text:
    Betty KAPCHUCK, Appellant, v. Henry ORLAN and State Farm Mutual Automobile Insurance Co., a Foreign Corporation, Appellees.
    No. 75-526.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.

      Wolfson, Diamond, Logan & Edge, Miami Beach, for appellant.
    Talburt, Kubicki & Bradley and Daniel Draper, Jr., Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ-, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Betty Kapchuck, appeals a $3,000 jury award for injuries sustained in an automobile accident.

While driving on the expressway Ms. Kapchuck’s car was rear ended by a car operated by defendant Henry Orlan when she suddenly slowed down. After impact Mr. Orlan moved his car off the expressway while Ms. Kapchuck and her passenger abandoned her car to seek safety at the shoulder of the road. Ms. Kapchuck’s unoccupied car was then hit by a second and third vehicle. She then sued Mr. Orlan and his liability carrier for bodily injury and property damage. After trial, the jury returned a verdict for $3,000 finding Ms. Kapchuck to be 65% negligent and Mr. Orlan 35%.

On appeal Ms. Kapchuck first argues that the court erred in admitting irrelevant evidence of impacts on her abandoned car by cars other than that of defendant thereby prejudicing the jury. We cannot agree.

The test of inadmissibility is lack of relevancy. Dixie-Bell Oil Company, Inc. v. Gold, Fla.App. 1973, 275 So.2d 19. In addition to seeking recovery for bodily injury, Ms. Kapchuck sought compensation for damage to and loss of use and value of her car. Therefore, evidence as to her car being subsequently rear ended was relevant and admissible. We further note that Ms. Kapchuck and her passenger testified as to these subsequent collisions. We find that even if the jury had no knowledge of these subsequent impacts, there was sufficient independent evidence of Ms. Kapchuck’s negligence to support the jury’s verdict. See Wallace v. Rashkow, Fla.App.1972, 270 So.2d 743.

For her second argument, Ms. Kapchuck contends that the damages awarded were grossly inadequate. This point lacks merit.

Since Ms. Kapchuck’s proof of alleged injuries was based upon disputed medical testimony, we cannot say that the jurors, as reasonable people, could not have found as they did. See Anastasio v. Summersett, Fla.App.1969, 217 So.2d 854. There being competent substantial medical testimony that Ms. Kapchuck sustained no permanent disability as a result of the accident, we will not disturb the jury’s verdict. See City of Hialeah v. Hutchins, Fla.App.1968, 215 So.2d 496 and cases cited therein.

Affirmed.


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Monserrate B. McNAUGHTON, Appellant, v. Gerald D. McNAUGHTON, Appellee.
    No. 75-946.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied June 22, 1976.

      Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellant.
    Law Offices of Swan & Summers, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

Monserrate B. McNaughton appeals the final judgment dissolving her marriage to Gerald D. McNaughton. She assigns error upon the financial provisions made for her and the children.

The parties were married in 1957 when she was an airline stewardess and he was an airplane mechanic. The husband is now an airline pilot with an income of $52,086 per year. The wife has not worked outside the home since shortly after the marriage; the husband testified that she has been a good wife and mother. There are three children: Robert 15, Gregory 14 and Bert 7. The husband is now 42 and the wife is 43 years of age.

The husband and wife have lived well and now own a home and three cars. Since the husband left the home, he has rented an apartment for $205 per month and estimates that he needs $772 per month for expenses. The cost for the maintenance of the home are: mortgage payments and taxes, $375 per month; electricity, $92.18 per month; incidental care, about $37 per month.

The final judgment provides: (1) The wife is to have custody of the three children including child support of $125 per month for each child. The husband is to provide for medical expenses. He may provide for private schooling for Bert, age 7, if he so desires. (2) The house is to remain as a tenancy in common, to be occupied by the wife and children until 1980. The wife is to pay the mortgage, insurance, and all other expenses of the property. The home and furniture are to be sold after January 1, 1980, or prior thereto if the wife remarries or the children no longer occupy the home. (3) The wife is to receive rehabilitative alimony as follows:

* * * * * #
“. . . the sum of $750.00 per month on the 15th day of each month commencing with March 15, 1975 and continuing thereafter until the 15th day of December, 1975; on January 15, 1976 through December 15, 1976, the said payments shall be reduced to $600.00 per month; on January 15, 1977 through December 15, 1977, the said payments shall be reduced to $550.00 per month; on January 15, 1978 through December 15, 1978, the said payments shall be reduced to $500.00 per month; on January 15, 1979, through December 15, 1979, the said payments shall be reduced to $350.00 per month. Upon the Husband’s payment of said rehabilitative alimony of $350.00 on December 15, 1979, the Husband’s repon-sibility for rehabilitative alimony shall terminate and cease, or upon the death or remarriage of the Wife, if such event occurs prior to December 15, 1979.”
* * * * sis *

The wife contends: (1) The court erred in providing rehabilitative rather than permanent alimony; (2) the alimony and child support are inadequate; (3) the court erred in failing to retain jurisdiction for the possible further needs of the wife; (4) it was improper to require the wife to pay all of the fixed expenses of the home; and (5) the court erred in ordering the sale of the home. The husband contends that the awards are within the discretion of the trial judge and that the issue of the sale of the home was tried by mutual consent.

We hold that the trial judge erred in determining that the facts of this case called for rehabilitative alimony. See Reback v. Reback, Fla.App.1974, 296 So.2d 541; and Schwartz v. Schwartz, Fla.App.1974, 297 So.2d 117. This 43 year old mother has no income or training. She ought not be required to leave the home and the children in order to gain the means of support when the husband is well able to support his wife and children during the minority of the children. The wife will be 54 years old when the youngest child reaches 18. For the court to determine at this time that the wife can enter the labor market and support herself at that time is a prediction that need not be made at this time because the court may adjust alimony to changed conditions upon a proper petition. During the marriage, the husband maintained a good home and approved of the role of the wife. There is no reason that the dissolution should disrupt the home for the children so long as the husband is well able to maintain them in that home. We therefore, hold that error has been demonstrated on this point.

The amount of $750 per month as alimony is adequate and that amount is not an abuse of the discretion of the trial judge. See Silvers v. Silvers, Fla.App.1973, 274 So.2d 555. Our review of the record reveals no basis for the intermittent reductions in the amount of alimony. The sum of $750 is not excessive in view of the wife’s obligation to make all payments on the home and to carry all household expenses. It is not necessary for a trial judge to anticipate changes in the circumstances. The statutes and the case law of this state provide the judge with a wide basis for the change in the amount of alimony where there is a change in financial circumstances or where equity so requires. See Fla.Stat. § 61.14; and Nichols v. Nichols, Fla.App.1974, 304 So.2d 497. The reduction of alimony from $750 to lesser amounts is an abuse of discretion under the facts of this case. We find no basis or reason to disturb the amount of child support allowed.

The wife’s point directed to the court’s failure to retain jurisdiction was well taken under the judgment for rehabilitative alimony. See Weinman v. Weinman, Fla.App.1975, 310 So.2d 442; and Shaw v. Shaw, Fla.App.1975, 314 So.2d 205. The court has properly retained jurisdiction for other purposes. In view of our determination that rehabilitative alimony is not proper in this case, we need not consider this point further.

We hold that it was not error to require the wife to pay all expenses of the home while it is being maintained as a residence for herself and the children.

The wife correctly contends that it was error for the court to order the sale of the home in 1980. Real property held as an estate by the entireties is not automatically subject to sale as a part of a dissolution of marriage. See Harder v. Harder, Fla.App.1972, 264 So.2d 476. We do not find that the wife consented to the injection of that issue into the trial. The order for a future sale is improper for the additional reason that the youngest child will be 12 years old in 1980. Unless there is a change in circumstances, the home should not be disturbed until the youngest child reaches majority. See Reisman v. Reisman, Fla.App.1975, 314 So.2d 783; Venzer v. Venzer, Fla.App.1975, 308 So.2d 544; and Plant v. Plant, Fla.App.1975, 320 So.2d 455.

Having reached the conclusion that error has been shown, we reverse the judgment appealed as to the provisions for alimony and the order for the sale of the home and remand the cause for the entry of an amended judgment, which shall provide: (1) that the wife shall receive $750 per month periodic alimony, permanent in nature, (2) that the wife shall have the use and occupancy of the home until the youngest child reaches majority unless the wife remarries or the property is no longer used as a home for the children, and (3) that the provision for the sale of the home be stricken from the appealed judgment.

Reversed and remanded.

      . We were informed at oral argument that one of the children is now with the father. If this arrangement is permanent, the judgment should be amended as to support for that child.


author: PER CURIAM.

text:
    Charles BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1392.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied June 22, 1976.
    Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony Musto and C. Marie Bernard, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The only substantial question on this appeal from a judgment of guilt and sentence for possession and sale of a controlled substance concerns the use, on cross-examination of the defendant who had denied any involvement with the crime, of the following statement in a letter gratuitously written by Blake to a State’s Attorney:

“Please, sir, I hope and pray you will find it in your heart to talk to Judge R. McIntosh to give me one more chance and put me on probation ?”

We conclude, as did the trial judge, that the statement was properly permitted to be used as a party admission and in impeachment of the defendant’s testimony on direct examination. Ivey v. State, 132 Fla. 36, 180 So. 368, 369 (1938). The letter was not privileged as a “plea discussion” under Rule 3.171, F.R.Cr.P., which provides in part that:

“(a) The Prosecuting Attorney is encouraged to discuss and agree on pleas which may be entered by a defendant. Such discussion and agreement must be conducted with the defendant’s counsel or, if the defendant is unrepresented, may be conducted with defendant.
% sji ;]« * *
“(d) Discussion and Agreement Not Admissible. If the defendant pleads not guilty, no mention of any prior proceedings hereunder [emphasis supplied] shall be admissible against him.”

