author: PER CURIAM. ADKINS, Justice.

text:
    Earl Lowell LASSITTER, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, Respondent. Earl Lowell LASSITTER, Petitioner, v. Dennis WALTON, Respondent. Earl Lowell LASSITTER, Petitioner, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 675, Respondent.
    Nos. 47869-47871.
    Supreme Court of Florida.
    July 21, 1976.
    On Rehearing May 26, 1977.
    Rehearing Denied Sept. 20, 1977.

      Rex Conrad, Ronald A. FitzGerald and Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner.
    Frank E. Hamilton, III of Hamilton, Douglas & Bennett, Tampa, Woll, Mayer & Gold, Washington, D.C., Cone, Wagner, Nu-gent, Johnson & McKeown, and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

Petitions for writ of certiorari have been granted in this cause, and oral argument has been dispensed with.

The decision of the District Court of Appeal, Fourth District, 325 So.2d 408, here under review is quashed with directions that the judgments entered in the trial court be reinstated.

ROBERTS, Acting C. J., and ADKINS, BOYD and HATCHETT, JJ., concur.

SUNDBERG, J., dissents.

ON REHEARING

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District, (International Union of Operating Engineers, Local 675 v. Lassitter, 325 So.2d 408). This case has plowed through a slow, rough road of judicial labor, culminating in our quashal of the District Court decision and, now, by granting respondents’ petition for rehearing.

An action was brought by Lassitter against union member Walton, the Local union and the International union for injuries sustained in union violence. The jury found for petitioner Lassitter and assessed compensatory damages of $240,000 jointly and severally against all of the defendants. The jury also awarded punitive damages in the amount of $10,000 against Walton, $300,000 against the Local union and $700,-000 against the International union. Upon appeal, the finding of liability was affirmed but the verdicts for compensatory and punitive damages were reversed. International Union of Operating Engineers, Local No. 675 v. Lassitter, 295 So.2d 634 (Fla. 4th DCA 1974).

All parties then filed petitions for certio-rari in this Court. The defendants’ petitions were from that portion of the decision of the District Court affirming the liability and plaintiff Lassitter’s petition was from that portion of the opinion reversing the damages. The defendants’ cross-petitions for writ of certiorari were denied, but this Court granted plaintiff Lassitter’s petition and quashed the decision of the Fourth District Court “insofar.as it is inconsistent with Rinaldi v. Aaron, 314 So.2d 762, 79 A.L.R.3d 1132.” The cause was then remanded for further proceedings consistent therewith. Lassitter v. Walton, 314 So.2d 761 (Fla.1975). This decision was brief, but confusing.

In a subsequent decision, upon our mandate, the District Court pointed out that the original opinion did three basic things: (1) affirmed the judgments as to liability; (2) reversed and remanded for a new trial on the issue of compensatory damages; and (3) reversed and remanded for a new trial on the issue of punitive damages. The District Court reasoned that numbers one and two stood undisturbed, but expressed deep concern as to their proper course of action in complying with our mandate to quash the opinion insofar as it was inconsistent with Rinaldi v. Aaron, supra. The District Court then said:

“A review of our opinion reveals, though, that we assigned two additional reasons as a basis for reversing the award of punitive damages and remanding that issue for a new trial, reasons that were not encompassed or contradicted by Rinaldi v. Aaron, supra, or otherwise compromised by Supreme Court action.
“First, we held:
“ ‘It is our firm judgment that the awards singly and in combination are so manifestly excessive as to shock our judicial conscience. Under the circumstances the verdicts could only be indicative of the improper influences of passion and prejudice working on the jury. These influences probably emanated from usual well known union partisan-ships, excited by injuries to an innocent victim, coupled with the publicity and heated climate . . . 325 So.2d at 409-10.

The District Court then said:

“Secondly, we held that, while an award of punitive damages was proper in the case, we were concerned with the amount of such award. We said:
“ ‘[I]t is our understanding that there should be some reasonable, albeit imprecise, relationship between punitive and compensatory damages. Air Line Employees Ass’n Int. v. Turner, 291 So.2d 670 (3d D.C.A. Fla.1974); Crowell-Collier Pub. Co. v. Caldwell, 170 F.2d 941 (5th Cir. 1948); Hutchinson v. Lott, 110 So.2d 442 (1st D.C.A. Fla. 1959). With this background we opine that there is an impermissible and gross inbalance here between the actual damages suffered and the punitive damages awarded.’ 205 So.2d at 640.” 325 So.2d at 410.

The holding that there should be some reasonable relationship between punitive and compensatory damages is in conflict with the decision in Levine v. Knowles, 197 So.2d 329, 331 (Fla. 3d DCA 1967) and Hutchinson v. Lott, 110 So.2d 442, 445 (Fla. 1st DCA 1959). We have jurisdiction.

In Hutchinson v. Lott, supra, it was said: “While we do not follow the rule established in some jurisdictions to the effect that punitive damages must be ‘in proportion’ to the compensatory damages, in McLain v. Pensacola Coach Corp., supra, it was held that punitive damages are not recoverable unless actual damages are shown. The relation of punitive damages to actual damages cannot be reduced to a mathematical certainty and is dependent upon the facts of each case. Punitive damages are awarded as a punishment to a defendant and as a warning to deter him from committing a similar offense in the future. Miami Beach Lemer Shops, Inc. v. Walco Mfg. of Florida, Inc., Fla. App., 106 So.2d 233; Ross v. Gore, Fla., 48 So.2d 412. Accordingly, they must bear some relation to the amount that the defendant is able to pay since the pecuniary punishment to a man of large means would not be the same as to a man of small means. Maiborne v. Kuntz, Fla., 56 So.2d 720; Jones v. Greeley, 25 Fla. 629, 6 So. 448.”

The court in Air Line Employees Ass’n International v. Turner, 291 So.2d 670 (Fla. 3d DCA 1974), construed the quoted language in Hutchinson as not being dispositive of the issue and then decided that a jury is not authorized to award punitive damages in “a sum which does not bear some reasonable relation to the compensatory damages awarded, and which is excessively out of relation to the latter.” 291 So.2d 670 at 672. In Lan-Chile Airlines, Inc. v. Rodriguez, 296 So.2d 498 (Fla. 3d DCA 1974), the court relying on Hutchinson and Turner, directed a remittitur of a portion of a punitive damage award that was forty-four times the amount of the compensatory damages. Text writers acknowledge that there is a diversity of opinion among the jurisdictions whether punitive damages must bear a reasonable relation to the compensatory damages awarded, but conclude that Florida is aligned with those jurisdictions which require such a relationship. See 22 Am. Jur.2d Damages § 265, and cases collected thereunder.

Federal courts have come to conflicting conclusions in attempting to discern the Florida rule on the subject. Judge Hutche-son writing for the Fifth Circuit Court of Appeals in Scalise v. National Utility Service, 120 F.2d 938, 941 (5th Cir. 1941), stated:

“In Florida as in the federal courts, the giving of punitive damages is not dependent upon, nor must it bear any relation to the allowance of actual damages

Then in Crowell-Collier Pub. Co. v. Caldwell, 170 F.2d 941 (5th Cir. 1948), the same judge opined that exemplary or punitive damages awarded must bear some, though not an exact relation to actual damages.

The next pronouncement by the Fifth Circuit Court of Appeals on the subject is found in Smith v. McNulty, 293 F.2d 924, 926 (5th Cir. 1961):

“We think also that the award of punitive damages was not legally excessive. It bore a reasonable relationship to the actual damages, although appellant admits in his brief that such a relationship is not necessary under Florida law, citing the case of Hutchinson v. Lott, Fla.App., 110 So.2d 442. But cf. Crowell-Collier Pub. Co. v. Caldwell, 5 Cir. 1948,170 F.2d 941.”

Finally, in Wynn Oil Co. v. Purolator Chemical Corp., 403 F.Supp. 226 (N.D.Fla.1974), a federal district judge sitting in Florida stated:

“In the opinion of this Court, the punitive damage awards bear a reasonable relationship to the actual damages sustained by plaintiff. However, Florida law does not require that such a reasonable relationship exist, but only requires that some actual damage be shown and that the acts of defendants were done with malice. See Hutchinson v. Lott, 110 So.2d 442 (Fla.App. 1st 1959); and Smith v. McNulty, 293 F.2d 924 (5th Cir. 1961). 403 F.Supp. at 232.

The terms compensatory and actual damages have been used interchangeably by the courts in dealing with the problem at hand. This probably stems from the language in McLain v. Pensacola Corp., 152 Fla. 876, 13 So.2d 221 (1943), approving and applying the following quotation from 4 Am.Jur. 219:

“The general rule that exemplary or punitive damages are not recoverable in an action of tort unless actual damages are shown finds application in cases of assault and battery.” 13 So.2d at 222.

The Court in McLain, supra, held that the failure to submit the issue of punitive damages to a jury was not ground for reversal where the jury found no liability on the underlying cause of action, because an action for punitive damages cannot be maintained independently of an action for compensatory damages. The term “unless actual damages are shown” was used in McLain as synonymous with “unless liability is shown on the underlying cause of action.” 13 So.2d at 222.

In a suit for slander the First District Court held that “nominal” damages are “actual” damages for the purpose of supporting an award of punitive damages. Elyria-Lorain Broad. Co. v. National Com. Indus., Inc., 300 So.2d 716 (Fla. 1st DCA 1974), cert. discharged; National Com. Indus., Inc. v. Elyria-Lorain Broad. Co., 337 So.2d 809 (Fla.1976). Some jurisdictions hold to the contrary. 22 Am.Jur .2d Damages § 242 and cases collected thereunder.

