text:
    Johnny L. DENTON, Appellant, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY and Keller Industries, Inc., Appellees.
    No. X-375.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.

      R. K. Roberson, DeLand, for appellant.
    R. David Ayers, Jr. and Janis M. Halker, Orlando, for appellee Connecticut General Life Ins. Co.
    Patricia C. Fawsett, Orlando, for appel-lee Keller Ind., Inc.
   SMITH, Judge.

Plaintiff appeals from final judgments entered for the two defendants in this action concerning $5,000 in life insurance benefits provided by an employees’ group policy issued by defendant Connecticut General Life Insurance Company to defendant Keller Industries, Inc. Keller employed Thomas Denton, plaintiff’s father, until seven weeks before he died of cancer on July 28, 1972. The trial judge held that Denton’s insurance coverage ended no later than July 1 and entered summary judgment for Connecticut General. The court also finally dismissed plaintiff’s action against Keller because of the insufficiency of plaintiff’s fourth amended complaint, asserting Keller’s liability for failing to remit insurance premiums on June 1, 1972, or for otherwise cancelling Denton’s insurance, and for failing to advise Denton of the change in his insurance status and of the availability of conversion privileges upon the cessation of his employment.

By its group policy furnished to Keller, Connecticut General required Keller to remit, on the first day of each month, a premium calculated by multiplying a stated rate times the number of employees insured on that date. The policy also required Keller’s employees to contribute unspecified amounts toward the cost of the insurance through wage withholdings authorized by payroll deduction orders. Keller withheld $2.28 from Denton’s wages each weekly payday for that purpose and remitted the accumulated contributions from him and all employees, together with whatever additional amount Keller paid to make up the total premium, on or before the first day of each month.

Denton, a 61 year-old laborer at Keller’s cabinetmaking facility in DeLand, was evidently totally disabled by cancer continuously after May IS, 1972, his last day at work. His last weekly wages were paid on Friday, May 19, when Keller withheld, for the third time in May, $2.28 for Denton’s insurance. Keller remitted those May withholdings to Connecticut General before June 1 as part of a single gross premium due that date for insurance covering all insured employees. On June 9, Keller’s manager filled out a personnel and ’payroll change card which recorded the termination of Denton’s employment effective that date “due to health reasons.” At a time not shown by the evidence, an unidentified Keller employee marked on Denton’s group insurance and record card that Denton’s insurance terminated on June 9, 1972. Denton died on July 28. Claim was made for the death benefits, which Connecticut General denied on grounds that Denton’s employment and his insurance terminated before his death.

The group policy held by Keller and the certificate of insurance issued to Denton provide for automatic termination of the employee’s insurance on the earliest of four dates, of which three are pertinent:

“1. the date the Employee ceases to be in a Class of Eligible Employees or ceases to qualify as an Employee;
“2. the last day of the period for which the Employee has made the required contribution, if any, toward the cost of the insurance;
“4. the date of termination of employment. Termination of Active Service will be considered termination of employment, and the insurance will be discontinued, except as provided below.
“INJURY OR SICKNESS. If an Employee’s Active Service terminates because of injury or sickness, the insurance will be continued, during the period the Employee remains totally and continuously disabled as a result of the injury or sickness, until the date on which the Policyholder [Keller] ceases to pay premiums for the Employee or otherwise cancels the insurance.”

The principal question before the trial court on the summary judgment motions of both plaintiff and Connecticut General was whether, notwithstanding the quoted termination clauses, Denton’s insurance coverage extended to within 31 days of his death on July 28. If so, he was covered at his death by operation of a provision for a 31-day period, beginning with the termination of his group coverage, in which he could convert his group coverage to an in-di vdual policy without evidence of insura-bility. Sec. 627.566, F.S.1973. The policy provided:

“PAYMENT DURING THE 31-DAY CONVERSION PERIOD. If an employee dies during the 31-day period in which he is entitled to convert his insurance to an individual policy, whether or not application for the individual policy or payment of the first premium has been made, the Insurance Company will pay to the beneficiary designated under the group policy the amount of group life insurance which the employee was entitled to convert, and no payment will be made under any individual policy that may have been issued.”