It is apparent that the entirely unsolicited and self-initiated communication from the defendant was not part of a proceeding “under” or contemplated by the rule.

AFFIRMED.

WALDEN, C. J., CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Luis A. PINEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1309.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Maurice M. Diliberto and Howard Hoch-man, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Hines, Fla.1967, 195 So.2d 550 and State v. Padilla, Fla.App. 1970, 235 So.2d 309; Moore v. Wainwright, Fla.App.1971, 248 So.2d 262; Riley v. State, Fla.App.1972, 266 So.2d 173; Chavis v. State, Fla.App.1973, 274 So.2d 544; Jones v. State, Fla.App.1973, 276 So.2d 550.


author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Millicent Jean F. COOK, Appellant, v. BLAZER FINANCIAL SERVICES, INC., etc., Appellee.
    No. Z-229.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied June 23, 1976.

      James C. Handly, Jr., Jacksonville, for appellant.
    Edwin W. Held, of Fischette, Parrish, Owen & Held, Jacksonville, for appellee.
   McCORD, Judge.

This is an appeal by Millicent Jean F. Cook from a summary final judgment of foreclosure entered in favor of Blazer Financial Services, Inc., on July 18, 1975, and an order entered by the trial court on May 15, 1975, dismissing Cook’s counterclaim for failure to state a cause of action under Sections 559.55(1), 559.72, and 559.-77, Florida Statutes. The sole question involved on appeal is whether or not Cook’s counterclaim stated a cause of action.

Cook’s counterclaim alleged that Blazer, in collecting its claim against her, engaged in certain practices which are specifically prohibited by § 559.72, Florida Statutes. That section provides in part as follows:

“In collecting consumer claims, whether or not licensed by the division, no person shall: . . . ” (Emphasis supplied)

The statute goes on to list certain prohibited acts or practices. Section 559.77(1) provides as follows:

“(1) A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or [$500], whichever is greater, together with court costs and reasonable attorney’s fees incurred by the plaintiff. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If it appears to the court that the suit brought by the plaintiff was ill-founded or brought for purposes of harassment, the plaintiff shall be liable for court costs and reasonable attorney’s fees incurred by the defendant.” (Emphasis supplied)

The trial court, in its order dismissing the counterclaim, ruled that Cook “has no cause of action assertible by Counterclaim against the plaintiff under the provisions of Part 5 ‘consumer collection practices’ of Sections 559.55 et seq., Florida Statutes.”

Chapter 559, Florida Statutes, is entitled “Regulation of Trade, Commerce and Investments, Generally” and Part V is entitled “Consumer Collection Practices.” Blazer contends that Part V relates only to consumer collection practices by a collection agency. The term “collection agency” is defined by § 559.55(4)(a) and in general terms means any person who attempts to collect or collects consumer claims owed or alleged to be owed to another person. Blazer is admittedly not a collection agency as defined by that statute but is a small loan company which was attempting to collect its own claim from Cook. Section 559.72, under which Cook’s counterclaim was filed (and which we have quoted in part above), is entitled “Prohibited Practices Generally” and provides that “no person shall” engage in the thereafter listed prohibited practices. Thus, the question is whether or not the statute means “no person” as stated or “no collection agency.” Cook contends that it means “no person’ and we agree.

A court may look to the title of an act to aid in the interpretation of the act but the meaning may not be enlarged by the title. 30 Fla.Jur. “Statutes” § 108 (1974); Richardson v. City of Miami, 144 Fla. 294, 198 So. 51 (1940); Foley v. State, Fla., 50 So.2d 179 (1951). If there is any doubt or ambiguity as to the meaning of the word “person” as used in § 559.-72, such meaning is made perfectly clear by the title to the original session law, Chapter 72-81, Laws of Florida, which provides in pertinent part as follows:

“AN ACT relating to the regulation of consumer collection practices; providing definitions; providing for licensing, fees, and bonding of collection agencies; providing standards governing the issuance of collection agency licenses; providing for prohibited practices applicable to persons generally, providing a civil remedy; ...” (Emphasis supplied)

It is clear that the legislature intended the prohibited practices to be applicable to persons generally and not just to collection agencies. The word “person” as defined by § 1.01(3), Florida Statutes, includes all corporations, which, of course, includes Blazer.

Reversed and remanded.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent. It is my opinion that the trial judge was correct in finding that the defendant [appellant] has no cause of action assertible by Counterclaim against the plaintiff [appellee] under the provisions of Part 5 ‘Consumer Collection Practices’ of Sections 559.55 et seq. Florida Statutes”.

The provisions of Chapter 559, Part V, Florida Statutes, relate to licensing a collection agency and the penalties which a collection agency may incur when it engages in the prohibitive practices set out therein, and specifically in Florida Statutes 559.72 and 559.73. These sections apply to consumer collection practices of a collection agency and persons who operate or work for a collection agency, but do not apply to creditors. A collection agency is a person or entity who attempts to collect a debt owed to another person or entity. Appellee clearly is not a collection agency. To construe “person” as the majority has, in my opinion, is to judicially amend Part V of Chapter 559, Florida Statutes.

      . The definitions section of Chapter 559, F.S. 559.55, provides the following:
      “[559.55] (4) (a) ‘Collection agency’ means any person who, by himself, or through others, directly or indirectly, in whole or in part: “1. Attempts to collect or collects consumer claims owed or alleged to be owed to another person;
      “(b) ‘Collection agency” does not include:
      “3. Banks, including trust departments thereof, fiduciaries, savings and loan associations, building and loan associations, institutions operating under chapters 516 and 519, and other financing and lending institutions.”


author: BY THE COURT.

text:
    John Robert MONTGOMERY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-429.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Rehearing Denied June 22, 1976.

      P. Kevin Davey, of Douglass & Powell, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Montgomery was charged with and found guilty of possession of, importation of, and possession with intent to sell more than five grams of marijuana. A jury found him guilty of all charges. He was adjudged guilty and sentenced.

Montgomery appeals and contends the trial court erred in the following respects:

1. By denying his motion to suppress the marijuana. We do not agree. State v. Dycus, 238 So.2d 493 (Fla.App.2d, 1970). We affirm.

2. By allowing a police officer to be qualified and give expert testimony. We do not agree. Tongay v. State, 79 So.2d 673 (Fla.1955). We affirm.

3.By imposing a sentence on each of the three offenses. We agree. Jackson v. State, 311 So.2d 811 (Fla.App.1st, 1975). We affirm the sentence imposed on the offense charged in count one, but reverse the sentences imposed on the offenses charged in counts two and three.

Affirmed in part, and reversed in part.

MILLS, Acting C. J., SMITH, J., and AGNER, ROYCE, Associate Judge, concur.


text:
    STATE of Florida By Gerald A. LEWIS, as comptroller, Appellant (Plaintiff), v. COASTAL RESORTS, INC., etc., Appellees (Defendants).
    No. BB-190.
    District Court of Appeal of Florida, First District.
    May 19, 1976.
    Rehearing Denied June 22, 1976.
    Edward E. Kuhnel and Fred O. Drake, III, Tallahassee, for appellant.
    Jeffrey Allen Tew of Tew, Tew & Murray, Miami, Claude L. Mullis, Burton Spraker, Jacksonville, for appellees.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, the interlocutory appeal is dismissed.

McCORD, Acting C. J., MILLS, J., and AGNER, ROYCE, Associate Judge, concur.


author: McCORD, Judge.

text:
    E. L. BROOKS, Property Appraiser for Putnam County, Florida, Appellant, v. INTERLACHEN LAKES ESTATES, INC., et al., Appellees.
    No. BB-222.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    William L. Townsend, Jr., Walton & Townsend, Palatka, for appellant.
    Edward E. Hedstrom, Dowda, Hedstrom & Fields, and Ronald E. Clark, Palatka, for appellees.
   McCORD, Judge.

This is an interlocutory appeal from an order denying appellant’s motion to dismiss appellees’ complaint without leave to amend. The court dismissed the complaint but with leave to amend. Appellant contends the court lacked jurisdiction over the subject matter and parties, and therefore the complaint should have been dismissed without leave to amend.

Pursuant to § 194.171, Florida Statutes, appellees filed a complaint within the 60 day period allowed by that statute seeking review of ad valorem tax assessments on their property. Appellant property appraiser moved to dismiss the complaint without leave to amend on the ground that the court lacked jurisdiction as aforesaid in that appellees had failed to pay the tax and obtain a receipt as a prerequisite to filing suit as required by § 194.171(3) which provides as follows:

“(3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.”

A hearing on the property appraiser’s motion to dismiss was set for February 9, 1976. On that same date, appellee tendered to the tax collector the sum of $170,012.94 as the amount of taxes which it, in good faith, admitted to be owing. The tax collector refused to give appellee a receipt or to deposit the monies in the general revenue fund stating in an acknowl-edgement of tender that the amount of taxes had substantially increased since December as the December discount no longer applied. He placed the monies in an escrow account. The court entered the order here appealed from dismissing the complaint with leave to amend.

The tax collector was in error in refusing to give appellee a receipt for payment of the taxes which appellee in good faith admitted owing. The amount paid by appellee was the full amount of such taxes without deducting any discount therefrom.