Nominal damages are awarded to vindicate an invasion of one’s legal rights where, although no physical or financial injury has been inflicted, the underlying cause of action has been proved to the satisfaction of a jury. See, for example, Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928); Williams v. Atlantic Coast Line R.R. Co., 56 Fla. 735, 48 So. 209 (1908); Lampert v. Judge and Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095 (1911). Accordingly, the establishment of liability for a breach of duty will support an otherwise valid punitive damage award even in the absence of financial loss for which compensatory damages would be appropriate.

If a nominal damage award will support an award of punitive damages, then is it accurate to say that an award of punitive damages must bear some reasonable relation to the actual or compensatory damages awarded? We think not, if the statement of such a rule implies more than that a punitive award must bear some relationship to the fact of the injury or invasion of legal right and the cause thereof. See Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974). It occurs to us that there is little sense in such a rule if the policy reasons for imposition of punitive damages are to be served, i. e., the theory of punishment, involving the ideas of retribution for gross, wanton or willful misconduct, and an example to deter from its repetition. 2 Sutherland on Damages, 3d ed. § 406, p. 1132. It is suspected that the idea of reasonable relationship arose simply out of a sense of orderliness to provide a “rule of thumb” or “rough working scale” to measure the exercise by the jury of its discretion in assessing punitive damages. McCormick on Damages, Sec. 85, p. 298. But as with so many “rules of thumb” which were intended only as broad guidelines, the concept has become, in some jurisdictions, an inflexible rule of law that translates into the application of strict mathematical formula.

The error in embracing such a rule of law is made apparent in circumstances where the conduct by a very affluent defendant is outrageous but the resultant injury or invasion of legal rights to the plaintiff is minimal, although the conduct has the propensity of causing great harm if continued. Subject to the other limitations mentioned in this opinion, the jury is the best judge of the amount necessary to be assessed in order to make an example of such a defendant and thereby deter him and others from such conduct in the future. The more pecunious the defendant the greater must be the punitive damages assessed in order “to get his attention” regardless of the amount of actual damages awarded the plaintiff. For these reasons we disavow the rule that punitive damages must bear some reasonable relationship to the actual damages awarded by the jury.

We now consider the amount of the awards. There are certain well-established rules which control a review of the question of excessiveness of a jury’s verdict. The following formula first employed by Chancellor Kent in a libel case has been frequently quoted or paraphrased with approval in passing upon objections to verdicts in actions for bodily injury as excessive:

“The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.” Coleman v. Southwick, 9 Johns. (N.Y.) 45, 6 Am.Dec. 253 (1812).

In Seaboard Coast Line Railroad Company v. McKelvey, 270 So.2d 705 at 706 (Fla. 1973), we said:

“Consistently, our Courts have vested juries with the sound discretion to render verdicts in personal injury cases, upon the equally consistent admonition that there is ample evidence to support such verdicts and that the verdicts are not clearly arbitrary or so excessive as to indicate passion, prejudice, corruption, improper motive or to shock the judicial conscience.”

Also in Odoms v. Travelers Insurance Company, 339 So.2d 196 (Fla.1976), we said:

“Under the general rule a verdict should not be disturbed on the ground of excessiveness unless it is manifestly so excessive as to shock the judicial conscience, or unless it is so excessive as to be indicative of prejudice, passion or corruption on the part of the jury, or unless it clearly appears that the jury ignored the evidence or misconceived the merits of the case relating to the amount of damages recoverable as, for example, by taking into consideration improper elements, of damages.” At p. 198.

Although the verdict may be for considerably more or less than in the judgment of the court it ought to have been, still the court should decline to interfere, unless the amount is so great or small as to indicate that the jury must have found it while under the influence of passion, prejudice, or gross mistake. In order to shock the sense of justice of the judicial mind the verdict must be so excessive or so inadequate so as at least to imply an inference that the verdict evinces or carries an implication of passion or prejudice, corruption, partiality, improper influences, or the like. See Damage Verdicts by Parmele, Vol. 1, § 1 (1972).

The correctness of the jury’s verdict is strengthened when the trial judge refuses to grant a new trial or a remittitur. The appellate court may review the trial court ruling only for an abuse of discretion.

Two factors unite to favor a very restricted review of an order denying a motion for new trial on ground of excessive verdict. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury’s determination of such matters of fact as the weight of the evidence and the quantum of damages.

The appellate court should not disturb a verdict as excessive, where the trial court refused to disturb the amount, unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.

This test should be applied in deciding whether a remittitur should be required as a condition for denying a motion for new trial. A court is never free to reduce a verdict, by remittitur, to that amount which the court itself considers the jury should have allowed. It can only be reduced to the highest amount which the jury could properly have awarded. See Taylor v. Washington Terminal Company, 138 U.S.App. D.C. 110, 409 F.2d 145 (1969), cert. denied 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85; Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (C.C.A. 5th 1970).

In the absence of improper influences a remittitur may be appropriate, but here the District Court concluded that the verdicts were indicative of improper influences of passion and prejudice working on the jury. The court in its opinion referred to the following:

“An appendix to the brief of the local union contains fourteen newspaper articles of moderate length which were published at various times during the trial. The articles discuss events leading to the trial and the trial progress. Some of the article headlines were: ‘Union Harassment Claimed in Trial,’ and ‘More Testimony Given On Union Violence.’ . The trial itself brought heated exchanges. The trial court judge admonished one attorney for calling a witness a liar, was provoked to the point of threatening to jail a union attorney and the jury heard evidence during the trial of union harassment of a union member who testified for Lassitter.” International U. of Op. Eng., Local No. 675 v. Lassitter, 295 So.2d at 639.

The court properly concluded that the amount of the damage awards, coupled with these outside influences, was such as to shock judicial conscience.

The portion of the opinion of the District Court in conflict with the views expressed herein is quashed, but the judgment or decision of the District Court is approved. This cause is remanded to the Fourth District Court for the purpose of a reversal and a further remand for a new trial on the issue of damages only.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.


source: Caselaw Access Project

author: BOYD, Justice,

license: Public Domain

text:
    Willard WALKER, Petitioner, v. OCEAN MILE LTD., Respondent.
    No. 49808.
    Supreme Court of Florida.
    June 6, 1977.
    Rehearing Denied Sept. 6, 1977.
    Paul R. Stern, Stern, LaRue & Wells, Daytona Beach, for petitioner.
    Charles Tindell, Daytona Beach, for respondent.
   The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents with an opinion.

BOYD, Justice,

dissenting.

I respectfully dissent to the majority decision to discharge the writ of certiorari because of lack of conflict. In my opinion, the decision of the District Court of Appeal, 334 So.2d 56 (Fla. 1st DCA 1976), conflicts with Fla. Real Estate Commission v. McGregor, 268 So.2d 529 (Fla.1972) and Bradley v. Banks, 260 So.2d 256 (Fla. 3d DCA 1972). These two cases hold that contracts for real estate commissions to unlicensed persons acting as real estate brokers or salesmen are void because they are prohibited by the Florida Real Estate License Law, Section 475.41, Florida Statutes.

In this case petitioner, Willard Walker, a registered real estate broker, was employed by the owner of certain real property to sell it. It was alleged that petitioner orally contracted to employ Robert Mann for his efforts in forming an investment group to purchase the property. Mann was not licensed to sell real estate in Florida. Mann alleged that Walker promised to pay him twenty-five thousand dollars for his services upon closing the sale.

Mann organized Ocean Mile Ltd., a limited partnership, respondent herein. He became one of the partners and eventually assigned his claim for the commission to the partnership. When the commission became due, Walker refused to pay it.

The trial court was faced with two issues. The first was whether an oral agreement for the payment to Mann of a real estate commission existed. The second was whether petitioner is lawfully obligated to pay the commission to an unlicensed real estate agent.

The trial court entered a summary judgment for petitioner because, regardless of the existence of the contract, public policy and the Florida Real Estate License Law prohibit its performance. On appeal, the District Court held that it was improper for the trial court to have entered the summary final judgment.

I cannot agree with the District Court. In this case, the trial court considered Mann’s admission that he was not licensed to sell real estate when the sale was made. The court determined that regardless of other circumstances no commission could be lawfully paid to his assignee since the performance of the contract could not be enforced in view of the Florida Real Estate License Law. Accordingly, any further taking of testimony would have been a waste of the court’s time.

To agree with the District Court that the existence of material factual issues requires reversal of the summary judgment we must conclude that an exception to the Real Estate License Law permits an unlicensed agent to collect a commission if he finds others to join him in a purchase of real estate. He could find property he desires to sell and defeat the intended effect of the statute by acquiring a small interest himself, while receiving an unlawful portion of a commission paid by the owner to a licensed agent. If respondent prevails at trial, the door will be open for others to circumvent the law by becoming “purchasers.”

There is nothing in the statute authorizing an unlicensed person to share in a real estate commission whenever he is a purchaser or one of a group of purchasers. In fact, the statute makes it a crime to employ an unlicensed real estate salesman. Section 475.42(1)(c), Florida Statutes. This Court, in McGregor, said:

“No real estate transaction performed by an unlicensed person as defined in the statute can be excused from being considered a violation thereof because it is ‘incidental’ or only a minor part of the business of a corporation. It is the act itself, i. e., the real estate service performed, as pointed out by the case cited just above, and not its degree of effect or its incidental relationship to the corporate business as a whole that determines whether there is a statutory violation. Nor does the fact no bonus or commission is paid to an unlicensed salaried employee by the corporation for his services in handling real estate matters have any bearing. The governing statute provides no ‘loopholes’ for escape for any such reasons.” 268 So.2d at 531.

