text:
    Joseph S. LEE, a/k/a “Smiley Lee”, Appellant, v. STATE of Florida, Appellee.
    No. U-369.
    District Court of Appeal of Florida, First District.
    Jan. 13, 1976.

      James L. Harrison of Harrison, Fine-gold, Smith & Shaw, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   ON PETITION FOR REHEARING

PER CURIAM.

Before his retirement, Acting Chief Judge Johnson prepared an opinion expressing the Court’s decision reversing the judgment of conviction and remanding the case for a new trial. That opinion was concurred in by Judge Mills and the decision to reverse was concurred in by Mr. Justice Drew (Ret.). After denying rehearing, the Court withdrew the opinion to reconsider certain portions of it. Aaron K. Bowden, Esquire, the Assistant State Attorney who prosecuted the case in the court below, was heard in this Court in his own behalf concerning the prior opinion’s characterization of his conduct at the trial. Judge Johnson’s opinion, with deletions considered appropriate by the reconstituted panel, is now adopted as that of the Court.

Appellant seeks reversal of his conviction after a jury trial on charges of unlawfully requesting, soliciting or accepting a bribe and conspiracy to accept a bribe, for which he received two concurrent three-year sentences.

Along with two other City Commissioners of the City of Fernandina Beach, Curtis W. Smith, a/k/a “Topsy” Smith, and John Beckett, appellant Lee, who was the Mayor and a City Commissioner of said City at the time, was charged by a two-count indictment with requesting, soliciting or accepting a $6,000.00 bribe and with conspiracy to commit a felony. An informal pretrial conference was had between counsel for the partier'and the trial judge. At this time, the Assistant State Attorney, Mr. Aaron K. Bowden, suggested to the trial judge that each codefendant with his attorney appear separately before the trial judge and himself, and that the remaining codefendants and their attorneys be excluded from such a session. Counsel for appellant Lee objected to being required to leave the sessions involving the codefend-ants on the grounds that they may have some effect upon his client. The trial court was of the opinion that it could participate in separate discussions or negotiations with each of the codefendants and announced that it would do so. Notes were made of each of the separate sessions, but they were not transcribed until after the trial of appellant Lee. It' is now apparent from such transcripts that both of the codefendants wished to discuss with the trial judge the effect of changing their not guilty pleas to pleas of nolo contendere or guilty to one of the counts of the indictment.

As to codefendant Smith, the discussions involved a recommendation that if Smith changed his plea, he would, at most, be sentenced on one count to time in the County Jail; be placed on the work release ' program, and the residual count would be dismissed by the State. Also discussed was the possibility of granting the State’s motion for a continuance of appellant’s trial so that Smith could be deposed before he testified at appellant’s trial. There was also a suggestion by the Assistant State Attorney, Mr. Bowden, that if Smith were to testify in appellant’s trial as a witness for the State, the State would agree to a motion for a reduction of sentence if a term of confinement were imposed upon him.

As to codefendant Beckett’s pretrial conference, Mr. Bowden, in the presence of Mr. Beckett, made an affirmative recommendation that Beckett, upon a plea, be placed on probation. Such recommendation was predicated upon Beckett’s agreement to be a witness for the State in appellant Lee’s trial and the degree of Beckett’s involvement in the offenses charged. Discussions were also had concerning which count Beckett would plead to and again Mr. Bowden made reference to the fact that he would move for a continuance of appellant’s trial.

Immediately after these pretrial conferences with the individual codefendants, all of the codefendants and their attorneys returned to the courtroom. At this time, co-defendant Smith entered a plea of nolo contendere as to Count I and codefendant Beckett entered a plea of guilty with respect to Count II, and the trial court accepted their pleas and ordered presentence investigations. Thereafter, the trial court, Mr. Bowden and appellant’s counsel discussed certain discovery problems and Mr. Bowden then formally moved for a continuance of appellant’s trial. Appellant’s counsel strenuously objected to the motion for continuance, contending that he and his client were ready for trial, that a continuance would work a prejudice upon his client and that the State had had every opportunity to prepare for the trial. The trial court granted the State’s motion for continuance, and appellant’s trial was set for October 15, 1973. Prior to appellant’s trial, a sentencing hearing was held. Co-defendant Smith was sentenced to be confined in the County Jail for a term of 90 days, with the recommendation that he be placed in the work release program, and codefendant Beckett was placed on probation for a period of one year. The State withdrew the residual counts against these codefendants. Adjudication of guilt was withheld as to Beckett.

Appellant’s trial commenced on October 15. We do not deem it necessary to relate all the evidence and testimony presented at appellant’s trial. Only those portions of the trial proceedings relevant to this opinion and the points raised by appellant will be discussed herein.

We first consider appellant’s points of error concerning the propriety of the trial court proceedings in relation to the testimony from Mr. Beckett and Mr. Smith. With regard to the testimony of Mr. Beckett, he stated during cross-examination by appellant’s counsel that he did not know and was not sure that he would be placed on probation before he entered his guilty plea. And, on redirect examination by Mr. Bowden, Beckett was asked whether the State’s recommendation of probation was conditioned upon his giving testimony favorable to the State, to which Beckett replied in the negative. The transcript of Beckett’s pretrial hearing, at which appellant was not present, was not available to appellant until after the trial of this cause. Said transcript affirmatively demonstrates that the Assistant State Attorney, Mr. Bowden, Beckett’s attorney and the trial judge reached an agreement concerning placing Beckett on probation for one year and withholding adjudication of guilt. Also discussed was the fact that Beckett had agreed to be a witness for the State and that his probation could be revoked for failure to fully cooperate with the State. Beckett, of course, was present at his pretrial conference. Thus, it appears that Beckett, as a State witness at appellant’s trial, was not completely candid in his answers to the questions cited above. Appellant was unable to impeach Beckett’s testimony in these matters due to his lack of full knowledge of the terms of the Beckett negotiations. In this Court’s case of Wolfe v. State, 190 So.2d 397 (Fla.App. 1st, 1966), we held that it is a deprivation of due process for a conviction to be obtained through the use of false evidence, and that it is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon the defendant’s guilt. The State prosecutor has an affirmative duty to correct what he knows to he false and to elicit the truth. Even though the State itself does not solicit the false evidence, it may not allow it to go uncorrected when it appears. Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Here, not only did Bow-den allow the testimony of Beckett regarding the negotiation as to the assurance of probation to go through uncorrected, he further, on redirect, asked questions concerning the condition of probation that he be a cooperative witness for the State in this trial. In response to the questions whether Bowden or anyone else had told him that his probation would be revoked .if he did not testify in a certain manner, or whether anyone threatened him or intimidated him to get him to testify or told him that the State would not recommend probation if he did not testify as to a statement made by appellant, Beckett answered “No Sir.” These questions and answers are contradictory to the transcript of Beckett’s pretrial conference. It was specifically stated by Mr. Bowden at said conference that Bow-den’s recommendation of probation for Beckett was at least partially predicated upon his testimony and his agreement to be a witness for the State. Mr. Bowden also requested at said conference:

“that it be a condition of probation, or understood, where the State would have some protection, that failure to fully and faithfully disclose information within his knowledge to the State Attorney concerning this incident would constitute violation of probation, and his probation could be revoked for failure to do so.”

Thus, we conclude that Mr. Bowden’s failure to fully inform the jury regarding the extent of the negotiations pertaining to witness Beckett, along with his affirmative solicitation of testimony from Beckett concerning the conditions of his probation with regard to his testimony in this case, denied the jury facts which were necessary for it to have in order to properly pass upon the credibility of Beckett’s testimony. Such action, along with the action of the Assistant State Attorney with regard to witness Smith, as discussed infra, constituted a deprivation of due process of law, tainted the verdict against appellant and entitles the appellant to a reversal of the judgment appealed and a remand for a new trial.

We turn now to the prosecutor’s conduct with regard to the witness Smith. On the day that Smith was to testify as a witness for appellant Lee, he was called into the Assistant State Attorney’s Office and was informed by Mr. Bowden that if he testified under oath to those matters which he had previously asserted to Bow-den, Bowden would seriously consider filing perjury charges against him. Bowden also called Smith a “bald-faced liar.” When appellant made a motion for mistrial, Bow-den told the trial court that Smith had always told the same story, but that he had hoped that Smith might “eventually tell what I (Bowden) considered to be the truth in the case.” The witness Smith told appellant’s counsel that he was “scared to death to testify”. It is our conclusion that the threats and personal abuse toward the witness Smith by the prosecutor minutes before Smith was to take the stand on behalf of the defendant is grounds for reversal of the judgment appealed and a new trial. As quoted in Mathews v. State, 44 So.2d 664, 669 (Fla.1950), in interviews with witnesses before trial, the examiner “must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses.” There can be no doubt here that the threatening and' abusive remarks to Smith by the prosecutor were attempts to inject certain information and to influence or bias the testimony which Smith was prepared to deliver on behalf of appellant. We believe Mr. Bowden abandoned the office of a prosecuting attorney and assumed the role of a persecutor. It is our opinion that the misconduct of the prosecutor in threatening the defense witness with prosecution for perjury and in resorting to name-calling so tainted this conviction that it cannot be permitted to stand. Where there is a considerable question of substantial prejudice to a defendant, as in this case, the ends of justice are best served by a new trial.

While we do not regard the comments made by the trial court concerning the coconspirator exception to the hearsay rule to be so prejudicial as to, standing alone, warrant a reversal, we do note that the trial court should scrupulously avoid commenting on the evidence in a case. We also take note that the same judge who conducted the pretrial conference in which the agreements between the Assistant State Attorney and the codefendants Smith and Beckett were reached also tried appellant’s case. When Beckett did not forthrightly testify to the terms of the plea bargain, and it appeared that the prosecuting attorney did not intend to make a clear revelation of the bargaining' session, the trial court should have done so.

Appellant has alleged other grounds for reversal, but in view of our conclusion that a new trial should be had, we do not deem it necessary to treat them here.