This case is controlled by this court’s previous opinion in Hilltop Ranch, Inc. v. Brown, Fla.App. (1st), 308 So.2d 124 (1975). There the same question was before the court, the only difference being that in Hilltop the taxpayer paid the taxes and filed an amended complaint before the hearing on motion to dismiss his original complaint. There the court said:

“. . . Although appellant did not originally pay the taxes prior to the filing of its complaint, it did, prior to the ruling on appellees’ motions to dismiss, pay the taxes and then filed an amended complaint. It is our opinion, and we so hold, that the relation back of amendments provisions of Civil Procedure Rule 1.190(c) is applicable in this case, and that the trial court erred in not finding that the amended complaint, containing the allegation of payment and receipt therefor, related back to the date of the original complaint. See In Re Estate of Wood, 271 So.2d 42 (Fla.App. 3rd, 1972), opinion affirmed and adopted by Florida Supreme Court in 278 So.2d 614 (Fla.1973). Thus, even if we were to hold that the payment of the taxes within the 60 days allowed for filing a complaint were a jurisdictional prerequisite, which we decline to do at this time, we find that appellant complied with the requirement when it filed its amended complaint which related back to the time of filing the original complaint.”

The circumstance in the case sub judice that an amended complaint was not filed prior to hearing on the motion to dismiss is not a material distinction between this case and Hilltop. The trial court was correct in dismissing with leave to amend. When an amended complaint is filed, it will relate back to the time of filing the original complaint.

Affirmed.

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


author: SMITH, Judge.

text:
    C. T. BECKHAM, Appellant, v. Hugh HOLBORN and Henry Brilliant, Appellees.
    No. Z-86.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Rehearing Denied June 23, 1976.

      Carl M. Stewart, of Corrigan, Werber & Moore, Chartered, Jacksonville, for appellant.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for ap-pellee Holborn.
   SMITH, Judge.

Beckham appeals from a judgment refunding appellee Holborn the purchase price he paid Translinear, Inc., a Texas corporation, for shares of Translinear common stock which were not registered as securities in Florida. The court found that the sale by Translinear to Holborn occurred in Florida, that the exemption from Florida registration afforded by § 517.-06(11), F.S., was not satisfied, that the transaction violated ch. 517, F.S., and that appellant Beckham, Translinear’s president who personally participated in the sale of Translinear stock to Holborn, was directly liable to the purchaser by virtue of § 517.-21(1).

Before Holborn’s case against Beckham went to trial, the court dismissed Holborn’s complaint against Translinear on the ground that Translinear had not engaged in a business or business venture in Florida in respect to the sale of its stock and so was not subject to service of process on the Secretary of State by virtue of § 48.-181(1), F.S.1971. But the trial court simultaneously held that Beckham, Transli-near’s president, had engaged in such activity and so was subject to jurisdiction under § 48.181(1).

By interlocutory appeal Beckham attacked the trial court’s order sustaining service of process on him and Holborn sought review of the dismissal of Transli-near. This Court sustained the order dismissing Holborn’s complaint against Tran-slinear for want of jurisdiction, but Beck-ham abandoned his effort to obtain interlocutory relief and went to trial. Beckham v. Holborn (Holborn v. Translinear, Inc.,) 330 So.2d 101 (Fla.App. 1st, 1976). Having not previously reviewed the interlocutory order affecting Beckham, we now review it on Beckham’s plenary appeal.

Our decision in favor of Transli-near concludes Holborn’s case against Beckham as well, for there is no evidence from which it might be found that Beck-ham, as an individual — but not as Transli-near’s president — engaged in the business or business venture of selling Translinear stock in Florida. In sustaining jurisdiction over Beckham, the trial court perhaps gave undue weight to Holborn’s affidavit reciting that Beckham and another Translinear officer “acted in their personal capacity as individuals” as well as for Translinear. There being no evidence to support that view of the matter, Beckham is the beneficiary of the trial court’s finding that Translinear did not subject itself to service of process by Beckham’s conduct. If Beck-ham’s Florida activities did not for § 48.-181(1) purposes constitute a sale by Trans-linear in Florida of unregistered Translin-ear stock, the court had no jurisdiction to enforce remedies against Beckham as one who has “personally participated or aided in any way in making the sale.” Sec. 517.-21(1), F.S. The service of process on the Secretary of State in this case was as ineffectual against Beckham as it was against Translinear.

REVERSED.

RAWLS, Acting C. J., and SWIGERT, WILLIAM T., SR., Associate Judge, concur.


author: RAWLS, Acting Chief Judge. SMITH, Judge

text:
    Wynn E. WALTERS, Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF HEALTH, Respondent.
    No. Z-463.
    District Court of Appeal of Florida, First District.
    May 28, 1976.
    Richard Kane of Kane & Kaufman, Day-tona Beach, for petitioner.
    Robert M. Eisenberg and J. E. Hodges, Jacksonville, for respondent.
   RAWLS, Acting Chief Judge.

By petition for writ of certiorari, Walters challenges an order of the Circuit Court of Volusia County transferring venue of this administrative proceeding to the Circuit Court for Leon County.

On March 11, 1975, petitioner sought review in the Circuit Court of Volusia County of an order of the Division of Health revoking petitioner’s certificate of registration as a licensed hearing aid dealer. Seven days later, petitioner recorded the certificate of registration in the Circuit Court Clerk’s office in Volusia County. Super-sedeas was granted petitioner by the Vol-usia County Circuit Court. Various and sundry motions were filed by each party which were entertained and ruled upon by the Volusia County Circuit Court. On May 9, 1975, respondent filed an interlocutory appeal from the Circuit Court of Volusia County to this court. Numerous motions and depositions were filed in the Volusia County Circuit Court while the interlocutory appeal was pending in this court. On July 14, 1975, this court filed its opinion dismissing the interlocutory appeal on the ground that an interlocutory appeal was not available from a judgment of a circuit court exercising appellate jurisdiction. On August 15, 1975, respondent filed a Motion to Transfer Jurisdiction for Writ of Certi-orari to Proper Court. On September 2, 1975, the Circuit Court of Volusia County entered an order providing:

“This cause came on to be heard upon the Respondent’s motion to transfer the jurisdiction for writ of certiorari to proper court dated August 13, 1975 [filed August 15, 1975] ....
“WHEREFORE it is the order of this court that Respondent’s motion to transfer jurisdiction for writ of certiorari to proper court is hereby granted ...” (emphasis supplied)

The question presented in this case is not one of jurisdiction but of venue; the distinction between which, apparently, was not understood by respondent or the trial court. ' Venue is one thing; jurisdiction is another. They are not synonymous. Venue concerns “the privilege of being accountable to a Court in a particular location”. Jurisdiction is “the power to act”, the authority to adjudicate the subject matter. Florida Statute 468.133 (1973) entitled “Review of orders of the division by the circuit courts; procedure and venue [emphasis supplied]”, subsection (1) provided:

“The final order of the division in proceedings for the suspension or revocation of certificates of registration shall be subject to review by the Circuit Court of Leon County, or the county wherein the registrant has recorded his certification of registration and has his principal place of business, or of the county wherein the books and records of the division are kept.”

Thus, jurisdiction to review respondent’s orders for suspension or revocation of certificates of registration was vested in one of three circuit courts: 1) the Circuit Court of Leon County, 2) the circuit court for the county wherein respondent here kept its books and records, or 3) the circuit court for the county wherein petitioner here had recorded his certificate of registration and had his principal place of business.

It is uncontradicted that petitioner had his principal place of business in Volusia County and that petitioner did record his certificate of registration seven days after seeking appellate review of respondent’s order. Jurisdiction for such review by the Volusia County Circuit Court was statutorily provided. Proper venue for such appellate review was dependent upon a factual basis. Respondent having not initially challenged venue, the subsequent recording of the certificate of registration by petitioner cured the deficiency of venue in the Circuit Court of Volusia County.

Certiorari is granted. The order transferring venue to Leon County is quashed.

MILLS, J., concurs.

SMITH, J., specially concurs.

SMITH, Judge

(concurring):

I agree to the court’s judgment restoring this case to the Circuit Court of Volusia County for disposition. I would not, however, predicate the decision on a theory that respondent’s “Motion to Transfer Jurisdiction for Writ of Certiorari to Proper Court” was ineffective to raise the venue question. Rather, I would give respondent’s motion full effect for that purpose and hold, nevertheless, that the statutory requirement for recording petitioner’s certificate in the county of his principal place of business could be satisfied during the course of litigation, whenever recordation became necessary to save petitioner’s subt stantial right to litigate at home.

      . State Department of Health & Rehabilitative Services, Division of Health v. Walters, 315 So.2d 494 (1 Fla.App.1975).

      . McGowin v, McGowin, 122 Fla. 394, 165 So. 274 (1936).

      . Williams v. Ferrentino, 199 So.2d 504 (2 Fla.App.1967).

      .The Division of Health was abolished and its functions transferred to the Department of Health and Rehabilitative Services on October 1, 1975. See § 3(3), ch. 75-48, Laws of Florida.


text:
    William Arnold HUTTON, Appellant, v. STATE of Florida, Appellee.
    Nos. AA-150, AA-151 and AA-152.
    District Court of Appeal of Florida, First District.
    May 28, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant was convicted of the crime of receiving stolen property, contrary to Florida Statute 811.16(1973).