Connecticut General’s motion for summary judgment was supported by the affidavit of Keller’s group insurance supervisor, who stated that the May 19 deduction from Denton’s wages “was for payment of premium for insurance coverage for the period from 5/13/72 thru 5/19 72”, that employee withholdings were remitted to Connecticut General at the end of May “for accounting purposes only, not to extend the time of coverage or pay the premium in advance,” and that the Keller pay ment remitted before June 1 “included the premium covering Mr. Denton thru the period from May 1 thru May 19, and did not extend the coverage beyond that date.”

Entering summary judgment for Connecticut General, the trial court stated that the May 19 deduction from his wages “was for the week of May 13, 1972, through May 19, 1972” and:

“[Ajllowing for the thirty-one day conversion period from which Mr. Denton could have converted his Group Coverage Policy to an Individual Policy . . . this extension, if taken from June 1, 1972, would only allow the conversion period through July 1,1972.”

Connecticut General offers support for the summary judgment based on terminating clause 2, which was evidently invoked by the trial court, and, alternatively, terminating clauses 1 and 4, above quoted. We will examine those clauses in order:

“1. the date the Employee ceases to be in a Class of Eligible Employees or ceases to qualify as an Employee

To give effect to Connecticut General’s assertion that termination clause 1 automatically and unconditionally ended Denton’s coverage on June 9, 1972, because Keller then terminated his employment, would render the application of clause 4 impossible in every situation to which it and the benefits of its exceptions would otherwise apply. We decline to adopt such a draconian interpretation of the policy. Clause 1, to have an effect in circumstances other than those to which clause 4 applies, necessarily refers to the termination of insurance for the employee whose employment continues but who ceases to be in a class eligible for insurance, or who is no longer a “permanent employee,” as the policy defines the term Employee, or who cancels his payroll deduction order. Termination clauses should be construed, if possible, so that each is effective in the circumstances to which it explicitly applies and is not entirely nullified by one of the others. See Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938); Government Employees Ins. Co. v. Sweet, 186 So.2d 95 (Fla.App.4th, 1966); Financial Fire & Cas. Co. v. Callaham, 199 So.2d 529 (Fla.App.2nd, 1967). Denton’s coverage was never affected by termination clause 1.

“2. the last day of the period for which the Employee has made the required contribution, if any, toward the cost of the insurance

The trial court held that Denton’s group coverage terminated either on May 16 or June 1, 1972, because one date or the other was the last of the period for which Den-ton made the required contribution toward the cost of the insurance. Application of the 31-day conversion period, the court ruled, would at most extend Denton’s coverage only to July 1, four weeks short of his death.

What contribution was required of Den-ton, and for what period did Denton last make such a contribution ? The certificate issued Denton explicitly provided that “The employee is required to contribute toward the cost of the insurance providing employee benefits.” Both the certificate and the policy laid out adverse consequences for an employee refusing to execute or cancelling “his payroll deduction order.” But that is the end of it. Neither the policy nor the certificate requires contribution by employees in a particular amount. Neither document dictates the provisions of the required payroll deduction order. Neither requires that Keller’s paydays and the employees’ contributions through payroll deduction be at particular intervals. Leaving the implementation of the contribution requirement to determination by Keller and its employees, Connecticut General simply required that Denton contribute toward the premium by authorized payroll deductions, which of course Denton did as long as he worked and was paid wages. As the trial court held, Den-ton last made his “required contribution” on May 19.

The affidavit of Keller’s group insurance supervisor stated that Denton’s May 19 contribution was “for insurance coverage for the period” May 13 through May 19. We cannot agree with this equation of the payroll period with the period “for which” the required contribution was made. The payroll period was merely the period in which the last contribution was made. As stated above, the frequency of employee pay periods was irrelevant to the policy and its coverage.