Among other errors in this case, either before the indictment or after or in the trial itself, we would like to point out the areas in which the State and its agents and attorneys committed abuses of the State’s powers: At the time that the appellant came in the picture of the conspiracy, the State’s primary witness, a Mr. James R. Johnson, was actually working with the Department of Law Enforcement. In the first taped conversation between James R. Johnson and Curtis “Topsy” Smith (taped without the knowledge of Mr. Smith and listened to by the two agents with the Department of Law Enforcement) the conversation was, inter alia: “Do you reckon the Mayor has got anything to do with that?

“Well, it seems on a couple of occasions, whenever the Mayor has got something going, this fellow always shows up.

“Oh, I see. You think he’s there to defeat the thing or something, and, of course, the Mayor doesn’t know what we’re doing.” Further on in the same tape, “I mean here’s the thing that’s got me worried. What if one of the guys gets nervous, and the time comes, and they---one of them figures---drop this pressure that this damn Mayor is putting on-”

It is obvious at that time that the Department of Law Enforcement had been brought into the case. It was just as obvious that the Mayor, who was the appellant in this case, was not in on the deal at that time. This case must be reversed and remanded, on other grounds, but the trial court should take a close look at the question of entrapment before proceeding further with the new trial.

It appears to us that guilt or innocence should be determined by the Rules of practice, statutes and constitutional safeguards of a person’s rights, and that the same can be determined in this case observing the said rules and law which were sadly lacking in this trial.

For the reasons hereinabove stated, the judgment and sentence appealed from are reversed and this cause remanded for a new trial under the admonishment found in this opinion by this Court.

MILLS, Acting C. J., SMITH, J., and DREW (Ret.), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Forrest Eugene SMITH, Appellant, v. STATE of Florida, Appellee.
    No. Y-500.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant s sole point on appeal is :

“The lower court erred in accepting Appellant’s plea of guilty and adjudging him guilty and sentencing him for the offense of grand larceny on the ground that Appellant could not be adjudged guilty and sentenced for such offense without being legally charged with the commission of the offense of grand larceny.”

Appellee State, in its brief, answers as follows:

“This question is answered in the affirmative. Appellee agrees with the argument set forth in appellant’s very excellent and well-reasoned brief. Appellant was not charged with the offense of grand larceny and neither was he charged with a crime of which grand larceny is a lesser included offense. No separate information was filed against appellant nor even an amended information was filed charging him with the offense of grand larceny. And as the saying goes, the allegata does not meet the probata. It comes down to this: Appellant was adjudicated guilty of and sentenced for an offense for which he was not charged. This is an absolute denial of due process. Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736], 84 L.Ed. 1093 (1940).”

The judgment of conviction is reversed. Reversed.

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


author: DOWNEY, Judge.

text:
    Robert Michael WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-706.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is an appeal from a judgment of conviction of possession of a concealed firearm entered pursuant to a nolo con-tendere plea in which appellant specifically reserved the right to question the validity of an order denying his motion to suppress from use in evidence the firearm involved. The decision in this case requires an interpretation of § 901.151, F.S.1973, commonly known as the “Stop and Frisk law.”

On the evening of December 12, 1974, Officer Charles Shelton was assigned to patrol a shopping center and convenience stores that were high crime areas. Approximately twenty minutes before the closing time of a shopping center drug store, his suspicion was aroused when he observed appellant and a companion in a dark area behind the drug store. Appellant was trying to conceal himself. The companion was backing away toward a motorcycle which was parked behind the store, although vehicles customarily park in front of the store. The officer called appellant and his companion over to the officer’s patrol car and began interrogating them relative to their identity and their purpose in being at that location; he also frisked them for weapons and found a pistol on each of them.

Appellant contends the trial court erred in denying his motion to suppress since the evidence adduced did not justify the officer in stopping appellant and his companion. Additionally, appellant argues that even if the stop was permissible the frisk was not because the officer had no probable cause to believe that either appellant or his companion was armed.

A fair interpretation of the officer’s testimony at the hearing on the motion to suppress is that in view of the circumstances set forth above, the officer suspected that appellant and his companion were about to commit a crime involving the drug store, and he frisked them as a measure to assure his own safety. Accepting as true the facts known to and those observed by the officer on the scene, it is our opinion that the officer’s stopping of appellant and his companion was reasonable. In this case the same knowledge and observations that justified the stopping also justified the frisking of the persons stopped.

That circumstances such as those present in this case justify frisking the person stopped finds clear support we think in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

“Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. Just as a full search incident to a lawful arrest requires no additional justification, a limited frisk incident to a lawful stop must often be rapid and routine. There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.” Harlan, J. Concurring, 392 U.S. at 33, 88 S.Ct. at 1886.

We do not interpret our statute as requiring an officer in every case to note some new or independent fact after the stop which would constitute probable cause to believe the person stopped is armed in order to justify a frisk. In other words a bulge in an individual’s pocket or under his belt (as in Thomas v. State, Fla.App.1971, 250 So.2d 15, or State v. Woodard, Fla.App.1973, 280 So.2d 700) is not necessary to justify suspicion that the person is armed so as to support a frisk. We specifically hold that the “probable cause” mentioned in § 901.151(5), F.S. does not mean probable cause to make an arrest for possession of a weapon. State v. Brooks, Fla.App.1973, 281 So.2d 55; cf. Terry v. Ohio, supra.

For the foregoing reasons the judgment and sentence appealed from are affirmed.

Affirmed.

CROSS and OWEN, JJ., concur.


author: NATHAN, Judge. PER CURIAM.

text:
    John P. McNAMARA, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1737.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 20, 1976.
    John P. McNamara, in pro. per.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

John P. McNamara was convicted of grand larceny on May 21, 1970, in Dade County, and sentenced to one year in the Dade County Jail. Subsequently this sentence was modified to one year in the State Penitentiary. This modified order is not on appeal. He appeals from the trial court’s summarily denying his relief under Rule 3.850 RCrP. On February 8, 1972, he was adjudicated guilty of assault with intent to commit grand larceny in Broward County, Florida, and sentenced to 20 years in the State Penitentiary where he is presently incarcerated.

Both sentencing orders are silent as to whether the 20 year sentence is to run concurrent with, or consecutive to the one year sentence. McNamara contends that his sentences run concurrently and that this should have been corrected by the court by his motion for post conviction relief under the rule. McNamara does not allege, nor is there any error in the sentences imposed by the trial courts.

Rule 3.722, RCrP provides that sentences imposed without designation that they be served consecutively, shall then be served concurrently. McNamara, therefore, has no remedy in the trial court or this court by means of Rule 3.850, RCrP. Relief from improper judgment or imposition of sentence or correction of sentence is available only when the judgment was rendered without jurisdiction or the sentence imposed was not authorized by law or was otherwise open to collateral attack; or the court, in imposing judgment and sentence, infringed or denied defendant’s constitutional rights. Crusoe v. State, Fla.App. 1966, 183 So.2d 600. When McNamara is, or is about to be, detained for a longer period than that provided by law, he may seek his appropriate remedy at that time.

Affirmed.

ON PETITIONS FOR REHEARING

PER CURIAM.

Petitions for rehearing have been filed in this cause by John P. McNamara, the appellant, and by the State of Florida, the appellee. Both petitions are denied.

In the petition for rehearing filed by the State, our attention is directed to Benyard v. Wainwright, Fla.1975, 322 So.2d 473, filed October 29, 1975, which recognizes the conflict between Rule 3.722, RCrP, and § 921.16, Fla.Stat. Rule 3.722, RCrP, directs that sentences are concurrent unless affirmatively designated as consecutive by the sentencing court, and § 921.16, Fla.Stat., provides:

“When sentences to be concurrent and when consecutive. . . . Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.”

In the opinion of the Florida Supreme Court, “ . . . the statute must prevail over our rule because the subject is substantive law.”

Therefore, we modify our opinion to reflect that pursuant to § 921.16, Fla.Stat., the sentences under review shall be served consecutively.

It is so ordered.


text:
    In re ESTATE of Daniel A. UDELL, Deceased. Mary Udell BACHRACH et al., Appellants, v. Sylvia B. ROSE, Individually and as guardian ad litem of Traci Shanbrun, Deborah Shanbrun and Cathy Shanbrun, and Bank of Palm Beach & Trust Company, Executor, Appellees.
    No. 74-907.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 30, 1976.

      Donald J. Sasser, of Johnston, Lilienthal & Johnston, West Palm Beach and Morris M. Schnitzer, Newark, N. J., for appellants.
    James E. Weber, of Burns & Weber, West Palm Beach, for appellees, Sylvia B. Rose, individually and as guardian ad litem of Traci Shanbrun, Deborah Shanbrun, and Cathy Shanbrun.
    Douglas C. Zahm, of Warwick, Paul & Campbell, Palm Beach, for appellee, Bank of Palm Beach & Trust Co., executor.
   DOWNEY, Judge.

We have reviewed the briefs of counsel, the appendices, and the’entire record and fail to find any adequate demonstration of reversible error. The major points raised by appellants are based upon a sharp dispute of fact and our search of the record reveals competent substantial evidence to support the findings of the trial judge.

The only point warranting discussion concerns the propriety of permitting counsel for the executor in the administration of the estate to testify over the objection that § 90.05, F.S., commonly known as the dead man’s statute, barred counsel from testifying. Parenthetically we note that counsel for the executor in the administration of the estate does not represent the executor in this litigation.