At trial, the state presented evidence which tended to show that a number of tools worth about $400.00 were stolen from G & P Auto Parts sometime during the first week of July, 1975. There was also evidence which tended to show that the appellant was shortly thereafter in possession of the stolen tools, for he had given them to one Obie Harris as payment on a $200.-00 debt. A police officer recovered the tools from Mr. Harris on July 15,1975.

Following the presentation of the foregoing evidence, the state sought to introduce a statement given by appellant to the police after his arrest. In that statement, appellant explained that he had noticed the tools lying under a palm tree near G & P Auto Parts while on his way to play tennis. He hid them in an old warehouse. He proceeded to play tennis and then went home. Later, he returned and took possession of the tools until giving them to Mr. Harris.

Appellant’s counsel strongly objected to the introduction of the foregoing statement, contending it was not admissible because the state had failed to prove the corpus delicti of the crime for which appellant was charged. The objection was overruled, and the statement was presented to the jury. The state rested its case; the appellant presented no evidence, and the jury returned a verdict of guilty.

There can be no doubt that an essential element of the crime of receiving stolen property knowing same to have been stolen is knowledge by the accused that at the time he received the property it was stolen, or knowledge of such fact as would put a person of ordinary intelligence and caution in inquiry. This requirement of knowledge by the accused may not be shown merely by proof of possession of recently stolen property, not aided by othei proof.

Appellant correctly aserts that an extra-judicial confession should not be admitted unless the corpus delicti of the crime is established by prima facie evidence independent of the confession. The question arises of whether the state presented a prima facie case without the presentation of appellant’s extra-judicial statement to the police. As stated, part of the corpus delicti of the crime herein is guilty knowledge. The state, independent of that statement, showed that appellant was in possession of $400.00 worth of recently stolen goods which he used to pay off a $200.00 debt; thus, the goods were being sold at less than their value. This fact established a prima facie case and thus permitted introduction of the extrajudicial statement.

The judgment appealed is AFFIRMED.

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

      .As a result of this conviction, appellant’s probation was revoked and he was adjudicated guilty and sentenced in two other cases. Appeals were filed in all three cases, and all were consolidated into one cause.

      . Seymour v. State, 246 So.2d 155 (3 Fla.App.1971), cert. den. 250 So.2d 641 (Fla.1971).

      . Graham v. State, 238 So.2d 618 (Fla.1970).

      . Smith v. State, 135 Fla. 835, 186 So. 203 (1939); McQueen v. State, 304 So.2d 501 (4 Fla.App.1974), cert. den. 315 So.2d 193 (Fla.1975).

      . Graham v. State, supra.


author: SCHEB, Judge.

text:
    FLORIDA POWER CORPORATION, a Florida Corporation, Appellant, v. Charles F. TAYLOR et al., Appellees.
    No. 75-1161.
    District Court of Appeal of Florida, Second District.
    May 28, 1976.

      Jeffrey S. O’Brien and Sam H. Mann, Jr., of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellant.
    Donald V. Bulleit and William T. Atch-ley, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for Diversacon.
    Ralph E. Elliott, Jr., and Frank C. Decker, Jacksonville, for Canal Authority of the State of Florida.
    Stephen P. Kanar, of Fishback, Davis, Dominick & Simonet, Orlando, and Russell Troutman, of Troutman & Parrish, Winter Park, for Charles F. and Dolores Taylor.
   SCHEB, Judge.

Appellant/Florida Power Corporation contends the trial court erred in entry of summary judgments against it on its third party complaint seeking both indemnity and contribution against the appellee/Canal Authority of the State of Florida and in seeking indemnity against appellee/Diversacon, Inc. We agree and reverse.

Charles Taylor and Dolores Taylor, his wife, sued Florida Power, alleging Mr. Taylor, an employee of Diversacon, undertook to measure the distance between the ground and one of Florida Power’s high voltage transmission lines by extending a surveyor’s rod into the vicinity of the line, whereupon the electrical current arced from the line to the rod resulting in injury to him. The Taylors further alleged that Florida Power, having actual or constructive knowledge of construction activities in the area, should have foreseen that some object might come in contact with or in close proximity to the power line; also, that Florida Power was negligent in maintaining uninsulated power lines so dangerously close to the ground and in failing to warn Taylor of the danger of bringing objects into contact with those wires. Florida Power denied all material allegations of the Taylors’ complaint and asserted affirmative defenses.

Florida Power brought its third party complaint against the Canal Authority and Diversacon on the theory that should it be found liable, it would be entitled to contribution and alternatively, since its negligence would be categorized as passive rather than active, it would be entitled to indemnity from both parties as active tort-feasors. Florida Power’s claim of indemnity against Canal Authority was additionally based on a provision in a grant of an easement from it to Canal Authority.

The accident occurred during construction of the Cross Florida Barge Canal. The Canal Authority acquired the land where the accident occurred from Florida Power in 1968, by a conveyance wherein Florida Power retained an easement on, over, under, and across a 100-foot strip of land to maintain its electrical transmission lines. The coveyance was subject to a restriction that any roads built under its power lines would be no closer than 25 feet to those lines. The Canal Authority-later made the lands available to the U. S. Army Corps of Engineers which in turn contracted with predecessors of Diversacon to construct the Inglis Spillway and Dam in accordance with the Corps’ plan. Sometime between September 1971, and April 1972, under Diversacon’s supervision, the road under Florida Power’s transmission lines was elevated a distance of six feet in violation of the deed restrictions.

In one of the summary judgments granted against Florida Power the trial judge reasoned :

“ . . . Florida Power Corporation’s liability to the plaintiff, if any, is based on ‘active negligence’ and not ‘passive negligence’ which would entitle it to indemnity or contribution from joint tort-feasors.”

It is now well settled that on a motion for summary judgment the burden of proof is on the moving party to show the absence of any genuine issue as to any material fact and all doubts and inferences must be resolved against the movant. Holl v. Talcott, Fla.1966, 191 So.2d 40; Booth v. Mary Carter Paint Co., Fla.App.2d 1966, 182 So.2d 292. Given that rule applicable to summary judgments, we proceed to the principles of law involved here.

INDEMNITY

Formerly, under Florida law, one of two joint tortfeasors was generally not entitled to recover any reimbursement from the other. However, there developed an exception to this rule, based on the principle of indemnity. The principles of law governing indemnity are set forth in Stuart v. Hertz Corporation, Fla.App.4th 1974, 302 So.2d 187. In discussing the subject in Stuart, as applied factually to the controversy before us, Judge Mager points out that the right to indenmity may arise from either (a) an express contract, or (b) the existence and violation of a duty as between tortfeasors.

One common example of the principle which allows indemnity to tortfeasor is where an automobile owner is held vicariously liable for damages caused by a negligent driver of his vehicle. Fincher Motor Sales, Inc. v. Larkin, Fla.App.3d 1963, 156 So.2d 672; Hutchins v. Campbell, Inc., Fla.App.2d 1960, 123 So.2d 273. But, the rule has applicability beyond the context of vicarious liability. Thus, when the active or primary negligence of one tortfeasor and the passive or secondary negligence of another combine to proximately cause an injury to a third party, the passively negligent tortfeasor becomes entitled to indemnity from the actively negligent one. Maybarduk v. Bustamante, Fla.App.4th 1974, 294 So.2d 374.

Generally, the mere failure to discover an unsafe or dangerous condition, created by a joint tortfeasor constitutes passive negligence and does not bar indemnity against the tortfeasor whose active or primary negligence created the dangerous condition. See Restatement of Law of Restitution, § 95; Kansas City Southern Railway Co. v. Payway Feed Mills, Inc., Mo.1960, 338 S.W.2d 1; United Airlines, Inc. v. Wiener, 9th Cir. 1964, 335 F.2d 379; Booth-Kelly Lumber Co. v. Southern Pacific Co., 9th Cir. 1950, 183 F.2d 902; Chicago Great Western Railroad Co. v. Casura, 8th Cir. 1956, 234 F.2d 441; Cobb v. Southern Pacific Co., 1967, 251 Cal.App.2d 929, 59 Cal.Rptr. 916. This principle was discussed in Winn-Dixie, Inc. v. Fellows, Fla.App.1st 1963, 153 So.2d 45, as modified, Winn-Dixie Stores, Inc. v. Pepsi-Cola Bottling Co. of Jacksonville, Inc., Fla.1964, 160 So.2d 102, where one of Winn-Dixie’s customers was injured when a carton of beverages fell to the floor as a result of a negligently constructed display. There the plaintiff recovered verdicts against both Winn-Dixie and Pepsi-Cola. Winn-Dixie sought indemnity from Pepsi-Cola contending its (Winn-Dixie’s) liability to the plaintiff resulted only from its secondary or passive negligence in breaching a duty which it owed to, the plaintiff to discover and correct the dangerous display; that Pepsi-Cola which constructed the display was the active tort-feasor whose negligence was primarily responsible for the plaintiff’s damages. The court there held that if the proof established Winn-Dixie was without primary fault; i. e., without actual as distinguished from constructive knowledge that the display was built in a dangerous and hazardous manner, then Winn-Dixie would be a passive tort-feasor entitled to indemnity from Pepsi-Cola. In that case Winn-Dixie was held to be actively negligent and not entitled to indemnity.