The more serious question is whether Denton’s May contributions, including that of May 19, were for May coverage or for June coverage. Again, the insurance supervisor’s affidavit implies that Keller’s June 1 payment to Connecticut General, made up in substantial part of the accumulated May contributions by Denton and other employees, was a premium for May coverage, i. e., for insurance retroactively or in arrears. In holding that Den-ton’s group coverage ended June 1, the trial judge apparently agreed. But the policy itself required Keller to pay premiums monthly in advance:

“PAYMENT OF PREMIUMS. The initial premium will be due on the Effective Date to cover the period from that date to the first Premium Due Date which is one month or more after the Effective Date. Premiums thereafter will be due on each succeeding Premium Due Date.”

Unless the terms of the policy were varied by an agreement not shown by this record, Keller’s June 1 payment was for June coverage. Correspondingly, employee contributions accumulated during May and remitted in the June premium were for June coverage. That fact is substantiated by the record showing that Denton signed his payroll deduction order on August 16, 1971, following his employment on August 10, that Keller then began wage deductions for insurance and that Denton’s coverage commenced one month later, on September 16. Both the policy and Denton’s employment history therefore offer strong evidence that Denton’s contributions withheld from his May 1972 wages were contributions toward the cost of the insurance to be provided throughout June.

The burden of the evidence submitted by Connecticut General is that Connecticut General agreed, for a premium paid June 1 in an amount determined by the number of Keller’s eligible employees on June 1, to insure Keller’s May employees retroactively. Unlikely as that arrangement seems in light of the policy provisions, the affidavit offered entitles Connecticut General to a trial on that issue. But it was error for the court below to have ruled, as a matter of law, that May 31 was “the last day of the period for which the Employee has made the required contribution ... toward the cost of the insurance.” Unless a trial establishes that Keller’s June 1 remittance was a premium for insurance retroactively provided in May, the date on which Denton’s group coverage ended under termination clause 2 was June 30. If that clause fixes the earliest date of posi-ble termination of Denton’s group coverage, the 31-day period for conversion to an individual policy extended coverage through July 28, the date of death.

“4. the date of termination of employment. Termination of Active Service will he considered termination of employment, and the insurance will be discontinued, except . . . . ”

It remains for us to determine whether, under termination clause 4, Denton’s group coverage terminated earlier than June 30 because of “termination of employment,” caused either by termination of Denton’s active service on May IS or by a decisive and conscious severance of the employment relationship.

Clause 4 contains an exception, quoted earlier, which prevents Denton’s termination of active service on May IS from constituting an immediate termination of his employment and of his insurance: he was totally and continuously disabled as a result of sickness and Keller thereafter continued, at least through June 1, to pay a premium for his insurance. Regardless of whether Keller’s June 1 remittance was a premium for May or for June insurance, it was nevertheless a premium payment. Keller did not cease to pay premiums until the next premium was due and unpaid on July 1. There is no evidence that Keller otherwise attempted to cancel Denton’s insurance by communication to Connecticut General prior to July 1. The unknown Keller employee who merely marked Den-ton’s insurance card “terminated” did not thereby cancel any insurance which was otherwise in effect.

The critical question is therefore whether Denton’s group coverage was terminated on June 9 by the action of Keller’s manager striking Denton’s name from the payroll and active personnel lists. If so, the 31-day conversion period would extend Den-ton’s coverage only to July 10.

We disagree with appellant’s assertion that Denton’s group insurance could not be terminated by “termination of employment” as long as Keller did not cease to pay premiums and Denton’s disability continued. While those circumstances could postpone the termination of Denton’s active service [cf. Fidelity Bankers Life Ins. Co. v. Krinsky, 224 So.2d 736 (Fla. App.3d, 1969)], Keller could terminate Denton’s employment at any time during June, even after paying a premium June 1 for June insurance covering Denton. The policy allowed Keller retroactive credits for premiums paid at the beginning of a month to insure employees later terminated during the month.