Elwyn Middleton, Esquire, had represented the decedent for many years during his lifetime. Middleton either drafted or participated in the draftsmanship of all of the pertinent documents involved herein. The executor named in the codicil, which is the focal point of this appeal, employed Middleton’s firm to handle the legal aspects of the estate administration. Accordingly, when Middleton was called as a witness on behalf of the appellees (who were the proponents of the will and codicil whose probate appellants sought to revoke) to testify as to transactions and communications between the decedent and himself pertaining to the preparation of the documents in question, the appellants objected. It was their contention that as attorneys for the executor, Middleton’s firm would be paid substantial fees in the future administration of the estate. But if the appellants were successful, the executor named in the codicil would be removed, and with the executor, Middleton’s firm. Therefore, Middleton stood to gain or lose, depending upon the outcome of the litigation and was not competent as a witness in the face of the dead man’s statute.

In Meyer v. Fogg, 7 Fla. 292, 68 Am. Dec. 441 (1857), a case analogous to the present case, the court held that an executor did not have such “interest” in the outcome of the case so as to preclude him from testifying unless he was a beneficiary of the estate and that mere entitlement to the executor’s commission would not render him incompetent under the dead man’s statute.

In a case whose facts are similar, In re Estate of Fordyce, 130 Ill.App.2d 755, 265 N.E.2d 886 (1971), the court held that a lawyer who had prepared a will submitted for probate and who was representing the executor in the administration of the estate but not in the will contest in which he proposed to testify was not barred from testifying by the Illinois dead man’s statute because the disqualifying interest provided in the statute must be some legal, certain, and immediate interest in the event of the cause. The court went on to hold that the future attorney’s fees which the lawyer might be paid by the executor in the future administration of the estate did not fall within the purview of that disqualifying interest.

The evidence in the present case reflects that any attorney’s fees to be paid by the executor to Middleton’s firm would be based upon quantum meruit. Thus, they would be earned as a result of legal work performed by the firm and were not dependent upon the outcome of the suit, as would be the case if the payment of fees was based upon a contingent fee contract. We therefore conclude that the trial court properly permitted Mr. Middleton to testify.

The judgment appealed from is affirmed.

CROSS and MAGER, JJ., concur.


text:
    Samuel Irving FIELDSTONE, Appellant, v. Charles GILLER et al., Appellees.
    No. 75-125.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 23, 1976.
    Shutts & Bowen and Thomas H. Anderson and Phillip G. Newcomm, Miami, for appellant.
    Lapidus & Hollander and Robert J. Schaffer, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered against the appellant who was the defendant in an action in the Circuit Court of Dade County brought by appellees for conversion of joint venture assets.

Appellant denied the allegations of the complaint and counterclaimed for an amount in excess of plaintiffs’ claim which he alleged was due him for services rendered in connection with the construction and sale of apartments being built and sold by appellees as a joint venture.

The issues were tried by the court, non-jury. The trial court’s findings of fact and conclusions of law are as follows:

“In May of 1971, David Mitchell Fieldstone, Ronald Richard Fieldstone, Charles Giller and D. G. Alvey entered into a Joint Venture Agreement for the development of a condominium on Bay Harbor Island in Dade County, Florida. Ronald Richard Fieldstone was a student, then attending the University of Pennsylvania. David Mitchell Fieldstone is a Canadian lawyer, resident of Toronto, Canada. The father, Samuel Irving Fieldstone, was appointed by them as their agent and attorney-in-fact to act for them and to sign any and all documents necessary in carrying out the purpose of the joint Venture.
“Shortly after the formation of the venture, Charles Giller assigned his interest in the joint venture to Charles Giller & Associates Architects, Inc., and Charles Giller & Associates Architects, Inc., Pension Trust.
“The venture proceeded, the condominium was built and the units were sold.
“During the course of the venture, friction developed between Charles Giller and Samuel Irving Fieldstone. In May of 1973, after construction had been completed and all of the units sold, Samuel Irving Fieldstone requested a fee of $30,000.00 for services rendered to the joint venture. Mr. Fieldstone had, in fact, endorsed the note of the venture with The First State Bank for construction financing of the project. At the time of his endorsement, however, he had not indicated to any of the venturers that he expected a fee for said endorsement.
“Three of the venturers initially agreed to compensate Mr. Fieldstone $30,000.00. On August 15, 1973, Samuel Irving Fieldstone sent to Charles Giller the written agreement for compensation bearing signatures of D. Gary Alvey, David M. Fieldstone and Ronald R. Fieldstone and requested that Mr. Giller execute the same as the fourth venturer. The Joint Venture Agreement provided:
“ ‘No Joint Venturer shall be entitled to borrow any funds or to incur any liability on behalf of the joint venture unless first authorized in writing signed by all of the Joint Venturers
Mr. Samuel Irving Fieldstone was aware of the provision at all times. The day after sending the letter to Mr. Giller, Mr. Fieldstone withdrew $30,000.00 out of the bank account of the Joint Venture. Mr. Giller refused to sign the agreement and Mr. Alvey immediately notified Mr. Giller that he no longer considered himself bound on the agreement.
“Mr. Fieldstone’s two sons, the joint venturers, David Mitchell Fieldstone and Ronald Richard Fieldstone, have filed pleadings in this cause admitting liability to their father.
“During the course of the proceedings, it appeared that in addition to the $30,000.00 Mr. Fieldstone had taken, without authorization, $2,000.00 of the joint venture’s monies as automobile expense.”
"CONCLUSIONS OF LAW
“Under the Uniform Partnership Act, adopted in Florida, effective January 1, 1973, § 620.60 F.S., F.S.A. no act of a joint venturer in controvention of a restriction on authority binds the venture to persons having knowledge of the restriction. This merely codifies the Common Law of Florida as it existed prior to the effective date of the statute, Barwick v. Alderman, Fla. [46 Fla. 433] 35 So. 13, 24 Fla.Jur. Partnerships, § 73. The Joint Venture Agreement here involved required the assent of all four venturers to bind the venture. Samuel Irving Fieldstone admitted knowledge of this provision and is bound thereby.
“Two of the venturers, David Mitchell Fieldstone and Ronald Richard Field-stone, admitted liability on the contract of employment with their father. They are liable personally on said contract by reason of said admission. 24 Fla.Jur. Partnerships $ 77 and cases cited there-
“Upon the above Findings of Facts and Conclusions of Law, it is
“ORDERED, ADJUDGED AND DECREED that .Charles Giller Associates Architects, Inc., and Charles Giller Associates Architects, Inc. Pension Trust and D. G. Alvey, Ronald Fieldstone and David Mitchell Fieldstone as co-partners have and recover a judgment against Samuel Irving Fieldstone in the amount of $32,000.00 plus interest of $2,880.00 for which sum let execution issue, and it is further:
“ORDERED, ADJUDGED AND DECREED that Samuel Irving Fieldstone have and recover a judgment against Ronald Richard Fieldstone and David Mitchell Fieldstone in the amount of $32,000.00 plus interest in the amount of $2,880.00, for which sum let execution issue. Costs shall abide the result of this action.”

Appellant urges reversal on the grounds that: (1) there was no actionable conversion; (2) he performed personal services and rendered valuable financial assistance to the joint venture with the principals’ knowledge and acceptance and to their material benefit; (3) the court erroneously excluded testimony showing Giller’s recognition of appellant’s entitlement to compensation.

We have carefully considered all points on appea.l in the light of the record, briefs and arguments of counsel. The trial court’s findings of fact are supported by the record and the judgment is in accordance with settled principles of law. Therefore, the judgment appealed is affirmed.

Affirmed.


author: OWEN, Judge.

text:
    Mitchell C. TOUCHETTE, Appellant, v. Dorothy BOULD et al., Appellees. U. S. CONCRETE PIPE COMPANY, a Florida Corporation, Appellant, v. Dorothy BOULD et al., Appellees (three cases). HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. Dorothy BOULD et al., Appellees. Mitchell C. TOUCHETTE and Hartford Accident & Indemnity Company, Appellants, v. Dorothy BOULD et al., Appellees.
    Nos. 74-100, 74-104 to 74-106, 74-235 and 74-236.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 28, 1976.

      Sam Daniels, Miami, for appellant-Hartford Accident & Indemnity Co.
    Michael B. Davis of Walton Lantaff Schroeder Carson & Wahl, West Palm Beach, for appellant-Touchette.
    James A. Smith and Richard Sherman of Wicker Smith Pyszka Blomqvist & Davant, Miami, for appellant-U. S. Concrete Pipe Co.
    Edward A. Perse of Horton & Perse, and Fuller, Brumer, Moss, Cohen & Rodgers, Miami, for appellees-Bould, Simonson and Touchette.
   OWEN, Judge.

Appellants, defendants in consolidated wrongful death and survivorship actions, seek review of (1) adverse final judgments rendered pursuant to jury verdicts, and (2) certain post judgment orders relating to costs and insurance coverage.

Sixty-six year old Edward Simonson and his sixty-four year old wife, Alice, were killed instantly when the vehicle they were occupying was struck from the rear by a tractor-trailer unit operated by Mitchell Touchette while in the course and scope of his employment by U. S. Concrete Pipe Company, the owner of the truck. Hartford Accident & Indemnity Company was the latter’s liability insuror.

The decedents were not survived by any minor children and thus the cause of action for their wrongful death accrued to appellee, Dorothy Bould, who was the surviving natural mother of the decedent Alice Simonson and dependent upon both decedents for her support. The verdict and judgment awarded the wrongful death plaintiff, Dorothy Bould, $100,000 compensatory damages against Mitchell Touchette and U. S. Concrete Pipe Company.

Edward Simonson, Jr., an adult son of the decedents, qualified as personal representative of their respective estates and was the plaintiff in the survivorship action. The verdict and judgment awarded the survi-vorship plaintiff $65,000 compensatory damages against Mitchell Touchette and U. S. Concrete Pipe Company, $800,000 punitive damages against U. S. Concrete Pipe Company, and $5,000 punitive damages against Mitchell Touchette.

By post judgment motions the court entered an order granting judgment in favor of U. S. Concrete Pipe Company against Hartford Accident & Indemnity. Company “to the maximum limits of their (sic) insurance coverage of $500,000,” and by a separate order taxed the plaintiff’s costs. Both of these orders are the subject of separate interlocutory appeals.