In the case now before us, there is a dispute as to when Florida Power first gained actual knowledge that Diversacon had raised the road. It is undisputed, however, that the day before Taylor’s accident, Florida Power had been notified that the boom on a truck traveling on this elevated road had come into contact with one of its power lines. Florida Power then deemed it advisable to measure the height of the lines and sent someone from its company to check on this. Mr. Penny, its engineer, discussed the problem with Taylor on that same day. The following day Taylor extended his surveyor’s rod to accomplish the needed measurement. The proof is in conflict as to the method Taylor was requested or directed to employ to measure the height of the lines from ground level. Florida Power contended he was to calculate the distance by triangulation; however, it is undisputed that Taylor extended his surveyor’s rod upward and made a direct measurement. When the rod came into the vicinity of the power lines, the current arced and caused injuries to Taylor.

Florida Power argues that Taylor’s injuries were the direct result of Diversacon’s active negligence in elevating the road and that Florida Power’s negligence, if any, was in its mere failure to discover this dangerous condition which, it argues, was as most passive. Moreover, Florida Power contends that the Canal Authority had a contractual obligation with it not to elevate the road and that this contractual provision, standing alone, gives it a right of indemnity against the Canal Authority. Diversacon, on the other hand, contends the trial judge correctly found that Florida Power’s negligence was active as a matter of law in that Florida Power permitted a lay person to deal with high voltage electric wires, a function which should have been accomplished only by one of its own trained technicians. This negligence, Diversacon contends, was the proximate cause of the injury to Taylor. Florida Power counters by stating that there is a material issue as to whether Tayor was instructed to measure directly or indirectly and this precluded entry of a summary judgment. Conflict on the point is patent.

If the trier of fact eventually determines that Florida Power was negligent in that it had actual notice of the road elevation and failed to act timely in a reasonable manner; or if the facts are resolved against it for seeking or permitting Taylor to perform measurements in an unsafe manner, then it would appear that Florida Power would be an actively rather than a passively negligent actor and would be denied indemnity. Florida Power & Light Co. v. General Safety Equipment Co., Fla.App.3d 1968, 213 So.2d 486.

If on the contrary, it is determined that once it received actual notice of the road construction, Florida Power moved promptly to correct the situation and thereafter was not negligent in respect to Taylor’s measurements of the height of its power lines, then Florida Power’s negligence, if any, would appear to be only passive. The plaintiff’s complaint alleges:

“(5) The defendant negligently constructed, maintained and operated its electrical power lines hereinabove referred to in that said power lines were unreasonably and dangerously close to the ground.

If Florida Power was without actual knowledge of Diversacon’s activity in raising the road under the lines, any negligence of the power company in failing to earlier discover that dangerous condition would be only passive negligence under Winn-Dixie, supra. Of course, to recover on the basis of the active-passive theory of indemnity, it would be necessary for the fact find'er tq conclude that Diversacon and/or Canal Authority were active tortfeasors.

We are not necessarily holding that the allegations of Paragraph S, quoted above, are sufficient to hold Florida Power Company liable to the plaintiff under the circumstances of this case. Rather, we hold only that some allegations in the complaint give rise to inferences that Florida Power’s negligence, if any, could have been passive only. In any event, this possibility has not been conclusively eliminated by the proof submitted to the trial judge. Therefore, it was improper to grant summary judgment against Florida Power on its third party complaint against Diversacon and the Canal Authority. See Peoples Gas System, Inc. v. B & P Restaurant Corp., Fla.App.3d 1973, 271 So.2d 804.

We next turn to the power company’s argument that the covenant in the deed to the Canal Authority furnishes an independent basis for indemnity against the Canal Authority.

We are in agreement that violation of such a contractual obligation can be the basis for indemnity. See Seaboard Air Line Ry. v. American District Electric Protective Co., 1932, 106 Fla. 330, 143 So. 316; Westinghouse Electric Corp. v. J. C. Penny Co., Fla.App.1st 1964, 166 So.2d 211; Suwannee Valley Electric Co-operative, Inc. v. Live Oak, Perry, & Gulf R. Co., Fla.1954, 73 So.2d 820. However, in none of these cases was an active tortfeasor allowed to recover on a theory of indemnity by virtue of breach of a contractual duty. In 41 Am. Jur.2d, Indemnity, § 17, it is said that indemnity will not be permitted, even when based on an agreement, to one who has acquiesced in a dangerous condition through long continued awareness.

We conclude that if the power company is found negligent, but only passively so, and it is established that the violation of the covenant by the Canal Authority proximately caused Taylor’s injuries, then the power company would be entitled to indemnity from the Canal Authority. However, if the evidence establishes the power company to have been an actively negligent tortfeasor, whether through actual knowledge of and acquiescence in the dangerous condition or otherwise, then the power company would not be entitled to indemnity on this basis.

CONTRIBUTION

Florida Power also sought contribution from the Canal Authority as an alleged joint tortfeasor. Historically, no right of contribution has existed between joint tort-feasors. Seaboard Air Line Ry. Co. v. American District Electric Protective Co., supra. However, the right of one tortfeasor to contribution from a joint tortfeasor is now controlled by the “Uniform Contribution Among Tortfeasors Act,” Fla.Stat. § 768.31, a statute enacted by the Legislature in 1975. The statute applies to all causes of action, such as this one, pending on June 13, 1975, and provides in § 2(a) thereof:

“Except as otherwise provided in this act, where two or more persons become jointly liable or severally liable in tort for the same injury to persons or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.”

At this posture of the case, there are sufficient allegations of negligence against the Canal Authority to show a right of contribution in favor of Florida Power and in view of § 768.31, supra,, Florida Power’s third party complaint for contribution against the Canal Authority should be reinstated. See also, Lincenberg v. Issen, Fla.1975, 318 So.2d 386, and Leesburg Hospital Association v. Carter, Fla.App.2d 1975, 321 So.2d 433.

Accordingly, we reverse and reinstate Florida Power’s third party complaint and remand for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and GRIMES, J., concur.

      . Florida Power withdrew its claim for contribution against Diversacon in the trial court prior to entry of the summary judgment.

      . Diversacon assumed all contractual obligations and responsibilities of its predecessors, Gregg, Gibson & Gregg, herein.


author: BOYER, Chief Judge. SMITH, Judge

text:
    Frank SIMPSON, Appellant, v. W. A. WOODHAM, as Sheriff of Gadsden County, Florida, Appellee.
    No. Y-400.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    Jack A. Harnett, of Harnett & Curry, Quincy, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   BOYER, Chief Judge.

Appellant, who was arrested in Florida for extradition to Alabama, argues here that he is entitled to be discharged from custody because the rendition warrant issued by the Governor of Florida was not physically filed or introduced into evidence in the proceedings on his petition for ha-beas corpus which was heard in the Circuit Court. We agree.

Introduction of the Governor’s warrant is essential, and the warrant should be introduced in order to test the competency of the evidence supporting it. DiPiero v. State, Fla.App. 3rd 1974, 300 So.2d 700. The DiPiero case is virtually identical to the case sub judice, except in the former, the defendant was in the process of being extradited to Maryland instead of Alabama. The prosecutor totally failed to introduce into evidence the Governor of Florida’s rendition warrant, and, while he did offer to introduce the Governor of Maryland’s warrant into evidence, the warrant was never successfully introduced.

It may be considered formalism to require a piece of evidence to be formally introduced into evidence in light of the fact that the evidence was unquestionably before the court, but we are of the view that “evidence”, waved around in the presence of the trier of the facts, judge or jury, may not be properly considered unless and until it is introduced into evidence. As stated in the DiPiero case, introduction of the Governor’s rendition warrant was vital to the State’s case. The warrant was, in effect, the only piece of evidence that could serve as the basis for introduction of the other evidence adduced. It would be a dangerous precedent indeed to hold that vital and essential evidence may be considered although not introduced.

Accordingly, the trial court’s denial of the petition for writ of certiorari is reversed, with directions that appellant be discharged.

REVERSED.

MILLS, J., concurs.

SMITH, J., dissents.

SMITH, Judge

(dissenting):

The majority decision seems to me a misapplication of the rule of Di Piero v. State, 300 So.2d 700 (Fla.App. 3rd 1974), in which the rendition warrant issued by the Governor of Florida was not evidenced to the court in the habeas corpus proceeding. In this case, by contrast, Simpson’s attorney took the initiative in the proceeding by bringing the rendition warrant to court, exhibiting it to Judge Taylor, and proceeding with the introduction of evidence offered to overcome its prima facie effect. Simpson’s petition alleged that “he is being held on a Governor’s extradition warrant which alleges that the said Frank Simpson committed a crime in the State of Alabama” and averred that “the allegations and affidavits are false” and that the warrant and supporting affidavits “name someone other than Petitioner, Frank Simpson.” An evidentiary hearing was had on the issues raised by Simpson and his counsel. A prosecuting attorney, an Alabama state trooper and two other witnesses came to Quincy, Florida, from Alabama to take part in the proceedings and give evidence tending to identify Simpson as the person sought in Alabama for prosecution in connection with the theft there of firearms which Simpson later tried to sell in Quincy.

When pressing his petition for habeas corpus by way of oral argument, Simpson’s counsel made no complaint that an exhibit number had not been stamped on the rendition warrant. He did argue, among other things, that “the affidávit contained in the extradition warrant does not describe any item of personal property of any value,” that “there can be no valid charge, in that the execution by the governor was in error” and that Simpson should be discharged “from the warrant presently pending before this Court.” After indicating his ruling denying the petition for habeas corpus, Judge Taylor directed Simpson’s counsel to “get together” with the Alabama prosecutor “and draw the order remanding the petitioner to the custody of the sheriff, a proper order for the delivery to the authorities of the State of Alabama, to be returned to the State of Alabama pursuant to the governor’s warrant. You all agree on the order and bring it to me.”

