Appellant’s third point is that the trial court erred in its refusal to grant a severance from the misjoined codefendant, Wilson. The latter made a motion for severance which was denied. On Wilson’s appeal we held that denial of such motion for severance was error and reversed his conviction, remanding for a new trial. Wilson v. State, 298 So.2d 433 (4th DCA Fla.1974). However, appellant did not make a motion for severance. It has been held in U. S. v. Daniels, 141 U.S.App.D.C. 223, 437 F.2d 656 (1970), involving a federal rule of criminal procedure corresponding to Rule 3.150 RCrP, that the failure to make such motion amounts to a waiver of the right to a severance and, absent ,a showing of clear prejudice, will not warrant reversal on appeal. We think such a view is sound and adopt it. There are undoubtedly a myriad of reasons why a defendant might choose to waive his right to sever in such a situation and having made such tactical decision, he should not have the same right to reversal and new trial as is accorded the codefendant whose timely motion for severance was denied. See, Wilson v. State, supra. Appellant does not attempt to show, nor does the record bear out, that the court’s failure to sever resulted in clear prejudice to appellant.

The judgment of third degree murder is reversed; the judgment of carrying a concealed firearm and the judgment of assault with intent to commit third degree murder, and the respective sentences thereon, are severally affirmed.

Reversed in part; affirmed in part.

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

      . See, Wilson v. State, 298 So.2d 433 (4th DCA Fla.1974).


author: BOYER, Chief Judge.

text:
    A. D. T., a minor, Appellant, v. STATE of Florida, Appellee.
    No. X-330.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

The sole issue raised by this appeal is whether the correct procedure was employed when the juvenile court waived its jurisdiction and certified the appellant, the juvenile defendant below, for trial as an adult.

Appellant was charged by indictment on November 22, 1974, with one count of disorderly intoxication and three counts of resisting arrest with violence. The same day a motion for waiver of jurisdiction and certification was filed in the juvenile court. At the hearings held on the motion, defense counsel moved for dismissal on the grounds that a petition alleging delinquency had not been filed and, in the alternative, that the motion requesting certification of the child for trial as an adult had not been timely filed. In denying these motions, the Circuit Court permitted the indictment to substitute for the petition alleging delinquency and allowed the State to make certain amendments thereon in order to comply with Rule 8.070, R.J.P.

Appellant now alleges that the trial court erred in allowing the grand jury indictment, as amended, to substitute for a delinquency petition. The language found in F.S. 39.09(2) (a) seems to require the filing of a delinquency petition in a case where the State Attorney intends to seek waiver of juvenile court jurisdiction. It should also be noted that in addition to requiring the filing of a delinquency petition, the statute also requires the waiver motion to be filed within five days of the filing of the delinquency petition.

The State argues that the foregoing provisions were designed merely for the purposes of informing the child and his parents of the nature of the charge and allowing adequate time in which to prepare a defense. If a petition submitted pursuant to Rule 8.070, R.J.P., satisfies the due process requirements, why, the State rhetorically asks, may not an indictment initiated by a grand jury likewise afford due process? In so narrowly defining the purposes of the statutes and rules applicable to juveniles, the State has overlooked the true issue.

The State of- Florida, as well as most if not all other states of the Union, has long recognized that juveniles constitute a special and distinct class of citizens, with particularized needs to be afforded unique treatment by the state. Relevant are the purposes of the chapter of the Florida Statutes relating to the judicial treatment of juveniles as expressed by the Florida Legislature in F.S. 39.001. The four purposes listed are:

“(1) To protect society more effectively by substituting for retributive punishment methods of training and treatment directed toward the correction and rehabilitation of children who violate the laws;
“(2) To assure to all children brought to the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance and control, preferably in each child’s own home, which will conduce to the child's welfare and the best interests of the state;
“(3) To assure that a child removed from the control of the child’s parent shall receive care, custody, and discipline as nearly as possible equivalent to that which should have been given to the child by the parent and, in all cases in which a child must be permanently removed from the custody of his parents, that the child be placed in an approved family home and be made a member of the family by adoption; and
“(4) To provide procedures through which the provisions of the law are executed and enforced which will assure the parties fair hearings at which their rights as citizens are recognized and protected.”

In light of the above-mentioned statements of the legislative intent, the error of the learned Circuit Judge in allowing a grand jury indictment to be amended and used as a substitute for a delinquency petition becomes clear. In only one instance is such a substitution permitted. F.S. 39.-02(5) (c) indicates that a juvenile court will lose jurisdiction when the child is charged by grand jury indictment with a violation of Florida law punishable by death or by life imprisonment. Applying the maxim of expressio unius est exclusio alterius, we conclude that had the legislature intended for an indictment to be used in the place of a delinquency petition in any other situations, it would have so provided.

Although not assigned as error, we question the allowing of the amendments to the indictment. It seems to us that an indictment is the final work product of a grand jury which is a vital and independent part of the criminal adjudicatory process. While we do not reverse on this point, we do question the propriety of allowing the State Attorney to amend the indictment which appears to be properly the function of the grand jury itself.

Having found that the proper procedure for waiving the jurisdiction of the juvenile court was not employed in this case, we reverse and remand for further proceedings consistent herewith.

Reversed and remanded.

RAWLS and McCORD, TJ., concur.

      . Rule 8.070 provides for the contents of a delinquency petition, including the relevant facts, the identity and residence of the parent or legal custodian, the provision of law which the child is alleged to have violated, and the manner in which the petition is to be styled, verified, and amended.

      . F.S. 39.09(2) (a) provides: “The state attorney may, within five days of the date a delinquency petition has been filed and before a hearing on the petition on its merits, and following consulation with the intake officer, file a motion requesting the court to transfer the child for criminal prosecution if the child was fourteen or more years of age at the time of the conduct charged and is alleged to have committed an act which would be in viola-lation of law if committed by an adult.”


author: HOBSON, Judge.

text:
    Dr. A. Lamar MATTHEWS, Appellant, v. Catherine W. WILLIFORD, etc., Appellee.
    Nos. 74-218, 74-219.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.

      W. Robert Mann of Mann, Fay & Price, Bradenton, for appellant.
    Spence, Payne & Masington and Pod-hurst, Orseck & Parks, Miami, for appellee Williford.
   HOBSON, Judge.

Appellee, hereinafter referred to as plaintiff, brought an action under former Florida Statute 768.01-02 and Florida Statute 46.021 for wrongful death and survival damages against the appellant, Dr. Matthews, hereinafter referred to as defendant, for medical negligence.

Final judgments were entered for the plaintiff in both causes of action, which judgments are appealed herein.

The defendant’s first point on appeal is that the trial court erred in refusing to instruct the jury on the issue of comparative negligence as between the plaintiff, plaintiff’s decedent, and the defendant. The trial court held that, as a matter of law, any negligence on the part of the plaintiff or plaintiff’s decedent prior to the time that plaintiff’s decedent came under the care of the defendant was not available as a defense to malpractice which causes a distinct subsequent injury, to wit, the wrongful death.

The law is well settled in this state that a remote condition or conduct which furnishes only the occasion for some-oneelse’s supervening negligence is not a proximate cause of the result of the subsequent negligence. McClain v. McDermott, Fla.1970, 232 So.2d 161; S.A.L.R. Co. v. Mullin, 70 Fla. 450, 70 So. 467; Tampa Elec. Co. v. Jones, 138 Fla. 746, 190 So. 26; Pinkerton-Hays Lumber Co. v. Pope, Fla.1961, 127 So.2d 441; McWhorter v. Curby, Fla.App.1959, 113 So.2d 566; Sims v. Apperson Chemicals, Inc., Fla.App.1966, 185 So.2d 179; A.C.L.R. Co. v. Ponds, Fla.App.1963, 156 So.2d 781; or contributory (comparative) negligence; Bessett v. Hackett, Fla.1953, 66 So.2d 694; Kuhn v. Telford, Fla.App. 1959, 115 So.2d 36.