For reasons hereafter discussed, we conclude that (1) the verdict and judgment for the wrongful death plaintiff, Dorothy Bould, is so grossly excessive and contrary to the law and evidence as to require reversal and remand for a new trial; (2) the verdict and judgment for the plaintiff, Edward Simonson, Jr., for compensatory damages in the survivorship action is so grossly excessive and contrary to the law and evidence as to require reversal and remand for a new trial; (3) the remand for a new trial on the compensatory damage claim of the personal representative requires reversal and remand for a new trial on the punitive damage claim as well. The interest of justice will be best served by a new trial on all issues.

WRONGFUL DEATH — COMPENSATORY DAMAGES

This cause of action vested in Dorothy Bould as a person dependent upon the decedents for support. The single element of damage is the pecuniary value of the loss of support suffered by the plaintiff. W. B. Harbeson Lumber Co. v. Anderson, 102 Fla. 731, 136 So. 557 (1931); Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894).

Stated most favorably to appellee, the evidence established the following: Dorothy Bould, the mother of decedent Alice Simonson, was eighty-seven years old when Edward and Alice Simonson were killed, and ninety years old at the time of trial. She had been living with and supported by the Simonsons for twenty-five years prior to their death and enjoyed a close and stable relationship with them. At the time of their death she was in excellent health, had a very acute mind, was well-oriented to her surroundings, totally ambulatory and led a relatively normal life. The value of the support which the Simon-sons furnished her had been stated by them on their income tax returns as being $1,000 per year. Approximately two years after the accident, Mrs. Bould moved to a nursing home where she remained at a cost to her of $5,720 a year, presumably receiving the equivalent of the support she had received in the Simonson home. In the three-year interval between the accident and the trial, Mrs. Bould remained in reasonably good health and sound mind although she became confined to a wheelchair. At age ninety it was shown that under the standard mortality table she had a reasonable life expectancy of approximately three and a half years.

Appellants urge that Mrs. Bould’s damages can be determined with almost mathematical precision, i. e., $1,000 a year for the first two years following the accident, then $5,720 for the third year when she moved into the nursing home, and $17,192 for the future, yielding a total sustainable verdict of $24,912. However, the concept that this type of damage award can be computed with mathematical certainty was rejected by our Supreme Court in the case of Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932). Likewise, in that same case the court made it clear that the jury’s verdict cannot be predicated on conjecture, fancy caprice or speculation, but that, “the jury must rest its verdict on considerations of real substance.” 140 So. at 919.

At trial Mrs. Bould’s claim for loss of support necessarily fell into two parts, the past loss and the future loss. Indulging every assumption in favor of the validity of the verdict, the jury could have included an allowance of as much as $17,160 (three years at $5,720 per year) for the past loss of support. This would mean, of course, that the jury necessarily included in the verdict an allowance of approximately $83,000 as the present value of the future loss of support. Mrs. Bould was then age ninety. While the jury was certainly not bound by the mortality table life expectancy of three and a half years, and could reasonably have found that the cost to her to replace the lost support would increase above $5,720 per year, there are no matters of real substance in the evidence which could fairly support an award of this magnitude as the present value of the future loss of support. By way of illustration, $83,000 invested at 5% compound interest would yield an annuity slightly over $7,000 per year for 18 years. Even indulging the jury in the broadest possible discretion, such an award finds no support in the record and can only be characterized as being the result of conjecture, fancy caprice or speculation on the part of the jury. It was error to deny the defendants’ motion fór a new trial on the grounds of the excessiveness of this verdict.

SURVIVAL ACTION — COMPENSATORY DAMAGES

Edward Simonson, Jr., son of the decedents, was the personal representative of their respective estates and the plaintiff in the survivorship action brought under Fla.Stat. § 46.021 (1971). The proper elements of damage recoverable under this statutory provision are the decedent’s pain and suffering, medical expenses, loss of earnings between the time of the accident and death, funeral expenses, and (in an appropriate case) punitive damages. See, Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969); Sinclair Refining Co. v. Butler, 190 So.2d 313 (Fla.1966); Ellis v. Brown, 77 So.2d 845 (Fla.1955); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1946).

The decedents having been killed instantly, there was no conscious pain and suffering, no medical expense and no loss of earnings. Plaintiff did establish funeral expenses and property damage totalling $3,945.

Under the survival statute there can be no recovery by a personal representative for loss of the decedent’s prospective estate, Ellis v. Brown, supra; Atlantic Coast Line Railroad Company v. Turpak, 225 So.2d 340 (2nd DCA Fla.1969). Nonetheless, this element of damage was plead by the plaintiff and tried without objection by defendants (and hence by implied consent), and the jury was instructed thereon with the acquiescence of the defendants. Appellee contends that if it was error for the jury to be instructed on loss of prospective estate as an element of plaintiff’s damages, this was invited error which cannot be remedied on appeal. See, e. g., Bianchi v. State, 272 So.2d 8 (3rd DCA Fla.1973). Appellants contend that it is fundamental error involving lack of subject matter jurisdiction, which cannot be waived and can be raised by the parties at any time. See, 8 Fla.Jur., Courts, § 114 (1956); Rule 1.140(h) RCP; Rule 3.7 (i) F.A.R.. We need not decide that precise issue however, because we conclude that even if defendants may not now question the inclusion of this element of damages in the instructions to the jury, the verdict is without sufficient evidence to support it, and therefore the judgment must be reversed. Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97 (Fla.1950).

At the time of his death Edward Simon-son was retired from his employment with a bus company, receiving retirement benefits of $138 a month. He also received (jointly with his wife) social security in the amount of $254 a month. For years prior to his death, he had a part-time, in-home job repairing radios and television sets which produced approximately $50 a week in income while he was employed full-time for the bus company. He had acquired the full complement of equipment necessary to carry on such business and he and his brother-in-law, who had been assisting him in the work, had intended to go into this type of business full-time after the brother-in-law had retired in a few years. Additionally Mr. Simonson earned approximately $25 a week at other odd jobs. His mortality table life expectancy was 13.22 years. Mrs. Simonson, aged sixty-four, was earning $30 a month as a cleaning lady at a church and had a mortality table life expectancy of 14.45 years. At the time of their tragic deaths, the Si-monsons left a total joint estate with a value of approximately $17,000, the bulk of which represented proceeds from policies of life insurance on their lives. Their joint income tax returns indicated total income of approximately $6,500 in each of 1968 and 1969, and $4,600 in 1970. .

Excluding from the verdict the sum of $3,945 representing the funeral expenses and property damage loss, the jury necessarily awarded in the survivorship action the sum of $61,000 as the present value of the decedents’ prospective estates had they lived out their normal lives. If $61,000 represents the present value, then the jury would necessarily have found that the aggregate prospective estate which the decedents would have accumulated had they lived out their normal lives would have been substantially larger. By way of example, if it could be assumed that the decedents had a joint life expectancy of 14 years and that a prudent and safe investment could be made at 5% per annum compounded, $61,000 represents the present worth of $120,780 fourteen years hence. While it is true that the jury could have determined that the decedents’ joint life would be some lesser number than 14 years, and thus $61,000 would represent the present value of a somewhat smaller prospective estate than the $120,780 used in the illustration, the decedents would by the same token have had fewer years to accumulate such. Conversely, if the jury felt that the decedents had a joint life greater than the 14 years used in the illustration, the $61,000 award would represent the present value of a sum greater than the $120,780 mentioned, though the decedents would have had a longer period of time within which to accumulate such. The point is simply this. No matter what combination of factors the jury may have felt justified in utilizing, the end result amounts to a finding that the decedents, already at retirement age, would somehow thereafter start accumulating several thousand dollars a year (over and above all normal living expenses) for the remainder of their joint life, presumably from a new and unproven business venture. The evidence simply will not support such a finding. The well-recognized general rule in this state is that anticipated business profits are too remote, speculative and contingent to warrant a judgment for their loss, Home Development Company of St. Petersburg, Inc. v. Bursani, 178 So.2d 113 (Fla.1965); Myrick v. Miller, 256 So.2d 255 (3rd DCA Fla.1971); Niagara Therapy Manufacturing Corporation v. Niagara Cyclo Massage of Miami, Inc., 196 So.2d 474 (3rd DCA Fla.1967); 9A Fla.Jur., Damages, §§ 81-82, & 85 (1972). An exception to this rule does allow recovery of such damages where the business involved is an established one and the amount of actual loss can be ascertained with reasonable certainty based upon competent proof of the business’ history of profit and loss. Myrick v. Miller, supra; Niagara Therapy Manufacturing Corporation v. Niagara Cyclo Massage of Miami, Inc., supra. Clearly, however, the facts before us here cannot bring this case within this exception to the general rule: the decedents’ business was not even founded, much less “established” at the time of their death and, without a profit and loss history, the amount of actual damages could not be ascertained with any reasonable certainty. The verdict can only be explained as rank conjecture or speculation on the part of the jury. If appellate review of verdicts alleged to be excessive is a viable principle, then this is clearly a proper case for it. In fairness, there is very little evidence from which it could be fairly and reasonably inferred that during the remainder of their respective lives, the decedents would have enjoyed any appreciable income in excess of their normal day-to-day needs. See, Seaboard Coast Line Railroad Corporation v. Robinson, 263 So.2d 626 (2nd DCA Fla.1972).