Mann’s own admission that he was not a licensed real estate agent terminated any need of the trial court for consideration of further facts. The opinion of the District Court of Appeal should be quashed with directions to reinstate the trial court’s final summary judgment for the petitioner.


author: PER CURIAM.

text:
    In the Matter of THE FLORIDA BAR. In re AMENDMENT TO CODE OF PROFESSIONAL RESPONSIBILITY (CONTINGENT FEES).
    No. 48384.
    Supreme Court of Florida.
    July 14, 1977.
    As Amended on Denial of Rehearing Sept. 30, 1977.
    Edward J. Atkins, Miami, President, The Florida Bar, Russell Troutman, Orlando, President, The Florida Bar (On Rehearing), Donald H. Norman, Fort Lauderdale, Member, Board of Governors, and Norman A. Faulkner, Tallahassee, Staff Counsel, The Florida Bar, for petitioner.
    Bill Wagner, of Wagner, Cunningham, Vaughan, May & Genders, Tampa, and Robert Orseck, of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers, Martin Zevin, Fort Lauderdale, Member of The Florida Bar, Henry P. Trawick, Jr., Sarasota, Member of The Florida Bar, and W. Robert Fokes, Tallahassee, for Florida Medical Association, Inc., interested parties.
   PER CURIAM.

We have before us a Petition for Amendment of the Code of Professional Responsibility filed by The Florida Bar. It is a matter of original jurisdiction in this Court. A response to the Petition was filed by The Academy of Florida Trial Lawyers. Martin Zevin, Esq., and Henry P. Trawick, Jr., Esq., members of The Florida Bar, filed briefs in opposition to the Petition of The Florida Bar. Ms. Johnnie M. Ridgely, Executive Secretary of the Dade County Bar Association, timely filed a letter response to the Petition. Upon motion to appear as amicus curiae, The Florida Medical Association, Inc. was permitted to file a response to the Petition of The Florida Bar seeking modification of the proposed Amendment. The Academy of Florida Trial Lawyers filed a response in opposition to the position of The Florida Medical Association, Inc.

Bar counsel, Mr. Zevin, and Mr. Trawick all participated in oral argument on the Petition before this Court.

By its Petition, The Florida Bar seeks to amend Disciplinary Rules 2-106 and 2-107 of the Code of Professional Responsibility.

We are advised by The Florida Bar, in its brief and at oral argument, that “there may be occasional abuses in the use of contingent fee contracts.” In its response, The Academy of Florida Trial Lawyers states that it recognizes that “in a limited number of circumstances, there have been abuses of the contingent fee system by a limited number of lawyers involving, hopefully, a limited number of clients.” It is upon these assertions that The Florida Bar urges the Court to require (i) that all contingent fee arrangements between attorney and client' be reduced to writing signed by both; (ii) that no attorney or firm may participate in the fee in any contingent fee agreement matter without the consent of the client in writing; (iii) that in all contingent fee agreement matters each participating attorney or law firm will agree to assume the same legal responsibility to the client for the performance of the services in question; (iv) that in each contingent fee arrangement matter each lawyer involved shall be available to the client for consultation concerning the case; (v) that, without prior court approval, a contingent fee exceeding an expressed standard schedule “shall be presumed clearly excessive”; and (vi) that upon the conclusion of the representation, in the event there is a recovery, the attorney shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating attorney or law firm, which statement is to be signed by each attorney, law firm and the client, with copies distributed to each and a copy retained by .each participating attorney for six years after execution of the closing statement, with further provisions for inspection of the contingent fee contract and closing statement by certain designated individuals.

After careful consideration of the arguments of the petitioner and respondents, this Court determines that it is in the best interest of the public to amend the Code of Professional Responsibility with respect to the division and disclosure of contingent fees in personal injury or tort law cases. The resulting increase in accountability to the client in contingent fee cases and availability of information concerning fee arrangements will place the client in a better position to assess the reasonableness of the fee in the first instance and at the same time will facilitate the discovery and discipline of those who abuse the contingent fee system. However, due to the . absence of competent evidence demonstrating any significant abuse of contingent fee arrangements within the State, we reject the proposed amendment which would impose a maximum contingent fee schedule and thereby impinge upon the constitutional guarantee of freedom of contract. Although the full implications of the j .cent decision of the United States Supreme Court in Bates v. State Bar of Arizona,U.S. -, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), have yet to manifest themselves, the approval of lawyer advertising therein should result in a greater awareness in the public concerning attorneys' services and fees. Thus the “open marketplace” competition promoted by such broader dissemination of information, in and of itself, should tend to be a self-regulating factor in the establishment of fees. The advent of this decision reinforces the conclusions we reach today with respect to the propriety of this Court establishing maximum fee schedules.

While certain elements of the proposed Amendments appear to be reasonable and necessary in certain types of eases, we are convinced immediately of the overbreadth of the proposals. Initially, we are struck by the absence of either allegation or argument to support a compelling reason for inserting a maximum contingent fee schedule in the Code of Professional Responsibility which when surpassed creates the presumption that the fee is clearly excessive. This conclusion is particularly persuasive in view of the constitutional right to make contracts for personal services so long as no fraud or deception is practiced and the contracts are legal in all respects, a principle which will be more fully discussed later. The proposed Amendments apply to contingent fee arrangements in all cases. In this regard, it should be noted that the rules of each jurisdiction cited as authority by The Florida Bar, New York and New Jersey, are limited in application to claims or actions for personal injuries, property damage, wrongful death, loss of services resulting from personal injuries and claims in connection with condemnation or change of grade proceedings (New York) or to claims for damages based upon tortious conduct of another, including products liability claims (New Jersey). Apparently each of these jurisdictions found abuses of the contingent fee arrangement to be limited to the category commonly referred to as tort or personal injury and product liability cases. The arguments made in this Court by some of the respondents would bear out the sense of limiting any such amendments to this category of cases. As has been pointed out by respondents, different considerations are usually present in the cases of commercial and real property claims. The disparity of the client’s bargaining power and relative financial resources vis-a-vis the defendant is not so pronounced. Commercial collection matters also offer a different problem since they are often small in dollar amount and difficult of recovery. We observe that the survey results on forwarding fees recited by petitioner at page 6 of its brief relates only to “personal injury law.”

The Florida Bar directs our attention to American Trial Lawyers v. New Jersey Supreme Court, 66 N.J. 258, 330 A.2d 350 (1974), wherein a maximum fee schedule adopted by the New Jersey Supreme Court was sustained against constitutional attack. In determining that an evidentiary hearing prior to adoption of its rule was not constitutionally required, the court said at page 354:

“Without further examples, we may conceded [sic] at once that the rule here discussed was not bottomed on an evidentiary hearing, nor even on anything approaching the lengthy investigation by Justice Wasservogel to reveal the abuse of the contingent fee system in New York. That scrutiny preceded the adoption there of the control rule later held valid by decision of the Court of Appeals in Gair v. Peck [6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43], supra. It is unrealistic to suppose that cupidity and overreaching end at the banks of the Hudson, and we do not indulge that aberration. Our Supreme Court, as the natural recipient of clients’ complaints against the conduct of lawyers, has accumulated experience over the years, as briefly mentioned by Chief Justice Weintraub at the November 6, 1971 hearing. . . .” (Emphasis supplied)

However, we do not believe that without a showing based on competent evidence it is appropriate for us to indulge the aberration that cupidity and overreaching have not only overrun the banks of the Hudson and inundated the State of New Jersey, but have traversed the Mason-Dixon Line and inexorably worked their way south to flood the peninsula of Florida. It is elemental in our profession that judgments are to be based upon the evidence in the record. By no stretch of the judicial imagination can the record be said to support any remarkable or substantial abuse of the contingent fee system in Florida.

On the basis that the contingent fee is the “poor man’s key to the courthouse” our Code of Professional Responsibility, patterned after the American Bar Association proposal, expressly sanctions the contingent fee arrangement. It cannot be denied that there is current today in some quarters a dissatisfaction with the principle of the contingent fee arrangement regardless of its amount. However, the advocates of this school of thought do not limit their assault to the contingent fee. Basically, their philosophy encompasses the idea that claims should be limited because of economic considerations. Nonetheless the people of this State have embraced the philosophy that:

“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” (Emphasis supplied) Art. I, § 21, Fla.Const.

It is irrefutable that the poor and least fortunate in our society enjoy access to our courts, in part, because of. the existence of the contingent fee. Until such time as the people of our State enunciate a different philosophy in their document of fundamental and organic law, we are not disposed to elevate economic considerations above right of access to the courts of this State.

To be sure, recognition of the efficacy of the contingent fee arrangement does not suggest that such fee arrangement is not subject to the same standards of fairness and reasonableness as any other fee arrangement. Disciplinary Rule 2-106, footnote 1, supra, makes it clear that a lawyer shall not enter into any agreement for, charge, or collect an illegal or clearly excessive fee and then enumerates the criteria to be taken into consideration in assessing the reasonableness of any fee. The ethical considerations to be taken into account in determining the reasonableness of any fee are set forth in Ethical Consideration 2-18, Code of Professional Responsibility. Fairly applied, the cited Disciplinary Rule and Ethical Consideration provide meaningful tests for measuring the reasonableness of any fee whether it be fixed or contingent. The circumstances of the case, including the amount of the recovery, dictate the fairness of the fee. The individual lawyer has the unequivocal duty to deal fairly with his client. When he fails to exercise the self-control expected of a member of an honorable profession, he should be promptly disciplined by that profession.

