text:
    UNITED GAS PIPELINE COMPANY, Appellant, v. GULF POWER COMPANY, Appellee.
    Nos. S-9, S-10.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Rehearing Denied July 21, 1976.

      Patrick G. Emmanuel of Holsberry, Emmanuel, Sheppard, Mitchell & Condon, Pensacola, for appellant.
    Bert H. Lane of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
   RAWLS, Acting Chief Judge.

Hopefully, this is the epilog of this litigation. Noa and Richardson were killed as a result of a gas explosion during the course of their employment with Gulf Power Company. Full workmen’s compensation benefits were paid by Gulf Power to the employees’ widows. The widows sued United Gas as a third party tort-feasor, primarily upon the theory that it was negligent in failing to odorize the gas which it sold to Gulf Power in its natural state. United filed a third party amended complaint against Gulf Power seeking indemnity by reason of contractual provisions with United and contribution from United as a joint tort-feasor. Subsequent to a jury verdict in favor of the widows and against United, the trial court dismissed United’s third party amended complaint. Upon appeal this court stayed United’s grievance as to dismissal of its third party amended complaint until disposition of United’s appeal in the main suit between it and the widows. Upon consideration of United, Gas Pipeline Company v. Noa, we held that, under the facts of this case, Gulf Power had the sole duty to safely handle the volatile gas after taking delivery of that which it purchased and reversed the judgment rendered against United. Thus, at this stage, the instant questions became moot. The Supreme Court, in granting certiorari, quashed our opinion with directions that the judgment be reinstated. So, the questions posed in the instant case immediately became viable. In the meantime, the Supreme Court was re-evaluating the prohibition of contribution among joint tort-feasors doctrine in Lincenberg v. Issen, and this court stayed further proceedings herein awaiting the Supreme Court’s decision. After rendition of Lin-cenberg, oral arguments were again heard by the court in the instant case.

Contractual Indemnity

United predicates its claim for contractual indemnity upon its contract with Gulf Power which provided that gas would be delivered by United to Gulf Power in its natural state, i. e., unodorized. Two other applicable provisions of the contract are:

“VI.
“POSSESSION OF GAS
“Seller shall be in exclusive control and possession of the gas deliverable and responsible for any damage or injury caused thereby until the same shall have been delivered to Buyer, after which delivery Buyer shall be in exclusive control and possession thereof and responsible for any injury or damage caused thereby.
“VII.
"WARRANTY
“Seller warrants generally the title to all gas delivered, and agrees to indemnify Buyer from all suits, actions, debt, accounts, damages, costs, losses and expenses arising from or out of adverse claims of any or all persons to said gas or to royalties or charges thereon.”

As the trial court cogently pointed out in the subject order:

“(4) Contract of indemnification to relieve parties of their own negligence are not looked upon with favor, and in order for such a contract to be construed as relieving a party of his own negligence, it must be clear and unequivocal. Where a contract contains no reference to indemnifying against negligence of the indemnitee, or other language indicating an intent to do so, the contract does not indemnify the indemnitee against losses resulting from his own negligence (Nat Harrison Associates, Inc. v. Florida Power and Light Company, 1964, Fla.App., 162 So.2d 298; Florida Power and Light Company v. Elmore, 1966, Fla.App., 189 So.2d 522).”

United next argues that it is entitled to indemnification from Gulf Power, because Gulf Power’s negligence was the primary cause of the damages sustained by the widows and cites cases upholding indemnification upon “active” and “passive” negligence theory. Had our opinion in United Gas Pipeline Company v. Noa, supra, been sustained, United’s position would be sound. But, as we read the Supreme Court’s opinion in Noa v. United Gas Pipeline Company, supra, it imposed upon United, as a matter of law, a nondel-egable duty to odorize the gas delivered to Gulf Power, the ultimate consumer. Failure of United to odorize constituted active negligence on the part of United. The contractual provisions did not contemplate odorization of the gas by either party, so it cannot be said that Gulf Power was under any duty, contractual or lawful, to odorize the gas. The duty to odorize was legally engrafted upon the contract by the decision of the Supreme Court and squarely placed upon the shoulders of United. It cannot be said, as a matter of law, that the subject injuries primarily resulted from a violation of a duty owed by Gulf Power to United. To so hold, under the facts of this case, would be to journey upon an excursion of “but for” hypothesis.

Contribution Among Joint Tort-feasors

This has been a most troublesome question in the court’s deliberations. This record discloses active negligence on the part of Gulf Power which brings into consideration the doctrine of contribution among joint tort-feasors. In Liberty Mutual Insurance Co. v. Curtiss, Judge Smith, speaking for this court, discussed the right of contribution among joint tort-feasors, viz:

“. . . That right is a consequence of the claimant having discharged a common liability shared by the tortfeasor from whom contribution is claimed. As stated by our Supreme Court in Lincenberg v. Issen, 318 So.2d 386, 390 (Fla. 1975), simple justice seems to require contribution by an obligor who is discharged of an obligation shared with but paid entirely or disproportionately by another. 1 Harper & James, Law of Torts § 10.2 at 718 (1956); Prosser, Law of Torts § 50 at 307, 309 (14th ed. 1971); 18 Am.Jur.2d Contribution § 33 (1965); 12 Uniform Laws Annotated, prefatory notes to Uniform Contribution Among Tortfeasors Act at 59, 60 (Master ed. 1975). The Georgia Act, whose general terms left many interstices for judicial bridging, has been interpreted by the Georgia Court of Appeals consistently with the same underlying principle. That court held, for example, that contribution cannot be required of a tort-feasor who, by reason of immunity of marriage or of workmen’s compensation legislation, is not liable to the injured plaintiff. Southern Ry. Co. v. Brewer, 122 Ga.App. 292, 176 S.E.2d 665 (1970); Central of Ga. Ry. Co. v. Lester, 118 Ga.App. 794, 165 S.E.2d 587 (1969). When there is such an immunity, it may be said that the contribution claimant who paid the injured party did not thereby discharge a common obligation shared by the injured party’s negligent spouse or employer. See also Baltimore Transit Co. v. Maryland, 183 Md. 674, 39 A.2d 858, 156 A.L.R. 460 (1955); Prosser, supra at 309, n. 75.”

Pursuant to the provisions of the Florida Workmen’s Compensation Act, Gulf Power has paid compensation benefits for the deaths of Noa and Richardson. The legislature has exerted herculean efforts to provide workmen’s compensation benefits as the exclusive liability of an employer in lieu of his common law liability. We are not unaware of the Supreme Court’s decision in Sunspan Eng. & Const. Co. v. Spring-Lock Scaffold Co. There, the court, in affirming the trial court’s order holding Florida Statute 440.11(1) unconstitutional as applied in that case, very carefully observed that it was not passing upon the “ ‘no contribution among joint tort-fea-sors’ rule”. The Supreme Court, subsequently, in Lincenberg v. Issen, supra, in construing the Uniform Contribution Among Tortfeasors Act enacted by the 1975 Florida Legislature, observed: “The Act further provides that the right of contribution exists only in favor of a tortfea-sor who has paid more than his pro rata share of the common liability . . . .” The Uniform Act specifically provides: “. . . When two or more persons become jointly or severally liable in tort for the same injury . . ..” (emphasis supplied) As is readily discerned, the Uniform Act contemplates a “common liability in tort”.

The majority view, which we adopt, is that no right of contribution exists in favor of the third-person tort-fea-sor, because the workmen’s compensation employer and the third person are not under a common liability to the injured or killed person, since the employer’s liability is imposed, as well as limited, by the provisions of the Workmen’s Compensation Act, while that of the third-person tort-feasor rests on the principles of negligence.

The judgment appealed is AFFIRMED.

MILLS and SMITH, JJ., concur.

      .Although Gulf Power argues that the question of contribution was not properly raised, inasmuch as the third party amended complaint was dismissed without leave to further amend, it is apparent that the trial court considered and passed upon this point in its order dismissing the complaint, viz:
      “(6) That even if it may be inferred from the record of the evidence presented at the trial of the main suits of Noa and Richardson against United Gas Pipeline Company the jury could have concluded that Gulf Power Company was likewise guilty of negligence and was, therefore a joint tortfeasor with United Gas Pipeline Company, in the absence of a specific contract of indemnity, which the Court finds does not exist between United Gas Pipeline Company and Gulf Power Company, there can be no contribution as between said joint tortfeasors. Therefore, United Gas Pipeline Company cannot recover against Gulf Power Company any portion of the judgments rendered in the main suits herein.”

      . United Gas Pipeline Company v. Noa, 281 So.2d 377 (1 Pla.App.1973).

      . Noa v. United Gas Pipeline Company, 305 So.2d 182 (Fla.1974).

      . Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975).

      . See also Improved Benevolent & Protected Order of Elks v. Delano, 308 So.2d 615 (3 Fla.App.1975).

      . Winn-Dixie Stores, Ine. v. Fellows, 153 So. 2d 45 (1 Fla.App.1963) ; Maybarduk v. Bus-tomante, 294 So.2d 374 (4 Fla.App.1974) ; and Armor Elevator Co., Inc. v. Elevator Sales & Service, Inc., 309 So.2d 44 (3 Fla. App.1975).

      .cf. Spaulding v. Florida Gas Company, 249 So.2d 695 (1 Fla.App.1971).

      . Liberty Mutual Insurance Co. v. Curtiss, 327 So.2d 82 (1 Fla.App.1976).

      . Sunspan Eng. & Const. Co. v. Spring-Lock Scaffold Co., 310 So.2d 4 (Fla.1975).