The resulting order directed that Simpson be remanded to the custody of the sheriff of Gadsden County

“. . . to be delivered by said Sheriff to the executive authority of the State of Alabama for extradition pursuant to the duly executed warrant of the Governor of the State of Florida, presently in the hands of W. A. Woodham, Sheriff of Gadsden County, Florida.”

Today’s decision orders Simpson discharged from custody because, instead of marking an exhibit number on Governor Askew’s rendition warrant and putting it in the file, Judge Taylor without objection restored the warrant to Sheriff Woodham as his authority to retake Simpson for delivery to the Alabama prosecuting authorities. Thus have we made the clerk’s stamp a talisman. Thus have we exalted formalism. I dissent.


author: BASKIN, Associate Judge.

text:
    Jessica K. FUGASSI, Appellant, v. Lucien A. FUGASSI, Appellee.
    No. 74-1752.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1976.

      William R. Scherer, Hennekam & Scherer, Fort Lauderdale, for appellant.
    John N. Tolar, Tolar & Adler, Fort Lau-derdale, for appellee.
   BASKIN, Associate Judge.

Respondent-wife appeals from a Final Judgment entered by the Broward County Circuit Court, November 1974, denying alimony, attorney’s fees, costs and an interest in the husband’s life insurance. The appeal also challenges the cancellation of ar-rearages previously held not to have been waived.

The parties were married in Pennsylvania in 1934 and lived as husband and wife until their separation in 1965. In November, 1965, the Court of Common Pleas of Allegheny County, Pennsylvania granted respondent-wife a divorce from bed and board and ordered the husband to pay $550 a month support. In May, 1969, the Pennsylvania Court entered an agreed order continuing the $550 in full force and effect.

In March, 1971, the respondent-wife brought an action in Broward County to enforce the 1969 agreed order for support. In August, 1971, the Broward County Circuit Court directed the husband to pay $350 per month, stating: “. . . the difference between the $350 per month ordered by the Pennsylvania Court is not waived and should be held as arrearage until further order of this court.” In 1973-, the husband petitioned for dissolution and the respondent-wife counterclaimed for alimony unconnected with dissolution and for adjudication of rights in the husband’s life insurance policy valued at approximately $30,000. On August 7, 1974, the court entered Final Judgment of Dissolution in a two-part hearing; the wife was denied all relief.

The respondent-wife contends on appeal that the failure of the trial court to award her alimony or support of any kind, attorney’s fees and costs constitutes an abuse of discretion. She also maintains that the trial court wrongfully cancelled accumulated arrearages and failed to give full faith and credit to the Pennsylvania support order. She maintains that she has a vested interest in the life insurance policy acquired during the marriage.

We agree that the respondent-wife is entitled to receive alimony, attorney’s fees, costs and arrearages. We do not agree that she is entitled to the life insurance policy.

1. ALIMONY. Alimony is determined by the needs of the wife and the ability of the husband to pay. Baker v. Baker, 291 So.2d 33 (Fla.App.1974); Firestone v. Firestone, 263 So.2d 223 (Fla.1972). Respondent-wife is 62 years old and has supported herself from the approximately $16,000 net she received from the husband in settlement of a Pennsylvania judgment, resulting from his having endorsed her signature on jointly owned stock. Of this sum, only $750 remains. She is ill, unable to work and is not yet receiving social security. She has not worked outside the home since 1936 and has no income. The husband was approximately $10,000 in arrears at the time of entry of Final Judgment.

In 1965 the husband earned over $40,000 per year as an executive of National Steel Corporation. At the present time, however, the husband has an income of approximately $1500 per month. Although the husband is also ill as a result of a stroke, his medical expenses are covered by insurance. His retirement income is sufficient for him to provide permanent alimony to respondent-wife.

The trial court denied support to respondent-wife because she had received a settlement from the husband. That settlement arose, however, from the wife’s prior interest in jointly owned stock. That settlement preceded her claim for alimony. The trial court abused its discretion in setting off the settlement proceeds she had received and spent against her present need for alimony. Her need, as shown by proper evidence, should have been considered by the trial court along with the husband’s ability to pay.

2. ARREARAGES. A foreign decree for the payment of alimony or child support in installments is entitled to enforcement in this state under the full faith and credit clause if it is final. A distinction, however, must be drawn between past due installments and installments not yet accrued. Courtney v. Warner, 290 So.2d 101 (Fla.App.1974); Villano v. Harper, 248 So.2d 205 (Fla.App.1971). Equitable defenses are assertable as to future installments when the foreign divorce decree is reduced to a local decree. Sackler v. Sackler, 47 So.2d 292 (Fla.1950).

A presumption exists that the court entering the decree had no authority to cancel arrears or modify the decree retrospectively. The burden is on the defendant to show that under the law of the state of rendition installments do not become due but are subject to change. In the absence of such a showing, the presumption must be indulged that there is no such law. Wolk v. Leak, 70 So.2d 498 (Fla.1954); Boyer v. Andrews, 143 Fla. 462, 196 So. 825 (1940).

In the case at bar there was no showing that Pennsylvania law permitted retroactive modification. The parties had agreed to an order of support on May 21, 1969 and a Florida court held on August 24, 1971 that arrearages were not waived.

The husband sought termination of his payments in reliance upon the decision in Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d (1973). That decision was reversed by the Supreme Court of Pennsylvania. Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).

Florida courts have an interest in enforcing foreign decrees to prevent this state from becoming a “haven for fugitive husbands.” Sackler v. Sackler, 47 So.2d 292 (Fla.1950).

For these reasons, the trial court erred in cancelling accumulated arrearages previously held not to have been waived.

3. INSURANCE. We find the wife’s contention that she is entitled to equity in the insurance policy purchased by the husband during the marriage to be without merit. The husband changed the beneficiary of the policy to his new wife as was his right. Miller v. Gulf Life Insurance, 152 Fla. 221, 12 So.2d 127 (1943). Respondent-wife contributed her services during the course of the marriage, but the policy was purchased from the earnings of the husband. The wife has failed to demonstrate a special equity under the law of Florida.

4. ATTORNEY’S FEES AND COSTS. The trial court erred in refusing to award reasonable attorney’s fees and costs to the wife. Selinsky v. Selinsky, 62 So.2d 24 (Fla.1952). The wife was forced to defend litigation and to enforce prior orders of the court. In light of the testimony as to the parties’ finances, failure to provide the wife with any sums for this purpose constituted an abuse of discretion.

For these reasons, this cause is reversed and remanded with directions to reinstate accumulated arrearages for entry of an order awarding alimony to the wife, and to determine reasonable attorney’s fees and costs.

MAGER and DOWNEY, JJ., concur.

      . In 1966, the husband received a Nevada divorce held invalid in Pennsylvania in 1969. In May of 1970, the husband married Ruth Lanz, although the marriage to respondent-wife was not formally dissolved in Florida until August, 1974.

      . Husband sought modification of support payments on the ground that in Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426 (1973), the Pennsylvania Court of Common Pleas held bed and board divorces to be unconstitutional because they were obtained only by wives in violation of that state’s Equal Rights ,Amenclment. That decision was reversed by the Supreme Court of Pennsylvania, Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975).


text:
    Johnny Lee WARD, Appellant, v. STATE of Florida, Appellee.
    No. 75-834.
    District Court of Appeal of Florida, Fourth District.
    June 4, 1976.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and record on appeal we are of the opinion that the imposition of judgment and sentence upon defendant as an habitual felony offender under section 775.084, F.S., was reversible error in light of the fact that the felony conviction giving rise to the proceeding below was on appeal and hence not final, Coleman v. State, 281 So.2d 226 (Fla.App. 2nd 1973). Accordingly, the judgment and sentence is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED.

CROSS, MAGER, and ALDERMAN, JJ., concur.


text:
    In the Interest of Floyd Steven HUSK, a child, Appellant, v. STATE of Florida, Appellee.
    No. U-247.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    Richard W. Ervin, III, Public Defender and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

By our previous opinion in this cause, Husk v. State, Fla.App.(1st), 305 So.2d 19 (1974), we relinquished jurisdiction to the trial court “to consider and then rule explicitly on the voluntariness of the defendant’s confession.” We also stated: “Promptly after an order is made on the issue of voluntariness as herein provided for, counsel for the appellant shall file herein a certified copy of such order.” (Emphasis supplied.) The trial court entered its order on December 30, 1974, but counsel for appellant did not file the certified copy of same with this court as we had directed and thus its entry was not called to our attention. Finally, upon this court’s inquiry, the certified copy was filed with us on May 12, 1976. The pertinent part of the trial court’s order states as follows:

“. . . the Court having heard testimony September 13, 1973, and having reviewed the complete transcript of all evidence presented September 13, 1973, the Court finds that the Court did find the defendant’s confession to be given freely and voluntarily without coercion or any promises or threats resulting in the Order Denying Motion to Suppress entered September 18, 1973, and the Court being fully advised in the premises, it is upon consideration
ORDERED that the Order denying defendant’s Motion to Suppress entered September 18, 1974, be and the same is hereby reaffirmed with a specific finding by the Court that said confession was freely and voluntarily made.”

The foregoing order satisfies and renders moot appellant’s contention that the trial court did not make an express finding that the confession was voluntarily given. We have reviewed the briefs and the record and find appellant’s remaining points to be without merit.

Affirmed.