SURVIVAL ACTION — PUNITIVE DAMAGES

Having concluded that the judgment for compensatory damages in favor of the survivorship plaintiff must be reversed, it follows, and we so hold, that the award of punitive damages to the survivor-ship plaintiff must also be reversed. This conclusion is premised upon two well-established principles of law: (1) punitive damages are not recoverable unless actual (compensatory) damages are shown, McLain v. Pensacola Coach Corporation, 152 Fla. 876, 13 So.2d 221, 222 (1943); Miami National Bank v. Sobel, 198 So.2d 841, 842 (3rd DCA Fla.1967); Ging v. American Liberty Insurance Company, 293 F.Supp. 756, 760 (N.D.Fla.1968), and (2) punitive damages must bear some reasonable, albeit imprecise, relation to the actual, or compensatory, damages, International Union of Operating Engineers, Local #675 v. Lassitter, 325 So.2d 408 (4th DCA Fla.1975); Lan-Chile Airlines, Inc. v. Rodriguez, 296 So.2d 498 (3rd DCA Fla.1974); Air Line Employees Association, International v. Turner, 291 So.2d 670 (3rd DCA Fla.1974); Hutchinson v. Lott, 110 So.2d 442 (1st DCA Fla.1959); Crowell-Collier Pub. Co. v. Caldwell, 170 F.2d 941, 944 (5th Cir.1948); Ging v. American Liberty Insurance Co., supra.

In the case of Baynard v. Liberman, 139 So.2d 485 (2nd DCA Fla.1962), the plaintiff had recovered a judgment for compensatory damages from which the defendant appealed. Plaintiff cross-assigned as error the order striking his prayer for punitive damages, and sought by the cross-appeal to have the judgment for compensatory damages affirmed with a remand for trial limited only to punitive damages. The court, in an opinion written by Judge Culver Smith, held that the court was without power to remand for a new trial limited to one particular item of damage. In the case of DuPuis v. 79th Street Hotel, Inc., 231 So.2d 532 (3rd DCA Fla.1970), the plaintiff recovered a judgment for both compensatory and punitive damages and on appeal the court found that the award for compensatory damages was not supported by the record. Initially the court reversed only the award of compensatory damages and remanded for a new trial on that issue alone, but upon rehearing modified the earlier decision by requiring a new trial on both compensatory and punitive damages. The court stated, at 536: “The court has determined that better practice and procedure requires that one jury determine both the compensatory and punitive damages.” We have already placed our imprimatur on this procedure, International Union of Operating Engineers, Local #675 v. Lassitter, supra, and we now hold on the authority of the above-cited cases that if punitive damages are to be awarded it must be by the same jury that awards the compensatory damages.

Because of this disposition of the case we find it unnecessary to decide other issues raised by the parties on these consolidated appeals.

The judgments are severally reversed and these causes remanded for a new trial on all issues.

Reversed and remanded.

MAGER and DOWNEY, JJ., concur.

      . The decedents’ death occurred on January 15, 1971 and thus these actions were under the “old” Wrongful Death Act, former Ma. Stat. §§ 768.01-768.03 (1971), and the Sur-vivorship Statute, Pla.Stat. § 46.021 (1971), the “new” Wrongful Death Act, Ma.Stat. §§ 768.16-768.26 (1973) being inapplicable. See, McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

      . Three and a half years at $5,720 reduced to present worth at 7%.

      . See, Documents #44 and #46, pages 741, 743, respectively, Florida Jurisprudence Desk Book (1968).


author: TENCH, BENJAMIN M., Associate Judge. MILLS, Judge

text:
    George Herman O’BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. W-419.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.

      Bill A. Corbin, Blountstown, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   TENCH, BENJAMIN M., Associate Judge.

The parties will be referred to as in the Court below.

Defendant was convicted of rape and sentenced to thirty (30) years in the Division of Corrections. He raises five (5) points on appeal, only one of which we find worthy of consideration. It is the threshold question whether the evidence was adequate to support conviction. We hold it was not.

According to the victim, at approximately midnight on March 30, 1974, she was awakened by a knock on the door of the house trailer in which she lived with her husband and two small children. She dressed in slacks, panties and pajama top and went to the door, believing it was her husband who had forgotten his keys to their home. The defendant was standing in the door when she opened it. He forced himself into the trailer after telling her that her husband and the girl with whom he was socializing had left a local bar together earlier in the evening. He pushed her to the floor where he held her with one hand and with the other removed her slacks and panties. The slacks were torn, but the evidence is in conflict whether the tear occurred during the alleged rape. The underwear was not torn. Her legs were pinned down by the defendant’s legs, and he then engaged in sexual intercourse with her. Her screams awakened one of her two children, and the child came crying down the hall of the trailer. The child apparently frightened the defendant, and he did not consummate the intercourse. She locked herself in the bathroom until defendant left the premises and then telephoned her brother-in-law, a Florida Highway Patrolman. The defendant was arrested shortly thereafter.

According to the defendant, he and the alleged victim had intercourse on the night of March 30, but it was by prearrangement, without force, and with the consent of the alleged victim. He insisted that he had engaged repeatedly in sexual intercourse with her during her previous marriage and during her present marriage, and that during the present marriage their sexual activity took place on the floor near the back door of the house trailer so they could watch the road by which her husband customarily returned.

We are cognizant of the well established rule that the weight of the evidence and the credibility of witnesses is solely within the province of the jury, and that an appellate court should not substitute its judgment on these matters for that of a jury. However, an appellate court may weigh the sufficiency of the evidence. Bailey v. State, 76 Fla. 213, 79 So. 730 (Fla.1918). In the instant case no weapons were produced to threaten the alleged victim; no threats were made against her; there was no evidence of any physical injury, such as bruises or scratches, to either the alleged victim or the defendant; and the prosecutrix’s panties were not torn.

In Bailey the defendant seized the victim by her arm and threw her on the bed, and while choking her with his left hand consummated sexual intercourse with her. The Florida Supreme Court held the evidence was insufficient for a conviction, stating:

“. . . and where the testimony shows that the prosecutrix made little or no resistance and made no outcry, it fails to show that the offense was committed by force against her will.”

In Hollis v. State, 27 Fla. 387, 9 So. 67 (Fla.1891) the defendant seized a fourteen-year-old victim around the waist, covered her mouth with one hand and threw her down. He took his hand away from her mouth, pressed his arm down on her throat, telling her that if she cried out he would kill her; he then lifted her dress and engaged in sexual intercourse with her. The Florida Supreme Court found that the evidence presented was insufficient to support the verdict of guilty of rape.

Two of the elements which must be proved beyond a reasonable doubt in order to establish the offense of rape are that it be accomplished by force and that it be against the will of the victim. The absence of proof of either of these elements beyond a reasonable doubt requires the conclusion that the state has failed to establish prima facie case against the defendant. The offense of forcible rape is never established where the evidence presented by the state fails to show that the act was accomplished by force and against the will of the victim, but only shows that she protested. Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943).

We hold the evidence was insufficient to sustain the defendant’s conviction.

We reverse and order defendant O’Bryan discharged.

BOYER, C. J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissents):

I dissent. In my opinion, the evidence was sufficient to raise a jury issue. I would abide by the jury’s verdict of guilty and affirm.


author: NATHAN, Judge.

text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. The NEW FLORIDIAN HOTEL, INC., a Florida Corporation, d/b/a Biscaya Hotel, et al., Appellees.
    No. 75-515.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.

      Joseph A. Wanick, City Atty., Lee' H. Schillinger and Andrew H. Moriber, Asst. City Attys., for appellant.
    Harvey Richman, Miami Beach, for ap-pellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the City of Miami Beach, defendant in the trial court, from a final judgment in a declaratory judgment action by The New Floridian Hotel, Inc., d/b/a Biscaya Hotel, A. Lionel Bosem, d/b/a President Madison Hotel and A. Lionel Bosem d/b/a Coronet Hotel, plaintiffs, finding that the plaintiffs’ establishments are boarding houses and not hotels within the purview of the City of Miami Beach Occupational License Chapter of the City Code, and requiring the defendant to license the plaintiffs’ establishments as boarding houses, and from a cost judgment entered against the defendant.

The plaintiffs filed a complaint seeking a declaratory judgment in order to determine whether the three establishments, Biscaya Hotel, President Madison Hotel and Coronet Hotel, are hotels or boarding houses for the purpose of payment of city occupational license fees. The plaintiffs claim to operate boarding houses since their guests, mainly elderly persons, lease the accommodations for long-term stays, rather than transient visits, and since many of the customary hotel services are not provided. The complaint asks the court to determine, inter alia, “. . . that the plaintiff is not in breach of any municipal ordinance. . . .” The City of Miami Beach filed an answer denying the material allegations of the plaintiffs’ complaint, contending that the plaintiff’s establishments are hotels and must be licensed as such.

At trial, the plaintiffs introduced into evidence copies of Chapter 17 and Chapter 20 of the Code of the City of Miami Beach. Chapter 17 defines and regulates boarding houses, hotels and rooming houses. Chapter 20 provides regulations which apply to the fee schedule for occupational licenses. Section 20-15 of Chapter 20 provides that, “No license shall be issued except in conformity with the zoning ordinance.” During the presentation of the defendant’s case, the city attorney sought to admit into evidence, a City of Miami Beach zoning ordinance which places a unit density maximum on boarding houses and provides for the areas in which they may be located. Counsel for the plaintiffs objected to the admission of or any reference to, the zoning ordinance as being a complete surprise and not material to the pleadings. The objection was sustained and the City was not permitted to raise the zoning issue in defense of the action.

Following the trial, the court entered a final judgment in which it determined that although the plaintiffs used the word “hotel” in their advertising, the evidence rebutted the presumption that the three establishments are hotels, and proved that they are boarding houses. The court ordered that they be so classified and directed the City of Miami Beach to issue boarding house licenses to them. The judgment prohibited the plaintiffs from further use of the word “hotel” in the names or on the stationery or brochures or in any other manner. A cost judgment was also entered against the defendant. This appeal ensued.