There is evidence in the record of some negligence on the part of the plaintiff and plaintiff’s decedent prior to the decedent coming under the professional care of the defendant. The defendant does not challenge the sufficiency of the evidence to prove medical negligence on his part, after the decedent came under his care, which was a legal cause of the wrongful death.

The decedent, ten years prior to the heart attack which caused his demise, had a heart attack and was advised at that time that he should not smoke and should not become overweight. He also had been having chest pains and shortness of breath for some six months prior to his death. He was informed approximately six months prior to his death that an EKG disclosed no heart problem. There was proof that his symptoms increased in frequency and severity. He had called the defendant some time during the week prior to his death to arrange for a check-up in the hospital for chest pains and nausea and then called back within two hours asking the defendant to wait until the following week to admit him into the hospital. At that time the defendant had not undertaken the medical care of the decedent. The plaintiff called the defendant on November 6, 1970 requesting medication because decedent was having chest pains, nausea, and a stomach disorder. At this time no mention was made of shortness of breath.

On November 9, 1970, the plaintiff and the decedent called the defendant for admission into the hospital, which defendant immediately arranged. The defendant acknowledged that he was advised of the chest pains and admitted he was advised of the shortness of breath. Defendant also was aware of the prior heart attack. The decedent passed away in the early morning hours of November 10, 1970, of a massive myocardial infarction.

There was expert medical testimony that the defendant did not meet the requisite standard of care under the circumstances. This testimony included that he should have taken a detailed history and the decedent should have been seen immediately and examined at the hospital by the defendant. The deceased should have been placed immediately in the cardiac care unit; intravenous should have been commenced ; a cardiac monitor should have been installed; and cardiac medications commenced. The defibrillator, warmed and ready to be utilized, should have been alongside the bed with nurses available to apply it to the patient’s chest in the event of cardiac arrest. A venous pressure apparatus should have been made available, together with trained nurses in the cardiac unit room. The defendant should have made an admitting physical exam, together with an admitting diagnosis. Under the circumstances a heart attack should have been assumed on admission or that one was imminent. The expert medical testimony to a reasonable medical probability was “If he had been put to bed rest and had been in a coronary care unit, the damage to the heart would have been much less; and that is why I say he wouldn’t have died.”

The defendant cites two Florida cases in support of his position that the plaintiff’s negligence and her decedent’s negligence is a defense when such negligence plays a part in the ultimate death. These cases are General Hospital of Greater Miami, Inc. v. Gager, Fla.App.3d 1964, 160 So.2d 749, and Musachia v. Rosman, Fla.App.3d 1966, 190 So.2d 47. These cases are distinguishable in that they both hold only that violation of the physician’s instructions given in the course of treatment is ade-fense when such contributory negligence plays a part in the ultimate death. Tn the case sub judice they alleged negligence on the part of plaintiff and her decedent occurred prior to the decedent coming under the care of the defendant.

We have not been cited any Florida case directly in point nor have we been able to discover one through our own research, The case most nearly in point is Lamoree v. Binghamton General Hospital, 68 Misc.2d 1051, 329 N.Y.S.2d 85, where it is stated at page 90:

“The complaints allege negligence after admission to the Hospital. The complaint in the action against the Hospital, paragraph 6, alleges that plaintiff’s intestate was 'suffering from a gunshot wound of the right thigh’ on admission to the Hospital. The complaint in the action against the defendant Rommel, paragraph 5, alleges that the defendant attended and treated plaintiff’s intestate ‘for a gunshot wound of the right thigh and shock due to loss of blood * * * ’ That the decedent was suffering from a ‘gunshot wound’ is not disputed. Any tortious acts of the defendants, if there were any, were successive and independent of any act of the plaintiff and the decedent on the afternoon of September 11, 1965 before the intestate was admitted to the Hospital. Since the complaints allege negligence on the part of the defendants after admission to the Hospital, any conduct on the part of the plaintiff administratrix or plaintiff’s intestate before admission to the Hospital should not be considered as a defense by the defendants for any negligence or improper treatment after the plaintiff’s intestate was admitted to the Hospital.”

See also Larsen v. Belzer Clinic, 292 Minn. 301, 195 N.W.2d 416, and the annotation in 50 ALR2d 1043, § 2, at page 1046.

The plaintiff is not claiming damages for the heart attack. The damages she claims, and received from the jury under proper instructions from the court, were the damages for the survival period losses during the life expectancy of the deceased if he had survived, together with damages for the wrongful death, not the heart attack. Any conduct on the part of the plaintiff or the decedent contributing to the heart attack was not a proximate cause of the damages sought in these two actions.

In short, conduct prior to an injury or death is not legally significant in an action for damages like this, unless it is a legal or proximate cause of the injury or death — as opposed to a cause of the remote conditions or occasion for the later negligence. So it is with conduct of a patient which may have contributed to his illness or medical condition, which furnishes the occasion for medical treatment. That conduct simply is not available as a defense to malpractice which causes a distinct subsequent injury — here, the ultimate injury, wrongful death.

The second point raised by the defendant, the trial court erred in refusing to submit to the jury any of the special verdict forms requested by defendant Dr. A. Lamar Matthews which would have permitted the jury to apportion the negligence of the plaintiff, plaintiff’s decedent, and the defendant-doctor and defendant-hospital; and erred further in instructing the jury that it could not apportion the negligence and damages as between the defendant-doctor and the defendant-hospital, is put to rest by Chapter 75-108, Laws of 1975, creating § 768.31, Fla.Stat.

The other points on appeal have been duly considered and found to be without merit.

For the foregoing reasons the judgments appealed are

Affirmed.

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

      . The alleged wrongful death and medical negligence occurred prior to July 1, 1972, the effective date of the new Florida Wrongful Death statute, Fla.Stat. 768.16-27.


author: McCORD, Judge.

text:
    Hutch PADGETT, Appellant, v. In re the ESTATE of Nan PADGETT, Deceased, Appellee.
    No. W-525.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    George Ralph Miller, of Andrews & Miller, DeFuniak Springs, for appellant.
    William K. Jennings, of Jennings & Lindsey, DeFuniak Springs, for appellee.
   McCORD, Judge.

This appeal is from an order dismissing a petition to set aside an order of distribution of the Estate of Nan Padgett, deceased. On September 12, 1973, the court entered its order discharging the executor, the order being filed with the Clerk on October 18, 1973. Thereafter, on December 12, 1973, appellant filed the aforesaid petition to set aside the order of distribution alleging that the Will of the decedent was executed at a time when the testator was incompetent and under undue influence. In the order appealed, the trial court pointed out that the petition to set aside the order of distribution was actually a petition for revocation of probate of decedent’s Will and ruled that the petition was barred by § 732.30(1), Florida Statutes. The sole question raised on the appeal is whether or not the trial court erred in dismissing appellant’s petition without taking testimony.

§ 732.30(1), supra, provides that any heir or distributee of the estate of a decedent, including legatees or devisees under a prior Will, with certain exceptions, may, “at any time before final discharge of the personal representative, make application by petition to the court in which the probate of any will may have been granted, for revocation of such probate. The petition shall set forth the interest of the petitioner in such estate and the facts constituting the grounds upon which revocation is demanded.” (Emphasis supplied.) Appellant’s petition was not filed until three months after the order discharging the executor (almost two months after the order of discharge was filed with the Clerk). In addition the petition does not set forth the interest of the petitioner in the estate.

