author: McCORD, Chief Judge.

text:
    Antionette B. SUTTON, Appellant, v. Albert D. STEWART, Jr., d/b/a Al Stewart & Associates, Appellee.
    No. FF-102.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    S. Gordon Blalock of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    William P. Healy of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   McCORD, Chief Judge.

This is an appeal from final judgment in favor of appellee in a suit for tortious interference by appellant with a business relationship between appellee and one Johnson. We find no error and affirm.

The suit below was tried before the court without a jury. There the intervenor Stewart (appellee) filed an intervention claim against appellant Sutton (the nominal plaintiff who had sued Johnson, the nominal defendant) contending that appellee Stewart had an exclusive listing contract with Johnson to sell Johnson’s vacant lot and that appellant Sutton knowingly and wrongfully purchased the lot direct from Johnson and thereby deprived appellee Stewart of a sales commission. The trial court entered a money judgment against appellant Sutton for $1,500 representing 10% of the amount paid by appellant Sutton to Johnson for the lot.

On October 16, 1975, Stewart listed for sale a vacant lot owned by Johnson and wife under an exclusive right of sale listing which contained the usual language that while the listing was for 90 days, it would continue until revoked by 15-day notice in writing by the owner. Stewart erected the usual “for sale” sign on the lot. When the 90 days expired, Johnson did not revoke the listing but assumed that it had expired. Subsequently, the exclusive right of sale listing being still in effect, appellant Sutton, a licensed real estate salesperson since 1974, entered into an agreement to purchase the property, and thereafter Sutton filed the suit below against Johnson for specific performance. Stewart, as aforesaid, intervened in the suit seeking his commission, and Johnson and Sutton thereafter settled their differences and closed the sale for $15,000. Stewart persisted in his claim against both Sutton and Johnson for his commission and obtained a final judgment against Johnson. He thereafter proceeded to trial and final judgment against Sutton when the judgment against Johnson was uncollectible.

Sutton contends that the court erred in denying her motions for directed verdict and for new trial. We find no error in this regard — the evidence supports the trial court’s action. Both appellant and appellee agree that the applicable law is set forth in this Court’s opinion in Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1 DCA 1976), as follows:

“From our analysis of the question, we conclude that the basic necessary elements to establish tortious interference with a business relationship are the following: The existence of a business relationship not necessarily evidenced by an enforceable contract; (2) knowledge of the relationship on the part of the interferer; (3) an intentional and unjustified interference with that relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.”

Of the above four elements, the only questionable one in this case is No. 2 — knowledge of the relationship on the part of the interferer. If there was such knowledge, element 3 follows from that knowledge because if Sutton knew in her dealings with Johnson that Stewart had an exclusive right to sell the property, such action on her part was an intentional and unjustified interference with that relationship. Although Sutton testified that she did not know of the relationship, the credibility of her testimony was a matter for the trial judge’s determination. On the other side of the coin, the trial court had evidence before it that Thomas Lide, whose relationship to Sutton was described by her as “either partner or business associate or something like that” knew of Stewart’s exclusive right to sell and that at the time of trial, Lide was the fiance of Sutton. Sutton herself testified that Lide told Johnson that he and Sutton “were thinking of collaborating and building on the lot.” The evidence also showed that Sutton and Lide had visited the property and saw Stewart’s sign on it; that when Sutton and Lide visited Johnson in March, 1976, Johnson told them about the exclusive right of sale with Stewart. Although Johnson testified that he told Sutton he “thought” the exclusive right of sale had run out after 90 days, Sutton knew that written termination was required by the Jacksonville Real Estate Board, and she did not ask Johnson whether he had made a written termination.

When we consider the above related evidence together with Sutton’s real estate training and familiarity with the Jacksonville Real Estate Board’s forms, it is apparent that these facts constituted sufficient circumstantial evidence to support a conclusion that she deliberately by-passed Stewart’s exclusive right of sale with knowledge of the existence of that right. The trial court, therefore, did not err in denying appellant’s motions for directed verdict and in entering judgment for appellee Stewart.

We have considered the other point raised by appellant and find it to be without merit.

AFFIRMED.

MELVIN, J., and CREWS, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    COTTON STATES MUTUAL INS. CO., Phillip Fowler and Diane Fowler, Appellants, v. Jeanne H. TREVETHAN, Appellee.
    No. FF-422.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    A. Craig Cameron of Gosney, Cameron & Parsons, Daytona Beach, for appellants.
    Anthony I. Provitola, DeLand, for appel-lee.
   PER CURIAM.

Having considered the briefs and arguments of counsel, we determine the judgment entered was supported by competent and substantial evidence. Additionally, having relinquished jurisdiction to the trial court for the purpose of permitting an interview of the jurors in this cause and of determining whether a juror was guilty of such misconduct for which the verdict may be attacked, we conclude, after reviewing the proceedings, there was no misconduct which would justify setting aside the verdict.

Accordingly the judgment is in all respects AFFIRMED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: ERVIN, Judge.

text:
    Charles Ermon HAMM et ux., et al., Appellants, v. CITY OF MILTON, Florida, et al., Appellees.
    No. GG-75.
    District Court of Appeal of Florida, First District.
    May 4, 1978.

      O. E. Adams, Sr., Pensacola, for appellant.
    Jeffrey A. Cramer of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellees.
   ERVIN, Judge.

Mrs. Hamm, while operating an automobile, collided with a truck owned by the City of Milton, resulting in personal injuries. She brought suit for the injuries she sustained, and her husband, who was not an occupant of the car at the time of the collision, sued for damages resulting from medical expenses incurred and loss of his wife’s services. Prior to trial, the City’s insurer advanced Mrs. Hamm $2,686.64 for lost wages, medical expenses and maid services. The jury awarded the wife $8,500 and the husband $1,000. It further found the negligence of the City was 85% responsible and the negligence of the wife 15% responsible for the injuries sustained. The lower court’s judgment reduced the verdicts in favor of the husband and wife by 15% for the negligence attributed to the wife so that she received $7,225 and the husband $850. Their recovery was further reduced by the amount previously advanced.

Appellants first argue that the court erred in allowing the payments advanced to be set off from the verdicts since payment was not raised as an affirmative defense. Fla.R.Civ.P. 1.110(d) requires that payment must be so pled or else is deemed waived.

The question whether payment before trial to an injured party must be pled by the defendant as an affirmative defense so that the amount may be set off against the jury verdict apparently has not been considered before in our state. However, authorities from other states indicate such payment is not properly an affirmative defense. The payment made does not become a charge against the injured parties until a settlement is reached or a judgment rendered. Had there been no settlement or jury verdict, Mrs. Hamm would not have to account for the $2,686.64 paid to her. Also, to force the insurer to plead payment may improperly interject the fact of insurance into the case. See Section 627.7262, Florida Statutes (1977). Finally, should the jury become aware of partial payment by an insurer, it could have the effect of an admission of liability. Compare Edwards v. Passarelli Bros. Automotive Service, Inc., 8 Ohio St.2d 6, 221 N.E.2d 708 (1966); Boles v. Steel, 48 Ala.App. 268, 264 So.2d 191 (1972), cert. quashed 288 Ala. 732, 264 So.2d 194; Byrd v. Stuart, 224 Tenn. 46, 450 S.W.2d 11 (1969).

As explained in Stuyvesant Insurance Co. v. Bournazian, 342 So.2d 471 (Fla.1977), the term “set off” used in Hoffman v. Jones, 280 So.2d 431 (Fla.1973) was obviously applied in a non-technical sense. In this sense, set off is applicable when equity compels the payment of a debt by one who in justice, equity and good conscience ought to pay it. 80 C.J.S. Set-Off and Counterclaim § 3 (1953). Certainly it is inequitable to allow plaintiffs to receive double recovery for medical expenses, lost wages and maid services which unjustly enrich the plaintiff at the expense of the defendant.

The Hamms additionally claim that the court erred in reducing the husband’s damages by the percentage of comparative negligence of the wife. We reject this point. The husband’s claim for damages was entirely a derivative claim. Prior to the adoption of comparative negligence, under the rule of contributory negligence, a husband’s derivative claim was barred once proof established any degree of negligence in the wife. Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla. 1st DCA 1972). Applying the reasoning, of Resmondo to the situation here, it is only logical that the comparative negligence of an injured spouse also be applied to reduce an award to a noninjured spouse for his derivative claim.

The judgment is affirmed.

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


text:
    VERMONT MUTUAL INSURANCE COMPANY, D. Frank Palmieri and Carmela Palmieri, his wife, Appellants, v. Charles CONWAY, Appellee.
    No. GG-481.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Rehearing Denied May 18, 1978.
    Robert K. Rouse, Jr., of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.
    Paul R. Stern of Stern, LaRue & Wells, Daytona Beach, for appellee.
   PER CURIAM.

Appellants were found by the jury below to be 15% negligent in an accident which occurred when appellee, a housepainter, fell off a ladder as he painted appellants’ house. Appellants argue that the evidence was legally insufficient to be presented to the jury and that the court erred in not directing a verdict. We agree and reverse.