The City of Miami Beach contends that the trial court erred in refusing to permit introduction of the zoning ordinance relating to boarding houses. We agree. Básed not only on the plaintiffs’ prayer for a declaration that they are “not in breach of any municipal ordinance,” but also on the plaintiffs’ reliance on and admission into evidence of Chapter 20 of the City Code which provides that licenses must be issued in conformity with the zoning ordinance, we find that it was incumbent on the plaintiffs to prove that they were entitled to operate a boarding house within the applicable zoning classifications for each of the establishments involved. In an action for a declaratory decree, the plaintiff has the burden of establishing the existence of a present, actual controversy, as well as proving the material allegations of the complaint. Groover v. Adiv Holding Company, Fla.App.1967, 202 So.2d 103, 104. The owner of land is chargeable with knowledge of general laws prescribing the manner in which it may be enjoyed or the title thereto affected. Allstate Mortgage Corporation of Florida v. City of Miami Beach, Fla.App.1975, 308 So.2d 629, 632. Since the plaintiffs’ own exhibits incorporated by reference the provisions of the ordinance, they had the burden of proving they were not in violation of it. Evidence which assists in making known the truth upon the issue in question should be admitted as evidence. Prior v. Oglesby, 1905, 50 Fla. 248, 39 So. 593.

Therefore, it was error to refuse to admit the zoning ordinance. The final judgment and the cost judgment are reversed, and the cause is remanded to the trial court for a new trial.

Reversed and remanded.


author: PEARSON, Judge.

text:
    Albert KACZER, Appellant, v. Evelio MARRERO, Appellee.
    No. 75-305.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.

      Howard L. Kuker, S. L. Gaer, Miami, for appellant.
    Horton, Perse & Ginsberg, Edwin C. Ratiner, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIEED, JJ.
   PEARSON, Judge.

The controlling question on this appeal is whether or not an insane person is responsible in a civil action for a tort of assault and battery committed while he is insane. We hold that an insane person is responsible, basing our couclusion on Jolley v. Powell, Fla.App.1974, 299 So.2d 647.

The appellee, Evelio Marrero, was a workman in a Miami Beach hotel. While he was unsuspectingly proceeding with his work,- the defendant, Albert Kaczer, stabbed him in the back. The parties stipulated that Kaczer was insane at the time of the act. The injured Marrero sued Ka-czer claiming damages for a negligent injury. He was later allowed to amend his complaint to allege the tort of assault and battery. At the trial of the cause, the trial court directed a verdict for the plaintiff as to liability and the jury returned a verdict of $20,000 as damages. This appeal followed.

In Jolley v. Powell, Fla.App.1974, 299 So.2d 647, the Second District Court of Appeal was called upon to answer the following certified question:

“In an action for wrongful death, is there available to the defendant the affirmative defense of insanity at the time of the act, causing the alleged wrongful death.”

In answering the question, the court held:

* * * * * H=
“So liability without subjective fault, under some circumstances, is one price men pay for membership in society. The sane and the insane, the awkward and the coordinated are equally liable for their acts or omissions. In such cases we do not decide fault, rather we determine upon whom our society imposes the burden of redress for a given injury. As Holmes implied in his ‘awkward man’ parable, a principle at least co-equal with that of the fault principle in the law of torts is that the innocent victim should have redress.”
* * * * * *
“We therefore reiterate, when the predicate for a wrongful death action is unintentional tort the standard against which such tort is measured is the objective, ‘reasonable man standard’ and the subjective state of mind of the tortfeasor is irrelevant.
“In passing, we point out that we do not mean to say here that insanity would not be a defense to a claim for punitive damages. Our rationale would seem to suggest that such a defense would indeed be available in such cases.”
* * * * * *

Appellant argues that the Jolley opinion is limited in scope to unintentional torts. This is true. Nevertheless, it is our holding that assault and battery is no less a wrongful act than wrongful death, which is dealt with in the opinion. The distinction is one of the extent of the damages only. We, therefore, hold that the reasoning in Jolley is properly followed by this court in the case now before us. It should also be noted here that the complaint initially alleged a negligent act and that this count was not dismissed. Therefore, the trial court’s order on liability is supported as against the defense of insanity on that count.

To the extent that the decision in Jolley is not controlling in this case, we hold that the common law principle that an insane person is responsible in damages for his tortious acts has not been abrogated in Florida. See 41 Am.Jur.2d “Incompetent Persons” § 104 (1968). The principle is based not only upon the fact that, at common law, torts were not grounded upon the fault concept, but also upon the idea that the victim of a wrongful act must be compensated. See Williams v. Hays, 143 N.Y. 442, 38 N.E. 449 (1894). This concept is shown by many of the actions at common law, such as trespass, which are not based upon intentional acts. See 87 C.J.S. Trespass § 5 (1954). Trespass itself was divided into trespass to real and personal property, and trespass to the person. Trespass to the person did not require an intention to trespass. The action in this cause which the plaintiff labeled as assault and battery is in actuality the modern equivalent of the common law action of trespass to the person. Since this action is not one which requires an intentional act, we hold that even in the absence of an intent to injure, the trespasser is liable. Therefore, an insane trespasser may be liable.

Appellant’s point claiming a procedural error in allowing an amendment to the complaint does not present reversible error. See Weich v. Cook, Fla.App.1971, 250 So.2d 281.

Affirmed. „

      . Prosser, Law of Torts, § 4 (3d ed.).

      .Trespass quare clausum fregit.

      . Trespass de bonis asportatis.

      . Supra, footnote 1.


author: McNULTY, Chief Judge.

text:
    CORPORATE AIR FLEET OF TENNESSEE, INC., Appellant, v. Sam ELLIS and Florida Interocean, Inc., a Florida Corporation, jointly and severally, Appellees.
    No. 75-1171.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.

      William W. Wilhelm of Phillips, McFarland, Gould & Korones, Clearwater, for appellant.
    No appearance by appellees.
   McNULTY, Chief Judge.

Appellant sought to establish in this state a Tennessee final judgment obtained against appellees upon personal service in Tennessee. Since appellant was not a corporation authorized to transact business in the State of Florida within the contemplation of Chapter 613, F.S.1973, the trial court granted a motion to abate the action until compliance therewith in accordance with the provisions of that chapter. We reverse.

It is settled in this state that the mere filing and maintenance of a law suit does not constitute “doing business” within the state within the purview of Chapter 613, supra, so as to preclude access to our courts, unless the suit or action is based upon a contract or obligation resulting from a transaction, other than an isolated one, in the state. There is nothing in this case to suggest that the underlying cause of action in the Tennessee suit arose in Florida or that, if it did, it was more than an isolated transaction. In fact, to the contrary, it appears that appellant’s sole contact with the State of Florida is the suit itself which, in turn, was necessitated by the physical presence of appellees in Citrus County.

We think, therefore, Chapter 613, supra, is inapplicable. A contrary holding would either violate the commerce clause of the United States Constitution if the underlying cause of action were merely an isolated transaction or, in the case of a valid foreign judgment as here, contravene the full faith and credit clause thereof.

Accordingly, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.

      . See Crockin v. Boston, Store of Ft. Myers (1939), 137 Fla. 853, 188 So. 853; McMullen v. Inland, Realty Corporation (1933), 113 Fla. 476, 152 So. 740 (Special Concurring Opinion reported in 156 So. 481); Al Wilson’s Power-Ful Displays, Inc. v. Morgan Adhesive, Inc. (Fla.App. 3d 1972), 259 So.2d 166.


text:
    FLORIDA CRANES, INC., Appellant, v. FLORIDA EAST COAST PROPERTIES, INC., Appellee.
    No. 75-1242.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Moore, Kessler, Roth & Beckerman, Miami, for appellant.
    Cohen, Angel & Feinberg and Lawrence A. Rogovin, North Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant-plaintiff seeks review of an order of the trial court granting a motion to dismiss a complaint to cancel a release and foreclose a mechanic’s lien.

The appellant performed certain work for the appellee, making improvements to the appellee’s real property. Upon completion of the work, the appellee failed or refused to pay $11,575.86 of the appellant’s bill and the appellant filed a claim of lien against the appellee’s property. The appellant’s counsel herein also represented one Poston Bridge and Iron, Inc., who had also done work for the appellee and had filed a lien against the appellee. Poston’s claim was paid or compromised, and the appellant’s counsel caused a release of lien to be prepared. However, through clerical error in counsel’s office, a release was prepared in the name of the appellant herein and was executed and recorded. Upon learning of the mistake, a release was prepared in Poston’s name and recorded. Thereupon, appellant brought the instant action seeking to cancel the appellant’s release and to foreclose his mechanic’s lien. The appellee moved to dismiss the complaint on the ground that equity could not relieve a party from its unilateral negligence or mistake. After hearing on the motion, the trial court entered the order appealed granting the appellee’s motion to dismiss.

The appellant contends, and we agree, that the court erred in entering the order appealed on the ground that equity-can correct a unilateral mistake where said mistake is committed by an employee of the appellant, and constitutes a simple but honest mistake which could lead to an unconscionable result. Wicker v. Board of Public Instruction of Dade County, Fla.1958, 106 So.2d 550; Hotel China & Glassware Company v. Board of Public Instruction of Alachua County, Fla.App.1961, 130 So.2d 78; State Board of Control v. Clutter Construction Corporation, Fla.App. 1969, 139 So.2d 153; Maryland Casualty Company v. Krasnek, Fla.1965, 174 So.2d 541.

Therefore, the order under review be and the same is hereby reversed and the matter is remanded to the trial court with directions to permit the defendant therein to file an answer and proceed to a final hearing, in accordance with the Rules of Civil Procedure.

Reversed and remanded, with directions.