Petitioner contends the trial court’s order was error because of the terms of Rule 5.440, Florida Rules of Probate and Guardianship Procedure, and under this Court’s ruling in State v. Byington, Fla.App. (1st), 168 So.2d 164 (1964). Appellee contends there was no error; that the trial judge correctly declined to entertain appellant’s petition since it was filed too late under § 732.30, supra. Appellee cites In Re Estate of Jackson, Fla.App. (4th), 236 So.2d 475.

We find no error in the trial judge’s dismissal of appellant’s petition. Appellant contends that Jackson is in conflict with this court’s opinion in Byington. In Jackson the probate court had entered an order revoking final discharge for the purpose of considering the merits of an heir’s petition for revocation of probate. The petition was filed the day following the entry of the order of final discharge, and was based upon lack of testamentary capacity and undue influence. The appellate court ruled that the petition for revocation of probate was untimely since it was not filed before final discharge of the personal representative pursuant to § 732.30(1), supra. The court’s opinion in Jackson did not discuss this court’s opinion in Byington or the question which was involved in Byington. Byington was a prohibition action brought against the judge of a county judge’s court with respect to orders entered on the court’s own motion in connection with reopening the administration of an estate. There this court was concerned solely with the inherent powers of the probate court. We said:

“The probate court has inherent power and jurisdiction to revoke probate decrees, notwithstanding that such decrees are considered to be in the nature of judgments in rem. That power may be exercised where justice clearly requires it, as where after probate of a will a later will or codicil is discovered, newly-discovered evidence shows that the probated will was forged, or that its probate was procured by fraud. In such instances, courts have inherent power over their own process to prevent abuse, oppression and injustice and to protect their own jurisdiction.”

The following additional quotation from Byington makes clear the distinction between that case and the present case (and perhaps also Jackson):

“Admittedly the order binds and concludes the whole world — but only until it is revoked or otherwise overturned. It is one' thing to define a limitations period in which interested parties must come forth with objections to a will offered for [a] probate. The court, as well as the executor, may be assisted thereby in achieving expeditious settlement of the estate. It is quite another thing to say that such a procedure can strip the court itself of its authority to review its own order of probate where it later comes to the court’s attention that the order may have been procured through fraud or mistake . . .”

Under our ruling in Byington, the probate judge has inherent power and authority to revoke probate of a Will where a later Will or codicil is discovered, where newly discovered evidence shows that the probated Will was forged, or that its probate was procured by fraud. But the statutory period allowed to an heir or distributee to petition the court for revocation of probate is binding upon such heir or distributee in the absence of such strong factual allegations of fraud, overreaching or mistake as to reasonably require investigation by the court. Such factual allegations were not present here. We, therefore, do not conclude that Jackson is necessarily in conflict with Byington or that our ruling here is in conflict with Byington.

Affirmed.

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

      . Rule 5.440, Florida Rules of Probate and Guardianship Procedure, which is the same as § 734.26, Florida Statutes, provides as follows:
      “The final settlement of an estate and the discharge of the personal representative shall not prevent, a revocation of the order of discharge or the subsequent issuance of letters testamentary or of administration if other property of the estate is discovered or if it becomes necessary or proper for any cause that further administration of such estate be had.”


author: PER CURIAM.

text:
    Paul W. HOFFMANN et al., Appellants, v. THREE THOUSAND SOUTH ASSOCIATION, INC., et al., Appellees.
    No. 75-304.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    F. Kendall Slinkman of Farish & Farish, West Palm Beach, for appellants.
    Thomas J. Becker of Tylander, deClaire, Becker and Van Kleeck, Boca Raton, for appellee Three Thousand South Ass’n, Inc.
   PER CURIAM.

Upon consideration of the record and briefs we are of the opinion that the trial court erred in denying defendants-appellants’ motion to quash service of process.

The record reflects that the cause of action arose sometime prior to July 1, 1973; however, plaintiff-appellee sought to effectuate service of process under Sections 48.193 and 48.194, which did not become effective until July 1, 1973 (see chap. 73-179, Laws of Fla.). It has been well settled that the aforementioned statutes may not be applied retroactively to a cause of action that accrued prior to their effective date. Barton v. Keyes Company, Fla.App.1974, 305 So.2d 269; Marshall v. Johnson, Fla.App.1974, 301 So.2d 134; Gordon v. John Deere Company, Fla.1972, 264 So.2d 419; Robert E. Marx, Inc. v. Scarney, Fla.App.1971, 253 So.2d 722; Meier v. Grimes, Fla.App.1967, 202 So.2d 870; Heberle v. P. R. O. Liquidating Company, Fla.App.1966, 186 So.2d 280.

Additionally, the sworn affidavits in support of defendants’ motion established a prima facie basis for the inapplicability of Florida’s long-arm statute which the plaintiff chose not to oppose or rebut. Atlas Aircraft Corporation v. Buckingham, Fla.App.1974, 302 So.2d 163; Harris v. Bean, Fla.App.1966, 182 So.2d 464; see also Henschel-Steinau Company v. Harry Schorr, Inc., Fla.App. 1974, 302 So.2d 198; Georgia Savings and Loan Service Corp. v. Delwood Estates, Inc., First District Court of Appeal Case, 315 So.2d 237, opinion filed July 9, 1975; American Baseball Cap, Inc. v. Duzinski, Fla.App.1975, 308 So.2d 639.

Accordingly, the order denying the defendants’ motion to quash is vacated and set aside and the cause remanded to the trial court for such other proceedings consistent herewith. Nothing herein is intended to preclude defendants from effectuating service of process in compliance with the applicable provisions of the law.

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


text:
    Melvin T. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1143.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Richard L. Jorandby, Public Defender, and David E. Horvath, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Defendant appeals from his conviction of aggravated assault. We affirm because no reversible error has been shown. However, we do take this opportunity to discuss appellant’s first point, that fear on the part of the victim (which the State failed to prove) is an essential element of the offense for which he was convicted.

Appellant recognizes that the Second, Third, and Fourth District Courts of Appeal have all determined that putting the victim in fear is not a necessary element of criminal assault, Battle v. State, 292 So.2d 594 (2nd DCA Fla.1974); Nelson v. State, 157 So.2d 96 (3rd DCA Fla.1963), and McCullers v. State, 206 So.2d 30 (4th DCA Fla.1968). However, he urges us to reconsider this position and to align ourselves with the First District Court of Appeal which held, in White v. State, 299 So.2d 143 (1st DCA Fla.1974), that fear is a necessary element of such offense. We decline to follow White and reaffirm our position in McCullers for the reasons hereinafter set forth.

In McCullers v. State, supra, 206 So.2d at 33, we made a point of distinguishing between assault as a tort and assault as a crime:

“The definition of assault as a tort and assault as a crime is quite different. We find the tort of assault defined as any intentional unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another under such circumstances as to create a well founded fear of imminent peril coupled with the apparent present ability to effectuate the attempt if not prevented. Winn & Lovett Grocery Co. v. Archer, 1936, 126 Fla. 308, 171 So. 214. The Florida Supreme Court has defined the crime of assault as an intentional attempt by violence to do injury to the person of another. Bailey v. State, 1918, 76 Fla. 230, 79 So. 639.
“A criminal assault may be made upon a person even though he had no knowledge of the fact at the time. Perkins Criminal Law, 88-89 (1957), see cases cited at n. 62. It should be noted that herein lies the distinction between assault as a crime and assault as a tort. If the intended victim is unaware of the attempt, he has suffered no harm and is not entitled to compensation for the tort committed against him. Restatement, Torts 2d, § 22. However, a criminal assault is an offense against the peace and dignity of the state as well as an invasion of private rights.” [emphasis supplied]

We relied in McCullers upon a definition of the crime of assault enunciated by the Supreme Court in Bailey v. State, supra, which definition omitted any reference to the victim’s fear of imminent peril.