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


text:
    STATE of Florida, Appellant, v. Albert JONES and Nellerine Jones, Appellees.
    No. AA-136.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Franklin R. Harrison, of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellees.
   McCORD, Judge.

This is an appeal from an order of the trial court discharging the appellees pursuant to Rule 3.191, F.R.Cr.P., the speedy trial rule. Appellees were charged with three felony counts and at arraignment they entered pleas of not guilty and their trial was set for October 28, 1975. On the trial date, they filed motions for discharge alleging that neither had been brought to trial within 180 days as required by Rule 3.191(a)(1), F.R.Cr.P. After hearing the trial court entered the order from which appeal is taken, ruling as follows:

“THE ABOVE cause having come on to be heard on each defendants’ Motion for discharge and counsel for the State and defendants having stipulated that the 180 days provided by Rule 3.191 expired October 27, 1975, and the Criminal Docket of this Court having been sounded on the 13th day of October, 1975, and the Court and the Court officials present having been under the erroneous impression that October 27th was a legal holiday the Court thereupon scheduled the above styled cause for trial on October 28th, 1975, and that during said 180 days the defendants were continuously available for trial, and the Court having heard argument of counsel for the State and defendants and being of the opinion that the Motions are well taken, it is thereupon
ORDERED AND ADJUDGED that the said Motions being the same are hereby granted and each of the defendants are discharged in the above cause.”

In further amplification of the court’s order, it should be pointed out that at the hearing on motion for discharge, the court stated that it was misinformed; that it was told by everybody that October 27 was a legal holiday; that had it known it was not, it would have tried the case on that day even though the courthouse offices were closed; that the state could not expect the court to keep up with time running out under the speedy trial rule.

October 27, the 180th day, was a federal holiday, Veteran’s Day, and was observed by federal offices. The Florida Legislature has officially designated Veteran’s Day as November 11 by § 683.01(1), Florida Statutes. Rule 3.040, F.R.Cr.P., governs the computation of any period of time prescribed or allowed by the Rules of Criminal Procedure with certain exceptions not pertinent here. It provides that “the last day of the period so computed' shall be counted, unless it is Saturday, Sunday or a legal holiday, in which event the period shall run until the end of the next day which is either a Saturday, Sunday nor a legal holiday.” § 683.01, Florida Statutes, prescribes the legal holidays and it states in pertinent part as follows:

“(1) The legal holidays, which are also public holidays, are the following:
* * * * * *
(m) Veteran’s Day, November 11. * * ”

The statute does not define October 27 as a legal holiday. Since the term “legal holiday” is not defined by the Rules of Criminal Procedure, the statutory definition applies. See City of St. Petersburg v. Division of Administration, Department of Transportation, State of Florida, Fla.App. (2d), 276 So.2d 229 (1973). While the Florida Appellate Rules do not apply to criminal trials, we note that Rule 1.3 thereof lists Veteran’s Day, November 11 as a legal holiday and does not list October 27. The appellate rule also lists as a holiday “any other day that, pursuant to order of court, the clerk’s office of such court is officially closed,” but even if the appellate rules were applicable, it does not appear that the clerk’s office of Bay County was officially closed by order of court.

Farrell v. Bendix Corp., Fla.App. (4th), 232 So.2d 419 (1970), is a case somewhat analagous to the case sub judice although it involved construction of the appellate rules. The question there was whether or not December 26 was a “legal holiday” under the appellate rules. There, December 26 had been declared' a “legal holiday” for federal employees by the President, and the county commission of Brevard County had also declared it a holiday. The contention was made that December 26 should be considered a “legal holiday” for the purposes of the Florida Appellate Rules. The Appellate Rules did not define December 26 as a legal holiday. The court there stated:

“We think the proper view to be taken of such holidays is stated in 30 Fla.Jur., Sundays and Holidays, § 8:
‘Statutory or legal holidays are not regarded by the courts as non juridical days unless the courts are constrained to regard them as such by the terms or the necessary effect of statutes. A legal holiday has only the sanctity attached to it by statute. But Sundays in this state occupies the status of a nonjuridical day. * * * ’”

The trial court’s construction of the speedy trial rule was correct.

AFFIRMED.

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


text:
    Peter NEVAK, Appellant, v. STATE of Florida, Appellee.
    No. AA-272.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant, who was adjudged to be indigent, was charged with a violation of § 316.027, Florida Statutes, (leaving the scene of an accident involving personal injury). He pled nolo contendere and the court imposed a sentence of one year imprisonment (the maximum imprisonment under the statute) and a fine of $500 with an additional 60 days imprisonment if the fine was not paid. Appellee only questions that portion of the sentence which provided for payment of a $500 fine and in the event of nonpayment that he serve an additional 60 days.

Since appellant is indigent, that part of the sentence which requires the additional imprisonment should appellant default in paying the fine cannot be sustained. See City of Orlando v. Cameron, Fla., 264 So.2d 421 (1972), and Rollins v. State, Fla., 299 So.2d 586 (1974).

Reversed and remanded with directions to vacate that part of the sentence which provides that in default of payment of the $500 fine appellant be incarcerated for an additional 60 days.

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


text:
    D. C. G., a child, Appellant, v. STATE of Florida, Appellee.
    No. AA-103.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This is an appeal from a judgment adjudicating appellant a delinquent child by reason of the fact that he committed an assault and battery.

Appellant contends that he was not properly adjudicated a delinquent child because assault and battery was not a lesser included offense of the offense with which he was charged. The affidavit, the accusatory pleading in the case, charged appellant with being a delinquent child in that “he is alleged to have committed the offense of aggravated assault.” When we consider the most recent pronouncement of the Supreme Court in State v. Terry, Fla., 336 So.2d 65, opinion filed February 25, 1976, on the matter of lesser included offenses, it is apparent that the crime of assault and battery is a lesser included offense on a charge of aggravated assault falls under Category 4 of Brown v. State, Fla., 206 So.2d 377 (1968) — offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Here, although the evidence fully supports battery, the charge does not. It only charges assault. Thus, the judgment as written cannot stand as the adjudication of delinquency was for a crime not included in the accusatory pleading. Since, however, the trial judge did find appellant guilty of assault and battery, and bare assault is a lesser included offense of aggravated assault, we remand to the trial court with directions to modify the judgment of delinquency to base it upon bare assault rather than assault and battery. We consider such procedure to be proper in the light of the established analogous procedure of directing the entry of a judgment of conviction for petit larceny upon quashal of a judgment of conviction for grand larceny when the evidence does not establish a value of more than $100 for the property taken. See Negron v. State, Fla., 306 So.2d 104 (1975).

Reversed and remanded.

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


author: BOYER, Chief Judge.

text:
    John R. GEHRIG and William Kimmerling, etc., Appellants, v. W. C. RAY, Jr., Appellee.
    No. Z-342.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      Walter L. Robison, Zisser & Robison, and Christopher C. Cloney, Zisser & Robi-son, Jacksonville, for appellants.
    Christian Meffert, Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellee.
   BOYER, Chief Judge.

Appellants, defendants below, appeal from a summary final judgment entered in favor of appellee, the holder and payee of a promissory note. The issue before us is whether the defenses of want of consideration and appellants’ alleged status as accommodation makers raise factual questions sufficient to preclude the entry of summary judgment.

The law relating to summary judgment has long since been established and we need not repeat it here. (See Connell v. Sledge, Fla.App.1st 1975, 306 So.2d 194)

Appellee filed a complaint, alleging nonpayment of a promissory note made to his order and executed by appellants. In their answers, appellants raised as an affirmative defense failure of consideration. In support of a motion for summary judgment subsequently filed by him appellee attached his own affidavit which alleged that he had loaned appellants the sum of $30,000 as evidenced by the subject promissory note and that no part thereof had been paid. In opposition to the motion for summary judgment, appellant Gehrig filed his affidavit which admitted the execution of the promissory note but claimed that the $30,000 was not paid to him but was instead transmitted through him to appellee’s brother-in-law, further alleging that: “It was understood by all parties that neither I nor William Kimmerling were to receive the monies under the note but we were acting as an accommodation to Mrs. W. C. Ray, Jr. and it was further understood by all parties that neither I nor William Kim-merling would ever be legally liable under the note to Mr. W. C. Ray, Jr. or any other person.” After a hearing on the motion, the trial court entered its order, finding that there was no genuine issue of material fact and that appellee was entitled to judgment as a matter of law.

Defending the propriety of the summary judgment appellee urges that evidence of the accommodation agreement, necessarily being oral in nature, may not be considered because of the parol evidence rule. Florida law is to the contrary. Under F.S. 673.415(3), parol evidence is admissible unless one is a holder in due course without notice of the accommodation. The record reveals that appellee is not a holder in due course.

Turning to the question whether appellants are accommodation makers, we must initially determine what an accommodation party is. Under Florida law, “An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” (F.S. 673.415(1)) The payee of a note may be the accommodated party. It is apparent therefore that the allegations in appellant Gehrig’s affidavit were sufficient to raise an issue as to whether appellants were, in fact, accommodation parties.

Having determined that there is at least a ligitimate issue of fact as to whether appellants were accommodation parties, we must ask whether appellants’ status as accommodation parties is a valid defense to this action. Normally, appellants would be liable on the promissory note involved herein because the liability of an accommodation party is that of a surety, and an accommodation maker is liable on the instrument as a maker. (4A Fla.Jur. 424, “Bills, Notes, and Other Commercial Paper”, Section 340) However, Florida law specifically provides that an accommodation party is not liable to the party accommodated. (F.S. 673.415(5)) According to appellant Gehrig’s affidavit, appellants were accommodating appellee, rather than appellee’s brother-in-law.