Apart from the lack of demonstrated necessity for imposing an arbitrary maximum fee schedule in contingent fee arrangements, there exists the very real question of infringement of the constitutional rights guaranteed to all citizens to make their own contracts absent any demonstrable, overriding public policy to be served by limiting such right. Although dealing with the power of the Legislature to curtail the liberty to contract, the case of State v. Ives, 123 Fla. 401, 167 So. 394 (1936), is instructive. In invalidating a legislative enactment granting to the Board of Barber Examiners the authority to establish minimum charges for barbering services in different areas of the State, the Court opined:

“The right to make contracts of any kind, so long as no fraud or deception is practiced and the contracts are legal in all respects, is an element of civil liberty possessed by all persons who are sui juris, (citations omitted)
“It is both a liberty and property right and is within the protection of the guaranties against the taking of liberty or property without due process of law. (citations omitted)
“It follows, therefore, that neither the federal nor state governments may impose any arbitrary or unreasonable restraint on the freedom of contract.
“ ‘That freedom however is not an absolute, but a qualified right and is therefore subject to a reasonable restraint in the interest of the public welfare.’ ” (citations omitted)
# # * # # #
“Freedom of contract is the general rule; restraint is the exception, and when it is exercised to place limitations upon the right to contract, the power, when exercised, must not be arbitrary or unreasonable, and it can be justified only by exceptional circumstances.” (citation omitted)

Id. at 398-99.

As alluded to in State v. Ives, supra, freedom of contract is subject to reasonable restraint in the interest of the public welfare. Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974). But if it appears that the regulation under criticism is not in any way designed to promote the health, comfort, safety, or welfare of the community, or that the means employed have no real and substantial relation to the avowed or ostensible purpose, or that there is wanton or arbitrary interference with private rights, the legitimate bounds of the police power may be exceeded. Atlantic Coast Line R.R. Co. v. Goldsboro, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721 (1914).

Not only is there a paucity of evidence that any significant evil is being advanced through utilization of the contingent fee arrangement under the criteria currently enunciated in the Code of Professional Responsibility when measured against the right of the poor to access to our courts, there is a complete absence of any evidence that the proposed maximum fee schedule in contingent fee cases has any real or substantial relation to the cure of the espoused evil. In fact, the converse appears more likely. The proposed maximum fee schedule could result in a patently unreasonable fee in some situations under normal application of the criteria set forth in the Code of Professional Responsibility. However, in such a case the Bar would unquestionably be met with the defense that it was within the permissible range of the fee schedule which petitioner asks this Court to etch within the granite of our canons of conduct.

On the record, briefs and argument before us there is no more rational basis to adopt as a part of our Code of Professional Responsibility the suggested maximum fee schedule than there is to establish such a maximum on the fees contracted for by architects, engineers, accountants or physicians, to name a few similar professions, for their activities to affect the public interest. It may be that to do so would lower the costs of such professional services, although there is no such guarantee. It is just as likely that the result would be to diminish the quality of service clients of these professions would receive or eliminate the services altogether for some. Accordingly, where is the rational basis for the proposed regulation? We deplore overreaching by any member of the legal profession because each is charged with the responsibility, acting in a fiduciary capacity with his or her client, to deal fairly. However, we are persuaded that the most effective way to prevent any such overreaching is through diligent application of the time-tested criteria already contained in the Code of Professional Responsibility. The Florida Bar is charged with the responsibility to prosecute vigorously those who do not observe the Disciplinary Rules. We expect the Bar to discharge that responsibility diligently.

We do not intend through our remarks herein to suggest that we are not possessed of information or judicial knowledge that apparently there have been outrageous abuses in certain areas of Florida respecting settlement or adjustment of automobile accident claims. Even Supreme Court Justices read the newspaper. However, to leap from these reports of fraud, which are said to involve a very small segment of the legal and medical community in the areas involved, to the conclusion that a schedule of contingent fees should be adopted by this Court is absolutely irrational. By such reasoning the fees of all doctors and hospitals should be likewise regulated because some members of that profession and industry similarly have been involved in the fraudulent practices. First, there is no evidence that the existence of contingent fee agreements is a cause of such ignoble practices. Second, the establishment of an additional or different disciplinary rule regarding contingent fee agreements is not likely to redeem or deter professional people who are willing to initiate or participate in fraudulent practices. By their very participation in such practices, they are already knowingly violating the law, prejudicing the administration of justice and, hence, violating existing provisions of the Code of Professional Responsibility.

The full resources of the disciplinary program of The Florida Bar must be brought to bear to ferret out these miscreant members of the profession. The answer to this problem is not the enactment of additional rules or standards, but strict enforcement of existing rules and standards. We are not unmindful of the previous unsuccessful efforts of The Florida' Bar to prosecute these individuals. However, it is hoped that all agencies of government as well as representatives of the medical community and insurance industry would cooperate in a coordinated and sustained effort to develop the hard evidence necessary to prosecute those individuals who penalize all the citizens of this State through their fraudulent activities.

While we are not persuaded that a change is needed in the disciplinary rules concerning the amount of fees, we believe a case is made by The Florida Bar, and concurred in by The Academy of Florida Trial Lawyers, to the effect that there are abuses in Florida in the practice of division and disclosure of fees in personal injury or tort law cases. We concur with The Florida Bar that this is a practice which has been tolerated by the organized bar in contravention of the Code of Professional Responsibility because it was thought that the public was better served in the long run by being placed in the hands of competent personal injury trial counsel so that the merits of their claims could be best presented. The proposed Amendments offer several reforms: (i) the client is made aware that the forwarding attorney is participating in the fee and to what extent; (ii) the client must consent to the arrangement; and (iii) the forwarding attorney not only assumes direct liability to the client for performance of the services, but he must also make himself available for consultation with the client. This last function is more than pro forma because more often than not the referring attorney is the “family lawyer” and can perform a meaningful function in this regard.

Similarly, the requirement of a closing statement in personal injury or tort cases (long the practice among experienced lawyers) will provide the client a clear picture of his recovery and should prevent misunderstandings between attorney and client. It also provides an aid to the Bar in prosecuting ethical violations where misconduct occurs.

In consideration of the foregoing, the following Amendments to the Code of Professional Responsibility are hereby approved:

DR 2-106 is amended by adding Section (E).
“(E) Every attorney who, in connection with an action or claim for damages for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tor-tious conduct of another, including products liability claims, accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in such action, claim or proceeding, whereby his compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by an attorney for himself or for the law firm representing the client. No attorney or firm may participate in the fee without the consent of the client in writing. Each participating attorney or law firm shall sign the contract or agree in writing to be bound by the terms of the contract with the client, and shall agree to assume the same legal responsibility to the client for the performance of the services in question as if the attorney or law firm were a partner of the other attorneys involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of DR 2-107 shall apply to such fee contracts.
“In the event there is a recovery, upon the conclusion of the representation, the attorney shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating attorney or law firm. The closing statement shall be executed by all participating attorneys, as well as the client, and each shall receive a copy. Each participating attorney shall retain a copy of the written fee contract and closing statement for six years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client, by any other person upon Order of the Supreme Court of Florida, by a Circuit Judge in Florida, a referee, grievance committee or authorized representative of the Board of Governors of The Florida Bar.”
DR 2-107 (A) (2) is amended by adding the following underscored language:
“(2) The division is made in proportion to the services performed and responsibility assumed by each, provided that in case of the employment of an attorney for a contingent fee as defined in DR 2-106(Eh a division of such fee may only be made between the attorneys involved when:
(a) The client consents in writing signed bv him to employment of the other lawyer which writing shall fully disclose that a division of fees will be made and the basis upon which the division of fees will be made.
(b) Each lawyer agrees to assume the same legal responsibility to the client for the performance of the services in question as if he were a partner of the other attorney involved.
(c) Each lawyer involved shall be available to the client for consultation concerning the case.”

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

      . The text of such Rules as they existed on the date of filing the Petition for Amendment is as follows:
      “DR 2-106. Fees for Legal Services
      (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.
      (C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case, nor shall he enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.
      (D) Charges made by any lawyer or law firm under an approved credit plan shall be only for services actually rendered or cash actually paid on behalf of the client. No higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in an approved credit plan.
      Amended July 9, 1975 ([Jh re Florida Bar, Fla.] 316 So.2d 52).”
      “DR 2-107. Division of Fees Among Lawyers

        (A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
      (1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
      (2) The division is made in proportion to the services performed and responsibility assumed by each.
      (3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
      (B) This Disciplinary Rule does not prohibit payment to a former partner or associate pursuant to a separation or retirement agreement.”