In deciding White v. State, however, the First District announced that it was bound by a later definition of assault emanating from our Supreme Court in the case of Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945). In Motley the Supreme Court had been called upon to determine the sufficiency of a jury instruction on self-defense. The trial court had charged the jury:

“. . .if you should find in this case that the defendant was assaulted by the [complaining] witness . . ., and that he used only such force as was necessary or as was reasonable . . ., then he is justified in using such force as was necessary to repel the assault, even to the extent of taking human life.”

After so charging the jury, the court was requested by defendant’s attorney to instruct as to the legal meaning of assault. The trial judge complied and instructed that:

“Assault . . . is an intentional act of one person to do an injury to another.”

On appeal, defendant urged that this charge “was erroneous and misleading in that it limited the right of self-defense to a case where appellant was assaulted; that it deprived him of the right where there was belief of imminent danger of great bodily harm”. The Supreme Court agreed that the charge wholly ignored that part of the justifiable homicide statute relative to imminent danger of great personal injury, and that the error was not cured by the trial court’s definition of assault

“. . . as [that] definition left the erroneous impression that an assault was committed merely by the breach of a person’s right. See 6 C.J.S. Assault and Battery § 4, page 796: ‘An assault is an unlawful offer or attempt to injure another with apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril.' "

It is apparent that within the context of the issues presented in the Motley case, assault as a tort and not assault as a crime was there being defined. This conclusion is verified by referring to the cited section of C.J.S. which falls within that subdivision of the “Assault and Battery” article, entitled “Civil Liability”. In subdivision II, entitled “Criminal Responsibility”, criminal assault is defined, consistent with the definition in Bailey v. State, supra, as simply “an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another,” 6 C.J.S. Assault and Battery § 57, at 913 (1937), and the suggestion that putting in fear is a necessary element of the criminal offense is expressly disavowed. Id., § 66. We conclude, therefore that the First District Court of Appeal’s reliance upon the Supreme Court’s definition of assault in Motley is misplaced and we adhere to our previous resolution of the issue herein presented: putting in fear is not a necessary element of the criminal offense of assault or aggravated assault.

We recognize that our holding is in direct conflict with the Florida Standard Jury Instructions on assault, and that the Legislature has now adopted a nearly verbatim definition of assault. Fla.Stat. § 784.011 (Supp.1974). This statute, with an effective date of July 1, 1975, has no bearing upon the instant case; and while the Standard Jury Instruction may now, by virtue of the recent legislative action, be consistent with the law, we do not believe that it was so prior to July 1, 1975, when this defendant was tried and convicted.

Affirmed.

CROSS and MAGER, JJ., concur.

      . In support of its contrary conclusion in White, supra, the First District Court of Appeal postulated, 299 So.2d at 144, note 3, that “the subjective realization on the part of the victim that he is being outraged is an easily understood ingredient of some of the ‘aggravation’ going to make up an ‘aggravated’ assault.” This position is untenable, however, as even Motley purported to define only simple, and not aggravated, assault. Moreover, it is well settled that the difference between simple and aggravated assault is merely the presence of one additional element — with a deadly weapon. Goswick v. State, 143 So.2d 817 (Fla.1962); Colainni v. State, 245 So.2d 893 (2nd DCA Fla.1971); McCullers v. State, supra. Hence, if fear were an element of aggravated assault, it would also have to be an element of simple assault, and thus it would bear no relation to the element of “aggravation”.

      . The Standard Jury Instruction on Bare Assault (1970), for example, reads as follows:
      “It is a crime to make a bare assault upon another.
      “A bare assault is an intentional, unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so, and doing some act which creates a well-founded fear of such violence being done.”

      . Fla.Stat. § 784.011(1) (Supp.1974) provides :
      “(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”

      . Hopefully, at its next session the Legislature will see fit to eliminate from Fla.Stat. § 784.011 the requirement that the victim be put in fear of an imminent peril.


author: MILLS, Judge.

text:
    Edward P. VIEIRA et al., Appellants, v. S. Morgan SLAUGHTER as Clerk of the Circuit Court of the Fourth Judicial Circuit of Florida, and Hans G. Tanzler, Jr., Individually, Appellees.
    No. Y-29.
    District Court of Appeal of Florida, First District.
    June 20, 1975.
    Rehearing Denied Aug. 7, 1975.
    Edward P. Vieira, Susan Kay Deputy, and Alpheus Byers Parsons, in pro. per.
    William L. Durden, Timothy A. Bur-leigh, William O. Birchfield, and Frederick J. Simpson, Jacksonville, for appellees.
   MILLS, Judge.

Appellants-plaintiffs filed suit against appellee-defendant Slaughter, Clerk of the Duval County Circuit Court, and appellee-defendant Tanzler, Mayor of the consolidated City of Jacksonville and candidate for reelection, seeking to enjoin Slaughter from accepting qualifying papers and fee from Tanzler, and in effect seeking to prohibit Tanzler from becoming a candidate for reelection. Based upon stipulated facts and argument by or on behalf of the parties, the trial court rendered a judgment finding that Tanzler was eligible to seek reelection and that Slaughter had properly accepted his qualifying papers and fee. From this judgment, plaintiffs appeal. We affirm.

The sole issue before the trial court and this court is whether the provisions of the Charter Laws of the consolidated government of the City of Jacksonville prohibited Tanzler from qualifying for, being elected to, or filling the office of Mayor for the term beginning 1 July 1975 and terminating 30 June 1979.

At a pretrial conference, the parties stipulated to the following:

1. “That Hans G. Tanzler, Jr. was elected to and did serve as Mayor of the City of Jacksonville for the period of time from October 1, 1968 and which ended June 30, 1971 and that he was also elected to and did serve as Mayor of the City of Jacksonville for the full four-year term which began July 1, 1971 and which will terminate June 30, 1975.
2. “That Hans G. Tanzler, Jr. did on Tuesday, February 25, 1975 file and qualify as a candidate for the Office of Mayor of the City of Jacksonville, Florida for the term beginning July 1, 1975, and such qualification and appropriate fee required to be paid were accepted by S. Morgan Slaughter, as Clerk of the Circuit Court of Duval County.
3. “That there are no issues of fact to be submitted or determined by the Court.”
The Charter provisions pertinent to this appeal are:
1. “ARTICLE 6 THE MAYOR
Section 6.01. Qualifications and Term of Office. . . . He shall be elected for a period of four (4) years and shall assume office on the first day of July following his election, and serve until his successor is elected and qualified. No mayor elected and qualified for two consecutive terms shall be eligible for election as mayor in the next succeeding term. . . .”
2. “ARTICLE 22 TRANSITION AND EFFECTIVE DATE.
Section 22.01. Initial Election
■ . . Officers elected at such initial election shall begin their term of office on the effective date of this charter, except as provided in section 22.03, and such term of office shall end on June 30, 1971.
Section 22.02. Effective Date of Charter.

This charter shall become effective on October 1, 1968, . .

Section 22.03. Certain Early Assumption of Duties. The mayor, elected in the initial election shall take office on March 1, 1968, but until October 1, 1968, may exercise only the following limited powers: The mayor shall have the .power to appoint directors of departments, the chief administrative officer, the budget officer, the city accountant, the treasurer, and the city attorney, who shall take office on March 1, 1968, or as soon thereafter as they are selected. Until October 1, 1968, such officers shall have authority only to assist the mayor and the council in the preparation of the initial consolidated government budget and formation of and preparation for the initial consolidated government.”

Plaintiffs contend that since Tanzler served as Mayor during the initial transitional term of office and will have served as Mayor during a subsequent full four-year term, he will have served two terms of office, so that the prohibitions in Section 6.01 against a third term render him ineligible to run for the term of office commencing 1 July 1975.