      . This matter has been resolved in the trial court upon the complaint and motion to dismiss. Therefore, no question of change in position or prejudice to Florida East Coast Properties, Inc. (between the date of the filing of the mistaken release and the instant suit being commenced) was presented in the trial court or is presented on this appeal, but such may be raised as a defense upon a return of this matter to the trial court.


text:
    Rae PRICE, Petitioner, v. George A. FERBER, as Executor of the Estate of George D. Ferber, Deceased, Respondent.
    No. X-536.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Armond B. HILLS, Appellant, v. STATE of Florida, Appellee.
    No. W-457.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Myrtle FLOYD, Appellant, v. Verna Lee WALLACE, Appellee.
    No. Y-96.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Verdie A. WESTBERRY, individually and as former guardian of Patricia Westberry, et al., Appellants, v. The BUCKEYE CELLULOSE CORPORATION, Appellee.
    No. Y-281.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    McMILLIN INVESTMENT, INC., a Florida Corporation, formerly known as Envirolab, Inc., a Florida Corporation, and Mill Neck Investors Associates, Inc., Appellants, v. NATIONAL BANK OF MELBOURNE AND TRUST COMPANY, a national banking corporation, Appellee.
    No. 75-1024.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
    Rehearing Denied Jan. 19, 1976.
   PER CURIAM.

Affirmed.


text:
    Kathleen Marie BERO, Appellant, v. William R. HEIDTMAN, Sheriff of Palm Beach County, Florida, Appellee.
    No. 75-2116.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
    Rehearing Denied Dec. 15, 1975.
   Habeas Corpus denied.


text:
    William E. FREBER, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Defender Rehabilitation, Appellee.
    No. 75-2122.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
    Rehearing Denied Jan. 13, 1976.
   Habeas Corpus denied.


text:
    Arnold C. GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1515.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
    Rehearing Denied Dec. 29, 1975.
   Appeal dismissed.


text:
    Jack RICKETSON, Appellant, v. The Honorable Peter M. DEMANIO, as Circuit Judge for the Ninth Judicial Circuit Court for the State of Florida, Appellee.
    No. 75-1894.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1975.
    Rehearing Denied Dec. 31, 1975.
   Prohibition denied; Motion to seal court file denied.


text:
    Jeanne M. BAKER, Appellant, v. Dorothy GRILLO and Al Grillo, Appellees.
    No. 75-1300.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
   PER CURIAM.

Affirmed.


text:
    Gene ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 75-413.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Rehearing Denied Jan. 20, 1976.
   PER CURIAM.

Affirmed.


text:
    ANACONDA REAL ESTATE INVESTMENT TRUST, through its Trustees, Dolores R. Koshman, et al., Appellants, v. Robert A. HOWARD and Mary Kay Howard, Appellees.
    No. 74-348.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 19, 1976.
   PER CURIAM.

Affirmed.


text:
    The CITY OF BOYNTON BEACH et al., Appellants, v. LEHIGH PORTLAND CEMENT COMPANY, a corporation authorized to do business in the State of Florida, Appellee.
    No. 74-1544.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 14, 1976.
   PER CURIAM.

Affirmed.


text:
    Naomi COLLIER, Individually, and as Guardian of Wesley S. Lanier, et al., Appellants, v. T. L. LANIER et al., Appellees.
    No. 75-532.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Silas Anthony GIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 75-89.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 19, 1976.
   PER CURIAM.

Affirmed.


text:
    Charles E. ARNOLD et al., Appellants, v. W. Clayton HARMON and Robert K. Harmon, Jr., Appellees.
    No. 75-516.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 21, 1976.
   PER CURIAM.

Affirmed.


text:
    Morris RUSHING, Sr., Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, a body politic and corporate, Appellee.
    No. X-338.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 22, 1976.
   PER CURIAM.

Affirmed.


text:
    Herbert BATTLE, Appellant, v. STATE of Florida, Appellee.
    No. 75-404.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY and Burt and Scheld, Inc., Appellants, v. RELIANCE MUTUAL OF AMERICA, INC., et al., Appellees.
    No. 74-1413.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    BOCA DEL MAR ASSOCIATES, and Texaco Boca Del Mar, Inc., Appellants, v. CITY OF BOCA RATON, a Florida Municipal Corporation, et al., Appellees.
    No. 75-772.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Tommy CASTLE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1765.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    DRS. MAZZA & FALCONE ANESTHESIA GROUP, etc., Appellant, v. Gary J. DELLERSON, M.D., Appellee.
    No. 75-7.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    In re the ESTATE of Evelyn Victoria BORDEN, Deceased.
    No. 75-511.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Gene H. GODBOLD, as Trustee, Appellant, v. A-B PROPERTIES, a Florida general partnership, et al., Appellees.
    No. 75-1483.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Carol ISLER, Appellant, v. VILLA VALENCIA CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 75-534.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie McCLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-231.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald Nathaniel MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-213.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Max A. MOGUL et al., Appellants, v. ORLANDO FEDERAL SAVINGS AND LOAN ASSOCIATION and Winter Park Professional Building, etc., et al., Appellees.
    No. 75-1402.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Kenneth Ray MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 75-16.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Albert PAULK, Appellant, v. STATE of Florida, Appellee.
    No. 75-297.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Roy ROLAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-64.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Leslie SHAW, Appellant, v. Robert J. ROLLINS, as Administrator of the County of Palm Beach, State of Florida, et al., Appellees.
    No. 75-1399.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Jerome Merrill SHREWSBURY, Appellant, v. STATE of Florida, Appellee.
    No. 75-709.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Weldon SHROYER, Appellant, v. STATE of Florida, Appellee.
    No. 75-913.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Michael D. SOTOLA, Appellant, v. STATE of Florida, Appellee.
    No. 75-496.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Horace Eugene TILLMAN, Appellant, v. Eleanor June TILLMAN, Appellee.
    No. 75-123.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Ricky WEST, Appellant, v. STATE of Florida, Appellee.
    No. 75-111.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert William YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 74-1631.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Rudolph ZADNIK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1807.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Alberto ALMEIDA and Sheryl Almeida, his wife, Appellants, v. Ted M. TRUSHIN et al., Appellees.
    No. 75-1409.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Appeal from Circuit Court, Broward County; James F. Minnet, Judge.

Appeal dismissed.


text:
    DIVISION OF FAMILY SERVICES OF the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellant, v. Yeal EFROS, a/k/a Johnson as mother, natural guardian and next friend of Belecia Efros, a child, Appellee.
    No. 75-1309.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1975.
   Appeal dismissed.


text:
    GENERAL DEVELOPMENT CORPORATION, Appellant, v. Duane W. HUCK, Appellee.
    No. 75-1833.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Appeal from Circuit Court, St. Lucie County; James E. Alderman, Judge.

Appeal dismissed.


text:
    GRAND PRIZ, INC., a Florida Corporation, Petitioner, v. ROLLY MARINE SERVICE, INC., etc., Respondent.
    No. 75-2180.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Certiorari denied.


text:
    Sherwood JONES, as natural parent of Jennifer Jones, a minor, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 75-2012.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Appeal from Circuit Court, Palm Beach County; Lewis Kapner, Judge.

Appeal dismissed.


text:
    Dave Edward OWENS, individually, and as Administrator of the Estate of Stephen Timothy Owens, Deceased, Appellant, v. SUPERIOR FERTILIZER AND CHEMICAL COMPANY, a Florida Corporation, Appellee.
    No. 75-1932.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Appeal from Circuit Court, Okeechobee County; C. Pfieffer Trowbridge, Judge.

Appeal dismissed.


text:
    The STATE of Florida, Appellant, v. Martin VAN GELDER, Appellee (three cases).
    Nos. 75-466, 75-467 and 75-468.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 1975.
   Appeal from Circuit Court, Orange County; Peter M. deManio, Judge.

Appeal dismissed.


text:
    STATE ex rel. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation, Petitioner, v. Delphene STRICKLAND, Hearing Officer, and the State Department of Administration, Division of Administrative Hearings, Respondents.
    No. 75-1830.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1975.
   Suggestion for Writ of Prohibition dismissed.


text:
    Willie FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-393.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    GOOD SAMARITAN HOSPITAL ASSOCIATION et al., Appellants, v. Eva WEISS, Appellee.
    No. 75-2210.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   Appeal from Circuit Court, Palm Beach County; Hugh MacMillan, Judge.

Appeal dismissed.


text:
    Charles JOHNSON a/k/a Dessle Thomas, and Woodrow Diggs, Appellants, v. STATE of Florida, Appellee. Bradley SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1117, 74-1234.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Harold Lester HESS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1750.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    Roosevelt JONES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1693.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   PER CURIAM.

Affirmed.


text:
    In the Interest of M. E. T., a child.
    No. 75-2042.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   Appeal from Circuit Court, Palm Beach County; Paul T. Douglas, Judge.

Appeal dismissed.


text:
    Robert NEADEL, individually, and d/b/a Neadel’s Automotive Repair Center, Inc., a Florida Corporation, Appellant, v. John MONOCO, Individually, and d/b/a Billy’s Wrecker Service, Inc., a Florida Corporation, Appellee.
    No. 75-1300.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1975.
   Appeal from Circuit Court, Broward County; Stewart F. LaMotte, Judge.

Appeal dismissed.


text:
    The STATE of Florida ex rel. Maria V. OTERO, Relator, v. HONORABLE JUDGES OF the CIRCUIT COURT IN AND FOR DADE COUNTY, Florida, Respondents.
    No. 76-1.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1976.
   PER CURIAM.

Prohibition denied.


text:
    Ewell Vaughn AYCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 75-1317.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   Appeal dismissed.


text:
    John Nelson RENN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1366.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 1976.
   Appeal dismissed.


text:
    RANDOL REALTY, Appellant, v. Harry H. HOLLINGER et al., Appellees.
    No. 75-1351.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    L. Elizabeth MAXCY, etc., Appellants, v. CITIZENS NATIONAL BANK OF ORLANDO, Appellee. COMBANK/WINTERPARK, as Guardian of the property of Marivon Maxcy, a minor, and Charles G. Maxcy, Appellants, v. Irene H. MAXCY et al., Appellees. Irene H. MAXCY, Appellant, v. PAN AMERICAN BANK OF ORLANDO et al., Appellees.
    Nos. 73-427, 75-1237 and 75-1259.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    A. C. CONGDON, Trustee, First Mortgage Corporation of Florida, Bankrupt, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 75-1152.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    Julia LOCKERMAN, Appellant, v. SUPERX DRUGS OF FLORIDA, INC., a Florida Corporation and Insurance Company of North America, a Foreign Corporation, Appellees.
    No. 75-938.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


author: SUGG, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Rivers SAMPSON. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Rivers SAMPSON on behalf of the heirs of Anthis Sampson, Deceased. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Rivers SAMPSON as father and next friend of Linda Faye Sampson, a minor. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Rivers SAMPSON as father and next friend of Dale Earl Sampson, a minor.
    Nos. 48225-48228.
    Supreme Court of Mississippi.
    Aug. 25, 1975.