On June 9, Keller struck Denton’s name from the employment roll. It may be assumed that Denton himself came to believe during June that he would not be restored to health and to work. There is no satisfactory evidence, however, that Denton ever considered that his employment relationship with Keller was, for all purposes, entirely and unequivocally severed. Den-ton’s absence from work during May did not of itself signify to either Denton or Keller that Denton’s employment was terminated. When Denton’s name was stricken from Keller’s employee roll, Denton was given no notice, either by Connecticut General or by Keller, that Keller then considered Denton’s employment entirely terminated.

While Denton may be presumed to have had knowledge that the certificate limited his conversion period to 31 days, he had no actual or constructive knowledge of the formal termination of his employment and the beginning of the 31-day period. Considering that the conversion period had substantial value to Denton, that Denton was required by Connecticut General to contribute to the cost of the insurance, that Denton in May significantly contributed toward the cost of insurance for June and • — so it appears on the present record — that Keller prepaid the premium for June insurance, we hold that nothing short of explicit notice of the termination of Denton’s employment and of his group coverage could divest Denton of insurance during June. Emerick v. Connecticut General Life Ins. Co., 120 Conn. 60, 179 A. 335, 105 A.L.R. 413 (1935); see also Walker v. Occidental Life Ins. Co., 67 Cal.2d 518, 63 Cal.Rptr. 45, 432 P.2d 741, 744 (1967) and cases cited; 44 C.J.S. Insurance § 329 at p. 1265; 1 Appleman, Insurance Law and Practice, § 125 at p. 186 (1941); Annot., 68 A.L.R. 2d 8, 138 (1959). Contrast Couch v. Connecticut General Life Ins. Co., 216 So.2d 72 (Fla.App.2d, 1968), involving termination of coverage under a noncontributory policy in which the employer ceased to remit premiums; Bell v. New York Life Ins. Co., 134 Ind.App. 614, 190 N.E.2d 432 (1963), involving a noncontributory policy in which termination of employment was explicitly defined as cessation of active fulltime work; Massachusetts Mutual Life Ins. Co. v. DeSalvo, 174 Colo. 115, 482 P. 2d 380, 384 (1971), and Mutual Life Ins. Co. of N. Y. v. Presbyterian Hosp. of Dallas, 503 S.W.2d 870 (Tex.Civ.App.1973). The cases relied on by Connecticut General, DePauw v. Aetna Life Ins. Co., 268 S.W.2d 734 (Tex.Civ.App.1954), and Travelers Ins. Co. v. Estate of O’Rourke, 5 Ill.App.3d 1066, 284 N.E.2d 468 (1972), involved materially different insurance policies.

Explicit notice to Denton was not necessary to terminate his employment for group insurance purposes effective June 30. Denton’s cessation of active work was itself sufficient to put him on notice that, without wages earned in June, there would be no June deductions for insurance, no July 1 premium payment and, consequently, no July group coverage. Keane v. Aetna Life Ins. Co. of Hartford, Conn., 22 N.J. Super. 296, 91 A.2d 875 (1952).

Unless Connecticut General demonstrates at trial that Keller’s June 1 premium was not for June insurance but for May insurance, application of the 31-day conversion period should be held to have resulted in coverage on the day of Den-ton’s death and a judgment for appellant in the principal amount of $5,000 should be entered against Connecticut General.

While appellant’s alternative complaint against Keller is not so entirely lacking in substance as to justify its dismissal as an insufficient pleading, the record shows there was no harmful error in its dismissal. Keller was Connecticut General’s agent for the collection and remittance of Denton’s required contribution and of the premium. Contrast Couch v. Connecticut General Life Ins. Co., supra. Keller in fact remitted Denton’s contribution and the entire premium before June 1. Whether the premium then paid was for insurance in advance or in arrears, it does not appear that Keller defaulted in a duty owed to Denton. No act of Keller’s can-celled Denton’s coverage without notice during June. Appellant has no cause of action against Keller like that recognized in Moore v. Peninsular Life Ins. Co., 213 So.2d 721 (Fla.App.1st, 1968), cert. den., 222 So.2d 746 (Fla.1969).