Tanzler contends that the initial transitional and short term required by Article 22 is not a full four-year term, so that he has not served the two terms provided for in Section 6.01 and is not prohibited from running for the term beginning 1 July 1975.

The right to be a candidate for public office is a valuable right, and no one should be denied this right unless the Constitution or applicable valid law expressly declares him ineligible. Ervin v. Collins, 85 So.2d 852 (Fla.1956); Hurt v. Naples, 299 So.2d 17 (Fla.1974).

The imposition of restrictions upon the right of a person to hold public office should receive a liberal construction in favor of the people exercising freedom of choice in the selection of their public officers. Ervin v. Collins, supra.

If there be doubt or ambiguity in the provisions, the doubt or ambiguity must be resolved in favor of eligibility. Ervin v. Collins, supra.

The Supreme Court of Mississippi in Bozeman v. Laird, 91 Miss. 719, 45 So. 722 (1908), stated that one elected sheriff of a newly created county, the legislature limiting the initial term to one and one-half years, was eligible to succeed himself for the full constitutional term of four years, notwithstanding a constitutional provision providing that the sheriff shall be ineligible to immediately succeed himself in office; the constitutional limitation not applying to a sheriff who had served only a part of a full term.

While Articles 6 and 22 must be considered together, they provide for completely separate and identifiable terms of office. The short term of two years, nine months was required by Article 22 only to serve an interim and transitional purpose. The election for the term of two years, nine months provided for in Article 22 does not constitute a term of office as set forth in Article 6.

If these Articles are conflicting or ambiguous, and therefore subject to judicial construction, such conflict or ambiguity must be resolved in favor of eligibility, leaving to the voters the question of whether Tanzler is entitled to a second full term of office.

As was so well stated by Justice Ervin in Hurt v. Naples, supra:

“Discouragement of candidacy for public office should be frowned upon in the absence of express statutory disqualification. The people should have available opportunity to select their public officer from a multiple choice of candidates. Widening the field of candidates is the rule, not the exception, in Florida. It should not be abated in the absence of express statutory provision to the contrary.”

The judgment of the trial court is affirmed.

MELVIN, WOODROW M., and WAD-DELL, TOM, Jr., Associate Judges, concur.


author: GRIMES, Judge.

text:
    COLLIER COUNTY PUBLISHING CO., INC., Appellant, v. Benjamin F. CHAPMAN, Appellee.
    No. 74-327.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.

      Carroll, Vega, Brown & Nichols, Naples, and Julian D. Clarkson, Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Charles R. Holley, Naples, for appellee.
   GRIMES, Judge.

Appellant (newspaper) appeals a final judgment in a libel action entered in favor of appellee, hereinafter called plaintiff. The facts as alleged and established at trial are summarized as follows:

During February, 1973, plaintiff was the proprietor of a Kirby vacuum cleaner business in Naples. Plaintiff and the other tenants in Village Plaza shopping center paid for an advertisement in the newspaper to promote the grand opening of the center. A Kirby vacuum cleaner was to be given away as the grand prize. Although the retail price of the vacuum cleaner was $339, the layout sheet prepared by the newspaper’s advertising department contained the legend “$133 value.”

Two days before the ad was to run in the newspaper, the advertising salesman visited the shopping center merchants with the layout sheet. Plaintiff called his attention to the error in price and furnished the correct figure of $339. The salesman did not write the correct figure on the layout sheet but said he would take care of the correction. The next day the salesman returned with a final paste-up which still did not have the correct price. However, he assured plaintiff that he had taken care of the correction at the newspaper office and repeated this assurance later in the day. Notwithstanding these repeated requests for the correction and the assurance that the correction would be made prior to publication, the advertisement as it appeared in the newspaper contained the erroneous legend “$133 value.”

The judgment entered was for both compensatory and punitive damages. Compensatory damages were in the amount of $7,800.02. The remainder of the final judgment was for punitive damages in the amount of $5,000.

The case was tried under a misconception of a cause of action, to wit, libel of a person. The plaintiff’s allegations in his complaint and his proof at trial did not establish a cause of action of libel to the person. The plaintiff’s allegations and proof did, however, establish a cause of action for what has variously been called slander of title, disparagement of property, slandered goods, trade libel and injurious falsehood. See W. Prosser, Law of Torts (4th Ed. 1971) p. 915.

Prosser, in his law review article, Injurious Falsehood: The Basis of Liability, 1959, 59 Col.L.Rev. 425, makes a comprehensive review of the cases decided to date involving this cause of action. He then states:

“Reviewing this group of cases, what conclusions may be drawn? First, it is quite clear that entirely innocent statements made in complete good faith are not a basis for liability for injurious falsehood. Even negligence in making the statement is, notwithstanding Atkins v. Perrin, not enough. There must be something in the way of an improper intent or motive or of bad faith. Is it possible to define this element more exactly?
“Old-fashioned ‘malice,’ in the sense of spite or ill will or a desire to do harm to the plaintiff for its own sake, undoubtedly still is sufficient to make the defendant liable, even where he honestly believes his statement to- be true and would otherwise have a privilege to make it. One who speaks for such a malevolent purpose takes the risk that what he says will prove to be false. But improper intent or purpose includes more than this. It includes the defendant who purposely interferes with the interests of the plaintiff in a manner in which he is not privileged so to interfere. . . . The unprivileged purpose to do harm is itself malice, and it is in such cases that the word has been defined to mean without just cause or excuse. There will, of course, be many cases in which one with a legitimate interest of his own to protect will be privileged to make a statement which, although false and damaging, is thought to be accurate, but if he has no such privilege, or if he abuses or exceeds it, his purpose to interfere with the interests of another is enough in itself to make him liable.
“Finally, defendant will be liable if he knows that what he says is false, regardless of whether he has a spite motive or intends to affect the plaintiff at all. The deliberate liar must take the risk that his statement will prove to be economically damaging to others if a reasonable man would have foreseen the possibility. What has developed here is a basis of ‘scienter’ closely analogous to that found in the action for deceit. As in the deceit cases, it has been extended to include statements made recklessly, or in conscious ignorance of their truth. Short of this, the line is drawn. Negligence, the mere lack of reasonable ground or ‘probable cause’ for the defendant’s belief, is not enough so long as the belief itself is an honest one. Such lack of reasonable ground may, of course, permit the jury to infer that no honest belief existed; but that inference is not a compulsory one, and if it is not drawn, there is no liability.”

What, then, should be the disposition of the instant case? Even though they were stated in terms of personal libel, the instructions appear to have been sufficient to permit the jury to determine whether the defendant had committed a trade libel. The court told the jury that it was necessary for the plaintiff to prove “legal malice” and defined this term as follows:

“Legal malice exists in this case if there is anyone of the following: Actual malice, ill will, hostility or evil intention to defame or injure, or two: That the false publication was made with such gross and reckless negligence as to amount to actual malice or the false publication was made with reckless disregard of the plaintiff’s rights or false publication was made with moral turpitude or the false publication was made wantonly, or the false publication was made under such circumstances as to be outrageous.”

This standard is at least as strong as what Prosser would call “statements made recklessly or in conscious ignorance of their truth.” The jury resolved this issue, and the evidence was sufficient to support the verdict to the extent of the liability of the defendant for compensatory damages. However, the damage award itself must be set aside because the jury was erroneously instructed that the plaintiff could recover damages for mental suffering and injury to his reputation. Damages recoverable in an action for trade libel are the plaintiff’s pecuniary losses. Upton House Cooler Corp. v. Alldritt, Fla.1954, 73 So.2d 848. As stated in W. Prosser, Law of Torts (4th Ed. 1971) at page 922:

“ . . . Such personal elements of damage as mental suffering, which frequently are recoverable in defamation, have been very strictly excluded from actions for disparagement and injurious falsehood. ...”