      . Florida Statute 768.31.

      . Florida Statute 768.31(2) (a). See also Mieure v. Moore, First District Court of Appeal, 330 So.2d 546, opinion filed April 20, 1976, not yet reported.

      . Annot., 53 A.L.R.2d 977, 985 (1957) states: “ . . . [I]t has been held with almost complete uniformity that notwithstanding the existence of such legislation, a .third-person tortfeasor is not entitled to contribution from an employer whose negligence concurred in causing an injury to, or the death of, an employee, where such injury or death are compensable under the applicable workmen’s compensation act.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mary WILLIAMS, Appellant, v. Gordon GUND et al., Appellees.
    No. 74-1538.
    District Court of Appeal of Florida, Second District.
    June 25, 1976.
    Rehearing Denied July 23, 1976.
    Richard J. Salem of Salem & Salem, Tampa, for appellant.
    John W. Puffer, III, and Norman Stall-ings, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees.
   PER CURIAM.

Defendant/appellant contends that the circuit court lacked jurisdiction to consider this action for damages and for unlawful detainer of real property. We agree and reverse.

Plaintiffs/appellees filed their complaint in circuit court on August 7, 1973, claiming they had been wrongfully deprived of the possession of certain property. They asked for a determination of the right to possession of that property, and also asked for damages based on its rental value. However, the complaint did not set forth an allegation of the amount in controversy.

At the time the complaint was filed, Fla.Stat. § 26.012 provided:

“(2) [Circuit courts] shall have exclusive original jurisdiction:
* * * * * *
(g) In all actions involving the title, boundaries, or right of possession of real property.”

This section, as well as Fla.Stat. § 34.-011(2) (which deals with jurisdiction of the county court) were amended in Ch. 74-209, effective June 18, 1974, to give the county court jurisdiction of this type of action. We think it clear that the circuit court no longer has jurisdiction of such a claim unless it involves damages of over $2500.

Following the effective date of Ch. 74-209, appellant moved to transfer the cause to county court. The motion was denied. Appellees never moved to amend their complaint to allege an amount in controversy over $2500.

At the trial, which commenced on October 2, 1974, the jury found for appellees and awarded them $2,850.

We agree with appellant that Ch. 74 — 209 applied to this case, even though the complaint had been previously filed. In State v. Revels, Fla.1959, 109 So.2d 1, the court said:

“While no decision on the point has been made by this court, it appears to be universally held in the courts of other states and the federal courts that when the jurisdiction of a court depends upon a statute which is repealed or otherwise nullified, the jurisdiction falls even over pending causes, unless the repealing statute contains a saving clause.
“We adopt the rule as to the effect of the repeal of a jurisdictional statute, as stated above, as supported by both reason and authority. As stated in De La Rama S. S. Co. v. United States, supra, 344 U.S. 386, 73 S.Ct. 381, 383, [97 L.Ed. 422], ‘When the very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. * * * If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving exceptions unless they are made explicit.’ ”

Ch. 74 — 209 contains no such saving clause.

Furthermore, under the amended statute, the circuit court lacked jurisdiction, even though the damages ultimately awarded were in excess of $2500. The complaint must contain a statement of the grounds upon which the court’s jurisdiction depends, RCP 1.110(b), in this case, the amount in controversy. It is well settled that where the jurisdiction of the circuit court is dependent on the amount in controversy the test is the amount claimed and put into controversy in good faith. Massachusetts Casualty Ins. Co. v. Johansen, Fla.App.3d 1972, 270 So.2d 397. Despite appellant’s objection to jurisdiction in the circuit court, appellees never requested leave to amend their complaint to include the amount in controversy.

Under federal procedure this omission might not have been fatal to appellees’ case, for 28 U.S.C. § 1653 provides:

“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”

But we are unaware of any similar authority in this state. Assuming arguendo that RCP 1.190(b) could apply to confer jurisdiction in an appropriate case, cf. Canadian Indemnity Co. v. Republic Indemnity Co., 9th Cir. 1955, 222 F.2d 601, we note that appellant objected to proceeding in the circuit court, and therefore, the existence of the required jurisdictional amount was not an issue tried by consent of the parties.

REVERSED and REMANDED for further proceedings.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.


author: TENCH, BENJAMIN M., Associate Judge. BOYER, Chief Judge

text:
    Marvin HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. W-389.
    District Court of Appeal of Florida, First District.
    June 18, 1976.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   TENCH, BENJAMIN M., Associate Judge.

The parties will be referred to as in the trial court.

At approximately five o’clock in the afternoon, defendant was driving his pickup truck on Rayford Street in Jacksonville, after having had three drinks of whiskey over a period of two hours. He testified that he felt no intoxication, and the state presented no witnesses who could testify that the defendant had consumed any amount of intoxicants other than that testified to by the defendant. The speed limit in this area was 30 miles an hour, and defendant testified he was traveling at about 35 miles an hour as he approached the scene of the accident. He testified that he was in his proper lane, that the intersection at which the accident occurred was not a stop street, and that in all respects he was obeying the traffic laws. The state presented no evidence to the contrary.

As the defendant approached the intersection of Day Avenue and Rayford Street, three small children started across the street on which the defendant was driving and almost completed crossing the street. Suddenly, one of the minor children, Esther Bell, turned and ran back across the street and into the path of defendant’s truck. She was hit by the truck and subsequently died.

A blood-alcohol test later given to the defendant resulted in a reading of .27, and there was additional testimony that the defendant smelled of intoxicants and that his face was flushed.

The state charged the defendant in a two-count information with the offenses of manslaughter by culpable negligence (F.S. Section 782.07) and manslaughter by intoxication (F.S. Section 860.01(2)). The jury found the defendant guilty only of manslaughter by intoxication, which was charged in the following language:

“And for a second count of this information, your informant further charges that MARVIN HARRIS, on the 21st day of January, 1974, in the County of Duval and State of Florida, did then and there, while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties, the said MARVIN HARRIS did drive and operate a truck into, upon and against ESTHER BELL, then and there giving and inflicting divers mortal wounds upon the said ESTHER BELL, of and from which said mortal wounds so inflicted as aforesaid, the said ESTHER BELL, did then and there die, contrary to the provisions of Section 860.01(2), Florida Statutes.”

Among other things, we are called upon to determine whether the information charged a crime. We hold that it did not.

The essential elements of the offense of manslaughter by intoxication are set out in F.S. Section 860.01(2):

“If, however, the damage to property or person of another, other than damage resulting in death of any person, is done by said intoxicated person under the influence of intoxicating liquor to such extent as to deprive him of full possession of his normal faculties, by reason of the operation of any of said vehicles mentioned herein, he shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083, and if the death of any human being be caused by the operation of a motor vehicle of any person while intoxicated, such person shall be deemed guilty of manslaughter, and on conviction be punished as provided by existing law relating to manslaughter.”

From the relevant case law concerning the statute cited, there appear to be three essential opinions to be examined. The first of these is Cannon v. State, 91 Fla. 214, 107 So. 360 (1926), in which the Florida Supreme Court held that an indictment charging manslaughter through the operation of a motor vehicle by one “under the influence of intoxicating liquor” did not sufficiently charge a crime under the statutory predecessor to Section 860.01(2). The Court held that, to charge manslaughter by intoxication, a charging document must specify that a defendant was intoxicated, saying:

“. . . The additional words in the indictment, ‘being at the time under the influence of intoxicating liquor,’ are not, in the commonly accepted meaning of such words, synonymous with or equivalent to the words in the amendatory statute, which are ‘while intoxicated.’ Though all persons intoxicated by the use of alcoholic liquors are ‘under the influence of intoxicating liquors,’ the reverse of the proposition is not true; for a person may be under the influence of intoxicating liquors without being intoxicated.
It is true that chapter 9269, above referred to, amending section 5563 of the Revised General Statutes, makes it a misdemeanor for any person ‘while in an intoxicated condition or under the influence of intoxicating liquors to drive’ any automobile or motor vehicle on the streets or highways of this state, but it is only where death results from the operation of a motor vehicle by a person ‘while intoxicated’ that is defined as manslaughter. . . .” (107 So. 362)

The second opinion which must be considered is that in Clowney v. State, 97 So.2d 316 (2nd D.C.A.Fla.1957). In that decision the Court dealt not with the sufficiency of the information, which charged manslaughter from operating an automobile “while intoxicated,” but with the instruction of the lower Court to the jury. The Court held:

“This court is of the opinion that while the Judge of the lower court was in error in his instruction to the jury, to-wit:
“If the death of 'any human being be caused by the operation of an automobile by a person under the influence of intoxicating liquor, he shall be deemed guilty of manslaughter, and upon conviction, shall be punished as provided by the law relating to manslaughter,” ;
in view of the fact that the court in the subsequent paragraph defined intoxication as follows:
“Intoxication, lady and gentlemen, I charge you, as used in the second count of the Information, means under the influence of intoxicating liquor to such an extent as to deprive one of the normal control of one’s body or mental faculties, or both.”,
such error was not prejudicial.” (97 So. 2d 321)

The third opinion to be considered is that of the Supreme Court of Florida in reviewing, on Petition for Writ of Certiorari, the District Court opinion in Clowney. In Clowney v. State, 102 So.2d 619 (Fla.1958), the Supreme Court reviewed the decisions which had been cited by the petitioner for conflict with the District Court opinion in Clowney (including Cannon v. State, supra) and found no conflict, discharging the Writ of Certiorari it had issued. In discussing the jury instructions given by the trial court, the Supreme Court arrived at a definition of “intoxicated” and approved that given by the trial Judge as being substantially the same. The court did not, however, discuss the sufficiency of the language necessary in an indictment or information to charge the crime of manslaughter under F.S. Section 860.01(2), except to cite with approval its own decision in Cannon v. State, supra:

“. . . Taking the opinions in the order cited, it was held in Cannon v. State, supra, that there was a distinction between the word “intoxicated” and the term “under the influence of intoxicating liquor,” for a person might be under the influence of liquor without being intoxicated. [91 Fla. 214, 107 So. 361] In that case, as we have indicated, the court was considering the allegations of the indictment.” (102 So.2d 620-1)

In the case we have for review, therefore, we are obliged to follow the decision of the Supreme Court of Florida in Cannon v. State, supra, that, to charge the crime of manslaughter under Section 860.-01(2), the charging document must allege that the death of a human being was caused by the operation of a motor vehicle by a defendant “while intoxicated.” Since the information in this case did not so charge the defendant, the trial court erred in denying the defendant’s pre-trial motion to dismiss the count charging manslaughter by intoxication on the ground that it failed to charge a crime, and the conviction must be reversed.