      . The Bar urges the addition of the following language in Disciplinary Rule 2-106(B):
      “A ‘contingent fee’ as used herein is defined as one contingent upon the recovery of money or other property bv a client. In every employment of an attorney where a contingent fee is to be paid, as herein defined, the fee arrangement shall be bv written contract, signed bv the client, and bv an attorney for himself or the law firm representing the client. No attorney or firm may participate in the fee without the consent of the client in writing. If more than one law firm and/or sole practitioner is to participate in the fee, each participating attorney or law firm shall sien the contract or agree in writing to be bound bv the terms of the contract with the client, and will agree to assume the same legal responsibility to the client for the performance of the services in question as if the attorney or law firm were a partner of the other attorneys involved. , The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of DR 2-107 shall apply to such fee contracts.
      The foregoing definition of a contingent fee does not apply to contingent fees in criminal cases which are prohibited bv DR 2-106CC').
      Any fee in which the contingent portion exceeds the following standard shall be presumed clearly excessive unless the contract therefor is submitted to and approved bv the court as hereinafter provided:
      (at 33‘/3% of the recovery, if settled prior to the commencement of suit:
      (bl 40% of the recovery at trial or. of the recovery if settled after commencement of suit:
      (c) 45% of the recovery if the judgment of the trial court is appealed or post-iudement proceedings are required to enforce the same:
      (dl 25% of that portion of any recovery exceeding $500.000, at any stage of proceedings.
      With the written consent of the client, a contingent fee contract exceeding the foregoing standards may be entered into if. because of unusual circumstances, the contract is submitted to and approved bv the presiding judge or designated alternate of any court in Florida. in which any action for recovery under the contract is to be commenced. These provisions shall apply to all contracts for contingent fees between any attorneys practicing in Florida and any client.
      In the event there is a recovery, upon the conclusion of the representation, the attorney shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received bv each participating attorney or law firm. The closing statement shall be executed bv all participating at-tornevs. as well as the client, and each shall receive a copy. Each participating attorney shall retain a copy of the written fee contract and closing statement for six years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times bv the client, bv any other person upon Order of the Supreme Court of Florida, bv a Circuit Judge in Florida, a referee, grievance committee or authorized representative of the Board of Governors of The Florida Bar.”
      The Florida Bar proposes the following additional language in Disciplinary Rule 2-107(A)(2):
      $ * * * * #
      “. . . provided further that in case of the employment of an attorney for a contingent fee as defined in DR 2-106(B). a division of such fee may only be made between the attorneys involved provided:
      (a) The client consents in a writing signed bv him to employment of the other lawyer which writing shall fully disclose that a division of fees will be made and the basis upon which the division of fees will be made.
      (b) Each lawyer agrees to assume the same legal responsibility to the client for the performance of the services in question as if he were a partner of the other attorney involved.
      (c) Each lawyer involved shall be available to the client for consultation concerning the case.”

      . N.Y.App.Div., 1st Dept., R. 603.4.

      . N.J.Sup.Ct.R. 1:21-7(c).

      . Ethical Consideration 2-20, Code Prof. Resp.

      . We would observe that this Court has recently instituted an independent committee chaired by Mr. Justice Karl to reassess and devise any needed reforms in the entire disciplinary program.

      . Disciplinary Rule 1-102(A)(3), (4) and (5), Code Prof. Resp.


text:
    Victor Mature JOHNSON and Alonzo Inman, Appellants, v. STATE of Florida, Appellee.
    Nos. 74-1721 and 75-121.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    Certiorari Denied Oct. 11, 1977.
    See 98 S.Ct. 272.
    James M. Russ and Marshall B. Kapp, Law Offices of James M. Russ, Orlando, and Richard L. Jorandby, Public Defender, West Palm Beach, for appellant-Johnson.
    Emmett A. Moran, Altamonte Springs, for appellant-Inman.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MAGER, C. J., CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.


text:
    LUMBERMANS MUTUAL CASUALTY COMPANY, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 76-1006.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    As Corrected On Denied of Rehearing Sept. 21, 1977.
    Thornton, Dougherty & Conroy and John Edward Herndon, Jr., Miami, for appellant.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellee.
    Before HENDRY, C. J., HUBBART, J., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Affirmed. Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972).


author: McCORD, Chief Judge.

text:
    MAIN INSURANCE COMPANY, a corporation, Appellant, v. Edwin E. WIGGINS, Appellee.
    No. BB-449.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    On Rehearing Sept. 16, 1977.

      C. T. Boyd, Jr., of Boyd, Jenerette, Leem-is & Staas, Jacksonville, for appellant.
    Gerald Sohn and Charles Cook Howell, III, Jacksonville, for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment awarding personal injury protection (PIP) benefits and uninsured motorist benefits to appellee under an automobile liability insurance policy issued to appellee’s daughter. Appellee was injured when hit by a motor vehicle while standing beside an uninsured vehicle he had under lease. The lease did not contain an option to purchase and therefore, under § 627.732(2), Florida Statutes (1975), appellee was not the “owner” of the vehicle and was therefore not required to carry insurance on the leased vehicle. See § 627.733, Florida Statutes (1975). Ap-pellee did not own any automobile.

The automobile which hit appellee was covered by liability insurance to the extent of $10,000, and appellee was paid the full amount of that vehicle’s coverage. He contends he is entitled to PIP benefits under the respective automobile insurance policies of his daughter and his son, both of whom resided in his household. He contends also that he is entitled to uninsured (underin-sured) motorist benefits from his son’s and daughter’s policies since the total uninsured benefits of the two is $20,000, which is in excess of the $10,000 coverage on the vehicle which hit him. Appellee and appellant (appellee’s daughter’s insurer) and the son’s insurer (Unigard Insurance Co.) entered into a stipulation providing that if appellee is entitled to PIP benefits, then each insurer would pay $2,125 and that if appellee is entitled to uninsured motorist coverage, then each insurer will pay $5,000.

As to PIP benefits, § 627.736(4)(d), Florida Statutes (1975), provides in pertinent part as follows:

“(d) The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in this state by the owner while occupying a motor vehicle, or while not an occupant of a motor vehicle or motorcycle if the injury is caused by physical contact with a motor vehicle.
* * * * * *
3. Accidental bodily injury sustained by a relative of the owner residing in the same household, under the circumstances described in subparagraph 1. or subpara-graph 2., provided the relative at the time of the accident is domiciled in the owner’s household and is not himself the owner of a motor vehicle with respect to which security is required under ss. 627.730-627.741.” (Emphasis supplied.)

Appellee, not being the owner of a motor vehicle, is not entitled to PIP benefits under paragraph 1 of the foregoing statute, but under paragraph 3, he does qualify for such benefits under his daughter’s and son’s policies.

Uninsured (underinsured) motorist benefits would be payable to appellee under § 627.727(2), Florida Statutes (1975), only if he himself had an insurance policy affording uninsured motorist’s coverage in excess of the $10,000 coverage of the vehicle which hit him. That statute defines the term “uninsured motor vehicle” to include an insured motor vehicle when the liability insurer thereof “has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” (Emphasis supplied.) In Government Employees Insurance Co. and Travelers Indemnity Co. v. Clem Taylor, 342 So.2d 547 (Fla. 1 DCA 1977), we construed the words “his uninsured motorist’s coverage” in the above-quoted statute to refer only to coverage of a policy issued to the injured person and not to include uninsured motorist’s coverage of another person’s policy of which the injured person happens to be a beneficiary.

The trial court was correct in ruling ap-pellee was entitled to PIP benefits and attorneys fees applicable to his claim for PIP benefits, but erred in ruling that appellee was entitled to uninsured (underinsured) motorist’s benefits and attorneys fees for that claim.

Affirmed in part and reversed in part. Remanded for further proceedings consistent herewith and for assessment of a reasonable attorney’s fee to appellee’s attorney for successfully defending this appeal as to PIP benefits.

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

ON PETITION FOR REHEARING

We have reexamined our opinion in this cause in the light of the opinion of another panel of this Court in Hunt v. State Farm Mutual Insurance Company, 349 So.2d 642, Opinion filed June 27, 1977, and in the light of our previous opinion in Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977). In the latter ease, Taylor was injured when involved in a collision with a third party tort feasor. Taylor at the time was driving a vehicle owned by Jones. Taylor had $10,000 uninsured motorist coverage, Jones had $50,000 uninsured motorist coverage and the third party tort feasor had $10,000 liability coverage. Taylor contended that although his uninsured (underinsured) motorist coverage was the same amount as the liability coverage of the tort feasor, he should be entitled to stack with his $10,000 the $50,000 uninsured (underinsured) motorist coverage of the policy of Jones; that by doing so his uninsured (underinsured) motorist coverage would then exceed the liability coverage of the third party thereby bringing into play underinsured motorist coverage and he would be entitled to recover up to $50,000. We there construed § 627.727(2)(b), Fla. Stat. (1975) which expanded uninsured motorist coverage to include underinsured motorist coverage. That statute states as follows:

“(2) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof: * * * (b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” (Emphasis supplied.)

We ruled that the use of the words “his uninsured motorist’s coverage” refers to the coverage of the policy issued to the injured person and does not include uninsured (underinsured) motorist coverage of another person’s policy of which the injured person happens to be a beneficiary. We thus held that in determining whether or not Taylor was entitled to underinsured motorist coverage he could look only to a comparison of the uninsured motorist coverage in his own policy and the amount of liability coverage carried by the third party involved in the accident.

In our previous opinion in the case sub judice following our previous opinion in Taylor, we ruled that Wiggins who had no insurance of his own would not be entitled to recover uninsured (underinsured) motorist benefits from his son’s and daughter’s uninsured (underinsured) motorist coverage (both lived in his household) that he would only be entitled to such benefits if he himself had an insurance policy affording uninsured motorist coverage in excess of the $10,000 liability coverage on the vehicle which hit him.