See also, 50 Am.Jur.2d, Libel and Slander, § 550.

The evidence was legally insufficient to sustain the claim for punitive damages. The “malice” sometimes referred to as supporting an action for punitive damage is not necessarily the same as the “legal malice” often said to be necessary to prove a claim for trade libel. See Gates v. Utsey, Fla.App.1st, 1965, 177 So.2d 486. In a slander of title action the court in Kidd v. Hoggett, Tex.Civ.App.1960, 331 S.W.2d 515, pointed up this distinction by saying:

“How malice is defined, however, is another matter. Malice as a basis for recovery of actual damages, as distinguished from punitive damages should mean that the act or refusal was deliberate conduct without reasonable cause. See, 8 Institute on Oil and Gas, 357. Malice as a basis for recovery of punitive damages should mean actual malice, that is, ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others as will amount to a wilful or wanton act.

There were no bad feelings between the parties in the instant case prior to the incident in question. The defendant was not intentionally trying to damage the plaintiff’s business. There was no spite or ill will involved. The conduct which permitted the erroneous publication to occur was not such as would justify an award of pu.nitive damages. . . "

The determination of liability for compensatory damages is affirmed, but the case is remanded for a new trial on the amount of these damages. The judgment for punitive damages is reversed.

HOBSON, Acting C. J., and SCHEB, J., concur.


text:
    Lynda Y. KENNEDY, Appellant, v. The ESTATE of Jesse Clyde BEASLEY, Deceased, et al., Appellees.
    No. 74-532.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.
    Joseph E. Melendi, of Barrs, Melendi, Williamson & Burton, Tampa, for appellant.
    Paul W. Danahy, Jr., Tampa, Guardian Ad Litem and Attorney for Guardian Ad Litem, appellee.
    C. R. Talley, of Himes & Talley, Tampa, for appellee, Executor.
   HOBSON, Judge.

Michael Glenn Kennedy was employed by Jesse Clyde Beasley, doing business engaged in the repair, refurbishing and sale of heavy equipment. While engaged in his employment, Kennedy met his death by accident upon coming into contact with a high voltage power line. His employer, Beasley, was also killed in the same accident.

Appellant, Lynda Y. Kennedy, is the surviving spouse of Michael Glenn Kennedy. The employer, Beasley, had failed to secure the payment of Workmen’s Compensation benefits as required under Chapter 440, Fla.Stat. Letters testamentary were issued to the Exchange National Bank of Tampa as executor under the last will and testament of Beasley. The executor published notice to creditors after which a timely proof of claim was filed by the appellant advising the executor of her claim for Workmen’s Compensation benefits pursuant to the Workmen’s Compensation laws. At all times the estate of Beasley admitted liability for the payment of Workmen’s Compensation benefits to the appellant. Notwithstanding, the appellant filed a claim under the Workmen’s Compensation laws.

Immediately following the expiration of the time for filing claims against the Beasley estate, the estate paid to appellant all of her accrued benefits under Chapter 440, Fla.Stat. and has continued to make the required bi-weekly payments under the Workmen’s Compensation laws. Appellee filed a petition for a declaratory judgment in the probate division of the circuit court alleging the above facts and asking the court to determine whether or not the appellant had elected to claim Workmen’s Compensation benefits and if she had elected to claim them that the court determine and instruct the appellee when to pay such benefits. The petition also alleged that among the assets of the estate there was a promissory note in the original principal sum of $12,500 made by Michael Glenn Kennedy and the appellant which was secured by a mortgage upon real property in Hillsborough County, Florida. It was further alleged that no principal or interest had been paid on the note. The petition asked the court to determine whether or not the executor should offset any sums owing the estate under the promissory note against the Workmen’s Compensation benefits due the appellant.

The declaratory judgment appealed declared that the court had jurisdiction of the claim filed in the estate for benefits under the Workmen’s Compensation law as well as jurisdiction over the person of the appellant; that the appellant had elected to make claim for the payment of Workmen’s Compensation benefits from the assets of the estate; that the benefits appellant was entitled to could not be paid until expiration of the time provided by law for the filing of claims in the estate although said claim for Workmen’s Compensation benefits accrued from the date of the death of Michael Glenn Kennedy; that the claim o.f the appellant would bear no interest until expiration of eight calendar months from the granting of letters testamentary under the provisions of § 733.18, Fla.Stat.; that appellant was not entitled to the payment of any attorney fees as the result of the filing of the claim; and that the executor shall not offset any sums owing the estate by appellant against the claim filed by her for Workmen’s Compensation benefits.

Appellant appeals the declaratory judgment, contending that the court erred in concluding that it had jurisdiction over the appellant’s Workmen’s Compensation claim; that it erred in determining that the Workmen’s Compensation benefits were not to be paid until the expiration of time provided by law for the filing of claims in estates under § 733.16, Fla.Stat.; that it erred in determining that the past due payments due appellant for Workmen’s Compensation benefits were to bear no interest and that it erred in denying the appellant attorney fees for the services of her attorney in securing the payment of Workmen’s Compensation benefits.

The guardian ad litem for the minor beneficiaries of the estate cross-appealed alleging that the trial court erred in ordering the executor not to offset sums owing to the estate by the appellant against the benefits due her under the Workmen’s Compensation law.

The parties to this appeal are in agreement that there is no Florida case which has dealt with this particular question and we have been unable to find one.

From the outset the estate has admitted liability for the payment of Workmen’s Compensation benefits to the appellant. The appellant, pursuant to § 733.16, Fla.Stat., filed her claim in the estate for the Workmen’s Compensation benefits to which she was entitled under Chapter 440, Fla.Stat. Upon the filing- of said claim by appellant, the probate division of the circuit court acquired jurisdiction over the claim and over the person of the appellant. The trial court was eminently correct in holding that the Workmen’s Compensation benefits should not be paid until after the expiration of the time provided by § 733.16, Fla.Stat. for the filing of claims in the estate. Under the provisions of § 733.18, Fla.Stat., the trial court was correct in holding that the claim of the appellant should bear no interest until the expiration of eight calendar months from the granting of letters testamentary.

As noted above, the estate at all times admitted liability for the Workmen’s Compensation benefits due appellant under the Workmen’s Compensation law. This being so, and the probate division of the circuit court having jurisdiction of the claim, the trial court was correct in denying appellant attorney fees.

As to the cross assignment of error, § 440.22, Fla.Stat., provides as follows :

“440.22 Assignment and Exemption From Claims of Creditors
No assignment, release, or commutation of compensation or benefits due or payable under this chapter except as provided by this chapter, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors, and from levy, execution and attachments, or other remedy for recovery or collection of a debt, which exemption may not be waived.”

To offset the sums due the estate on the note and mortgage against the Workmen’s Compensation benefits due the appellant would defeat the purpose of the Workmen’s Compensation law. The purpose of the Workmen’s Compensation law is to protect the injured workman or his family from destitution by providing for a bare minimum income to survive. The trial court under § 440.22, Fla.Stat., correctly held that the executor should not offset any sums owing the estate by appellant against her Workmen’s Compensation benefits.

For the foregoing reasons the declaratory judgment appealed is affirmed.

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


text:
    Edward BELL, Appellant, v. STATE of Florida, Appellee.
    No. 74-183.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1975.

      James A. Gardner, Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Edward Bell appeals his judgment and sentence to life imprisonment for first degree murder, after a jury verdict of guilty.