We reverse and direct that the defendant be discharged.

MILLS, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurring).

I concur in the result reached and the reasoning thereof.

In the Clowney case (cited in the majority opinion) the appellant, as in the case sub judice, was charged in the first count with the offense of manslaughter by culpable negligence and in the second count with manslaughter by intoxication. As here, the jury in the Clowney case found the appellant not guilty under the first count but convicted him under the second. In Clowney, the second count alleged that the defendant caused the death of a person when the defendant struck such person with a car “while intoxicated by the voluntary use of alcoholic liquor * * In the case sub judice, the defendant was not charged with causing the death of another “while intoxicated”: On the contrary, the second count of the information sub judice alleged that the defendant caused the death of another “while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties * * * »

In the Clowney case, appellant’s attack was upon the instructions given by the trial court. Sub judice the attack is upon the information itself. The Supreme Court of Florida, in Clowney, recognized the distinction when it stated:

“The circumstances in the present case are not precisely those with which the court dealt in the three cases already cited. [Cannon v. State, 91 Fla. 214, 107 So. 360, Taylor v. State, Fla., 46 So.2d 725, and Smith v. State, Fla. 65 So.2d 303] In Cannon v. State, supra, the defendant had been charged in a single count with both kinds of manslaughter, namely by culpable negligence and while intoxicated. This court held that the allegations were insufficient to charge intoxication and that the charges with reference to culpable negligence, were deficient so the judgment of conviction was reversed. In both Taylor v. State, and Smith v. State, supra, the defendants were found not guilty of causing death when driving while intoxicated.”
“. . . Taking the opinions in the order cited it was held in Cannon v. State, supra, that there was a distinction between the word ‘intoxicated’ and the term ‘under the influence of intoxicating liquor,’ for a person might be under the influence of liquor without being intoxicated. [91 Fla. 214, 107 So. 361] In that case, as we have indicated, the court was considering the allegations of the indictment.
“In the next cited case, Taylor v. State, supra, [46 So.2d 726], we referred to the Cannon case, and reiterated the announcement that the word ‘ “intoxicated” ’ and the term ‘ “under the influence of intoxicating liquor” ’ were not synonymous, the former being a stronger expression. In Smith v. State, supra, we recognized again this distinction.” (102 So.2d 620-621)

The Supreme Court thereupon held that the District Court’s opinion in Clowney “did not clash with decisions” of the Supreme Court and thereupon denied the writ of certiorari. It seems to me, therefore, that the Supreme Court in Clowney did not approve the substitution in the charging information of any terminology for the words of the statute, viz: “while intoxicated”. On the contrary, as the above quoted portion of the Supreme Court’s opinion in Clowney demonstrated, the court recognized that the word “intoxication” and the term “under the influence of intoxicating liquor” were not synonymous, the former being a stronger expression. (See also Cannon v. State, supra)

Even had it been the intention of the Supreme Court in Clowney to hold that the lesser expression might be substituted in the charging information for the words mandated by the statute, viz: “while intoxicated”, the information sub judice nevertheless did not reach the definition of intoxication inferentially approved by the Supreme Court in Clowney. There the Supreme Court appears to have defined intoxication to mean “under the influence of intoxicants to the degree that he [defendant] had been deprived of the normal control of his bodily or mental faculties.” Sub judice, the second count of the information charged the defendant with causing the death of another “while under the influence of intoxicating liquors to such an extent that he was deprived of his normal faculties.” The information omitted the crucial words “control of his bodily or mental” faculties.

In summary as I conceive the Supreme Court to have repeatedly held in the cases above cited, an information which seeks to charge manslaughter under F.S. 860.01 must allege that the death for which the defendant is charged with having caused by the operation of his motor vehicle was while such defendant was “intoxicated”. Upon a defendant having been so charged the trial judge is then free to define “while intoxicated” under the case law of the State of Florida; that being the subject of the Clowney case.

Since we have reversed on other grounds, it is perhaps not necessary to discuss appellant’s second point. However, because of its importance, I am of the view that it should be addressed. The trial court charged the jury regarding the presumption contained in F.S. 322.262(2) (c). Appellant now argues that charge to have been improper because of the basic inconsistency between the degree of intoxication required for conviction under F.S. 860.01(2). I am of the view that appellant is correct.

The presumption referred to in F.S. 322.-262(2)(c) applies to the offense commonly known as “driving while intoxicated.” To sustain a conviction under that particular criminal charge it is necessary only to prove that a defendant was under the influence of intoxicating beverage to the extent that he was deprived of the “full possession of his normal faculties”. However, where one is charged with manslaughter by intoxication, as in the instant case, the state must prove the defendant was intoxicated. The presumption raised by F.S. 322.262(2) (c) is immaterial to a charge of manslaughter by intoxication and a charge incorporating a reference to such presumption is likely to mislead the jury in its consideration of a charge of manslaughter by intoxication.

Further, although not squarely raised sub judice, I think it appropriate to observe that I have serious reservations as to the constitutional validity of interpreting the construction of any statute in such a manner to raise a presumption of guilt in a criminal case contrary to the cornerstone of the American system of criminal jurisprudence, to wit: That every person charged with a crime is presumed innocent until proved to be guilty beyond and to the exclusion of a reasonable doubt. Insofar as State v. Fitzpatrick, Fla.App. 4th 1974, 294 So.2d 708, cited by appellee, might be construed contra I respectively disagree with it.


author: MILLS, Judge.

text:
    William E. WOODSMALL, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-233.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      Richard W. Ervin, III, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

Woodsmall appeals from a judgment of conviction and sentence based on a jury verdict finding him guilty of robbery. He contends that because he was subpoenaed to appear at the trial of an accomplice in a robbery, and was brought into the courtroom for identification during the trial he was immunized under Section 914.04, Florida Statutes. We do not agree.

Woodsmall and Kinsey, his accomplice, were charged with robbery. Kinsey was brought to trial first. The State subpoenaed Woodsmall to appear at the trial. During the trial, the State had him brought into the courtroom where a State’s witness identified him as a man she saw with Kinsey at a local lounge the evening before the robbery.

Woodsmall timely moved the court to-dismiss the charge against him because of transactional immunity under Section 914.-04, Florida Statutes. The motion was renewed immediately before the trial. Both motions were denied.

Woodsmall bases his contention on that part of Section 914.04, Florida Statutes, which provides that a person who, pursuant to a subpoena, produces evidence, documentary or otherwise, which may tend to convict him of a crime shall not be prosecuted for that transaction.

Woodsmall was neither compelled to testify nor to produce any document. Nor has he cited authority to support his position that compulsory attendance for the purpose of being identified at another’s trial is evidence tending to incriminate the individual.

“The mere fact that the defendant was under subpoena to appear is immaterial. Compulsory attendance is one thing and compulsory testimony is quite another. The compulsion required to bring into play the immunity provisions of the foregoing statute relates solely to compulsory testimony. . . .” State ex rel. Foster v. Hall, 230 So.2d 722 (Fla. App.2d, 1970).

The purpose of the Fifth Amendment is to prevent the compelled production of testimonial communications that are incriminating. As stated in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966):

“. . . Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner,- it was not inadmissible on privilege grounds.”

In fact, Rule 3.220(b) (1) (i), Florida Rules of Criminal Procedure, authorizes the court to order a defendant to appear in a lineup.

Even if we assume that the compulsory appearance of Woodsmall at Kinsey’s trial resulted in the production of evidence contemplated by Section 914.04, Florida Statutes, it did not incriminate Woodsmall. It merely incriminated Kinsey. Section 914.04, Florida Statutes, clearly states that the evidence must incriminate the person who is compelled to give the testimony or produce the evidence. Privilege was not intended to permit a person to plead that a third person might be incriminated by his testimony. Fisher v. United States, — U.S. —, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

Although Woodsmall’s appearance and identification at Kinsey’s trial may have incriminated Kinsey, there is no showing that it incriminated him at the trial of this case.

The judgment and sentence are affirmed.

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


text:
    Ollie V. WHITENER, Appellant, v. WHITENER BUILDERS, INC., et al., Appellees. WHITENER BUILDERS, INC., a corporation, Appellant, v. Ollie V. WHITENER, Appellee.
    Nos. Z-250, Y-533.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    John S. Duss, Jacksonville, for appellant.
    Ernest D. Jackson, Sr., Jacksonville, for appellee.
   PER CURIAM.