Appellee testified that Mrs. Palmieri, complaining about his untidiness, had hosed down the driveway two times in the morning of the accident. He stated that he had moved the ladder a number of times as he worked around the north part of the house, and just before the fall had placed it on a wet part of the driveway surface. Plaintiff’s expert testified that hosing down the driveway could have “reduced the coefficient of friction” to the point at which the ladder essentially lost its traction and gave way. The jury apparently believed that the hosing was at least in part responsible for the accident. Appellants argue that appel-lee admitted he saw Mrs. Palmieri hose the driveway and himself placed the ladder on the wet surface.

It is well settled that a defendant’s knowledge of a danger must be superior to that of a business invitee in order to create a duty to warn of dangers unknown to the plaintiff. Somers v. Myers, 171 So.2d 598 (Fla. 1st DCA 1965). Here Mrs. Palmi-eri’s knowledge of the wet driveway was no greater than that of the plaintiff’s. Furthermore there was no showing that Mrs. Palmieri realized she was creating a danger to plaintiff by hosing the driveway down. In Harvey v. Bryant, 238 So.2d 462 (Fla. 1st DCA 1970), this court held that where there was no showing that a homeowner knew or should have known that placing a throw rug on a newly waxed floor created a dangerous condition, she was not liable for injuries caused when a guest fell on that rug. In short, there was no basis for holding defendants liable for plaintiff’s injuries and the trial court should have directed a verdict in their favor.

REVERSED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Warren GARDNER and Shirley Gardner, his wife, Appellants, v. JACKSONVILLE ELECTRIC AUTHORITY, and Travelers Insurance Company, an Insurance Corporation, Appellees.
    No. HH-288.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Donald J. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellants.
    Mattox S. Hair and William S. Burns, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the summary final judgment is affirmed.

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

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The judgment appealed here is a summary final judgment absolving JEA of liability for an injury suffered by appellant when appellant’s dog wandered through a privately-owned wooded area into a 2400-volt electric wire, energized by JEA, which was hanging down from the trees. Appellant picked up a pine stick, attempted to knock the wire off the dog, and sustained injuries when he was thrown to the ground.

Although the issue is close, I feel that there are sufficient facts in the situation from which a jury could properly have found negligence on JEA’s part. The record reveals that JEA employees had been aware that trees were growing up around the wires in question as early as 1969; yet there had been no inspection or trimming of the trees since that time. An electric company is liable for failing to repair lines if it knows or has reason to know of the wires’ dangerous condition, see Annotation, 32 A.L.R.2d 244, § 5 and cases cited therein, and in my view the question of whether JEA’s knowledge in 1969 furnished constructive notice that the wires were endangered was one for the jury. In addition there was evidence that JEA’s “fuse disconnect” circuit breaker failed to operate properly in cutting off the current when the wire became severed from the line. Several cases have found electric companies liable for damages arising out of the continued energizing of a line when there was a device which would have cut off the current if it had been operating properly. See e. g., Ledet v. Lockport Light & Power Co., 15 La.App. 426, 132 So. 272 (1931); Abilene Gas & Electric Co. v. Thomas, 194 S.W. 1016 (Tex.Civ.App.1917). Finally, there is evidence in the record suggesting that JEA did not meet the minimum inspection and testing standards or the minimum clearance and tree trimming requirements provided in the National Electrical Safety Code. This court, in Florida Power Corp. v. Willis, 112 So.2d 15 (Fla. 1st DCA 1959), held that compliance with the Code is a question for jury consideration on the issue of negligence. In view of the inherent dangerousness of electrical current and the high duty which electrical companies are held to in distributing electricity, I think these questions should have been submitted to a. jury. I would reverse the judgment and remand the case for trial.


text:
    TONY’S FISH MARKET OF FT. LAUDERDALE, INC., t/a Tony’s Fish Market Restaurant, Petitioner, v. STATE of Florida BOARD OF BUSINESS REGULATION, DEPARTMENT OF BUSINESS REGULATION, Respondent.
    No. II-359.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Sy Chadroff and Charles L. Curtis of Thomas E. Lee, Jr., P. A., Miami, for petitioner.
    Richard E. Gentry, Dept, of Business Regulation, Tallahassee, for respondent.
   PER CURIAM.

Section 561.17, Florida Statutes (1977), is not unconstitutionally vague. Substantial competent evidence supports the agency’s action. The prayer of the petition for review is DENIED.

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


author: SMITH, Judge.

text:
    Latham DAVIS, Jr., Appellant, v. Mary B. DAVIS, Appellee.
    No. HH-372.
    District Court of Appeal of Florida, First District.
    May 5, 1978.
    Selig I. Goldin, Gainesville, for appellant.
    W. C. O’Neal of Chandler, O’Neal, Gray, Lang & Haswell, Gainesville, for appellee.
   SMITH, Judge.

Latham Davis, Jr., appeals from a final judgment of dissolution awarding his former wife $2,200 per month alimony until she dies or remarries, and providing that the alimony obligation shall survive Mr. Davis’ death and be secured by a lien against Mr. Davis’ interest in certain real property.

Mr. Davis petitioned for dissolution when he was 56 years old and Mrs. Davis was 59. They had been married 27 years and had enjoyed a very comfortable standard of living, including frequent travel, country club membership, and other amenities of an affluent life. Both were in reasonably good health but Mr. Davis had retired from active employment on his doctor’s advice. Mrs. Davis had never been employed outside the home and had no training for employment, but the court found that her contribution to the marriage had enabled Mr. Davis to accumulate a substantial estate in his own name. Mr. Davis had assets valued at over $2,000,000 and annual income in retirement of $100,000.

Without continuing alimony payments, Mrs. Davis would be subject to a substantial, perhaps shocking, change of financial position if Mr. Davis should predecease her. Considering all these unique circumstances, the trial court did not err in extending Mr. Davis’ alimony obligation beyond his death and in making the obligation a charge on his estate. First National Bank in St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973). We consider, however, that the trial court should have explicitly reserved jurisdiction to consider making a lump sum award to Mrs. Davis, equivalent to the then present value of her interest in receiving lifetime alimony, in the event of Mr. Davis’ early death. Such an award would preclude an indefinite delay in closing the estate, reducing hardship and inconvenience to the executor and beneficiaries alike. The judgment is accordingly modified.

The trial court exceeded its power in making the alimony obligation a lien against certain of Mr. Davis’s real property holdings. While trial courts have authority to make provisions securing alimony payments, that power is to be exercised only “[w]hen either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it . . .” Section 61.11, Florida Statutes (1977). In the absence of evidence showing an intent to be uncooperative or an intent to convey or conceal assets, the imposition of a security requirement is unjustified. Stern v. Stern, 75 So.2d 810 (Fla.1954); Peteler v. Peteler, 145 So.2d 291 (Fla. 3d DCA 1962). Compare Carter v. Carter, 164 So.2d 219 (Fla. 1st DCA 1964).

The record here demonstrates no intent or desire by Mr. Davis to avoid alimony payments. In the final judgment, the trial judge noted that “[sjince their separation in December, 1974, the wife has continued to reside in the marital home, and the husband has provided her with cash and other benefits so as to enable her to maintain a standard of living approximating that established during the marriage.” We recognize the trial judge’s concern that Mr. Davis might dispose of his assets and frustrate the court’s intention to provide alimony payments continuing beyond his death. But we hold that there must be evidence of such intent to justify the imposition of a lien.

Mr. Davis’ other points are without merit. That portion of the judgment appealed from which imposes a lien on real property is REVERSED, the judgment is MODIFIED to provide for retention of jurisdiction for the purpose stated; and as so modified the judgment is otherwise AFFIRMED.

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


text:
    STATE of Louisiana v. James PERKINS.
    No. 61212.
    Supreme Court of Louisiana.
    April 19, 1978.
    Rehearing Denied May 19, 1978.
    John J. Dolan, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: BLOODWORTH, Justice.

text:
    Frank M. DUKE v. PINE CREST HOMES, INC., an Alabama Corporation.
    77-174.
    Supreme Court of Alabama.
    April 21, 1978.
    Earl D. Hendon, Birmingham, for appellant.
    Michael L. Edwards and Thomas J. Gallo, Birmingham, for appellee.
   BLOODWORTH, Justice.

Defendant, Frank M. Duke appeals from a judgment for plaintiff, Pine Crest Homes, Inc., in a declaratory judgment action, holding, inter alia, that defendant’s easement does not prohibit plaintiff’s reasonable, non-conflicting use of the property over which the easement passes and that both plaintiff and defendant or their respective successors in interest may use the property over which the easement passes in a manner which would not block passage by the other. We affirm.