Bell first contends that his motion for discharge for failure to comply with Rule 3.191(a)(1) RCrP, the speedy trial rule, should have been granted. At the hearing on his motion the trial court denied the motion on the ground that Bell had not been “available” for trial.

Bell was taken into custody on June 10, 1972, and charged by information on July 27, 1972, with first degree murder. His case was set for trial on October 23, 1972, at which time defense counsel requested that Bell be examined to determine if he were mentally capable to stand trial. Bell was committed on December 4, 1972, to the Florida State Hospital, Division of Mental Health, in Chattahoochee, Florida. On February 22, 1973, based upon the report of the Division of Health, the lower court found Bell mentally competent to stand trial and ordered his release to the custody of the Sheriff of Collier County for the purpose of trial. On March 23, 1973, the Division of Mental Health released Bell to the Sheriff. The court did not conduct a hearing at that time on the mental competency of the defendant as required by Rule 3.210(a)(3) RCrP, but rearraigned him on April 6, 1973. Defense counsel requested ten days within which to file motions, agreeing that this time should be chargeable to Bell under the speedy trial rule.

Thereafter, on August 6, 1973, defense counsel filed a motion for taking depositions, which were taken on August 14, 1973. On September 7, 1973, Bell filed a written demand for disclosure. On September 13, 1973, defense counsel requested an order for competency examination by Dr. Robert Wald. Dr. Wald’s report, as well as Dr. Thornton’s, was served on September 24, 1973.

Trial was set for September 24, 1973, and on the same day Bell filed his motion for discharge, which was heard prior to trial. At this hearing the trial judge learned that no hearing had been conducted on Bell’s mental competency, and therefore the question of his sanity had not been “legally” determined in accordance with the requirements of Rule 3.210(a)(3) RCrP. See Butler v. State, Fla.App. 1st 1972, 261 So.2d 508; Parks v. State, Fla.App. 4th 1974, 290 So.2d 562; Harrell v. State, Fla.App. 1st 1974, 296 So.2d 585. Thereupon, the trial judge continued the trial and set a date for a hearing on Bell’s mental condition in compliance with the rule, which hearing was held on November 19, 1973.

At the hearing on September 24, 1973, defense counsel stated that it was his intention to rely on the defense of insanity at the time of the offense, and that this was his reason for having Bell re-examined by psychiatrists. The court permitted him to do so, and the prosecutor requested that Bell be required to file a statement of particulars in compliance with Rule 3.-210(b) RCrP. The statement of particulars was not filed until December 13, 1973, after an order had been entered granting the prosecutor’s motion.

When Bell moved for discharge, it is clear that he was involved in preparing his defense of insanity, and that on said date, which was also the date set for trial his trial preparation had not been completed. He had not complied with the procedures set forth in Rule 3.210(b) and (c) RCrP, and only that day obtained permission from the court to rely on the defense of insanity. It was after the trial had been postponed that Bell filed his statement of particulars and the State was given an opportunity to have experts appointed to examine him.

Under the rationale of Rubiera v. Dade County ex rel. Benitez, Fla.1974, 305 So.2d 161, Bell was not “available” for trial within the meaning of the speedy trial rule. His motion for discharge was properly denied.

Bell’s contention that the lower court erred in permitting Dr. Wald and Dr. Ogburn to testify in rebuttal because their names had not been added to the State’s witness list after Bell’s attorney had indicated his intention to rely on a defense of insanity is without merit. Both doctors had examined Bell on more than one occasion and both of them had recently testified at Bell’s sanity hearing. Dr. Wald had' actually been appointed by the court at the ’ request of the defendant to give an opinion of Bell’s mental capacity at the time of the offense. See Rule 3.-210(c) RCrP. Since these doctors and their opinions were well known to the defendant and the court, the need to make further inquiry pursuant to Richardson v. State, Fla.1971, 246 So.2d 771, was unnecessary.

Although we have determined that on the merits of the appeal the judgment and sentence should be affirmed, the record on appeal establishes that there was no order entered pursuant to CrPR 3.210(a) (4).

Therefore, this cause is remanded to the Circuit Court for Collier County with respectful directions that the competency of the appellant at the time of his trial be determined in a full hearing as required by CrPR 3.210(a)(3) and (4). The Circuit Court will please enter its order thereon and if appellant is determined to be competent the judgment and sentence, appealed are affirmed. If the appellant is found to be incompetent, the judgment and sentence shall be set aside and appellant granted a new trial upon a proper determination under CrPR 3.210 that he is competent to stand trial in the future.

It is so ordered.

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

      . Parks v. State, Fla.App. 4th. 1974, 290 So.2d 562.


author: BOYER, Judge.

text:
    Robert Marvin PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. U-469.
    District Court of Appeal of Florida, First District.
    April 9, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   BOYER, Judge.

Appellant seeks to have his conviction for rape and robbery overturned because, he contends, the trial court accepted his guilty plea and imposed sentence without first conducting an inquiry to determine whether there existed a factual basis for the guilty plea and because his plea was induced by coercion and promises made to him by his court-appointed counsel.

We turn first to the so-called “factual basis” issue which has been considered by this Court on countless prior occasions. (See, e. g., Estes v. State) Fla.App. 1st 1974, 294 So.2d 122; Lyles v. State, Fla.App. 1st 1974, 299 So.2d 146) Most recently, in Mower v. State, Fla.App. 1st 1975, 308 So.2d 586, we held that a lower court committed no reversible error when he determined the factual basis for the defendant’s guilty plea prior to sentencing but not prior to acceptance of the plea. Sub judice, the record reveals that the lower court was aware of the factual basis for the plea prior to both accepting the plea and sentencing. For purposes of appeal, a joint record was filed in this case and in another case involving the same defendant. (Case No. U-470) The victims of the crimes involved in the case sub judice testified at the trial in Case No. U-470. The same judge who had earlier presided over the trial in Case No. LM-70 also accepted the appellant’s guilty plea in this case. He was, therefore, more than adequately aware of the factual circumstances relating to the appellant’s guilty plea.

Turning to appellant’s second point, his allegations of coercion and unfulfilled promises are completely unsupported by the record. To the contrary, when the appellant and his co-defendant were specifically asked by the trial court if any promises had been made to them or if they had been pressured or coerced into pleading guilty by anyone, they replied in the negative;

As the record' indicates that the trial judge had previously determined a factual basis for the appellant’s guilty plea and that the plea was not the product of coercion or promises, we affirm the lower court’s judgments and sentences.

Affirmed.

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


text:
    George A. WEIDNER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1507.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
    Harry M. Hobbs, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed on authority of Hardrick v. State, Fla.App.2d, 1974, 293 So.2d 135.

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


author: RAWLS, Acting Chief Judge.

text:
    Terry Herbert PARKER, Appellant, v. STATE of Florida, Appellee.
    No. X-320.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

The sufficiency of the evidence adduced by the State to withstand a motion for judgment of acquittal at the close of the State’s case is the primary point on appeal posed by appellant Parker from a judgment of guilty of manslaughter.

The 14th day of June, 1974, was payday at Pope’s Scrapyard located in Suwannee County, Florida. In the late afternoon, Mr. D. W. Pope permitted decedent, Cecil Carter, to use a pickup truck for the purpose of moving his father’s household goods. Seated by Cecil in the cab of the truck was appellant-defendant Parker, who was Cecil’s cousin and friend. In the rear of the pickup, with their backs to the cab, were two of Pope’s employees who were “catching a ride to town”. Approximately one minute after the vehicle departed the scrapyard, decedent was shot.