Prior to dissolution of the marriage between Warren B. Whitener and Ollie V. Whitener a corporation was formed, Whitener Builders, Inc. These consolidated appeals are from a final judgment entered in a case instituted by Ollie V. Whitener against the corporation, Whitener Builders, Inc., and her former husband Warren B. Whitener in which case Whitener Builders, Inc. filed a counter-claim. No useful purpose will be served by here reciting the numerous assertions and denials contained in the pleadings and the evidence subsequently adduced. Suffice to say that after receiving extensive conflicting evidence the learned and able trial judge entered a final judgment containing 22 specific findings of fact. Attacking that final judgment the parties assign numerous errors and argue in their briefs four separate points on appeal, only one of which points we find meritorious.

The trial judge found that the certificate of incorporation of Whiteners Builders, Inc. filed in the office of the Secretary of State recited Ollie V. Whitener to be a subscriber and that she agreed to take 23 shares of the stock of the corporation. In a subsequent portion of the final judgment the trial judge recited as a finding “That although the plaintiff, Ollie V. Whitener, did not receive the 23 shares of common stock, equity deems that done which should have been done, and this court finds that the plaintiff is entitled to 23 shares of such stock and defendant, Warren B. Whitener, 26 shares of such stock in Whitener Builders, Inc., a Florida corporation.” Although the latter finding is not carried forward into the adjudicatory portion of the final judgment, Whitener Builders, Inc., being fearful that failure to challenge the finding might result in it becoming res adjudicata, assigned it as error and asserted as a point on appeal that the trial court committed reversible error by ruling that a subscriber of corporate capital stock is entitled to the issuance of corporate capital stock by the corporation without proof that the subscribers in fact paid for it. Without determining whether a finding recited in a final judgment which is not incorporated into the adjudicatory portion of the final judgment becomes, if unchallenged, res adjudicata, it does appear that the trial judge failed to determine whether Ollie V. Whitener, although a subscriber, ever became legally entitled to issuance of said stock as a result of purchase, gift or otherwise.

Accordingly, as to that issue only, jurisdiction is relinquished to the trial court for the purpose of receiving additional evidence if necessary and conducting such proceedings as may be appropriate to make the requisite findings and adjudication therein. A certified copy of such order as the trial court may enter pertaining to that issue shall be promptly filed in the office of the Clerk of this Court whereupon jurisdiction shall revest in this Court. The parties may thereupon, if they so desire, within 30 days thereafter, file such briefs and supplemental record as they deem necessary, whereupon this Court will without further oral argument, finally rule upon such point.

In all other respects the final judgment here appealed is affirmed.

No petition for rehearing will be entertained until after jurisdiction has revested in this Court and this Court has finally ruled upon the point pertaining to which jurisdiction is relinquished by this order.

It is so ordered.

BOYER, C. J., McCORD, J., and SCHLEGEL, LEW E., Associate Judge concurs.


author: BOYER, Chief Judge.

text:
    PTS OF GAINESVILLE, INC., Appellant, v. OLIVETTI CORPORATION OF AMERICA, a corporation, Appellee.
    No. BB-168.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Peter Enwall, of Enwall & Silverman, Gainesville, for appellant.
    Edwin W. Held, Jr., Jacksonville, for appellee.
   BOYER, Chief Judge.

The trial court entered final summary judgment in favor of appellee, plaintiff below, and denied therein appellant’s motion to dismiss for lack of subject matter jurisdiction. Appellant’s sole claim on appeal is that the trial court was without subject matter jurisdiction because the allegation of damages in appellee’s amended complaint did not meet the $2,500 jurisdictional amount.

The record indicates that the parties entered into two contracts in April and August of 1973, whereby appellee agreed to sell to appellant certain equipment. Each contract contained a provision for attorney’s fees in the event of default. Appellee filed suit for breach of contract, alleging that appellant owed $1,950 on the April contract and $1,086.70 on the August contract. Appellee demanded appropriate damages, including attorney’s fees.

The $2,500 jurisdictional amount for circuit courts is statutorily required. F.S. Sections 26.012(2)(a) and 34.01(1). Appellee claims that it attained the jurisdictional amount by virtue of its $1,950

amount due on the April contract plus reasonable attorney’s fees. We agree. Attorney’s fees which are expressly promised are as much a part of the amount involved in the suit for the purpose of determining the jurisdiction as are the principal and interest. Ring v. Merchants? Broom Co., 1914, 68 Fla. 515, 67 So. 132. The test for determining jurisdiction of the circuit court is the amount claimed and put into controversy in good faith. Massachusetts Cas. Ins. Co. v. Johansen, Fla. App.3rd, 1971, 270 So.2d 397. Although the trial court only awarded $400 in attorney’s fees, appellant made no showing that appellee did not in good faith claim attorney’s fees that would bring the larger of the two separate breach of contract claims within the jurisdiction of the circuit court.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


author: BOYER, Chief Judge. SMITH, Judge

text:
    Tedford J. CANN, Appellant, v. Margery M. CANN, Appellee.
    No. 2-254.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      Roy M. Kinsey, Jr., of Kinsey, Troxel & Mann, Pensacola, for appellant.
    G. Robert Barron of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellee.
   BOYER, Chief Judge.

The final judgment entered in the dissolution of marriage action from whence this appeal is taken required the husband, appellant here, to pay alimony the amount of which is not in controversy. The sole issue is whether the alimony should be permanent or rehabilitative.

The final judgment required payment of alimony at the rate of $450.00 per month for a period of 12 months “at which time said alimony shall decrease to the sum of $400.00 per month and shall continue until further order of this Court.” It is unclear as to whether the alimony was intended by the learned trial judge as rehabilitative or permanent. Were there no other relevant language in the final judgment, we would be inclined to the view that the concluding words “until further order of this court” were intended to provide a temporary or terminable alimony award; viz: rehabilitative. However, the next paragraph in the final judgment concludes with the words: “In addition, in the event of respondent’s death while he is required to make alimony or child support payments under this Order, his estate shall be charged with the liability of such payments.” We are of the view that the imposition of liability upon appellant’s estate for the payment of the periodic alimony payments requires the construction that the alimony was intended to be permanent as distinguished from rehabilitative. We are therefore presented squarely with the issue as to whether, under the facts of this case, the alimony should have been rehabilitative rather than permanent. The distinction is not without a difference.

Lump sum alimony, sometimes known as alimony in gross, is essentially payment of a definite sum and is in the nature of a final property settlement. Hence, an award of lump sum alimony creates a vested right which survives death (Morris v. Morris, Fla.App. 2nd 1973, 272 So.2d 202) and is not modifiable nor terminable upon the divorced wife’s remarriage (Horne v. Horne, Fla.App. 2nd 1974, 289 So.2d 39). Lump sum alimony may consist not only of money, but also or in lieu thereof, real or personal property, such as a marital home. (Vandervoort v. Vandervoort, Fla.App. 3rd 1974, 300 So.2d 694.) Regardless of what form it takes, “ * * * Lump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation, or where the marriage’s duration or the parties’ financial position would make such an award advantageous to both. The wife’s need and the husband’s ability are still the correct equation to follow. * * * ” (Calligarich v. Calligarich, Fla.App. 4th 1971, 256 So.2d 60, 61).

Although lump sum alimony is distinguished from periodic alimony, lump sum alimony may be paid in installments. (Morris v. Morris, supra) However, in order for it to be categorized as lump sum, it must be for a definite amount and must have some reasonable relationship to the estate of the person upon which it is imposed. (Horne v. Horne, supra; Keller v. Keller, Sup.Ct.Fla.1974, 308 So.2d 106) A further element of lump sum alimony is that it be awarded only where special equities require it or make it advisable. (Jones v. Jones, Fla.App. 1st 1976, 330 So. 2d 536). The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage. Such an award is not alimony. (Bakin v. Eakin, Sup. Ct.Fla. 1958, 99 So.2d 854)

Periodic alimony is an allowance payable at intermittent times (usually by the week or by the month) in a definite amount over a definite or indefinite period of time. An award of periodic alimony is appropriate according to the needs of the spouse requesting alimony and the corresponding ability of the other spouse to pay.

Periodic alimony may be either permanent or rehabilitative. Rehabilitative alimony has been defined as “that amount of money or other things of value reasonably necessary to supplement means already available reasonably required during the post-marriage period to maintain the recipient until he or she is, in the exercise of reasonable efforts and endeavors, in a position of self-support.” It has also been defined to mean “alimony paid for the purpose of rehabilitating the spouse to whom it is awarded, such as, financially supporting an ill spouse until health is restored, or financially supporting a spouse until he or she can be trained for employment, or in some circumstances, until the spouse has a reasonable time to recover from the trauma of the dissolution.” (Sisson v. Sisson, Fla.App. 1st 1975, 311 So.2d 799 and cases therein cited) Although initially fixed for a specific period, an award of rehabilitative alimony may be either terminated at an earlier date or extended, depending upon a proper showing that the spouse has become rehabilitated earlier than anticipated or has not become rehabilitated through no fault of his or her own. (Lee v. Lee, Fla.App. 2nd 1975, 309 So.2d 26)

Permanent alimony, on the other hand, is an allowance for the support and maintenance of a spouse during his or her lifetime. Its purpose is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. (Lefler v. Lefler, Fla.App. 4th 1972, 264 So.2d 112) However, “permanent” does not necessarily mean “forever”. (Ruhnau v. Ruhnau, Fla.App. 1st 1974, 299 So.2d 61)

A significant distinction between rehabilitative alimony and permanent alimony relates to the manner by which it may be terminated. Rehabilitative alimony automatically terminates by expiration of the period fixed in the final judgment or by such subsequent order as may modify the period. {Lee v. Lee, supra) Rehabilitative alimony presupposes the capacity for self-support. (Yohem v. Yohem, Fla.App. 4th 1975, 324 So.2d 160) If the spouse to whom the order of rehabilitative alimony was made can demonstrate a diminished capacity for self-support, then (everything else being equal) a petition for modification should be granted. In contrast, permanent alimony may be terminated only upon proof of a substantial change in circumstances. (Kalmutz v. Kalmutz, Fla.App. 4th 1974, 299 So.2d 30) Remarriage of the party receiving permanent alimony is such a substantial change in circumstances and requires termination of the payments upon proper application to the trial court. (Friedman v. Schneider, Sup.Ct.Fla.1951, 52 So.2d 420) Remarriage of the recipient also, of course, requires termination of rehabilitative alimony.