Some twenty years ago, defendant built his house and constructed his driveway. At the time, he and his first wife owned that lot and the adjacent lot. At some point, defendant’s children by his first wife became owners of the adjacent lot. In December, 1976, the children sold and conveyed the adjacent lot (subject to the easement) to plaintiff. At the same time, the easement in question (which lay over the adjacent lot) was conveyed by the children to defendant, which easement provided in pertinent part, as follows, viz:

EASEMENT CONVEYANCE

STATE OF ALABAMA)

JEFFERSON COUNTY)

We, Frank McDonald Duke and Margaret Rebecca Duke Humphreys and her husband, Frederick K. Humphreys, of Birmingham, Alabama, and Pensacola, Florida, respectively, the owners of the land described herein, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, hereby grant, bargain, sell .and convey to Frank M. Duke of 2656 Alta Glen Drive, Birmingham, Alabama, Grantee, the following limited easement for a private single family residence driveway, and no other purpose:

Part of the southeasterly lh of Lot 8, according to the survey of Dukeville, as same is recorded in Map Book 12, Page 26, in the Office of the Judge of Probate of Jefferson County, Alabama, being more particularly described as follows: From the most southerly corner of said Lot 8, run thence northeasterly along the easterly line of said Lot 8 a distance of 205 feet to the point of beginning; from the point of beginning thus obtained, continue on the same course along said easterly line of Lot 8, for a distance of 25 feet; thence turning an angle to the left of 85°-42.5', run northwesterly, parallel to the southwesterly line of Lot 8 for a distance of 150 feet; thence turning an angle to the left of 94°-17.5', run southwesterly, and parallel to the easterly line of said Lot 8 for a distance of 25 feet; thence turning an angle to the left of 85°-42.5' and run southwesterly, parallel to the southwesterly line of said Lot 8, for a distance of 150 feet to the point of beginning.

SAID EASEMENT IS LIMITED BY THE FOLLOWING:

Driveway “purpose” as used in this conveyance means a residential driveway and no vehicles other than those normally utilizing residential driveways shall use or travel across the right-of-way described above. Said easement may be landscaped by the Grantee in a manner in conformity ■ with other residences in the neighborhood.

The driveway easement described above shall be constructed and maintained in good repair by the Grantee at his sole cost and expense. The driveway shall not be enlarged in any manner to further encroach onto the Owners’ property.

This easement shall become void upon the driveway being destroyed or an alternate driveway being constructed or by uses in violation of this grant by the Grantee, his heirs or assigns.

This easement is for the benefit of and shall inure to the benefit of the Grantee, his heirs and assigns.

IN WITNESS WHEREOF, we have hereunto set our hands this _ day of December, 1976.

/s/ Frank McDonald Duke

/s/ Margaret Rebecca Duke Humphreys

/s/ Frederick K. Humphreys

STATE OF ALABAMA)

JEFFERSON COUNTY)

Before me, the undersigned Notary Public in and for said County in said State, personally appeared Frank McDonald Duke, an unmarried man, whose name is signed to the foregoing conveyance, and who is known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, he executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this 6th day of December, 1976.

/s/ James N. Brown, III

Notary Public

STATE OF Alabama )

COUNTY OF Jefferson)

Before me, the undersigned Notary Public in and for said County in said State, personally appeared Margaret Rebecca Duke Humphreys and her husband, Frederick K. Humphreys, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, they'executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this 22nd day of December, 1976.

/s/ Ann S. Carlton

Notary Public

Plaintiff then obtained a permit from the Jefferson County Zoning Board to construct two residences on the adjacent lot. Plaintiff wished to use that portion of the property, which is subject to defendant’s easement, as a driveway for one of the houses. On or about the second week of June, 1977, plaintiff drove a truck across the paved driveway and across the unpaved portion of the easement, to the construction site. Plaintiff was immediately notified by defendant that defendant disputed plaintiff’s right to use the portion of the property which was subject to the easement. Plaintiff then filed this declaratory judgment action, seeking to determine its rights and seeking to enjoin defendant from interfering with said rights.

The case was submitted to the trial court upon certain stipulated facts and memoran-da of law, and the court entered its judgment as set out above. Defendants then appealed.

It is well settled in Alabama that the owner of the servient estate may himself use the land upon which an easement has been dedicated so long as such right does not conflict with the purpose and character of the easement. Carter v. Stringfellow, 293 Ala. 525, 306 So.2d 273 (1975).

Defendant contends that the trial court’s decree fails to effectuate the intent of the parties insofar as the easement conveys what defendant alleges to be an exclusive right to use the driveway. We cannot agree.

In Keeler v. Haky, 160 Cal.App.2d 471, 325 P.2d 648 (1958), a case cited with approval in Moss v. Vance, 288 Ala. 224, 259 So.2d 252 (1972), the California District Court of Appeals was confronted with a somewhat similar question. The issue there was whether an instrument granting an easement of “full and free right[s] . . for all purposes connected with the use of said grantee’s land, to pass and repass along, over and upon said private road . ” conveyed an easement which would exclude the servient owners. The Court refused to accept the argument that the easement was exclusive. Instead, the Court held, viz:

“. . .We cannot hold in line with the trial court’s ruling that by the employment of the terms ‘full and free’ and ‘all purposes’ the use was intended to be exclusive to the grantees and for all purposes connected with their property. The document clearly indicates that the right which is unrestricted, or ‘free and full’ is the right to ‘pass and repass’ across the easement, and even the extent of this right is limited by the use of others who have the same, or like, right. The phrase ‘all purposes’ as used in the instrument does not imply that all rights in connection with the use of the dominant estate are conveyed, but only the right to pass and repass for all purposes connected with the use of grantees’ land. .
“Any claim that the deed makes no reservation or exception in favor of the grantors is without merit. . . . [A]n easement deed does not ‘grant’ anything to the servient estate since it retains all that which the deed does not give away. . (Citation omitted.)”
* * * * * *
“The extent of a servitude is determined by the terms of the grant creating it. [Wjhere an easement is founded on a grant, only those interests expressed therein and necessary for its reasonable and proper enjoyment pass from the owner of the fee. ... If permanent parking were permitted for defendants’ tenants the effect would be to make the use exclusive to them. This cannot be implied from the clear language of the deed. . . . ‘Furthermore, an “exclusive easement” is an unusual interest in land; it has been said to amount almost to a conveyance of the fee. 2 Thompson, Real Property 1939, § 578; Jones, Easements, § 378, p. 302. No intention to convey such a complete interest can be imputed to the owner of the servient tenement in the absence of a clear indication of such an intention. . . .'"

We think the California court’s reasoning is valid and equally applicable in this context. If we were to accept defendant’s contentions, we would, in effect, have to hold that defendant’s easement for a “private single family residence driveway . . .” is tantamount to a fee simple, thereby entitling him to totally exclude plaintiff from usage of the property. This would not be supportable by reason or law, especially in view of the fact that the instrument fails to evince a clear, unambiguous intention on the part of the grantors of the easement to exclude themselves or their successors from its use.

Moreover, the California law is in accord with the general law throughout the country. See 25 Am.Jur.2d, “Easements and Licenses,” § 89, pp. 494-95.

“A servient owner ordinarily has no duty to do any positive act with respect to the maintenance or repair of an easement, but he is required to refrain from unlawfully interfering with or obstructing it. He has, however, all the rights and benefits of ownership consistent with the easement; the right to use the land remains in him, without any express reservation to that effect, so far as such right does not conflict with the purpose and character of the easement. Hence, the grant of an easement of way which is not exclusive and which can be reasonably enjoyed without being exclusive leaves in the servient owner the right of user in common with the owner of the easement.”

Id. [Footnotes omitted.]

In holding as we do, we wish to make it clear that the servient owner must not in any way interfere with or impinge upon the rights secured by the dominant owner under the express grant of the easement, such as the right of the dominant owner to landscape the property “in conformity with other residences in the neighborhood.” Nor must use by the servient owner create any such additional burden upon the easement as would interfere with those rights granted by the express terms of the easement. We also observe that although the “EASEMENT CONVEYANCE” specifies that defendant shall maintain the driveway easement in good repair, the judgment below states each party is jointly responsible therefor. Since no contention was raised on appeal as to the correctness of this portion of the judgment, it stands.

AFFIRMED.

TORBERT, C. J., and ALMON, EMBRY and BEATTY, JJ., concur.


author: BRADLEY, Judge. BRADLEY, Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY et al. v. Shelby ANDERSON.
    Civ. 1008.
    Court of Civil Appeals of Alabama.
    April 6, 1977.
    Rehearing Denied May 25, 1977.

      W. Harold Albritton, Andalusia, for appellants.
    Allen Edward Cook, Andalusia, for appel-lee.
   BRADLEY, Judge.

This is an action to recover damages for a misrepresentation allegedly made by an insurance agent to an insured. A jury returned a verdict for the insured in the amount of $2,500 and all but one of the defendants appeal. The defendants were Mr. George Proctor, Mr. Joe Proctor, The Proctor Agency, Inc., and St. Paul Fire and Marine Insurance Company. Mr. Joe Proctor is not an appellant.

Shelby Anderson, the plaintiff below and appellee here, is a member of the Andalusia Rescue Squad. In 1968 the rescue squad purchased an insurance policy from the St. Paul Fire and Marine Insurance Company, through the Proctor Agency, to cover rescue squad members injured while performing rescue services. In January 1975 while on rescue squad duty Mr. Anderson suffered an injury, later diagnosed as an inguinal hernia, as he was lifting a patient into an ambulance.

Two days after the injury Mr. Anderson discussed whether his injury was covered under the rescue squad policy with either Mr. George Proctor or Mr. Joe Proctor of the Proctor Agency. At that time Mr. Anderson did not know the nature of his injury. Anderson said that Mr. Proctor told him that Anderson was covered under the policy for medical or surgical expense up to a maximum amount of $2,500.