Thus, at least two material issues of fact are raised by appellant Gehrig’s affidavit which would preclude the entry of summary judgment. First, are appellants accommodation parties? Second, is appel-lee the accommodated party ?

Having determined that summary judgment was improvidently entered we find it unnecessary to discuss appellants’ defense of failure of consideration.

Reversed and remanded for further proceedings consistent herewith.

RAWLS and McCORD, JJ., concur.

      . See Giberson v. Moore, 35 Ill.App.2d 175, 182 N.E.2d 767 (3rd Dist. 1962) and Ehlers v. Butler, 127 Ga.App. 9, 192 S.E.2d 398 (1972).

      . See Giberson v. Moore, supra; Ehlers v. Butler, supra; United Refrigerator Co. v. Applebaum, 410 Pa. 210, 189 A.2d 253 (1963) and T. W. Sommer Co., Inc. v. Modern Door and Lumber Co., 293 Minn. 264, 198 N.W.2d 278 (1972).

      . Please see authorities cited under Footnote 2 above.


text:
    Rodney Tim SHAW, Appellant, v. STATE of Florida, Appellee.
    No. Y-515.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      Jeffrey H. Barker, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Shaw’s appeal presents the question of when the 180-day speedy trial period prescribed by Rule 3.191, R.Cr.P., begins to run for an accused who is initially taken into custody as a juvenile. Shaw was detained as a juvenile on October 24, 1974; juvenile jurisdiction was waived and he was held to answer in the criminal department of the circuit court on November 8, 1974; following denial of his Rule 3.191 motion for discharge, Shaw was tried and convicted of robbery on April 25, 1975, 183 days after he was taken into custody and 168 days after being waived out of the juvenile system. No extension of the period for speedy trial was sought or granted. There is no contention that any part of the delay is assessable to Shaw.

Shaw’s position is correct. When dealing with a juvenile who was taken into custody before the juvenile speedy trial rule became effective, the Supreme Court held that the accused who was tried as an adult became entitled to count the days of the adult speedy trial rule beginning on the date the juvenile speedy trial rule became effective, although that was before juvenile jurisdiction was waived. State v. Boatman, 329 So.2d 309 (Fla.1976). Both rules were effective on the day Shaw was detained. It follows that Shaw became entitled on that day to a speedy trial either as prescribed for juveniles by Rule 8.120, R.J.P., or as prescribed for adults by Rule 3.191, R.Cr.P., depending on whether he ultimately was to be tried as a juvenile or as an adult. In either case, the count began when custody began. In the absence of delay by Shaw or a timely order extending the time for trial, Rule 3.191(d)(2), (f), R.Cr.P., Shaw was entitled to be discharged. Our decision in State v. Bryant, 276 So.2d 184 (Fla.App. 1st, 1973), is no longer viable. Boatman, supra, 329 So.2d at 313. To the extent that my January 1976 opinion for the Court in McCraw v. State, 330 So.2d 48 (Fla.App. 1st, 1976), contains nondispositive language which is inconsistent with the Supreme Court’s March decision in Boatman, we of course recede from it.

REVERSED.

MILLS, Acting C. J., and AGNER, ROYCE, Associate Judge, concur.


author: MERRILL, Justice.

text:
    Kathy Ann DIXON, Ind., etc. and as Admix., etc. v. AMERICAN LIBERTY INSURANCE COMPANY, a corporation.
    SC 1533.
    Supreme Court of Alabama.
    May 21, 1976.
    Ralph Loveless, Mobile, for appellant.
    Bryan, Nelson, Nettles & Cox and E. Elliott Barker, Mobile, for appellee.
   MERRILL, Justice.

Plaintiff below, Kathy Ann Dixon, appeals from an order dismissing her complaint under ARCP 12(b)(6) due to failure to state a claim on which relief could have been granted. We reverse the judgment and remand the cause.

Appellant Dixon filed a complaint on January 25, 1975, claiming compensatory damages against the official bond of Tom Purvis, Sheriff of Mobile County. Appel-lee, American Liberty Insurance Company [hereinafter “American Liberty”], surety on the bond, filed a 12(b)(6) motion or, in the alternative, a motion for a more definite statement. Appellant responded by filing an amended complaint on September 17, 1975. Appellee again filed a 12(b)(6) motion. The trial judge granted American Liberty’s motion to dismiss on September 17, 1975. Subsequently, Dixon brought this appeal.

Kathy Ann Dixon was the wife of Larry Wayne Dixon, deceased. It is alleged that the deceased met with death due to the failure of Sheriff Purvis to provide him with adequate medical attention during the time he was a prisoner in jail. Dixon is suing in her individual capacity and also as administratrix of the estate of her deceased husband. Two counts of the complaint allege the failure of Sheriff Purvis to provide medical treatment to the deceased; two counts allege that the failure to provide medical treatment to the deceased was the result of negligent failure to act; and two counts allege willfulness on the part of Sheriff Purvis or his agents.

The trial judge dismissed Dixon’s claim under the rationale that compensatory damages cannot be had in a wrongful death action. Dixon does not question the soundness of .the -trial judge’s ruling as it regards wrongful death. Her appeal arises out of the fact that her action is ex contractu, .giving rise to compensatory damages, and thus, should not have been dismissed.

The question raised here is one of first impression on this court. After examining the law and policy on each side of the question, we hold that one with standing may sue in contract on an official bond to receive compensatory damages even when the breach of contract sued upon resulted in the death of another, which would give rise to an action for wrongful death.

Title 41, § SO, Code 1940, deals with the legal effect of the official bond and states as follows:

“Every official bond is obligatory on the principal and sureties thereon:
“1. For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof.
“2. For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein.
“3. For the use and benefit of every person who is injured, as well by 'any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.
“4. The words, ‘for the use and benefit of every person injured,’ as used herein, shall include all persons having a direct and proximate interest in the official act or omission and all persons connected with such official act or omission, by estate or interest(Emphasis supplied.)

It is important to examine subsections 3 and 4 of this statute as they relate to the facts of this case. Subsection 3 provides the legislative basis for Dixonls action, insuring that each injured citizen may benefit from the official bond. Dixon relies on the case of Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794, which supports the statutory guarantee. Webster also provides case law for Dixon’s claim. It stands, in part, for the proposition that the official bond of an officer is a contract that binds together, under obligation, the officer, the surety, and any citizen injured by the officer. In pertinent part, Webster states:

“ * * * The official bond of 'a deputy sheriff constitutes a contract between the officer and his surety, on the one hand, and the state and all persons who may be injured by a violation of such bond, on the other. * * * Though a breach of the bond by an assault and battery by the officer constitutes a tort, the action for d'amages is upon the contract, and not for the tort. The tort is but evidence of the breach of the contract, and the cause of action for the breach of contract survives the death of the officer. (Citations omitted.) * *

Returning to the statute, subsection 4 provides specially that plaintiffs like Dixon, not actual recipients of the injury, but injured by means of interest or estate, have standing to sue on the bond. Certainly, Dixon falls into the category of “interest” through her relationship as widow of the deceased. Likewise, she is qualified by means of “estate” in her capacity as ad-ministratrix. This subsection permits Dixon to reach the official bond. This compels the conclusion that from the statute and Webster, an injured citizen has a right to sue on the official bond for 'a breach of the contract which arose from a tort, and that Dixon had a special right to sue on the official bond for the alleged breach in this case, by tort, both in her individual capacity as widow and in her capacity as ad-ministratrix of the deceased’s estate.

American Liberty contends that the action taken by Dixon cannot be in contract, but must be taken under the wrongful death statute. In support of that contention, American Liberty cites Thaggard v. Vafes, 218 Ala. 609, 119 So. 647, for the proposition that a tortious breach of contract duty, causing death, gives rise to a cause' of action for wrongful death. That is a correct statement of the law in Thag-gard so far as it goes. Yet, American Liberty seems to imply that wrongful death is the only cause of action available. That interpretation, however, is unwarranted.

Thaggard arose from a malpractice background. The defendant, a physician, undertook to treat the plaintiff’s intestate for an illness from which he was then suffering. The defendant conducted himself with such negligence that the plaintiff’s intestate died as a proxirriate result. In that context, this court stated:

While the authorities are agreed that ■a mere breach of contract is not a wrongful or negligent act, within the meaning of the statutes giving a right of action for wrongfully causing death, yet they are also agreed that the negligent or tortious breach of a duty to the person whose death is caused thereby is within the statute, though such duty arises out of contract.” (Citations omitted.)

Clearly, Thaggard provides wrongful death as one theory of recovery stemming from the breach of contract, but we do not read it as providing the only theory of recovery. It is not a mandate, barring all other causes of action. We agree with the law in Thag-gard-, but we would but point out that Thaggard does not provide the only valid means of recovery. Thaggard is not limiting in scope. It encompasses no words of limitation. It holds only words of suggestion to a plaintiff by providing for an alternative plan of action when death results in the breach of the contract and the plaintiff elects not to sue in tort.

We think the discussion in Shell v. Pittman, 229 Ala. 380, 157 So. 205, makes it plain that a suit on an official bond may be either in tort or ex contractu.

Each of American Liberty’s issues on appeal are predicated on the fact that Dixon brought an action in wrongful death. She did not. Therefore, the legal theories proffered by appellee have no relevance to the situation here.

It follows that the order of dismissal should be set 'aside and the cause reinstated for further proceedings.

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.