Sub judice, were the award of alimony to be construed as being lump sum paid in installments, such would be erroneous inasmuch as a total amount was not fixed and there was no relationship between any specific amount and the estate of appellant. Construing the award as having been intended to be permanent alimony, we find such to have been in error for the reason that the evidence revealed by the record does not sustain an award of permanent alimony. The record reveals that the husband, appellant here, was at the time of the final hearing, a Commander in the United States Navy and had a gross income of over $2,300.00 per month. His testimony was that, having been passed over for promotion three times, the probability of any further advancement is remote, and he will be forced to retire sometime between September of 1978 and June of 1979 at which time his income will drop to $1,200.00 per month. The wife is 41 years old, in good health, and does not suffer from any psychiatric disorders. She has a bachelor’s degree in English from the University of North Carolina, and since her marriage has taken courses at the University of West Florida and the University of Maryland Extension in Italy. She was employed prior to the marriage, but has not worked since. She testified that she has attempted to secure employment but has been unsuccessful. She stated that she has no office or secretarial skills and would need to return to college in order to meet the requirements for securing employment as an English teacher. While she expressed the feeling that she should be at home for the benefit of the two children (ages 13 and 15), she also expressed a desire to work if she could find an interesting job.

Under the circumstances, the trial court erred in awarding permanent rather than rehabilitative alimony. As we have previously stated: “The public policy under the new law which the legislature passed and which therefore we must apply seems to be that if the spouse has the capacity to make her own way through the remainder of her life unassisted by the former husband, then the courts cannot require him to pay alimony other than for rehabilitative purposes.” (Roberts v. Roberts, Fla. App. 1st 1973, 283 So.2d 396, 397; see also Beard v. Beard, Fla.App. 1st 1972, 262 So. 2d 269; and Thigpen v. Thigpen, Fla.App. 1st 1973, 277 So.2d 583) The public policy of the State would be utterly frustrated by an award of permanent alimony where it affirmatively appears that the wife has not only the capacity but also the desire to be self-supporting.

In considering the amount and duration of rehabilitative alimony the trial court has a broad discretion. A wide range of factors may properly be considered. In the instant case, such factors may include the length of time required by the wife to upgrade her educational qualifications in order to secure employment and the necessity of the wife in remaining at home to care for her minor children. On the latter point we reiterate, “* * * We do not now intend, and never have intended, to discourage the role of a mother by the few remaining women in our society who are willing to fulfill that obligation and purpose. * * * ” (Ruhnau v. Ruhnau, supra, at page 64) Thus, the trial court may very well, in its discretion, determine that the presence of the mother in the home is so necessary to the well-being of the minor children that an award of rehabilitative alimony may be essential until said children become sui juris. Moreover, as the period of rehabilitative alimony draws to a close, the wife may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, petition the trial court for an extension of the rehabilitative alimony or an award of permanent alimony. (See Lee v. Lee, supra)

The wife’s petition for attorney’s fees and costs incurred pursuant to this appeal is denied.

Reversed and remanded for further proceedings consistent herewith.

COX, JOHN S., Associate Judge concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting) :

For four years before the dissolution decree, Commander Cann paid his wife $950 per month to support her and the children, who were 13 and 15 years old when the decree was entered. Under the decree, the children are to remain in their mother’s custody and appellant is to pay $250 monthly for each child’s support until the child reaches 18, marries, dies, or sooner becomes self-supporting. The chancellor’s alimony award of $450 per month for one year and $400 per month thereafter “until further Order of this Court,” when added to the child support payments, therefore establishes Commander Cann’s payment at the very amount he regularly paid before dissolution. By the present order, his payments will drop to $400 per month in less than five years, when the youngest child reaches eighteen years of age. Appellant’s gross income is $2,373 per month. He therefore is asked to live on approximately half his take-home pay while Ms. Cann and the two children live on the other half.

The majority opinion, in its concern that Ms. Cann be formally advised to rehabilitate herself economically, overlooks the impetus toward that end which inheres in the chancellor’s decree. It will require Ms. Cann to seek employment within three to five years to augment, for her support and that of either child who may continue to live with her, modest permanent alimony receipts of $400 per month. Commander Cann will then be entitled to military retirement and benefits in the gross amount of $1,200 per month and he will be able to seek other employment. To say that the chancellor’s award was excessively burdensome to appellant or indiscriminately generous to Ms. Cann, and so beyond the chancellor’s proper discretion, seems to me unjustified. Except to delete appellant’s obligation to provide for the continuance of alimony payments beyond his death, Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964), I would affirm the chancellor’s award as being well within the range of alternatives open to his discretion.


author: MILLS, Judge. BOYER, Chief Judge

text:
    Jimmie O. SCOTT (formerly Jimmie O. Gibson), Appellant (Plaintiff), v. Grace H. DANSBY (formerly Grace Hopson Gibson), as Executrix of the Estate of L. P. Gibson, Deceased, and Grace H. Dansby (formerly Grace Hopson Gibson), Individually, Appellee (Defendant).
    No. AA-276.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      W. N. Avera, of Chandler, O’Neal, Av-era, Gray, Lang & Stripling, Gainesville, for appellant.
    William M. Barr, of Raymond, Wilson, Conway, Barr, Burrows & Abraham, Day-tona Beach, for appellee.
   MILLS, Judge.

Mrs. Scott, the former wife of L. P. Gibson, now remarried, brought suit against his estate for postmortem alimony. In addition, she brought suit against Mrs. Dansby, his widow, now remarried, charging that certain property owned by Gibson was fraudulently conveyed by him to himself and his then wife, Mrs. Dansby, as tenants by the entireties, and should be set aside. The Estate and Mrs. Dansby answered the complaint denying the material allegations. Following a nonjury trial, the trial court entered a judgment finding that the Estate owed Mrs. Scott $19,350.00 in postmortem alimony, and finding that the conveyances from Gibson to himself and Mrs. Dansby were valid. Mrs. Scott appeals from the judgment in favor of Mrs. Dansby.

Mrs. Scott contends that the court erred in denying her oral motion, made during the trial, to amend her complaint by adding a claim for delinquent child support, and erred in finding that Gibson’s conveyances were valid.

Mrs. Scott and Gibson were divorced in March 1968. The judgment incorporated a property settlement agreement which provided that in the event the husband predeceased the wife, the monthly alimony payments would continue to be paid to the wife as a charge against the husband’s estate until her remarriage or death.

After the divorce, Gibson married Mrs. Dansby. After the marriage, Gibson conveyed substantial property to himself and Mrs. Dansby as tenants by the entireties. The conveyances were recorded.

In November 1971, Gibson died. After paying the federal estate taxes, administration costs and attorney’s fees, there are insufficient assets in the estate to pay Mrs. Scott the postmortem alimony awarded.

The only witnesses at the trial were Mrs. Scott and Mrs. Dansby. The following evidence was adduced: the conveyances were gratuitous; the conveyances were from Gibson to himself and his wife; at the time of the conveyances, Gibson had no apprehension of his death; he was working daily; the conveyances were not concealed but were recorded; after marriage to Mrs. Dansby, Gibson paid alimony to Mrs. Scott promptly by checks on the joint account of himself and Mrs. Dansby.

In Brown v. Montgomery Ward & Co., 252 So.2d 817 (Fla.App. 1st, 1971), this court stated:

“The court may, in its discretion, deny any party the right to amend his pleadings if the proposed amendments will change or introduce new issues or materially vary the grounds for relief, or where the filing of such pleadings will delay the suit by necessarily requiring a continuance under circumstances which would be unduly prejudicial to the opposing party. Although it is highly desirable that amendments to pleadings be liberally allowed so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.”

Mrs. Scott has failed to show that the trial court abused its discretion in denying her motion to amend her complaint at trial.

From the outset, it should be noted that the property settlement agreement contains Mrs. Scott’s express agreement that the properties allocated to Gibson shall be his sole and separate property. It defines no lien, charge or security interest in his property securing the payment of postmortem alimony, but says only that such alimony shall be a charge against the husband’s estate. The agreement does not limit or restrict the lifetime disposition of the husband’s property. Nor does the agreement require him to fund his estate to the extent necessary to pay postmortem alimony.

A party alleging fraud must prove it and the burden of proof rests on the complainant, the presumption being against the existence of fraud. Tischler v. Robinson, 79 Fla. 638, 84 So. 914 (1920). Fraudulent intent must be shown by substantial evidence. Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903). Where the parties involved in the alleged fraudulent transfer have a close relationship, such relationship tends to establish a prima facie case which must be met by evidence on the part of the defendant, and the transaction is regarded with suspicion. Southern Lumber and Supply Co. v. Verdier, 51 Fla. 570, 40 So. 676 (1906). Where the party charged with fraud is dead, clear and convincing evidence of fraud is required. Barnes v. Willis, 65 Fla. 363, 61 So. 828 (1913).