Mr. Anderson then sought medical advice and learned that he had an inguinal hernia which would have to be surgically repaired. Anderson returned to the Proctor Agency for assurance of coverage, since he was unable to find a copy of the rescue squad policy. Anderson claims that Mr. Joe Proctor told him that he was covered under the policy and to have the operation. This statement is the basis of the lawsuit.

Joe Proctor denies telling Anderson that he was covered under the rescue squad policy and to have the operation. Instead, Proctor says he told Anderson to submit the bills for the operation and the Proctor Agency would forward the bills to the insurance company.

Mr. Anderson testified that he would have had the repair surgery “sooner or later,” but he scheduled the operation as soon as possible because of medical advice and the Proctors’ assurance that the costs would be borne by the insurance company. He said that if he had known at the time that the operation was excluded from coverage under .the policy he would have waited to have the operation until after he had made financial arrangements to pay the medical expenses at that time.

After the operation Anderson filed a claim for payment of costs. The claim was processed by a claims adjuster for St. Paul in one of St. Paul’s regional offices and a check was issued to Mr. Anderson. However, after the claim reached St. Paul’s home office, it was discovered that hernia operations are excluded under the rescue squad policy and the check was cancelled.

Anderson’s personal insurance coverage paid some of the medical expenses incurred by him as a result of the rescue squad injury. However $546.06 of the hospital bill remains unpaid and Mr. Anderson has been informed that the hospital intends to take legal action to collect the amount.

The appellants present seven questions for decision.

The first is whether an intent to induce action is an essential element to be proved in an action for misrepresentation under Title 7, Section 108, Code of Alabama 1940 (Recomp.1958), which provides:

“Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.”

The trial court refused to give to the jury the following charge requested by the defendants:

“The Court charges the jury that you cannot return a verdict in favor of the plaintiff unless you are reasonably satisfied from the evidence that the . alleged misrepresentations were made to the plaintiff with the intent to induce the plaintiff to act thereon.”

When the refusal to so charge was discussed with the trial judge, he stated he did not consider the requested charge to be a correct statement of law and again refused to give the charge.

Neither party disputes that according to decisions of our supreme court it is necessary in an action under this section for the plaintiff to show that the misrepresentation was made with an intent on the part of the speaker to induce the plaintiff to act on the misrepresentation. The language used in the decisions is that the misrepresentation must have been “made to be relied on as an inducement.” Hall Motor Co. v. Furman, 285 Ala. 499, 503, 234 So.2d 37, 40 (1970); Standard Oil Co. v. Johnson, 276 Ala. 578, 581, 165 So.2d 361 (1964); Cartwright v. Braly, 218 Ala. 49, 52, 117 So. 477 (1928).

The issue, then, is not whether an intent to induce action is a required element in a suit for misrepresentation; clearly it is. Rather, the question is whether the trial court erred to reversal by refusing to charge the jury as to one element of the plaintiff’s cause of action, an element which the jury had to find favorably for the plaintiff in order to hold the defendants liable, where there is evidence as to that element before the jury and there is a verdict for the plaintiff.

The appellants deny that there was evidence that the misrepresentation was made with the intent to induce Anderson to have the hernia operation. They claim that since such' evidence was lacking they were injured by the trial court’s refusal to give the requested charge. However, Anderson testified that Joe Proctor told him:

“ . . .by all means go on ahead and have this hernia operation, . it’s nothing to worry about because my father had just had a hernia operation and there is nothing to worry about.”

Although Proctor denied making this statement, Anderson’s testimony is evidence of intent to induce action. Furthermore, it appears the jury believed Anderson, rather than Proctor, for they returned a verdict in his favor. ‘

The trial court’s failure to state correctly the substantive law was error. In Clayton v. Glasscock, 221 Ala. 3, 127 So. 538 (1930), a case on all fours with the one at bar, the plaintiff brought an action for misrepresentation under the predecessor to Title 7, Section 108, supra. The trial court was reversed for refusing to charge that the plaintiff could not recover unless the defendant intended to deceive the plaintiff. For other cases where trial courts were reversed for stating an incorrect principle of law in their jury instructions, see James v. Governor’s House, Inc., 284 Ala. 404, 225 So.2d 815 (1969); State Farm Mutual Automobile Insurance Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964); Yates v. De Mo, 270 Ala. 343, 118 So.2d 924 (1960).

Although we believe the trial court erred in its failure to charge the jury on all the elements necessary to warrant a finding for the plaintiff and against the defendants, in this case the refusal to charge on an essential element was not prejudicial and therefore the error is harmless. The case at bar falls within the rule stated in Sibley v. Adams, 56 Ala.App. 572, 324 So.2d 287, cert. den. 295 Ala. 121, 324 So.2d 291 (1975) that error in a jury instruction is ground for reversal unless it affirmatively appears that it was not prejudicial.

It appears to us that the requested charge, had it been given, would have made no difference in the jury’s verdict. We cannot conceive that the jury could possibly have found that Joe Proctor did not intend for Anderson to have the hernia operation if the jury believed, as it obviously did,'that Proctor told Anderson to go ahead and have the operation. Therefore, it affirmatively appears that the error committed by the trial court was not prejudicial to the defendants, under the peculiar facts of this case.

The second issue raised by appellants is whether the trial court committed reversible error by instructing the jury on a theory not presented by the pleadings or the pre-trial order.

The complaint alleged that the misrepresentation was made (1) wilfully and with intent to deceive, (2) recklessly and without knowledge of the true facts, and (3) grossly and recklessly and without knowledge of the true facts. A pre-trial order stipulated that the issues were correctly framed by the pleadings. The trial court granted a directed verdict as to the first count, and the case went to the jury on the two remaining counts. The trial court instructed the jury by reading the provisions of Title 7, Section 108, supra, which require the misrepresentation to have been made (1) recklessly and without knowledge, or (2) by mistake and innocently. Defendants objected on the dual grounds that the complaint did not allege the misrepresentation had been made by mistake or innocently and the pre-trial order limited the plaintiff’s action to the pleadings.

Appellants maintain for this alleged error the trial court is due to be reversed, citing Harris v. Whitehead, 46 Ala.App. 516, 244 So.2d 603 (1971), wherein we said:

“There can be no justification for submitting to the jury oral or written charges pertaining to a cause of action not presented by the pleadings.” 46 Ala.App. at 519, 244 So.2d at 605.

The Harris case, however, was decided prior to the adoption of Rule 15(b), ARCP.

Rule 15(b) provides in pertinent part as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. ... An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

The committee comments add:

“ . . . Under the rule where evidence is introduced or an issue raised with the express consent of the other party, or without objection from him, the pleadings ‘shall’ be deemed amended to conform to such evidence.”

In the ease at bar, no request was made to amend the pleadings to include the innocent mistake claim, but neither was objection made to the introduction of evidence showing that the misrepresentation was made innocently and by mistake. In fact the defendants themselves introduced evidence showing the misrepresentation was made innocently and by mistake. Joe Proctor, under questioning by his lawyer, testified that he did not know the extent of coverage under the Andalusia Rescue Squad policy at the time of either conversation with Anderson. Likewise under direct examination by plaintiff’s lawyer, the claims adjuster for St. Paul stated he did not know the extent of coverage under the policy at the time he issued the check, but “assumed” hernia operations were covered. Although defendants’ lawyer cross-examined, no mention was made of this particular testimony.

The facts of the case at bar fall precisely within the rule in Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975), where the supreme court said:

“At oral argument, counsel for Rafield contended that the judgment did not conform to the pleadings. Regardless as to whether this is true or not, the judgment is supported by the evidence. No objection to evidence outside the scope of the pleadings has been called to our attention. Thus, it would appear that the issues presented by the evidence and decided by the trial judge were tried with the implied consent of Rafield. Under these circumstances the failure, if there be such, of the evidence to conform to the pleadings does not affect the result of the trial of these issues. Rule 15(b), ARCP.” 294 Ala. at 238, 314 So.2d at 697.

Under this rationale, the trial court in the case at bar did not err. Here the judgment was not based on the innocent mistake count, since it is evident that punitive damages were assessed. The evidence of actual damages was $546.06, yet the verdict was for $2,500. Thus the failure of the evidence to conform to the pleadings did not affect the result of the trial.

In McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975), the plaintiff filed suit seeking money due under a partnership agreement. The trial court found that the parties had entered into a joint venture and ruled in favor of plaintiff. The defendant appealed, claiming error because the issue of a joint venture had not been found in the pleadings. The supreme court applied Rule 15(b) to uphold the trial court’s action. It was apparent that there was no misunderstanding by the parties as to the theory of the case and that the defendant was equally liable under either theory, since from the evidence the trial court could have found a joint venture or a partnership.

Applying the rationale of McDuffie to the case at bar, we do not consider that there was any confusion at trial as to the issues. The defendants were in no way misled by the evidence, since they themselves offered some of it and did not object to the introduction of the remainder, and the evidence clearly supports the charge to the jury.

We note in passing that the defendants, rather than being prejudiced by the charge, were placed in a better position by the instruction than they would have been without it. Had the jury found the misrepresentation to have been made innocently and by mistake, the defendants would have been liable only for compensatory damages.