In Hunt, which was decided by another panel of this Court as aforesaid, Hunt while riding as a passenger in a pickup truck was injured in a one vehicle accident. He had no insurance policy of his own. The driver of the truck had $10,000 liability coverage. Hunt claimed uninsured (underinsured) motorist benefits under his mother’s policy which had $25,000 uninsured motorist coverage and under his stepfather’s policy which had $10,000 uninsured motorist coverage. The court ruled that the uninsured coverages of his mother’s and stepfather’s policies should be stacked, and he should recover the difference between the $35,000 total of the uninsured (underinsured) motorist coverage and the pickup truck.

Upon reconsideration of this entire matter, we have determined that the construction which we placed upon the words “his uninsured motorist’s coverage” as contained in § 627.727(2)(b), Florida Statutes 1975, was more restrictive than the legislature intended by the use of such term. Prior to the amendment of § 627.727(2), Florida Statutes (1971), by Chapter 73-180, Laws of Florida, which added under insured motorist coverage and brought it under the umbrella of uninsured motorist coverage, the Supreme Court in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), had ruled that uninsured motorist coverage not only covered the policyholder but also covered his spouse, his relatives, and his spouse’s relatives who are residents of his household. In addition, the Supreme Court stated that such coverage included any lawful occupants of the insured’s automobile covered in the policyholder’s automobile liability policy. The Supreme Court in Mullis quoted with approval this court’s ruling in Travelers Indemnity Co. v. Powell, 206 So.2d 244 (Fla. 1st DCA 1968) that uninsured motorist coverage “has made each member of a family an insured under each such police purchased by any family member.” In these two previous cases, the Supreme Court and this Court were construing only the statute as it existed prior to the 1973 amendment. As heretofore stated, the Legislature subsequently added underinsured motorist coverage by adding the following additional language:

“The term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof:
(a) * * *
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” (Emphasis supplied)

The Legislature is presumed to be acquainted with judicial decisions on the subject concerning which it subsequently enacts a statute, Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla.1964). The Supreme Court and this Court, having previously ruled that uninsured motorist coverage had made each member of a family (residing in the same household) an insured under each policy purchased by any family member, the legislature evidently intended by its subsequent enactment that the term “his uninsured motorist’s coverage” contained therein would include the uninsured motorist’s coverage of each member of the family which each such member would have under the policy of other members of the family residing in the same household. We, therefore, so hold in this case and recede from the language in our opinion in Taylor which states otherwise. We do not rule, however, that the legislature intended by the use of this term to extend under insured motorist coverage to persons not related to the policyholder as was the situation in Taylor [although such persons, if injured while occupying the policyholder’s motor vehicle with his knowledge and consent would be entitled to receive uninsured (as distinguished from under insured) benefits by virtue of previous judicial rulings as to such un insured motorist’s coverage.]

We recede from our previous opinion in this cause insofar as it relates to uninsured (underinsured) motorist’s benefits and reverses the trial court’s judgment as to the award of such benefits.

Affirmed and remanded for assessment of a reasonable attorney’s fee to appellee’s attorney for successfully defending this appeal.

RAWLS and SMITH, JJ., concur.


author: ERVIN, Judge. ERVIN, Judge.

text:
    Mike HUNT, Appellant, v. STATE FARM MUTUAL INSURANCE COMPANY, and the Hartford Accident and Indemnity Company, Appellees.
    No. DD-431.
    District Court of Appeal of Florida, First District.
    June 27, 1977.
    Rehearing Denied Sept. 16, 1977.

      James G. Feiber, Jr. and Nancy E. Yenser of Salter, West, Doughtie & Feiber, Gaines-ville, for appellant.
    Richard T. Jones of Jones & Langdon, Gainesville, for appellee.
   ERVIN, Judge.

This is a case of first impression in which an insured seeks to stack underinsured motorist coverage policies issued by different insurers.

On November 15, 1974, appellant Hunt, while riding as a passenger in a pickup truck, was badly injured in a one vehicle accident. Hunt entered into a settlement agreement with the driver of the truck and the driver’s liability insurer, Florida Farm Bureau, for the applicable policy limits of $10,000. Hunt then filed a complaint for a declaratory judgment seeking to recover under the provisions of two separate automobile liability insurance policies issued to his mother, Wilma Sanders, and to her husband and his stepfather, James Sanders. The mother had a policy with appellee State Farm which provided uninsured motorist coverage limits of $25,000 per person. The stepfather had a policy with appellee Hartford, having uninsured motorist coverage limits of $10,000 per person. Hunt entered into a settlement agreement with State Farm concerning its pro rata share of the total uninsured motorist coverage. Hartford moved to dismiss the complaint and the motion was granted, the court finding in part:

“Florida Statute 627.727 (1973) and the cases construing it allow for the stacking of multiple policies of uninsured motorist coverage which are in excess of the recovery obtained from a third party, but the cases construing the statute have not spoken to the facts of the case at bar wherein Plaintiff was covered by the multiple policies but was not the purchaser or owner of any one of them. See Sellers v. U. S. F. & G., 185 So.2d 689 (Fla.1966); Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla. 1973); Sellers v. Government Employees Insurance Co., 214 So.2d 879 (1st DCA Fla.1968); State Farm Mutual Automobile Insurance Company v. White, 330 So.2d 858 (2d DCA Fla.1976).
“In the 1976 session, the Florida legislature revised the No-Fault Law in Florida and pursuant to Section 627.4132 (1976) prohibited stacking of such coverage effective 1 October 1976. The Court is of the opinion that a narrow construction of the present statute allowing stacking is appropriate in view of the expressed legislative intent. Under a narrow construction, the facts of the case at bar as pleaded are distinguishable from the previously cited case wherein stacking was allowed.”

It matters not that Hunt did not pay the premiums on the insurance policies. The primary question is whether Hunt is an “insured” or “named insured” under the terms of the policy. Since Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971), an insurance purchaser’s family, so long as they are residents of the household, falls within the first class of insureds.. As such they are covered by uninsured motorist protection whenever and wherever bodily injury occurs. Since the allegations of the complaint must be accepted as true for purposes of the motion to dismiss, we assume Hunt is a resident of the household and is an insured under both his mother’s and stepfather’s policies. This shield of protection encompasses him even when riding in another’s vehicle.

Since Ch. 73-180, § 4, Laws of Florida, amended § 627.727,- Florida Statutes, coverage has been provided for injured persons whose recovery from third party tort-feasors is less than the coverage limits under that injured person’s uninsured motorist policy. Further, separate insurance policies providing uninsured motorist coverage can be stacked, utilizing the maximum policy limits of coverage, to determine the total amount by which the uninsured motorist coverage exceeds the recovery afforded by the third party tortfeasor. E. g. State Farm Mutual Automobile Insurance Company v. White, 330 So.2d 858 (Fla.2d DCA 1976); State Farm Mutual Automobile Insurance Company v. Anderson, 332 So.2d 623 (Fla.4th DCA 1976); Government Employees Insurance Company v. Farmer, 330 So.2d 236 (Fla.1st DCA 1976).

The twist here: This is apparently the first case in which an insured attempts to stack policies provided by different insurers. Here, State Farm had a $25,000 limit on uninsured motorist coverage which is clearly in excess of the $10,000 recovered from the tortfeasor’s insurer. Hartford, however, has only a $10,000 limit and argues that since it is not in excess of the recovery from the liability insurer, it cannot be liable. It concedes that stacking is permissible where the separate coverages are provided by one insurer. Then the extra coverage is compensated by extra premiums.

We are persuaded however by Mike Hunt’s response. Here he would clearly be entitled to $25,000 uninsured motorist coverage if the policies were purchased from the same insurer ($10,000 one policy plus $25,000 second policy = $35,000-$10,000 recovery from tortfeasor = $25,000). If we accept Hartford’s argument, only $15,000 coverage would be provided if the policies were purchased from the different insurers (0 from Hartford, $25,000-$10,000 recovery from tortfeasor = $15,000 recovery from State Farm). In both cases the insured purchased exactly the same amount of insurance coverage. This result is contrary to principles set forth in the above opinions.

Bound as we are by stare decisis, we cannot affirm on the basis of “public policy” reflected in a statute not applicable here. The ban against stacking, enacted by Ch. 76-266, Laws of Florida, applies only to accidents occurring on or after October 1, 1976, and is only one part of a complete revamping of the entire No Fault Act in Florida. Compare Barrett v. Gill and State Farm Mutual Automobile Ins. Co., 347 So.2d 132 (Fla.1st DCA 1977), where we held, in construing another provision of the No Fault Act, that there is no public policy precluding the joinder of both insurer and insured in a wrongful death action resulting from an automobile accident which occurred prior to the effective date of the adoption of Section 627.7262(1), Florida Statutes (1976). Applying the prohibition against stacking of uninsured motorist coverage out of context with other changes in the law produces results not contemplated by the legislature. Retrospective application of legislation intended to be prospective produces unequal, arbitrary results for claimants such as here.

We therefore reverse the trial court’s determination. Hartford is not, however, liable for the entire $10,000 policy limit. The excess provided by stacking the policies (here $25,000) must be prorated between the two insurers.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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

ON PETITION FOR REHEARING

ERVIN, Judge.

Appellee, Hartford Accident and Indemnity Company, the insurer of Mike Hunt’s step-father, James Sanders, seeks rehearing of our opinion, arguing that Mike Hunt is not a relative of the named insured. It alludes to the definition of insured under Section Three (referring to protection against uninsured motorists) of the policy as including the named insured and his relatives, pointing out that Hunt, the step-son of Sanders, is not a relative and therefore is not covered.