It was the duty of the court to weigh the testimony presented to it with due consideration being given to the particular circumstances surrounding the conveyances under attack. The court’s findings of fact and conclusions of law come to us with a presumption of correctness and will not be disturbed unless they are clearly erroneous. Mrs. Scott has failed to clearly demonstrate error.

The judgment is affirmed.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. Mr. Gibson knew, as do all reasonable people, that he was going to die sometime. He voluntarily, intentionally and gratuitously conveyed away his estate to himself and his new wife as tenants by the entireties so that when he died there was no individual estate from whence his post mortem alimony obligations could be paid. A prima facie case was established. (Southern Lumber and Supply Co. v. Verdier, 1906, 51 Fla. 570, 40 So. 676) The evidence at trial did not, in my view, overcome that prima facie case. I would reverse.


text:
    David Lee DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 75-149.
    District Court of Appeal of Florida, Second District.
    June 30, 1976.

      Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Diggs was tried in the circuit court on an information charging him with unlawfully departing the scene of an accident involving a personal injury. At trial the state recognized that the statute number set forth in the information, to wit, § 316.061, was incorrect and moved to amend the statute number to § 316.027, which motion was granted by the court. The state failed to amend the body of the information to include the word “willfully” so as to make the offense a felony under § 316.027(2).

The jury returned a guilty verdict and the court, assuming that Diggs had been convicted of a felony under § 316.027(2), sentenced him to six months to five years. Subsequently Diggs filed a motion to vacate and after a hearing the court vacated the original sentence and re-sentenced Diggs to one year in the county jail.

A person not charged with willfully failing to stop under these circumstances can only be convicted of a misdemeanor. State ex rel. Miller v. Patterson, Fla.App. 2nd, 1973, 284 So.2d 9.

Accordingly, the judgment and sentence on the felony charge are vacated and the cause is remanded with instructions to enter a judgment of conviction on the misdemean- or charge.

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

      . He was also charged with manslaughter arising out of the same circumstances but was acquitted.

      . When instructing the jury on the “material parts of this charge,” the judge also failed to include the element of willfulness.


text:
    Eli Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-112.
    District Court of Appeal of Florida, Second Disrtict.
    June 30, 1976.

      Horace A. Knowlton, III, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of grand larceny and sentenced to the Hillsborough County Diagnostic Treatment Center for a period of one (1) year to be followed by seven (7) years probation. He served the period of incarceration and, while on probation, committed another criminal offense. After hearing, the trial court revoked his probation. He was sentenced to serve four (4) years in the state penitentiary with credit for time served since July 16, 1974.

The judgment and sentence are affirmed. However, we remand the case to the trial court with directions to correct the sentence to give appellant credit for time served in the treatment center. See State v. Jones, Fla.1976, 327 So.2d 18.

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


text:
    Johnny Bee MOYE, Appellant, v. STATE of Florida, Appellee.
    No. AA-408.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Brian T. Hayes, Monticello, and William H. Webster, Tallahassee, Law Office of Brian T. Hayes, Monticello, for appellant.
    Robert L. Shevin, Atty. Gen., Richard L. Wilson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant and his co-defendant, one Robinson, were charged with assault with intent to commit a felony (sexual battery), false imprisonment and aggravated battery. A jury found defendant guilty as charged and the trial judge sentenced him to 10 years imprisonment on the false imprisonment charge, holding “in abeyance” the other two charges. From the judgment and sentence of 10 years this appeal is taken.

On March 24, 1975, the complaining witness, while waiting for her mother at a street corner in Quincy was asked to give directions by the occupants of a car driven by appellant who was accompanied by Robinson. According to the complainant, as she approached the vehicle Robinson grabbed her left hand, pulled her forward and attempted to get her inside the automobile. She bumped her head on the top of the car and lost consciousness. The next thing she remembered, she was lying in some bushes in a vacant lot a short distance from the place she had been accosted. On cross-examination she testified that appellant did not touch her as far as she could remember. She further testified that she probably got inside the car but admitted that it was possible that she could have hit her head on the car, lost consciousness and been picked up by someone else driving another car. At the close of the evidence defense counsel moved for a directed verdict which was denied.

In Harrison v. State, Fla.App.1st 1958, 104 So.2d 391, the court stated the rule of law to be applied in determining whether circumstantial evidence is sufficient to sustain a conviction as follows:

“When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense. If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent as to which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be. It is the actual exclusion of each other reasonable hypothesis which clothes mere circumstances with the force of proof. Circumstantial evidence which leaves nothing more than a suspicion that the accused committed a crime is not sufficient to sustain a conviction.” (104 So.2d at pages 394-395j

It is readily apparent that the evidence in the case sub judice did not meet the requisite test of sufficiency for circumstantial evidence in a criminal case. As above noted the complaining witness herself admitted that she lost consciousness and someone else could have taken her to the vacant lot. Another reasonable hypothesis is that she herself in a dazed condition could have fled to the place where she regained consciousness. There being no further evidence in support of the charge for which appellant was adjudged guilty and sentenced, false imprisonment, it follows that the defense motion for directed verdict should have been granted as to that charge, and that reversal is required. As to that charge, appellant shall be discharged.

There having been no issue on this appeal as to the propriety of the trial judge “holding in abeyance” the other two charges of which appellant was found guilty by the jury we do not address same.

REVERSED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.

      . See also Smith v. State, Fla.App. 1st 1966, 194 So.2d 310, Rhoden v. State, Fla.App. 1st 1969, 227 So.2d 349, Gayle v. State, Fla.App. 1st 1972, 258 So.2d 455 and Herring v. State, Fla.App.3d 1960, 121 So.2d 807.


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

text:
    J. Ed STRAUGHN, as Executive Director of the Department of Revenue, an agency of the State of Florida, Appellant, v. Girard H. STORY, Jr., and Doris M. Story, Appellees.
    No. Z-434.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., for appellant.
    Brown, Smith Young, Blue, Pelham & McDonnell, P. A., Tallahassee, for appel-lees.
   EASTMOORE, E. L., Associate Judge.

Appellees, Girard H. Story, Jr., and Doris M. Story, brought suit in the Circuit Court of Leon County to enjoin the Appellant, J. Ed Straughn, as Executive Director of the Florida Department of Revenue, from the collection of additional documentary stamp taxes. The trial court entered summary judgment for the Plaintiff.

The facts were undisputed and were set forth by the trial court as follows :

“Siesta Lago Village, Inc., a Florida corporation, was incorporated on December 8, 1971. The specific purpose of the corporation was stated as the operation of a mobile home park. There is some evidence that it operated a mobile home park.

“Prior to December 11, 1973, Siesta Lago Village, Inc., was the owner of record of certain real property located in Osceola, Florida. On December 11, 1973, said real property was encumbered by a recorded mortgage given by the corporation to Citizens and Southern Realty Investors securing a promissory note in the original principal amount of $1,800,000.00.

“At the time of the execution of the note and mortgage on July 23, 1973, the Plaintiffs, Girard H. Story, Jr., and Doris M. Story, entered into and executed a Guaranty of Loan Agreement with Citizens and Southern Realty Investors as a lender and Siesta Lago Village, Inc., as the borrower. Under the terms of the agreement, the plaintiffs, were obligated, in the event the borrower failed to perform its obligations, to immediately perform for the benefit of the lender all of the obligations of the borrower as if they constituted the direct and primary obligations of the plaintiffs. The agreement further provided that the obligations of the plaintiff were independent of the obligations of the borrower and that a separate action for payment, damages or performance could be brought against either or both of the plaintiffs, “whether or not an action is brought against the borrower . . . and whether or not the borrower be joined in any such action or actions, and whether or not notice be given or demand be made upon the borrower.” The agreement also provided that the borrower would not permit the conveyance of the real estate in question without obtaining the consent of the lender and the borrower agreed to require the transferee to assume the payment of any instrument securing the loan.

“On December 11, 1973, by quitclaim deed, Siesta Lago Village, Inc., conveyed the real property to the Plaintiff, Girard H. Story, Jr. There was no money or anything else of value given to the corporation at the time the deed was conveyed. There is no evidence that at the time of the transfer of the real property that Citizens and Southern Realty Investors required the plaintiff to assume the mortgage in any additional way then had previously been done.

“At the time of recording the quitclaim deed, Florida documentary stamp tax, in the amount of thirty cents ($.30), the minimum amount was paid. Subsequently, the defendant state agent demanded payment of additional documentary stamp tax of $5,399.70, plus a penalty of $5,399.70. In addition, the defendant state agent formally assessed the plaintiffs for the additional documentary stamp tax in the total amount of $10,799.40, and advised plaintiffs that a tax warrant would ensue if payment was not made.”

The trial court found as a matter of law that the plaintiffs were not "purchasers” as contemplated by Section 201.02, Florida Statutes, and were not subject to the tax.

In the DeMaria case, decided in 1975, this court held that a transfer of real estate by a corporation to its sole stockholder, subject to an outstanding mortgage which the stockholder does not assume and for which no consideration is paid is not subject to the tax. Judge Smith dissented in that case on the basis that it was an attempt to shift the burden of paying the mortgage note from the corporation to the sole stockholder and that he would not extend the immunity from the tax to such a transaction.