The State introduced into evidence Parker’s statement as to what occurred, viz:

“Cecil [decedent] and I left Mr. Pope’s place. There was two colored men in the back of the truck. Cecil and I was kidding around with one another. Cecil was driving and I was sitting on the right hand side. The pistol was laying on the dash of the truck. I picked the pistol up and pulled the hammer back and heard it click one time, but it is not supposed to fire then. I waved it by Cecil’s head and it went off. I put my foot on the brake and stopped the truck and jumped out with the gun still in my hand and told the men on the back of the truck to go get Mr. Pope, that I had shot Cecil.”

The first witness for the State, Stephens, one of the passengers in the rear of the pickup, testified:

“. . . [M]e and J. W. got on the back of the pick-up and we went on up the road a little piece and we heard something fire . . . then all at once the truck stopped. ... He [appellant Parker] jumped out crying, hollering about he didn’t mean to do it. . He [appellant Parker] said call Mr. Pope, and I run back to the house and called Mr. Pope and he come down there and he still was saying he didn’t mean to do it.”

This witness further testified that he had known the decedent and Parker for eight to ten months, and in answer to the question, “They were friends?” he answered, “They acted mightly lovely together.”

The State next called Mr. Pope, who testified that approximately one minute after the pickup had “pulled out” that he heard:

“. . . the brakes squall and the truck stop, . . . Then I went on down there . . . Mr. Parker was getting out of the pick-up with the pistol in his hand. . . . He got out and said, I have hurt Cecil. I said no, you son-of-a-bitch, you killed him.”

On cross-examination, Mr. Pope testified that appellant was crying when he got out of the truck and saying that he didn’t mean to hurt Cecil.

Billy Pope, another witness for the State, testified that immediately after the incident appellant “was hollering that he shot Cecil. Something about there was something wrong with the gun or something. . . . I’m not sure what he said. I didn’t understand it. Because he was crying and taking on.”

The sheriff of Suwannee County and a deputy sheriff confirmed the fact that appellant was extremely upset and crying.

An expert firearms examiner employed by the Florida Department of Criminal Law Enforce'ment was called by the State, and this witness, after describing the type of pistol involved, testified as follows :

“There was a story given to me at the time I received this weapon and in examining the weapon I attempted to either go along with the story or show that the story was something else, so I therefore tried to fire this weapon under a variety of circumstances. One of these sets of circumstances was to load the weapon, pull the hammer back one notch to the safety notch and then pull the trigger. This allowed the hammer to drop and the hammer hit the firing pin and the firing pin protrudes just a very small distance. This very small distance is enough that the firing pin does come to rest on the primer of a loaded cartridge case. I did this repeatedly in an attempt to make this weapon fire every tíme I did this. It would not. I [it] would only do it every once in a while.”

In answer 'to the assistant state attorney’s questions, “How would it be accidentally discharged if the hammer was all the way down? Would it take some external force?”, this witness answered, “Almost any small amount of force. ... A jar. I have known of this type of weapon going off when someone was trying to pull it from a holster and they caught the spur of the hammer on their belt.” He further testified that the weapon would fire randomly if the trigger were pulled while it was in the safety notch. Sometimes it would and sometimes it would not. Finally, on cross-examination, the witness answered “Yes sir” to the question, “And on the basis of your examination of the physical and tangible evidence is that consistant [sic] with the story that was given?”

Mr. Justice Drew’s opinion in Carraway v. Revell is a landmark case. There, the Court reviewed an opinion in this Court which held that gross negligence in a civil action is the same in legal contemplation as culpable negligence in a manslaughter case. In quashing this Court’s opinion, the Supreme Court cast three molds of negligence: 1) simple negligence; 2) gross negligence; and 3) culpable negligence.

In Miller v. State, the Supreme Court reviewed a manslaughter conviction arising out of an automobile accident. After reviewing the factual circumstances leading up to the traffic death of an innocent victim, the State argued:

“. . . the defendant ‘blindly’ drove his automobile into the path of an oncoming vehicle and that the defendant ‘became upset that he was being slowed down [by the car ahead of him] and slammed into the other lane of traffic and right into the path of deceased’s automobile,’ and therefore the defendant is just as guilty ‘as if he had fire [sic] a gun indiscriminately and killed him in that manner.’ ”

The Court commented upon this argument by noting that: “The inferences which the State attempts to draw fro'm the admitted or proven facts in this case do not attain the dignity of evidence which may lawfully be the basis of a conviction.” The opinion then reviews the fact that defendant’s wife and baby were sitting in the front seat with him, and that the correct inference to be drawn from the proven facts was that defendant’s act was the result of momentary lapse of memory, inattention or mistake. The Court concludes:

“This is not the kind of a situation where the alleged gross and flagrant act endangers only the life or safety of another and where the actor and his loved ones would remain unscathed, such as would be the case of firing a gun indiscriminately down a busy street as suggested in the State’s argument [emphasis supplied].”

Here, the decedent and the actor (appellant), according to the State’s witnesses, were cousins and “they acted mightly lovely together”. According to the State’s firearms expert, this particular weapon might well have fired at any time, and a logical inference from this testimony is that appellant unknowingly was subjecting himself to personal injury in handling the weapon; he did not “indiscriminately” fire the gun.

Sharp v. State is in point. There, the appellant “indiscriminately” fired a shotgun into a crowd engaging in a fracas gathered outside his “Hog Pen Bar”. The appellant testified that he stumbled and the shotgun fired accidentally. The appellate court, in finding that the State had failed to prove to the exclusion of every reasonable doubt that appellant was culpably negligent, observed that there was no indication that appellant Sharp had any reason or cause to shoot the victim. In Sharp, the appellant intentionally pointed a loaded shotgun in the direction of a crowd for the purpose of restoring order. Here, appellant “waved” a pistol which had the hammer positioned in the “safety notch” and was of the belief that it would not fire. The facts in Sharp constitute a higher degree of negligence than those that are present in this case, and if the Sharp facts do not make out a prima facie case of culpable negligence, it is inescapable that the facts in the instant cause fall far short of such proof.

Last, we review Getsie v. State. On Christmas morning, appellant Getsie, an auxiliary policeman, was enjoying the Christmas tree with his young wife of nine months who had given him a new gun, gun belt, and handcuffs among her presents to him. Getsie, who was experienced in handling firearms and who knew the gun was loaded, pulled the hammer back and forth and released it slowly, seeing how it worked. His wife cautioned him not to be “goofing around with the gun in the house”. While walking toward his wife and as he started to sit in his wife’s lap, the gun discharged killing his wife. In reversing the manslaughter conviction, . the Fourth District Court of Appeal held that the evidence failed to measure up to the standard of negligence such as would sustain a conviction of manslaughter. The facts are analogous in Getsie and the instant case: no friction or ill will, handling a loaded weapon; and immediate remorse after the tragedy by the “actor”.

The Supreme Court cogently observed in Tipton v. State that criminal responsibility for manslaughter should be determined by consideration of the act which resulted in death in its surroundings at the time of its commission and not consideration of the result alone.

We conclude that the evidence adduced by the State, when considered in the light of every fact which was before the jury, the inferences attempted to be drawn by the State, and upon which its entire argument for affirmance rests, are unreasonable, illogical, and do. not naturally flow from the evidence. The trial judge erred in denying appellant-defendant’s motion for judgment of acquittal.

Reversed.

MILLS and SMITH, JJ., concur.

      . Carraway v. Revell, 116 So.2d 16 (Fla.1959).

      . Carraway v. Revell, 112 So.2d 71 (1 Fla.App.1959).

      . Miller v. State, 75 So.2d 312 (Fla.1954).

      . At an early date, Florida recognized that an automobile is a dangerous instrumentality. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

        . Sharp v. State, 120 So.2d 206 (2 Fla.App. 1960).

      . Getsie v. State, 193 So.2d 679 (4 Fla.App. 1966).

      . Tipton v. State, 97 So.2d 277 (Fla.1957).