In defining the word “insured”, however, under Section Three, the policy states:

“(1) The first person named in the declaration and if a resident of the household, his spouse and the relatives of either;

It is clear from the record that Hunt is the son of Wilma Sanders, the spouse of James Sanders. Hunt is also a resident of the named insured’s household. As such, then he is covered under the provisions of James Sanders’ policy with Hartford.

Insofar as the alleged conflict between our opinion and our earlier opinion in Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977), which restricted the provisions of Section 627.-727(2)(b), Florida Statutes (1975), so as to allow coverage only to the injured person who was by name insured, and did not include underinsured coverage of another person’s policy of which the injured person happened to be the beneficiary, we refer to the order granting petition for rehearing in Main Ins. Co. v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977). There we specifically receded from language in Taylor which precluded each member of a family residing in the same household from recovering under the underinsured motorist policy provisions of the named insured.

Petition for rehearing is denied.

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

      . Where one whose status as an insured is derived from something other than ownership of the policy, no uninsured motorist coverage stacking accrues. Travelers Ins. Co. v. Pac, 337 So.2d 397 (Fla.2d DCA 1976), held a permissive occupant falls within the second class of insureds under Mullis so that stacking is inappropriate. The Pac decision was expressly followed by this court in Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977), where we held that an injured claimant could not stack the uninsured motorist coverage of another person’s policy covering the automobile which the claimant was driving at the time of the accident. The distinction here is that Hunt has uninsured motorist coverage as a member of the family provisions of his parents’ policies — not as a result of his status as an injured passenger under the tortfeasor’s policy.


text:
    TONY’S PIZZA KING, INC., Petitioner, v. BURGER CHEF SYSTEMS, INC., Respondent.
    No. DD-499.
    District Court of Appeal of Florida, First District.
    June 28, 1977.
    Rehearing Denied Aug. 5, 1977.

      Robert W. Elrod of Elrod & Palmer, Jacksonville Beach, Gene T. Moss of Moss, Mitchell & Tomlinson, Jacksonville, for petitioner.
    L. Haldane Taylor of Taylor & Brecher, Jacksonville, for respondent.
   PER CURIAM.

Departure by the circuit judge from the essential requirements of law not having been demonstrated, the petition for writ of common law certiorari is denied.

BOYER, C. J., MASON, ERNEST, (Ret.), and DREW, E. HARRIS, (Ret.), Associate Judges, concur.


text:
    Charlie Eugene MALOY, a/k/a Charlie Brown, Appellant, v. The STATE of Florida, Appellee.
    No. 76-418.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Opinion Adhered to On Rehearing Aug. 20, 1977.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal from an order revoking probation and from two subsequent convictions for sale and possession of heroin. Defendant was sentenced to three years on each of the subsequent convictions to run consecutively with the sentence upon revocation of probation. It is contended that the sentences were illegal in that they did not specify whether they were for the sale or possession. The sentences are affirmed upon authority of the reasoning in English v. State, 301 So.2d 813 (Fla. 2d DCA 1974).

Affirmed.


text:
    BIRMINGHAM FIRE INSURANCE COMPANY OF PENNSYLVANIA, a corporation, subrogee of Golden Glades Building Corporation, a Florida Corporation, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 76-1637.
    District Court of Appeal of Florida, Third District.
    July 19, 1977.
    Rehearing Denied Sept. 21, 1977.

      Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for appellant.
    Jones & Morcroft, Fort Lauderdale, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff subrogee, Birmingham Fire Insurance Company of Pennsylvania, appeals a summary final judgment for defendant, Allstate Insurance Company, in this negligence action.

Golden Glades Building Corporation which was insured by appellant Birmingham had engaged Moss Plumbing Company as a plumbing subcontractor for several buildings it was constructing in Dade County. Effective May 15, 1972 appellee Allstate had issued a liability insurance policy covering Moss Plumbing. As required by ordinance, the policy provided a certificate of insurance to Metropolitan Dade County which contained the following pertinent provision:

“It is agreed that cancellation of this policy shall not be effective as to the interest of the principal hereinafter named until thirty days notice of cancellation has been sent by certified mail to: Metropolitan Dade County, Florida.”

On December 8, 1972 Allstate mailed a notice of cancellation effective January 10, 1973 to Moss Plumbing for non-payment of the premium; but notice of the cancellation was not sent to Dade County. On April 16, 1973 Harrison Mealing, an employee of Moss Plumbing, was installing a hot water heater in one of the buildings under construction when a fire erupted allegedly as a result of his negligent operation of a soldering torch. As a result Golden Glades suffered a $10,192.94 property loss. Birmingham paid Golden Glades for the loss and then Birmingham, as subrogee, filed the instant action against Moss Plumbing, Mealing and Allstate. Allstate answered and moved for summary judgment on the ground its policy with Moss Plumbing was cancelled as of January 10, 1973. After a hearing, summary judgment was entered.

Birmingham appeals and contends the policy was still in effect because Dade County was not given the 30-day cancellation notice as required by the provision set out above.

From a reading of this provision, it is clear that the policy is in effect as to the interest of Dade County as the named principal. Appellant, in essence, is arguing that it is covered under the Allstate policy as a third-party beneficiary. As such, its rights are no greater than that of the insured, Moss Plumbing. See Shingleton v. Bussey, 223 So.2d 713, 715 (Fla.1969). The policy was effectively cancelled as to Moss Plumbing and, therefore, appellant Birmingham was not covered under Allstate’s policy on April 16, 1973.

Summary judgment affirmed.

      . Dade County.


author: PER CURIAM-.

text:
    Johnny COACHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-257.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    Rehearing Denied Sept. 27, 1977.
    Richard L. Jorandby, Public Defender, and George B. Barrs, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM-.

Reversed on the authority of Flowers v. State, 348 So.2d 602, Fourth District Court of Appeal, opinion filed July 1, 1977, and the cause remanded for a new trial.

Reversed and remanded.

CROSS, ALDERMAN and DAUKSCH, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    BROWARD NATIONAL BANK OF FORT LAUDERDALE, a National Banking Association, and Broward National Bank of Fort Lauderdale, as Trustee of the Barney L. Carter Trust u/w of Opal S. Carter, Appellant, v. Frances Rickey CARTER, Individually as the Surviving Spouse of Barney L. Carter, Deceased, and as Personal Representative of the Estate of Barney L. Carter, Deceased, Appellee.
    No. 76-2723.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.

      Patrick A. Barry of English McCaughan & O’Bryan, Fort Lauderdale, for appellants.
    Robert W. Federspiel of Law Offices of Ernest G. Simon, Delray Beach, for appel-lees.
   PER CURIAM.

Affirmed.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The only issue is whether the beneficiaries of a trust are necessary parties to an action against a trustee based on the claim that the trustee wrongfully failed to distribute the trust assets to another beneficiary under whom the appellee now claims. I believe the beneficiaries of the trust involved herein are necessary parties to this action against the trustee. There are three “real parties in interest,” the appellee, Frances Rickey Carter; the appellant, Bro-ward National Bank of Fort Lauderdale; and the beneficiaries of the trust. The trustee’s representation of the beneficiaries in this case may indeed be in conflict with the role of the trustee as a stakeholder for contending beneficiaries since the appellee’s main contention is that the trustee failed to distribute the trust assets to the “beneficiary” under wham she now claims, i. e., the deceased, Barney L. Carter. The author’s comment on Fla.R.Civ.P. 1.210(c) at 30 Fla. Stat.Ann. 307 (1974), Fla.R.Civ.P. 1.210 is applicable here:

Under the early cases, both beneficiaries and trustees were evidently necessary parties. This would still seem to be the situation if Rule 1.210(c) should for any reason (such as lack of title in the trustee) be inapplicable.

The conflict situation present here is certainly a good reason for requiring the join-der of the beneficiaries in an action that will finally determine their rights in the trust.


text:
    Richard CRAVERO, Ronald Chandler and Robert Greenwood, Appellants, v. The STATE of Florida, Appellee.
    Nos. 75-1519, 75-1628, 75-1913, 75-1914, 75-2022, 76-506, 76-507 and 76-509.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.

      Grusmark, Jaffe & Karten, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Appellants Richard Cravero, Ronald Chandler and Robert Greenwood were jointly tried before a jury on a single indictment for conspiracy to commit murder and first degree murder, all arising out of the alleged murder of one Stanley Harris in the early morning hours of February 14, 1974. Harris had been killed by a volley of gunfire while standing next to his parked car in the parking lot of a bar called Pirate’s Cove. Defendants were found guilty, convicted and sentenced on both counts. In this consolidated appeal, they allege numerous errors which will be discussed individually.

Defendants first argue that the trial court erred in failing to grant an evidentia-ry hearing where they had alleged in a motion to vacate the existence of newly discovered evidence which could have affected the jury’s verdict. This “new” evidence was a police report filed with the North Miami Beach Police Department. The report contained statements by a purported witness to the crime. According to this witness, he had observed a late model car driving into the parking lot at Pirate’s Cove with its lights out on the morning of the murder. This first automobile stopped next to a second automobile which was parked with its lights on. The witness then heard loud conversation and a multitude of shots, at which point the first vehicle “took off” from the lot, heading southbound in the northbound lane of Biscayne Boulevard, running a red light in the process.

We agree with the trial judge’s ruling that the motion to vacate was without merit. Defendants’ allegations concerning the materiality of the statements recounted in the North Miami Beach Police report are not supported by the record. If anything, they tend to corroborate elements of the testimony of the State’s chief prosecution witness. The fact that these statements were given to the police by the only “eyewitness” to the crime is of no import here, since they are in no way inconsistent with the evidence and testimony elicited at defendants’ trial.