The third question is whether either Joe or George Proctor were agents of St. Paul Fire & Marine Insurance Company so that any misrepresentation as to coverage under a policy issued by St. Paul made by either Proctor could be imputed to St. Paul as principal, thereby making St. Paul liable for the misrepresentation. St. Paul’s motion for a directed verdict on this ground, i. e. the Proctors were not such agents of St. Paul as they could alter the terms of the policy issued to the Andalusia Rescue Squad, was denied, and the question of agency was submitted to the jury.

The general rule is that the existence and scope of an agency relationship is for the jury to determine where the evidence is in conflict. Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (1973) (emphasis ours).

There was some conflict in the testimony regarding the Proctors’ agency relationship with St. Paul. Joe Proctor testified that neither the Proctor Agency nor any of its employees has authority to change or alter the terms of a policy issued by St. Paul, or to agree to pay claims. The Proctor Agency does not keep copies of policies that have been issued to policyholders.

On the other hand, George Proctor testified that the Proctor Agency has authority to accept applications for St. Paul policies and to collect the premiums. While it has authority to issue binders on some St. Paul policies, it did not have authority to issue a binder on the policy in question because it is a special type policy. The Proctor Agency had authority only to accept the application and premium payments for the rescue squad policy. He also said that the agency did not have authority to otherwise bind St. Paul.

Anderson’s position, both at trial and here, is that since the Proctor Agency had the authority to issue binders in certain types of St. Paul policies, the agency could alter the terms of the policy in question so as to bind St. Paul to pay plaintiff for his hernia operation. However, the undisputed evidence is that the Proctor Agency and its agents could only accept the application and the premium payments for the policy in question. The Proctors had no authority to change the terms of the policy issued by St. Paul to the Andalusia Rescue Squad. Under Treadwell Ford, Inc. v. Wallace, supra, the trial court should not have allowed the question of the Proctors’ agency relationship to St. Paul to go to the jury.

Furthermore, we are not convinced that even if the Proctors did have authority to issue a binder on the policy in question, which they did not have, it would have followed that this authority, encompassed the authority to also alter the terms of the policy issued. The limits of the authority of a special agent, such as the Proctors appear to be, were defined in Security Life and Trust Company v. Galin, 280 Ala. 325, at 328, 193 So.2d 766, at 768 (1966):

“An agent whose authority is limited to soliciting insurance, delivering policies and collecting premiums has no power to change stipulations in a contract of insurance; to do so he must either be a general agent or be specially authorized or his course of dealing to that extent have been ratified expressly or impliedly.”

The conclusion compelled by the undisputed evidence is that the Proctors were only soliciting agents for St. Paul in this particular instance and therefore had authority only to solicit the policy and accept the premium therefor. There was no authority reposed in the Proctors by St. Paul to alter the terms of the policy in question, and the Proctors were not such agents as could make St. Paul liable for any misrepresentations they may have been guilty of making. There being a complete lack of evidence binding St. Paul to liability, the trial court should have granted St. Paul’s motion for directed verdict. The court’s refusal to do so constitutes reversible error with regard to St. Paul.

The other appellants argue that a reversal as to St. Paul requires a reversal of the judgment against them as well on the theory that a joint judgment should be regarded on appeal as an entirety. The Proctors argue that the jury may have been more willing to return a verdict against all the defendants than against only the Proctor Agency or Mr. George Proctor.

This argument was rejected in Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972), a case strikingly similar to the one here. Although the common-law rule was that a joint judgment had to be regarded as an entirety, in this state the rule has been modified so that where a judgment is joint in form but several in effect, i. e. the interests of the parties against whom judgment is rendered are several and independent, the joint judgment may be reversed as to one or more of the defendants and not as to all. See Alabama Power Co. v. King, 280 Ala. 119, 190 So.2d 674 (1966).

Here St. Paul was implicated only through the actions of the two Proctors. Their liability has been fully litigated and no reversible error infected that aspect of the trial; their interests being independent from that of St. Paul, the judgment against the Proctors will stand unchanged.

The appellants next contend that the preponderance of the evidence is against the verdict and therefore the verdict should be set aside and a new trial granted. The trial court denied the defendants’ motion for new trial.

In Kilcrease v. Harris, 288 Ala. 245, at page 252, 259 So.2d 797, at page 802 (1972), our supreme court said:

“. . . A jury’s verdict, which is presumed to be correct, will not be set aside unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence is against the verdict, and is ,so decidedly so as to clearly convince the court that it is wrong and unjust. . . . The lower court’s refusal to grant a new trial strengthens the presumption in favor of the verdict’s correctness. ... No ground is more carefully scrutinized or rigidly limited than one charging that' the verdict is against the weight of the evidence.” (Citations omitted.)

In brief, this argument amounts to nothing more than a restatement of issues one, two and four. We have already agreed that with regard to St. Paul there was no evidence to make it bound by the misrepresentation. With regard to the Proctor Agency and Mr. Proctor, the evidence has already been discussed. The question, in essence, was whether the jury believe the Proctors’ testimony or Mr. Anderson’s testimony. We cannot say that because the jury chose to believe Mr. Anderson the preponderance of the evidence is against the verdict and the verdict is clearly wrong and unjust.

The fifth contention of appellants is that Mr. Anderson failed to prove actual damage resulting from the misrepresentation and therefore there is nothing to support an award of punitive damages.

Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971), and Shafer v. Timmons, 51 Ala.App. 157, 283 So.2d 609 (1973), set forth the rule with regard to damages in an action for misrepresentation or deceit. In order to recover punitive damages for fraud and deceit (and, it follows, misrepresentation), the plaintiff must prove that he or she- has suffered actual damages as a result of the fraud. Although the actual damage may be nominal, it must be an actual pecuniary loss. Furthermore, if actual damages can be inferred from the evidence, nominal damages (upon which punitive damages are based) may be awarded even in the absence of proof of compensatory damages. Again, compensatory damage means actual pecuniary loss.

Appellants say that Anderson incurred no expense as a result of the misrepresentation, for he would have had the operation “sooner or later” regardless of coverage under the policy. This position overlooks Anderson’s testimony that had he known the policy did not cover hernia operations he would have delayed the operation in order to make financial arrangements to pay for it. Furthermore, Anderson said he had not paid the balance on the hospital bill even in the face of repeated “duns.” We think this was evidence of actual pecuniary loss sufficient to support an award of punitive damages. The trial court committed no error in denying the motion for new trial on this ground.

The sixth issue is whether there is insufficient evidence to support the award of punitive damages. The appellants rely on Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476 (1974), and Universal Brokers, Inc. v. Higdon, 56 Ala.App. 184, 320 So.2d 690 (1975), which held:

“Punitive damages may not be recovered in an action for deceit unless the fraud is gross, malicious, oppressive and committed with an intention to injure and defraud.” 52 Ala.App. at 421, 293 So.2d at 482.

The appellants maintain there is no evidence that the misrepresentation was committed with an intent to injure and defraud, and point out that the trial court granted a directed verdict in their favor as to the first count of the complaint, which alleged the misrepresentation was made wilfully and with intent to deceive.

The source of the rule stated in Universal Brokers and Mid-State Homes is Caffey v. Alabama Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454 (1922), cert. den. 209 Ala. 466, 96 So. 459 (1923). There it was said punitive damages are recoverable where the fraud or misrepresentation is:

“. . . malicious, oppressive, or gross, the representations being made with a knowledge of their falseness (or so recklessly made as to amount to the same thing), and with the purpose of injuring the plaintiff . . . .” 19 Ala.App. at 193, 96 So. at 457.

This statement has been adopted as the rule and rigidly applied in a long line of cases. See e. g., Hall Motor Co. v. Furman, supra; Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954); Pettus v. Shafer, 286 Ala. 625, 244 So.2d 573 (1971).

Under this rule it appears that the plaintiff, in order to recover punitive damages, must prove (1) the misrepresentation was malicious, gross or oppressive, and (2) the misrepresentation was made with intent to deceive or injure. The malicious, gross or oppressive nature of the misrepresentation may be proved by showing that the misrepresentation was made with knowledge of the falseness or so recklessly as to amount to knowledge. The question presented here is whether the reckless nature of the misrepresentation will suffice to supply the requisite element of intent to deceive, as well as the first element of maliciousness, grossness and oppressiveness, where there is no evidence of actual intent to deceive.

We conclude the answer to the question should be in the affirmative. In Hall Motor Co. v. Furman, supra, the court discussed the nature of a cause of action for fraud by misrepresentation under Title 7, § 108, supra. The court said that if the misrepresentation of a material fact is made wilfully to deceive, or recklessly without knowledge (emphasis added), such conduct is deceitful in fact. This is the first provision of the statute. The last alternative under the statute deals with fraud made innocently and by mistake. Although the good faith of the party in making the misrepresentation is immaterial to the committing of the offense if the other party acts on the misrepresentation to his or her injury, it is material to the question of damages, for recovery is limited to compensatory damages. The court, by limiting compensatory damages to the last provision of Section 108 implied that if the misrepresentation falls within the first portion of the statute, i. e. was made recklessly and without knowledge, punitive damages may be awarded.

In Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973), the court quoted Pihakis v. Cottrell, supra, as stating the rule in Alabama regarding punitive damages for fraud and deceit. To support punitive damages the act must involve malice, wilfulness, or wanton and reckless disregard of the rights of others. There was no mention of intent to deceive, although the complaint alleged intent to deceive and there was evidence of such intent in that case.

Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973), is similar to the case at bar. There a couple purchased a house upon the representation that the house had been built according to Veterans Administration’s and Federal Housing Administration’s specifications. This representation was made by a sales representative and the president of the defendant construction company on at least two separate occasions and in response to specific and direct questioning on that point. The couple were never shown the plans and specifications of the house and were unaware that they could have obtained the plans and specifications from the Veterans Administration to ascertain for themselves whether the house met Veterans Administration specifications. A year after moving into the house the couple acquired the house plans from the Veterans Administration and learned that the house substantially failed to conform to the minimum building requirements of the Veterans Administration and the Federal Housing Administration.

In upholding an award of punitive damages, the supreme court did not discuss at all whether the representations had been made with an intent to injure. It does not appear whether such intent was alleged in the complaint or whether it was made an issue at trial. The court quoted the rule enunciated in Caffey v. Alabama Machinery & Supply Co., supra, and cited Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970), which required the misrepresentation to have been made with an intent to injure. However, the statement of the rule applying punitive damages omitted any reference to an intent to injure:

“. . . The trier of fact is authorized to award punitive damages where legal malice, willfulness, or a reckless disregard accompanies the invasion of the rights of another.” 291 Ala. at 320, 280 So.2d at 751.

If intent to deceive on the part of the defendant may be imputed through the defendant’s recklessness in order to establish the offense, it is logical to allow the plaintiff to prove intent to deceive by the same method in order to recover punitive damages. The general rule is that punitive, or exemplary, damages may be awarded whenever the defendant’s act is wanton, malicious, or attended with circumstances of aggravation. Norton v. Bumpus, 221 Ala. 167, 127 So. 907 (1930). Punitive damages may be awarded at the discretion of the trier of fact where there has been an award of nominal damages and where legal malice, wilfulness, and a reckless disregard accompanies the invasion of the rights of another. Maring-Crawford Motor Co. v. Smith, supra.

The nature of punitive damages was explained in Alabama Great Southern Railway Co. v. Sellers, 93 Ala. 9, 9 So. 375 (1890):

“. • • The true theory of exemplary damages is that of punishment, involving the ideas of retribution for willful misconduct, and an example to deter from its repetition.” 93 Ala. at 15, 9 So. at 377.

There is as much reason to deter, through imposition of punitive damages, representations made recklessly without knowledge of the truth as representations made with knowledge of falseness and with intent to deceive. We hold therefore that punitive damages may be awarded where a misrepresentation is made recklessly and without knowledge of the true facts but where there is no evidence that the defendant had actual intent to deceive, when attended by circumstances of aggravation and oppression.

The jury has discretion to impose punitive damages in cases of fraud and deceit, taking into consideration the enormity of the wrong and the necessity of preventing a similar wrong. Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); Loch Ridge Construction Co. v. Barra, supra.

There is evidence to justify the jury’s imposition of punitive damages in this case. Both George and Joe Proctor testified they had no authority to make statements with regard to coverage under policies issued by St. Paul. Mr. Joe Proctor said that he did not make a practice of agreeing to pay claims under a policy the Proctor Agency places, and that he did not in fact know the extent of coverage under the rescue squad policy. Mr. Anderson testified that he was told the hernia operation was covered under the rescue squad policy. It was for the jury to reconcile the testimony. If the jury believed all of this testimony, it is difficult to conclude that the jury abused its discretion in awarding punitive damages.

The final allegation of error raised by the appellants is that the verdict is excessive. They cite Mid-State Homes, Inc. v. Holt, supra; Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975); and Hall Motor Co. v. Furman, supra, for the proposition that where punitive damages are improperly included in a verdict in a fraud case, the verdict is excessive. This argument is but an extension of the sixth issue. Our decision with regard to the imposition of punitive damages disposes of this seventh contention.

For the reasons hereinabove stated, the judgment of the trial court is affirmed in part and in part reversed and remanded with direction to enter judgment for and on behalf- of St. Paul Fire and Marine Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTION.

WRIGHT, P. J., and HOLMES, J., concur.

On Rehearing

BRADLEY, Judge.

The defendants The Proctor Agency and Mr. George Proctor assert that our original opinion is in error in several aspects. We consider a reply to two aspects to be warranted.

The Proctors say we erred in concluding that the reckless nature in which a person makes a misrepresentation is a sufficient substitute for the requisite element of intent to deceive. We have chosen to follow other jurisdictions which so hold.

In Zager v. Setzer, 242 N.C. 493, 88 S.E.2d 94 (1955), the North Carolina court said:

“. . . [T]he evidence is sufficient to support' the inference that the plaintiff’s representation as to the gross weekly income of the former operator was recklessly made, or positively averred when he was consciously ignorant whether it was true or false, and was intended by him and accepted by the defendant and reasonably relied on as a statement of fact by which the defendant was deceived and caused to suffer loss. The evidence tending to show this state of mind is an adequate substitute for proof of scienter.” 88 S.E.2d at 95 (citations omitted).

The New York court said in Hadcock v. Osmer, 153 N.Y. 604, 47 N.E. 923 (1897):

“. . . Actionable deceit cannot be practiced without an actual intention to deceive, resulting in actual deception, and consequent loss. But, while there must be a furtive intent, it may exist when one asserts a thing to be true which he does not know to be true, as it is a fraud to affirm positive knowledge of that which one does not positively know. Where a party represents a material fact to be true to his personal knowledge, as distinguished from belief or opinion, when he does not know whether it is true or not, and it is actually untrue, he is guilty of falsehood, even if he believes it to be true; and if the statement is thus made with the intention that it shall be acted upon by another, who does so act upon it, to his injury, the result is actionable fraud. . . . The language of Chief Judge Andrews, in Kountze v. Kennedy, [147 N.Y. 124, 130, 41 N.E. 414] is equally applicable: ‘One who falsely asserts a material fact, susceptible of accurate knowledge, to be true of his own knowledge, and thereby induces another to act upon the fact represented to his prejudice, commits a fraud which will sustain an action for deceit. This is not an exception to, but an application of, the principle that actual fraud must be shown to sustain such an action. The purpose of the party asserting his personal knowledge is to induce belief in the fact represented; and if he has no knowledge, and the fact is one upon which special knowledge can be predicated, the inference of fraudulent intent, in the absence of explanation, naturally results.’ The rule is the same in other states and in England. Thus, in [Chatham] Furnace Co. v. Moffatt, 147 Mass. 403, 18 N.E. 168, the court said: ‘The charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made as of the party’s own knowledge, which is false, provided the thing stated is not merely matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist; and if he does not know it to exist he must ordinarily be deemed to know that he does not. Forgetfulness of its existence after a former knowledge, or a mere belief of its existence, will not warrant or excuse a statement of actual knowledge.’ ” 47 N.E. at 923-24.

We consider the case at bar to fall within this line of cases. Joe Proctor said he did not know the extent of coverage under the rescue squad policy and that the Proctor Agency did not even have a copy of the policy in the office. There was no evidence that Proctor made any effort to ascertain the extent of coverage before responding to Anderson’s request for information. Yet Proctor told Anderson he was covered for the medical procedure in question, knowing that Anderson was relying on the truth of his answer. The principles of law stated in Zager v. Setzer, supra, and Hadcock v. Osmer, supra, with regard to the mental element required to establish the offense of misrepresentation apply with equal validity to the mental element required to impose punitive damages.

Finally the Proctors say that we erred in our main opinion by referring to Joe Proctor as a defendant below and ask that we delete our reference to him as a party defendant.

The record contains a pre-trial order, signed by the trial judge on May 12, 1976, which states as follows:

“ORDER ON PRE-TRIAL HEARING
“This cause coming on to be heard on a regular pre-trial hearing, and all parties being present in person or by counsel, the following action was thereupon taken:
“1. The following pleadings and amendments were allowed:
“2. It was agreed by all of the parties that the following are all of the issues in controversy in this cause:
“The Plaintiff amends his complaint by adding the words, ‘and Joe Proctor’, following the name ‘George H. Proctor’, and the Defendants refile their answer to the amended complaint.
“It is stipulated that the issues are correctly framed by the pleadings.
“It is therefore ORDERED by the Court that all of the above-named allowances and agreements be and the same are hereby binding upon all parties in the above-styled cause, unless this order be hereafter modified by order of the Court.
“Done this 12th day of May. 1976
s/ F. M. Smith
Circuit Judge”

Since George Proctor’s name appears in the style of the case on the complaint as a defendant and in the request for summons of the defendants, and since throughout the complaint George Proctor is referred to as a defendant, and since the defendants found it necessary to refile their answer to the complaint as amended, we concluded that Joe Proctor had been added as a party defendant. Furthermore, it did not appear that the intent of the order was to modify only the facts alleged in the complaint, since two days earlier a motion to amend the facts had been granted. The record does reflect that the trial judge, in his oral charge to the jury, said:

“. . . And should you find against all three of the Defendants, that is St. Paul Fire and Marine Insurance Company or whatever its name is and the Proctor Agency and George Proctor as a Defendant, the form of your verdict would read as follows: . . . . If you should find from the evidence that the Plaintiff is entitled to recover of any one of the three Defendants, but is not entitled to recover from the other two or if you find from the evidence that he is entitled to recover from two of the Defendants but not from the third one, the form of your verdict would be: . . . .”