The case sub judice is distinguishable from DeMaria in that there is no shifting of any burden of payment. In this case, the stockholder was already fully liable for payment of the debt. The deed did not make the grantee assume any payments for which he was not already fully and completely responsible. There was, therefore, no consideration passing and the transaction was immune from the tax under the doctrine set forth by the Supreme Court in the Palmer-Florida Corporation v. Green case.

The learned trial judge was correct in granting the summary judgment and we therefore AFFIRM.

MILLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

As indicated by my dissent in DeMaria, I consider that the Supreme Court’s de-cisión in Kendall House Apartments, Inc. v. Department of Revenue, 245 So.2d 221 (Fla.1971), requires that we look into the financial realities underlying a deed by a corporation to its stockholders. We may find there that a conveyance of unencumbered land was made without consideration as a partial liquidation of the corporation, State ex rel. Palmer-Florida Corp. v. Green, 88 So.2d 493 (Fla.1956), or, with different tax consequences, that consideration passed by shifting an economic burden which previously encumbered the grantor as well as the land. Kendall House, supra. Regardless of the findings, the inquiry itself seems an unexplained exception to the rule that “liability to pay the documentary stamp tax, as well as the amount of the tax, is to be solely determined by the form and face of the instrument and not by proof of extrinsic facts.” State Dept. of Rev. v. McCoy Motel, Inc., 302 So.2d 440, 442 (Fla.App. 1st, 1974); Choctawhatchee Elec. Co-op., Inc. v. Green, 132 So.2d 556, 558 (Fla.1961), cert. den., 369 U.S. 829, 82 S.Ct. 844, 7 L.Ed.2d 794 (1962).

My DeMaria dissent implies I would not require that the shift of the mortgage burden from corporate grantor to stockholder grantee be accompanied by the latter’s assumption of legal liability to the mortgage creditor. Kendall House, it seems to me, holds that such formalities do not rule the case. Nevertheless, I would bow to the DeMaria majority and concur here but for the Storys’ failure to show that they did not “assume” primary legal liability for the mortgage debt, having previously been secondarily liable. That fact seemed critical to the DeMaria majority. The mortgage agreement between Siesta Lago Village, Inc., and the creditor bound Siesta to “require” any transferee of title “to assume the payment of” the mortgage debt. Absent evidence that there was no such assumption, summary judgment for the Storys was unauthorized.

      . Florida Department of Revenue v. Joseph A. DeMaria, 321 So.2d 101 (1st DCA Fla. 1975).

      . Supra.

      . State ex rel. Palmer-Florida Corporation v. Green, Fla., 88 So.2d 493.


author: MILLS, Justice.

text:
    DeWitt C. BOATRIGHT et al., Appellants (Plaintiffs), v. CITY OF JACKSONVILLE, a Municipal Corporation, Appellee (Defendant).
    No. W-387.
    District Court of Appeal of Florida, First District.
    June 23, 1976.

      Tom B. Stewart, Jr., of Evans, Stewart & Perry, Jacksonville, for appellants.
    Harry L. Shorstein and William Lee Allen, Jacksonville, for appellee.
   MILLS, Justice.

Plaintiffs, who are employees of the City, filed a class action against the City seeking a declaratory judgment, an injunction, and money damages, because of the method used by the City in paying permanent partial disability workmen’s compensation to plaintiffs and other employees. Following a nonjury trial, the trial court entered a judgment in favor of the City and dismissed the plaintiffs’ action with prejudice. Plaintiffs appeal.

Plaintiffs contend that an employer’s liability to an employee for permanent partial disability compensation cannot be discharged by advance payments without prior approval of the Bureau of Workmen’s Compensation, Division of Labor; that an employer cannot avoid its liability by an agreement with an employee to waive compensation; that an employee cannot release compensation, except as provided by statute; and that the act specifically exempts compensation from the claims of creditors.

The City contends that collective bargaining agreements entered into between an employee and an employer may provide that the employer pay full salary to an employee during temporary total disability, subject to reimbursement out of permanent partial disability compensation.

In addition, the City asserts that jurisdiction of this appeal is vested in the Supreme Court by virtue of Article V, Section 3(b)(1) of the Constitution of the State of Florida. We do not agree. The trial court neither initially and directly passed on the validity of a state statute, nor construed a provision of the state constitution. Also, the City urges that the action brought by the employees is not a class action, and that all claims, except that of Connell, are barred by the statute of limitations. However, the trial court did not rule on these matters, nor did the City assign them as errors. Therefore, we cannot consider them.

The employees of the City, who were injured on the job, were paid full salary during temporary total disability, but required to repay any excess of salary over temporary total compensation out of any permanent partial compensation awarded the employees.

On 10 January 1961, the City adopted a resolution concerning the payment of workmen’s compensation benefits. Section 3 of the resolution provides that:

“Any and all payments made by the employer to an employee pursuant to this resolution for any class of disability in excess of the amount the employee would otherwise be entitled to under the Workmen’s Compensation Laws of the State of Florida, shall constitute an advance payment of compensation within the meaning of F.S. 440.20(jl1) by the employer and the employer shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due for any class of disability and shall forthwith deduct therefrom any and all payments made to the employee in excess of that which the employee would be entitled to under the Workmen’s Compensation Act.”

On 28 February 1967, Section 3 was amended to read:

“If any such employee who is physically able to return to work and does so is receiving compensation for permanent partial disability under the Workmen’s Compensation Law, the city will pay from city funds the balance necessary for such employee to receive a sum equal to the salary of his position during such period as he continues to receive such compensation for permanent partial disability or until he is no longer employed by the city; provided, however, that if such employee receives a lump sum award for a permanent partial disability, his salary shall be reduced in the amount of 60% thereof or $42.00, whichever is the lesser per week, until the aggregate amount of such reduction in salary equals the amount of said lump sum award; and provided further that any such employee receiving a lump sum award may pay an amount equal to said lump sum award to the city, and in such event his salary shall not be reduced.”

It was stipulated that Section 3, as amended, has not been repealed, and that on 1 October 1970, collective bargaining agreements were entered into by the City and the employees’ bargaining agents which adopted the identical language of amended Section 3.

In Schel v. City of Miami, 193 So.2d 170 (Fla.1967), the Supreme Court was involved with a resolution similar to Section 3 of the resolution adopted by the City of Jacksonville on 10 January 1961. In Schel, the court held that when an employee was injured in the course of his employment, and was paid sums in excess of compensation due for temporary total disability pursuant to the City of Miami’s resolution providing for continuing wages, the city was not entitled to credit against the award of permanent partial disability for amount voluntarily paid in excess of temporary total disability. The court stated that reimbursement for voluntary advance payments of permanent partial compensation is limited to payments in the amount of and within the time for disability compensation of that class ultimately found to be due. Also, that during his period of temporary total disability an employee cannot be charged with payments to become due during a later period of permanent partial disability unless prior approval of the Industrial Commission is obtained pursuant to its Rule 16.

Following the Schel decision, which became final on 23 January 1967, the City amended Section 3 of its resolution on 28 February 1967.

In Miller v. City of Jacksonville, Circuit Court of Duval County, 1970, Miller, a police officer of the City of Jacksonville, was paid full salary during an extended period of temporary total disability. After he returned to duty, the carrier paid him $1,691.92 by check for permanent partial disability. The City required him to endorse the check to the City or suffer a reduction of future salary. He endorsed the check and brought suit against the City to recover the $1,691.92. The City appealed from the judgment entered by the trial court on 20 August 1970, reading as follows :

“After the decision of the Supreme Court in Schel v. City of Miami (Fla.), 193 So. (2d) 170 (in which it was held that such a resolution was ineffective to entitle the City to a credit against permanent partial disability for salary paid during temporary total disability) the City Commission of Jacksonville amended Section 3 of the resolution to read:
‘Section 3. If any such employee who is physically able to return to work and does so is receiving compensation for permanent partial disability under the Workmen’s Compensation Law, the city will pay from city funds the balance necessary for such employee to receive a sum equal to the salary of his position during such period as he continues to receive such compensation for permanent partial disability or until he is no longer employed by the city; provided, however, that if such employee receives a lump sum award for a permanent partial disability, his salary shall be reduced in the amount of 60% thereof or $42.-00, whichever is the lesser per week, until the aggregate amount of such reduction in salary equals the amount of said lump sum award; and provided further that any such employee receiving a lump sum award may pay an amount equal to said lump sum award to the city, and in such event his salary shall not be reduced.’
“(f) Amended Section 3 does not purport to enable the City to recoup salary paid during temporary total disability. On the contrary, under the guise of a salary reduction, or in order to prevent a salary reduction, Section 3 appropriates the amount of Workmen’s Compensation an employee is entitled to receive for permanent partial disability after he returns to his employment.
“The liability of the City to the injured employee was fixed by Chapter 440.11, 440.12 and 440.15, Florida Statutes; and the City could not require the employee to waive his right to compensation for permanent partial disability (Chapter 440.21) or appropriate it as a creditor (Chapter 440.22).
“(g) Said Section 3 of said Resolution, as amended, is contrary to the letter, the spirit and the purpose of the Workmen’s Compensation Act.
“Upon consideration, it is decreed and declared that the City of Jacksonville wrongfully exacted from the plaintiff and required him to turn over to it the amount of Workmen’s Compensation, to-wit, $1,691.92, payable to him for permanent disability by the City’s Workmen’s Compensation Carrier by reason of an injury sustained on November 6, 1968, and the plaintiff, R. N. MILLER, is entitled to repayment thereof.”