In Briskin v. State, 341 So.2d 780 (Fla.3d DCA 1977), this court ruled that evidence withheld by the police:

“should be examined in the context of the entire record to determine whether it reflected upon the defendant’s guilt. If there is no reasonable doubt as to the defendant’s guilt whether or not the additional evidence is considered, then no reversible error has been committed.” Id. at 782-83.

As authority for the quoted proposition, we cited United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). In modifying the disclosure doctrine first expounded in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court noted in Agurs that prosecutors have no duty “to provide defense counsel with unlimited discovery of everything known by the prosecutor,” and that the prosecutor’s duty to provide certain evidentiary material absent a specific request derives “from the obviously exculpatory character” of the evidence. Agurs, supra, 427 U.S. at 106, 96 S.Ct. at 2399, 49 L.Ed.2d at 351.

We find in this case that the statements in the North Miami Beach Police report were not obviously exculpatory nor do we feel that they reflected upon defendants’ guilt when examined in the context of the entire record.

We further note in this regard that the name of the alleged eyewitness was provided by the State in its list of persons having information concerning the charged offenses. This list included the name of the North Miami Beach officer who submitted the initial investigatory report. The character of the undisclosed material was such that even the most rudimentary questioning would have brought it to light. Given these facts and our belief that the North Miami Beach Police report in no way reflected upon the defendants’ guilt, we hold that the trial court properly denied defendants’ motion to vacate.

We next consider defendants’ contention that the trial court’s denial of motions for severance made during trial deprived defendants of a fair trial. The motions were directed at remarks made by the State’s primary witness upon cross-examination by defendant Cravero’s counsel, to the effect that the witness had become a government informer to “[put] a stop to these murders.” Counsel for the other defendants insisted that a severance was necessary to allow Cravero’s attorney to impeach the informer’s references to other murders, while remaining counsel argued that they at no time wished to “open the door” to such a line of questioning.

The trial judge stated that he did not feel that the remark concerning other murders referred to the defendants. He then noted that the defendants’ attorneys had engaged in a “cooperative effort” throughout the course of the proceedings.

The granting or denying of a motion for severance lies within the discretion of the trial judge. See Rollins v. State, 148 So.2d 274, 276 (Fla. 1963), and cases cited therein. Denial of such a motion will constitute abuse of discretion only where the record indicates that the defendant was injured thereby. Jackman v. State, 140 So.2d 627 (Fla.3d DCA 1962), citing Suarez v. State, 96 Fla. 42, 115 So. 519 (1928).

No such injury was demonstrated here. The record clearly establishes that counsel for all the defendants collaborated closely both before and during the trial; any allegation of antagonistic defenses is unfounded. The trial judge repeatedly gave laborious instructions to the jury as to the effect of evidence which was admissable against one defendant but not the others. These facts alone are supportive of the trial court’s ruling that severance was not in order. See Roberts v. State, 164 So.2d 817 (Fla. 1964). In addition, however, any adverse inference which may have arisen from the testimony of the State’s witness was cured by his later admission that there had been no other murders before that of Stanley Harris and that he had no other firsthand knowledge of subsequent murders. W^therefore hold that the trial court properly* denied all motions for severance.

The last two points on appeal which we will consider concern the admissibility of photographs of the murder victim and the sufficiency of the evidence.

The trial judge personally examined a number of allegedly gruesome photographs prior to their admission into evidence upon objection by defendants respective counsel. He rejected some while admitting five others, apparently accepting the prosecutor’s argument that the photographs were relevant to the question of premeditation and to establish that the victim had been killed by more than one person using a variety of weapons.

The Supreme Court of Florida has held that allegedly gruesome photographic evidence is admissible where it is relevant to establish at least some aspect of the crime. Bauldree v. State, 284 So.2d 196 (Fla. 1973). Using this standard, we find that no error was committed in admitting the photographs of the victim into evidence.

We further find that the evidence was sufficient as a matter of law to support the jury’s verdict in all three instances. See State v. Smith, 249 So.2d 16 (Fla. 1971); Borders v. State, 312 So.2d 247 (Fla.3d DCA 1975); see also Spinkellink v. State, 313 So.2d 666 (Fla. 1975); Resnick v. State, 287 So.2d 24 (Fla. 1973).

Defendants remaining arguments are without merit. Therefore, in accordance with our findings as stated above, the defendants’ convictions are hereby affirmed.

Affirmed.


author: RAWLS, Judge.

text:
    Jerome S. FLETCHER and Kent C. Kelley; as Co-Executors of the Estate of Robert H. Jacobs, Deceased, Appellants, v. LIBERTY NATIONAL BANK AND TRUST COMPANY OF LOUISVILLE, A National Banking Association, Appellee.
    No. DD-422.
    District Court of Appeal of Florida, First District.
    July 27, 1977.

      Lawrence G. Mathews, Jr., and Richard H. Adams, Jr., of Gray, Adams, Harris & Robinson, Orlando, for appellants.
    Ralph W. Nimmons, Jr., and Douglas D. Chunn of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   RAWLS, Judge.

By this interlocutory appeal, appellants, co-executors of Jacobs’ estate, seek a review of the trial court’s order striking their counterclaims and cross-claims directed toward Louisville Trust Company, American Bank & Trust Company, and Great American Management and Investment (a Massachusetts business trust formerly known as Great American Mortgage Investors).

The primary subject matter of this suit is Liberty National’s complaint to foreclose a mortgage against Robert Jacobs and others on two shopping malls. In their answer,. Jacobs’ executors (mortgagor) pled a number of affirmative defenses which alleged, inter alia, that American Bank & Trust Company and Louisville Trust Company have an interest in the subject mortgage; that by reason of certain acts on the part of the original holder of the mortgage, Great American Mortgage Investors, it was, with the knowledge of Liberty, estopped to claim a default; that with Liberty’s knowledge, the loan from Great American was usurious; and the note and mortgage violated the “Florida Balloon Mortgage Statute”, Section 697.05, Florida Statutes (1975). The affirmative defenses are not involved in this appeal.

The mortgagor’s answer also set out counterclaims and cross-claims against Liberty, Louisville Trust Company, American Bank & Trust Company and Great American Mortgage Investors. Liberty moved to strike the cross-claims alleging, basically:

“1. The three entities named above, other than Plaintiff, are not parties to this action, thus, there can be no counterclaim against those entities .
2. . Defendants have not asked the Court for additional parties to be brought in and are not proceeding under the Third Party Practice Rule of the Florida Rules of Civil Procedure. . .”

The mortgagor’s answer set forth colora-ble cross-claims against the parties sought to be joined in the action arising out of the transaction that is the subject matter of the original action and which relates to the property involved in the primary action. The trial court erred in striking the subject cross-claims.

Florida Rule of Civil Procedure 1.170(h) provides:

“(h) Additional Parties May be Brought In. When the presence of parties other than those to the original action is required to grant complete relief in the determination of a counterclaim or cross-claim, they shall be named in the counterclaim or cross-claim and be served with process and shall be parties to the action thereafter if jurisdiction of them can be obtained and their joinder will not deprive the court of jurisdiction of the action. Rule 1.250(b) and (c) applies to parties brought in under this subdivision.”

The mortgagor’s cross-claims against parties other than those of the original action were timely filed pursuant to the provisions of Florida Rule of Civil Procedure 1.250(c). Having incorporated the cross-claims in the first pleading timely filed, the mortgagor “as a matter of course” was permitted to name in the counterclaims and cross-claims other parties than those original to the action necessary to grant complete relief. As stated above, our examination of the cross-claims filed against the three entities, who were not named parties in the original action, discloses colorable grounds that meet the requirements of Rule 1.170(h). Florida Fuel Oil v. Springs Villas, 95 So.2d 581 (Fla.1957); Pan American Surety Co. v. Jefferson Construction Co., 99 So.2d 726 (Fla.3rd DCA 1958); Cournand v. Lucor Corporation, 114 So.2d 733 (Fla.2nd DCA 1959); and Marina Apts., Inc. v. Bloch, 128 So.2d 615 (Fla.3rd DCA 1963).

By way of caveat, we do not hold that each allegation pled by the mortgagor is immune to further attack. We simply hold that at the stage action was taken, the trial court erred in summarily striking the cross-claims against the three entities which were properly joined by the mortgagor.

Reversed with directions to reinstate the mortgagor’s cross-claims.

McCORD, C. J., and BOYER, J., concur.

      . The complaint alleged that Jacobs borrowed $500,000 from Great American in December of 1973. On March 26, 1976, Great American assigned this note and mortgage to Liberty; this foreclosure action was filed April 13, 1976.

      . Fla.R.Civ.P. 1.250(c) provides:
      “(c) Adding Parties. Parties may be added once as a matter of course within the same time that pleadings can be so amended under Rule 1.190(a). If amendment by leave of court or stipulation of the parties is permitted, parties may be added in the amended pleading without further order of court. Parties may be added by order of court on its own initiative or on motion of any party at any stage of the action and on such terms as are just.”

      . The pleading attacked was entitled “Counterclaims and Cross-claims”. Liberty moved the court “to strike all allegations of the counterclaims and cross-claims directed toward Louisville Trust Company, a national banking association, American Bank and Trust Company, a New York banking association, and Great American Management and Investment, a Massachusetts business trust, formerly Great American Mortgage Investors, a Massachusetts business trust qualified to do business in Florida.” In the interest of clarity, we have categorized the subject matter of the motion as cross-claims although the Rules speak of “counterclaims and cross-claims”.