If the judge’s oral charge is to be considered as a dismissal of Joe Proctor as a party defendant (we have been unable to find any other place in the record where it is suggested that Joe Proctor is not a defendant) then he is not a defendant; however, if there was no intention to remove him as a party defendant, then, according to the pre-trial order, he remains a defendant.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

HOLMES, J., concurs.

WRIGHT, P. J., not sitting.


author: TORBERT, Chief Justice. JONES, Justice

text:
    In re the PROCTOR AGENCY, INC. and George H. Proctor v. Shelby ANDERSON. Ex parte the Proctor Agency, Inc. and George H. Proctor.
    SC 2610.
    Supreme Court of Alabama.
    March 10, 1978.
    W. Harold Albritton, Andalusia, for petitioners.
    Allen Edward Cook of Cook & Cook, Andalusia, for respondent.
   TORBERT, Chief Justice.

Shelby Anderson, the respondent, sought damages at the trial- court below for an alleged misrepresentation made by the petitioners and relied on by the respondent to his detriment. A member of the Andalusia Rescue Squad, Anderson was injured while engaged in a rescue effort in January of 1975. He later found out from his doctor that he had an inguinal hernia — a condition which, to be corrected, would require surgery.

To absorb some of the prospective medical expenses which would arise if an operation were performed, Anderson sought an assurance of coverage under the rescue squad’s group policy with St. Paul Fire and Marine Insurance Company. He talked to Joe Proctor of The Proctor Agency, the firm which handled the rescue squad policy for St. Paul, and he testified that Proctor told him to go ahead and have the operation and that “it’s nothing to worry about.” (Proctor claims that he did not tell Anderson that he was covered under the policy and that he should have the operation.)

According to his testimony Anderson would have sought surgical treatment “sooner or later,” but he decided to undergo such treatment as soon as possible in reliance upon medical advice and Joe Proctor’s assurance of coverage under the rescue squad policy. Subsequent to the operation, Anderson’s claim for payment of medical expenses was refused by St. Paul. Anderson filed suit against George Proctor, The Proctor Agency, Inc., and St. Paul Fire and Marine Insurance Company for misrepresentation. Joe Proctor was apparently added as a defendant at the pre-trial conference. (The propriety of this action by the trial court cannot be addressed by this court because the issue was not properly postured for review.)

The jury returned a verdict of $2500 for Anderson, and all but one of the defendants (Joe Proctor) joined in the appeal to the Court of Civil Appeals. That court affirmed the judgment with respect to George Proctor and The Proctor Agency, but it reversed the judgment against St. Paul. The Court of Civil Appeals, on rehearing, declined to decide Joe Proctor’s status in this case.

The defendants remaining after the appeal, George Proctor and The Proctor Agency, have petitioned this court on certiorari to review the decision of the Court of Civil Appeals. They argue that the failure of the trial court to instruct the jury on an essential element of the plaintiff’s case was reversible error since the evidence on this issue was in conflict, and they alleged as grounds for the issuance of a writ of certio-rari that this is a material question of first impression in Alabama. Ala.R.App.P. 39(c)(3). We disagree that this issue is one of first impression, and we therefore decline to address the petitioners’ first contention.

As stated above, the verdict rendered for the respondent was in the amount of $2500. The Court of Civil Appeals stated that punitive damages were assessed by the jury in this case (see St. Paul Fire & Marine Insurance Co. v. Anderson, 358 So.2d 151, at 157 (Ala.Civ.App.1977)), and their conclusion is supported by the fact that, after the respondent’s personal insurance coverage absorbed part of his medical expenses, the remaining unpaid costs of the operation to-talled $546.06 — almost $2000 less than the amount of the jury verdict.

The petitioners argue that punitive damages are not allowable in a suit for misrepresentation unless the misrepresentation was made with the intent to injure the plaintiff. We agree with the petitioners that an award of punitive damages was not appropriate in this case, and we reverse the decision of the Court of Civil Appeals on this issue.

Punitive damages are generally intended as a deterrent to morally culpable conduct, and in misrepresentation cases they are usually restricted to instances where there is not only a knowing misstatement, but where the fraud is also gross, oppressive, or aggravated. D. Dobbs, Law of Remedies § 9.2, at 607 (1973). The court in Bolton Ford of Mobile, Inc. v. Little, 344 So.2d 1208 (Ala.1977), noted the importance of the defendant’s “intent to deceive” when assessing the propriety of allowing punitive damages in a suit for misrepresentation. The Bolton court cited the case of Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961), where it was stated that:

“The rule is that punitive damages may not be recovered in such an action (deceit) unless the fraud is gross, malicious, oppressive, and is committed with an intention to so injure and defraud.”

Id. at 547, 133 So.2d at 26. This well-established rule has been consistently followed in Alabama. Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380, 1383 (Ala.1977); Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976) (intention to defraud construed as knowledge of the falsity of the representations); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970); Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (Civ.App.1975); Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476 (Civ.App.1974).

The respondent’s claim for damages was based on Alabama’s misrepresentation statute — Title 7, section 108, Code of Alabama 1940 (§ 6-5-101, Code 1975):

“Misrepresentations of a material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently; and acted on by the opposite party, constitute legal fraud.”

This court has recently held that, in those cases essentially covered by section 108,

“punitive damages are only allowed where a material misrepresentation is made knowingly .and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive and committed with an intent to injure.’’

United States Fidelity & Guaranty Co. v. McKinnon, 356 So.2d 600, 608 (Ala.1978) (emphasis added). Other recent decisions of this court dealing with punitive damages for misrepresentation have emphasized the gross nature of the fraud or the maliciousness of the defendant’s conduct. Winn-Dixie Montgomery, Inc. v. Henderson, 353 So.2d 1380 (Ala.1977); International Resorts, Inc. v. Lambert, 350 So.2d 391, 395 (Ala.1977) (misrepresentation made “heedlessly without any regard to the consequences”); State Farm Mutual Automobile Insurance Co. v. Ling, 348 So.2d 472 (Ala.1977) (punitive damages awarded for suppression of the truth).

The petitioners received a directed verdict in their favor as to the “wilfully to deceive” count in the respondent’s complaint, and the facts as related to us through the opinion of the Court of Civil Appeals fail to show that the petitioners intended to injure or deceive the respondent. Neither do the facts indicate that such action amounted to gross, malicious, or oppressive conduct. An award of punitive damages is not allowable in this case.

The decision of the Court of Civil Appeals regarding punitive damages is reversed. The case is remanded to that court for the formulation of an appropriate order.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur in the opinion of the Court to reverse on the punitive damages aspect of the Court of Civil Appeals’ opinion. I do not believe there is sufficient evidence from which a jury could reasonably infer either that the fraud was gross, malicious, or oppressive, or that it was committed with the intent to deceive. At most, the circumstances tend to show that the representation of coverage, though untrue, was made innocently or mistakenly. This is entirely different from those incidents where the speaker’s misrepresentation of material facts are intended to induce action of another to the speaker’s immediate benefit. See, e. g., Lonnie Russell Ford v. Mitchell, 279 Ala. 340, 185 So.2d 132 (1966). These type cases lend themselves readily to circumstances from which the grossness or oppressiveness of the fraud or its perpetrator’s intent to injure may be reasonably inferred. Although the applicable test is subjective in nature, the circumstances of the instant case, in my opinion, are not such that reasonable minds could infer facts constituting either of the alternative elements essential to recovery of punitive damages.

More specifically, my purpose in writing this special concurrence is to deal with, and hopefully to clarify, that aspect of the opinion below not dealt with by the opinion of this Court — the trial Court’s refusal of the “intent to induce the Plaintiff to act” requested charge. The Court of Civil Appeals is correct in declining to reverse on this allegation of error. Though its rationale is likewise correct, it is unfortunate that the Court grounded its conclusion on “harmless error.” If, indeed, the refusal of the charge was error, then, as Appellants contend, it was reversible error.

It is settled law that each party is entitled to have proper instructions given to the jury regarding the issues presented. Jones v. Blackman, 284 Ala. 684, 228 So.2d 1 (1969); Calvert v. Bynum, 255 Ala. 172, 50 So.2d 731 (1951); Western Union Telegraph Co. v. Smith, 189 Ala. 534, 66 So. 578 (1914). Given this principle, it cannot be said that the refusal of a proper requested charge on an essential element of a claim could be harmless. Veitch v. Hard, 200 Ala. 77, 75 So. 405 (1917).

But this misdenomination — “harmless error” — does not detract from the correctness of the holding. It was not error to refuse the requested charge for two separate and distinct reasons:

1) As the opinion of the Court of Civil Appeals points out, the charge does not fit the facts of this case. The intent on the part of the speaker to induce the Plaintiff to act is an essential element of the claim only in the factual context of representations of a casual nature, or where the reasonableness of the Plaintiff’s reliance thereon is made an issue.