      Ramsey, Bodron, Thames & Robinson, Vicksburg, for appellant.
    Ellis, Ellis & Bost, Vicksburg, W. W. Pierce, Jackson, for appellees.
    Before PATTERSON, INZER and SUGG, JJ.
   SUGG, Justice.

This is an appeal by State Farm Mutual Insurance Company from judgments rendered against it in garnishment proceedings in the Circuit Court of Warren County as follows:

CASE NO. PLAINTIFF AMOUNT OF JUDGMENT

48.225 Rivers Sampson $18,540.00

48.226 Rivers Sampson on behalf of the heirs of Anthis Sampson, Deceased 10,300.00

48.227 Rivers Sampson as father and next friend of Linda Faye Samp son, a minor 5,150.00

48.228 Rivers Sampson as father and next friend of Dale Earl Sampson, a minor 5,150.00

$39,140.00

The four cases were consolidated on appeal and State Farm contends that the Circuit Court erred by granting judgment to the Sampsons in the aggregate sum of $39,140.00 for the reason that its liability to them was only $22,128.50.

The cases on appeal originated when each of the Sampsons and Leon Britton filed a separate suggestion of garnishment against State Farm. The original and amended answers of State Farm, which were not controverted, alleged that State Farm issued an automobile liability policy to Harvey Landers insuring him against claims for bodily injury arising from the operation of his motor vehicle in the maximum amount of $50,000 for all persons in any one collision with a limit of $25,000 for one person. The policy also covered property damage in the maximum amount of $10,000 for any one collision. Following a motor vehicle collision on March 31, 1972 between the automobile belonging to Landers and the automobile being driven by Rivers Sampson, five suits were filed against Landers in the Circuit Court of Warren County and consolidated for trial. Judgments in the five cases were entered against Landers in favor of the plaintiffs as follows:

Rivers Sampson $ 18,000
Rivers Sampson on behalf of the heirs of Anthis Sampson, Deceased $ 10,000
Rivers Sampson as father and next friend of Linda Faye Sampson $ 5,000
Rivers Sampson as father and next friend of Dale Earl Sampson $ 5,000
Leon Britton $100,000

A remittitur of $50,000 was entered in the Britton case and accepted by him resulting in judgments totaling $88,000.

Before the five consolidated cases were tried State Farm settled with J. C. Oakes and Neal Ward for injuries received in the collision of March 31, 1972. State Farm paid Oakes and Ward $2,555 and $316.50, respectively, for bodily injuries, and obtained releases from each in favor of State Farm and Landers. Before the trial, State Farm also paid Leon Britton $2,000 for bodily injuries, but did not secure a release from Britton. State Farm’s liability of $50,000 under the policy was reduced by the $4,871.50 paid Oakes, Ward and Brit-ton, leaving $45,128.50 to apply on the five judgments.

The garnishment proceedings were filed after the holders of the five judgments were unable to agree on distribution of the $45,128.50. After State Farm filed its original answer, it paid Leon Britton an additional $23,000, making a total payment to Britton of $25,000. It amended its answer to reflect the $23,000 payment and alleged that it was liable for only $22,128.50 under the Landers insurance policy to apply toward payment of the Sampson judgments. Each of the Sampsons filed a motion for judgment on the answer as authorized by Mississippi Code Annotated section 11-35-29 (1972), and the Circuit Court entered judgments on the motions. Although the judgments were incorrect as to amount, the trial court followed the correct procedure by. entering judgments on the motions of the Sampsons. When an answer in a garnishment proceeding is filed which does not raise an issue of fact, and when the plaintiff in garnishment does not contest the extent of the discovery or the truthfulness of the answer under Mississippi Code Annotated section 11-35^-5 (1972), judgment on the answer may be entered. This is beneficial to both the plaintiff and the garnishee because, absent a factual controversy, it enables the parties to end their litigation speedily.

The principal question for determination is the allocation of the proceeds of a liability insurance policy when the limits of the policy are less than the aggregate amount of judgments rendered in causes consolidated for trial. We do not have before us the question of priority of judgments since all of the judgments involved were entered on the same date in cases consolidated for trial.

We find no Mississippi cases on this question, but courts in other jurisdictions have generally held that when several claims arising from one accident are consolidated for trial, and the tort feasor’s insurance is insufficient to pay all the claims in full, the proceeds of the insurance should be distributed on a pro rata basis in accordance with the amount of damages suffered by each claimant. 7 Am.Jur.2d Automobile Insurance § 197, page 540 and 70 A.L.R.2d § 3, page 418 and cases cited therein.

In this case Landers’ insurance was insufficient to pay the five judgments rendered against him. Since the judgments were based on claims arising from one accident and were entered in cases consolidated for trial, the amount available for his insurance should be distributed among the judgment creditors pro rata. This is equitable because none of the claimants will recover fully at the expense of the others, but each will recover his proportionate part of the insurance proceeds available.

The next question is whether Leon Britton was paid more than his pro rata share by State Farm from the proceeds of Landers’ insurance.

State Farm paid Leon Britton $2,000 before he obtained his judgment for $50,000. After deducting this payment, the balance of Britton’s judgment was $48,000. State Farm alleged in its answer that the Rivers Sampson judgment for $18,000 included $1,610 property damage leaving $16,390 attributable to the bodily injury coverage under the policy. State Farm admitted $1,610 was due Rivers Sampson in addition to his pro rata share of the funds in its hands attributable to bodily injury.

After making these two adjustments, the judgments in the consolidated cases attributable to bodily injury amount to $84,390 as shown below.

Rivers Sampson $16,390
Rivers Sampson on behalf of the heirs of Anthis Sampson $10,000
Rivers Sampson father and next friend of Linda Faye Sampson $ 5,000
Rivers Sampson father and next friend of Dale Earl Sampson $ 5,000
Total of Sampsons’ Judgment $36,390
Leon Britton $48,000
TOTAL OF ALL JUDGMENTS $84,390

State Farm admitted liability for $45,128.50 attributable to bodily injuries remaining for distribution toward satisfaction of the five judgments against Landers. Each judgment creditor was entitled to 53.-476112% of his judgment from the $45,128.50. ($45,128.50 + $84,390.00 = 53.-476112%).

Without the policy limitation of $25,000 to any one person in any one collision, Britton would have been entitled to an additional payment of $25,668.54. However, he was only paid $23,000 which, when added to the $2,000 previously paid to him, equals the $25,000 policy limit. Britton was not paid more than his pro rata share from the proceeds of the State Farm policy.

The Sampsons take the position, and the trial court agreed with them, that State Farm was not entitled to credit for the $23,000 paid Leon Britton upon dismissal of Britton’s garnishment. They contend that the proceeds of the insurance policy in the hands of State Farm at the time it was served with the writs of garnishment should not be reduced by the voluntary payment to Britton without a proper court order.

A garnishee is charged with the custody and preservation of the garnished debt or property pending the outcome of the litigation unless he surrenders the property to the officer serving the writ. Mississippi Code Annotated section 11 — 35— 23 (1972). He is a stakeholder and must not voluntarily do anything to prejudice the parties and may not, except at his own peril, transfer the property or make a voluntary payment. Brondum v. Rosenblum, 151 Miss. 91, 117 So. 363 (1928). However, a garnishee has a right to surrender garnished property to its true owner or to pay a creditor. If he surrenders to a person not entitled thereto, or pays a garnish- or more than the garnishor is entitled to, he is not relieved from liability, but will be required to make up any overpayment. Since the $23,000 paid to Britton was not an overpayment, State Farm is entitled to credit for the payment.

After payment of the $23,000-to Britton, there remained $22,128.50 to apply on the four Sampson judgments as shown by the following computation:

Total amount due on account of bodily injuries $50,000.00
Less payments:
Oakes $2,555.00
Ward 316.50
Britton 25,000.00 $27,871.50
Balance $22,128.50

The four Sampson judgments, after adjusting the Rivers Sampson judgment for property damage, total $36,390. Since there is only $22,128.50 to apply toward payment of the judgments, each of the Sampsons is entitled to his proportionate share of the insurance proceeds which is 60.80928% of each judgment. ($22,128.50 $36,390.00 = 60.80928%).

We render judgment for each of the Sampson judgment creditors as follows:

AMOUNT OF NAME JUDGMENT PERCENTAGE AMOUNT

Rivers Sampson $16,390 60.80928 $ 9,966.64

Rivers Sampson on behalf of the heirs of Anthis Sampson $10,000 60.80928 $ 6,080.93

Rivers Sampson father and next friend of Linda Faye Sampson $ 5,000 60.80928 $ 3,030.47

Rivers Sampson father and next friend of Dale Earl Sampson $ 5,000 60.80928 $ 3,030.46

$22,128.50

In addition, judgment is rendered in favor of Rivers Sampson against State Farm in the amount of $1,610 for property damages.

Appellees filed a motion to strike a portion of the record entitled “Addendum.” The Court having considered the contents of the addendum is of the opinion that it is not properly a part of the record of the four cases on appeal; therefore, the motion is sustained and all costs attributable to the addendum are taxed against the appellant.

Affirmed in part, reversed in part and judgment rendered here.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

      . The judgments included interest of $540, $300, $150 and $150, respectively, on the plaintiffs’ judgments rendered October 30, 1973 against Harvey Landers in their sepa-rate suits against him.