In City of Jacksonville v. Miller, 254 So.2d 394 (Fla.App. 1st, 1971), we affirmed the trial court’s judgment, and in City of Jacksonville v. Miller, 264 So.2d 425 (Fla. 1972), the Supreme Court denied certiora-ri.

On 1 October 1970, the City and its employees’ bargaining agents entered into bargaining agreements containing the identical language which three courts had declared to be contrary to the letter, the spirit, and the purpose of the Workmen’s Compensation Act.

Every employer coming within the provisions of this chapter, shall be liable for and shall secure the payment to his employees of the compensation payable under Sections 440.13, 440.15 and 440.16. Section 440.10(1), Florida Statutes.

The liability of an employer prescribed in Section 440.10, Florida Statutes, shall be exclusive and in place of all other liability of such employer to the employee. Section 440.11(1), Florida Statutes.

Compensation for disability shall be paid to the employee as follows :

TEMPORARY TOTAL DISABILITY.—

(a) In case of disability total in character but temporary in quality, 60 percent of the average weekly wages shall be paid to the employee during the continuance thereof, not to exceed 350 weeks. Section 440.15(2), Florida Statutes.
PERMANENT PARTIAL DISABILITY. — In case of disability partial in character but permanent in quality, the compensation shall, in addition to that provided by subsection (2) of this section, be 60 percent of the average weekly wages, and shall be paid to the employee as prescribed by this section. Section 440.15(3), Florida Statutes.

No agreement by an employee to waive his right to compensation under this chapter shall be valid. Section 440.21(2), Florida Statutes.

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

Liability of an employer for future payments of compensation shall not be discharged by advance payment unless prior approval of the bureau has been obtained as hereinafter provided. Rule 17(a), Florida Workmen’s Compensation Rules of Procedure.

When the claimant has reached maximum recovery and returned to his former or equivalent employment with no substantial reduction in wages, such approval of a reasonable advanced payment of a part of the compensation payable to the claimant may be given informally by letter by a judge, by the bureau chief, or the administrator of claims of the bureau. Rule 17(b).

When the claimant has not returned to the same or equivalent employment with no substantial reduction of wages or has suffered a substantial loss of earning capacity, or a physical impairment, actual or apparent: (1) an advance payment of compensation not in excess of $2,000 may be approved informally by letter, without hearing, by any judge or by the bureau chief; (2) an advance payment of compensation not in excess of $2,000 may be ordered by any judge after giving the interested parties the opportunity for a hearing thereon. Rule 17(c). See 285 So.2d 601 (Fla.1973).

The City argues that collective bargaining agreements entered into pursuant to constitutional and statutory provisions may provide for full salary during work related disability, subject to reimbursement out of any permanent partial disability compensation.

Article I, Section 6, of the Constitution of Florida, provides that:

“. . . The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. . . .”

Section 27.202b of the Charter of the City of Jacksonville (Chapter 67-1320, Laws of Florida, as amended) provides that:

“Public employees shall have the right to be represented by an employee organization of their own choosing, to negotiate collectively through a certified bargaining agent with their public employer in the determination of the wages, rates of pay, hours, and all other terms and conditions of their employment, and to be represented in the determination of grievances arising thereunder. Public employees shall have the right to refrain from exercising the right to be represented.”

Although the bargaining agents entered into the bargaining agreements on behalf of the employees, a principal cannot delegate to an agent authority to do for him what he cannot do for himself. An act which, if done by the principal, would be illegal because in violation of a statute cannot be done for him by an agent. Whitlock v. Creswell, 190 S.C. 314, 2 S.E.2d 838 (1939).

The terms and conditions of collective bargaining agreements must not violate statutory law or public policy. The requirement that employers and bargaining agents of employees engage in collective bargaining does not authorize an agreement that is in disregard of other laws. United Mine Workers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L. Ed.2d 626 (1965).

The bargaining agreements relied upon by the City totally ignore Sections 440.10(1), 440.11(1), 440.15(2) and (3), 440.21 and 440.22, Florida Statutes; Rule 17 of the Florida Workmen’s Compensation Rules of Procedure, and the decisions in the Schel and Miller cases. That part of the bargaining agreements which is in conflict with the Florida Statutes, Rules of Procedure, and decisions set forth above is invalid.

To arrive at any other conclusion would permit an employee with a broken arm to convalesce six months on full pay and return to his job at full pay without owing the City a penny. But the employee who has lost an arm, leg or eye while performing his job for the City, must endorse his permanent partial disability compensation check to the City before he can return to work with full pay.

In our judgment, the Legislature did not intend such a result. Section 440.03 provides that:

“Every employer and employee as defined in s. 440.02 shall be bound by the provisions of this chapter.”

The judgment is reversed and this case is remanded to the trial court for further proceedings which are consistent with the views expressed herein.

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


text:
    A. C. PORTERFIELD, Petitioner, v. STATE of Florida BOARD OF DENTISTRY, Respondent.
    No. BB-14.
    District Court of Appeal of Florida, First District.
    June 9, 1976.
    Rehearing Denied July 21, 1976.

      Michael Egan, of Law Offices of William J. Roberts, Tallahassee, for appellant.
    Taylor & Brecher, Jacksonville, for ap-pellee.
   BOYER, Chief Judge.

Petitioner has addressed his Petition for Writ of Certiorari to respondent’s ordei which revoked his dental laboratory registration certificate. His primary argument is that respondent is without statutory authority to promulgate standards for dental laboratory registrants.

The facts, as contained in the hearing officer’s report, are undisputed. Petitioner is currently the owner of Edgewater Dental Laboratory. In June of 1966, he pleaded guilty to an information charging him with the crime of illegal practice of dentistry, was adjudicated guilty, and sentenced to serve one year in prison. He received a full and complete pardon in 1968. In his application for dental laboratory registration, petitioner was asked whether he had ever been a party to a court proceeding involving any violation of a rule or statute governing the practice of any profession, and whether he had ever been convicted of any offense involving moral turpitude. He answered both questions in the negative.

As the hearing officer’s findings indicate, if either of the two questions had been answered in the affirmative, the executive director of the board would have forwarded the application to the members of the board for further action, and at least some members of the board would have voted not to issue the registration certificate. Petitioner’s application was “routinely” processed, and a certificate was issued by the Florida State Board of Dentistry in December of 1974.

Even though the hearing officer did not conclude that petitioner intentionally answered the questions incorrectly because he may have failed to read the questions carefully and may have been confused about the effect of his pardon, the hearing officer nevertheless concluded, and respondent agreed, that petitioner’s registration certificate should be revoked because the answers to the questions were erroneous, and “if the questions had been answered affirmatively, the application would have been processed differently, and may have been denied.”

The determinative issue is whether respondent had the authority to ask the questions which respondent answered incorrectly. The questions were drafted pursuant to Rule 21G-5.01, FAC, which provides that only applicants of good moral character shall be eligible for registration. It is clear that the rule must of necessity be based on the statutes pertaining to dental laboratories (F.S. 466.5CM66.58). Examination of those statutes reveals no authority pursuant to which a rule such as Rule 21G-5.01 might be validly promulgated. Under the statutory system devised by the legislature, respondent may insist upon payment of a $10.00 fee and completion of the registration form. F.S. 466.52. There-is no statute which gives respondent authority to promulgate qualifications for dental laboratory registrants.

Respondent argues that the rule which petitioner challenges here is proper under respondent’s statutory duty to regulate and control all facets of the practice of professional dentistry. (F.S. 466.01) and its authority to promulgate rules. (F. S. 466.56) While it is true that respondent has the duty to regulate the practice of dentistry in the State, respondent’s powers cannot be interpreted to exceed those granted to it by the legislature. It is likewise true that while respondent has the power to promulgate rules, respondent is given statutory authority to promulgate only those rules necessary to enforce the provisions of Chapter 466. We have concluded that the legislature did not intend for dental laboratory registrants to be subject to standards of behavior as promulgated by respondent. The very use of the term “registration” as opposed to “license” is significant. We cannot find that the legislature’s use of the two terms is a distinction without a difference. In common usage, there is a great distinction between the two terms. Moreover,-within the provisions of Chapter 466 itself, dentists and dental hygenists must apply for and receive licenses, and are expressly required to prove that they are of good moral character. See F.S. 466.13 and 466.37. By requiring that dental laboratories only be registered, the legislature has insured that the stated object of the statute (the safeguarding of the public health by insuring that dental laboratories operate only upon written work orders of a licensed dentist) is met.

Finally, respondent asserts that its revocation of petitioner’s registration certificate can be affirmed on an independent basis. According to respondent, since the answers on petitioner’s application for registration, which were sworn to under oath, were erroneous and were relied on by respondent, the application was properly revoked. Respondent’s argument begs the question. Given our conclusion that the questions which petitioner erroneously answered could not have been validly asked in the first place, it would be anomalous indeed for us to affirm the revocation of petitioner’s registration certificate on the basis that he erroneously answered the improperly posed questions. Whether we would have reached a different result if there had been a finding that petitioner intentionally and willfully answered the questions falsely would be pure speculation. In any event, the hearing examiner’s report, which was adopted by respondent, expressly declined to make such a finding.

Neither do we here opine as to whether respondent should be granted broader powers to regulate dental laboratories. Certainly all persons should be of good moral character: But as to which occupations such restrictions will be governmentally imposed is a legislative function, within the confines of the constitution.

Consequently, the Petition for Writ of Certiorari is granted with directions that respondent rescind its revocation of petitioner’s registration certificate.

SMITH, J., and HODGES, JOHN G., Associate Judge, concur.