37 C.J.S. Fraud, § 22b(1) (1943), states the general rule:

“There can be no recovery for representations of a casual nature made without intent to induce any action whatsoever. To be remediable, it must appear that the representations were intended to induce action, or that the speaker should reasonably have recognized that they were likely to induce action.”

Here, the alleged representation was made in reply to a specific inquiry of the Plaintiff; and the answer, if believed, shows on its face an expectation of reliance thereon by the Plaintiff. There are no circumstances from which it may reasonably be inferred that the alleged misrepresentations were made other than with the intent to induce the Plaintiff to act thereon.

2) The second reason for affirming the refusal of the charge is reflected in the latter portion of the above-quoted rule from C.J.S. Even if factually relevant, a requested charge which ended, as this one did, with the “intent to induce Plaintiff to act” would be incomplete. The alternative language (“or that the speaker should reasonably have recognized that they were likely to induce action”) was necessary to constitute a correct statement of law.


author: BRADLEY, Judge.

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, The Proctor Agency, Inc., and George H. Proctor v. Shelby ANDERSON.
    Civ. 1008.
    Court of Civil Appeals of Alabama.
    April 5, 1978.
   On Remand from Supreme Court

BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be reversed in accordance with the opinion rendered by the Supreme Court of Alabama on March 10,1978 in the above cause, 358 So.2d 164, and remanded to the Circuit Court of Covington County, Alabama for further proceedings.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


author: ENGLAND, Justice.

text:
    HARRINGTON & COMPANY, INC., Appellant, v. TAMPA PORT AUTHORITY, Appellee.
    No. 50011.
    Supreme Court of Florida.
    Jan. 19, 1978.
    Grover C. Freeman, Al R. Lopez, Jr. and Mark F. Kelly of Freeman & Lopez, Tampa, for appellant.
    T. Terrell Sessums of Albritton, Sessums & Didio, Tampa, and Byrne Litschgi of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   ENGLAND, Justice.

At issue in this appeal is the constitutionality of Section 310.28, Florida Statutes (1973), which provides in relevant part that each duly constituted board of port wardens and pilot commissioners (or port authority)

“may grant such number of licenses to competent and trustworthy persons to act as stevedores in the port and harbor . as it may deem necessary, having due regard to the business of the port and harbor.”

The trial court expressly upheld the validity of the statute, prompting a review of that order here.

Harrington & Co., Inc. is a stevedore presently operating under license in several southern ports, including Florida locations other than Tampa. In 1974 Harrington applied for a license to do business in the Port of Tampa as a stevedore and marine terminal operator. After a review of its application and public hearings on the matter, the Tampa Port Authority concluded that Harrington met the statutory requirements of competence and trustworthiness, but denied the license on the ground that, due to a decline in port business and the general economy, the licensing of another Tampa operator was unnecessary and would be contrary to the public interest. Harrington petitioned the circuit court for a writ of certiorari, alleging among other matters that Section 310.28 is unconstitutionally vague in that it delegates to the Port Authority a licensing power susceptible to discriminatory exercise. The circuit court denied Harrington’s petition and, in affirming the Port Authority’s action, expressly upheld the challenged statute.

Neither party disputes the Legislature’s power to limit stevedore licenses or to delegate that power within guidelines sufficiently defined to ensure against arbitrary action by its designated agent. Harrington contends, however, that a statute which authorizes an agency to grant or deny a license on the basis of nothing more than “due regard” for the general economic consequences of its action lacks the precise standards necessary to prevent a discriminatory exercise of licensing authority. Harrington relies principally on our decisions in Dickinson v. State, 227 So.2d 36 (Fla.1969), and Drexel v. City of Miami Beach, 64 So.2d 317 (Fla.1953), dealing with excessive delegations of legislative authority.

In Dickinson, we considered a challenge to a statute which delegated to the state comptroller the authority to license cemetery operators. The statute directed him to investigate:

“The need for a cemetery in the community to be located, giving consideration to the adequacy of existing facilities and the need for further facilities in the area to be served.”

The applicants in that case had met all statutory requirements for a cemetery license, but had failed to convince the comptroller that there existed a need for further facilities in the area. We there held the absence of a suitable definition for two critical terms — “need for a cemetery” and “need for further facilities” — rendered the licensing authority so susceptible to arbitrary application as to require its invalidation.

Drexel involved an attack upon a city ordinance by property owners after a denial of their application for a permit to build a parking garage. The ordinance provided that no multilevel garage could be constructed except upon “approval and permit by the City Council . . . after a public hearing at which due consideration shall be given to the effect upon traffic of the proposed use . . . .” Although the Court found nothing to indicate that the exercise of that authority had in fact been colored by “favoritism”, the ordinance was nonetheless held invalid for lack of adequate standards to guide the exercise of administrative discretion. Writing for a unanimous Court, Justice Thomas explained:

“We think a [governmental body] may not deprive a person of his property by declining a. permit . . . where the only restriction on the use of the police power is that it shall not be exercised before ‘due consideration’ is given . to the effect of the building upon traffic. Both the quoted words, as well as their synonyms, could be construed to allow all manner of latitude in the grant of a permit in one case and the denial of a permit in a similar one, and would give every opportunity for the exercise of the power with partiality. Such laxness and inexactness in a delegation of the power is not sanctioned by the courts.”

Dickinson and Drexel clearly control this case for the reasons there expressed. See also Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1962). Indeed, the constitutional difficulties urged by Harrington were forecast in State ex rel. Biscayne Stevedoring Co. v. Turner, 143 Fla. 424, 196 So. 816 (1940), where we said of this statute’s predecessor:

“[I]f this section . . . is to be construed as vesting in the Port Authority acting as a Pilot Commission authority to license or refuse to license competent and reliable contracting stevedores at their pleasure, . . . or at their pleasure to permit one stevedore to operate at the Port while another equally qualified is denied, said section . . ., so construed, would come in conflict with sections 1 and 12 of the Declaration of Rights and the Fourteenth Amendment to the Federal Constitution.”

The Port Authority contends that although the statute standing alone may lack standards of sufficient specificity to pass constitutional muster, its validity can be sustained by incorporating other related legislative enactments which, when read in conjunction with Section 310.28, reveal a comprehensive scheme of legislative guidelines adequate to safeguard against administrative capriciousness. Particular reference is made to Chapter 23338, Section 7, Laws of Florida (1945).

We agree that related enactments may be read together with a particular statute so as to cure ambiguities or omissions that would otherwise render it fatally defective. The provisions to which the Port Authority has directed our attention, however, in no wise provide the suggested cure. Chapter 23338, Section 7, Laws of Florida (1945) sets out in some detail the various powers granted to the Port Authority in connection with its “specific responsibility of planning, and carrying out plans, for the long range development of the facilities of and traffic through the Port in the Port District.” Other cited enactments contain similar general statements reflecting the broad objectives of the Legislature in creating the Port Authority, and recognizing the port industry as a vital commercial enterprise which is essential to the public welfare in this state.

Without detracting to any degree from the importance of the Port Authority’s functions, the fact remains that the Legislature has nowhere provided the clear and specific guidelines necessary to ensure that those licensed to perform these functions are not arbitrarily selected. This delegation of undefined power by the Legislature is tantamount to an abdication of its lawmaking responsibility, and cannot stand in the face of Article III, Section 1 of the Florida Constitution.

The order of the trial court affirming the Port Authority’s action on Harrington’s application and sustaining the validity of Section 310.28, Florida Statutes (1973), is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

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

BOYD, J., dissents.

      . This section was reworded and renumbered in connection with the 1975 general revision of the Ports and Harbors statutes, Ch. 75-201, Laws of Florida, and now appears as § 311.021, Fla.Stat. (1975). Although some of the language has been changed, that portion of the statute at issue in the present case remains substantially unaltered.

      . Art. V, § 3(b)(1), Fla.Const.

      . Here, as in the circuit court, Harrington has raised other issues ranging from the validity of certain regulations promulgated by the Port Authority to the adequacy of the evidence on which the denial of its application was based. In light of our disposition of the constitutional question,' we need not address these other issues.

      . Delta Truck Brokers, Inc. v. King, 142 So.2d 273 (Fla.1962).

      . Harrington further asserts that the Port Authority’s refusal to grant a license after it had determined that the applicant was both competent and trustworthy constitutes an arbitrary denial of the right to engage in a lawful business and a deprivation of due process of law. We need not reach these additional assertions.

      . § 559.39(2), Fla.Stat. (1967).

      . In response to our decision, the Legislature amended § 559.39(2) to provide more specific criteria for the licensing authority. Ch. 76-251, § 5, Laws of Florida. The revised statute now appears as § 559.39, Fla.Stat. (Supp.1976).

      . 64 So.2d at 318.

      . Id at 319.

      . 143 Fla. at 432, 196 So. at 819.

      . See Florida Welding & Erection Serv., Inc. v. American Mut. Ins. Co., 285 So.2d 386 (Fla.1973).

      . For example, see §§ 310.001, 315.11, and 315.16, Fla.Stat. (1975).

      . See, e. g., Husband v. Cassel, 130 So.2d 69 (Fla.1961); State ex rel. Davis v. Fowler, 94 Fla. 752, 114 So. 435 (1927).