The judgment for Keller is affirmed; that for Connecticut General is reversed.

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


source: Caselaw Access Project

author: SACK, MARTIN, Associate Judge.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF ADMINISTRATION, OFFICE OF ADMINISTRATIVE SERVICES, Petitioner, v. Robert R. HUNTER, Jr., and Ed Duffee, Jr., et al., Respondents.
    No. Y-351.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.

      David V. Kerns and Bishop C. Holifield, Tallahassee, for petitioner.
    Robert R. Hunter, Jr., Career Service Commission and E. C. Deeno Kitchen and C. Everett Boyd of Ervin, Varn, Jacobs & Odom, Tallahassee, for respondents.
   SACK, MARTIN, Associate Judge.

By Petition for Writ of Certiorari, Petitioner challenges the order of Respondent Career Servicé Commission altering petitioner’s termination of the employment of Respondent Hunter and reducing the punishment imposed on Respondent Hunter, to a suspension for 90 days without pay.

In view of our past holdings, we again reiterate that “. . . sole discretion to determine whether the employee is to be dismissed or suspended is vested in the agency, the only limitation being that the disciplinary action must be for just cause. The role of the Career Service Commission on appeal is to determine whether there existed competent substantial evidence to sustain the action taken by the agency and whether the facts establish ‘just cause’.” State of Florida Department of Pollution Control v. State of Florida Career Service Comm. (Hummel), Fla. App. 1st 1975, 320 So.2d 846. As in the Hummel case, Respondent Commission determined that there was just cause for the action taken by the employing agency but decided to modify that action. Because Petitioner’s finding of just cause (i. e., willful insubordination) was supported by competent, substantial evidence in the record, the Commission was without authority to alter or modify Petitioner’s order of dismissal. See also State of Florida Department of Highway Safety and Motor Vehicles v. Hunter, Fla.App. 1st 1975, 317 So. 2d 779 and Board of Regents v. Hopkins, Fla.App. 1st 1975, 312 So.2d 775.

We further note that the statute relative to the Career Service Commission’s authority does not empower the Commission to alter or modify an agency’s action but only to affirm the agency or order that the employee be reinstated, with or without back pay. F.S. 110.061(3) provides in pertinent part: “The Career Service Commission may order the reinstatement of an employee, with or without back pay, which order shall be conclusive on the agency or officer concerned.” Thus, the Commission acted outside the scope of its statutory authority in altering Respondent Hunter’s dismissal to a 90-day suspension without pay.

Certiorari is granted, and the order of the Career Service Commission dated April 25, 1975, is quashed. The cause is remanded with directions that the Petitioner’s order of dismissal be reinstated.

BOYER, Chief Judge, and SMITH, J., concur.


author: ALDERMAN, JAMES E., Associate Judge.

text:
    STATE of Florida, Appellant, v. Brian Lee MEAGHER, Appellee. STATE of Florida, Appellant, v. Samuel Will POTTER, Appellee.
    Nos. 75-414, 75-415.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
    Rehearing Denied Dec. 29, 1975.
    Joseph T. Urbaniak, Jr., Asst. State’s Atty., Robert L. Shevin, Atty. Gen., Tallahassee, and Robert B. Breisblatt, Harry M. Hipler, Asst. Attys. Gen., West Palm Beach, for appellant.
    Irvin B. Gussow, Casselberry, for appel-lees.
   ALDERMAN, JAMES E., Associate Judge.

The State of Florida filed separate appeals from Orders dismissing Grand Jury indictments against Appellees, Brian Lee Meagher and Samuel Will Potter. These appeals have been consolidated.

Appellee Meagher, a 17 year old juvenile, was taken into custody on February 5, 1975, charged with Robbery and Assault and Battery. Delinquency Petition was filed against him in the Juvenile Division of the Circuit Court of Seminole County on February 7, 1975. On February 13, 1975, the State filed notice of its intention to present his case to the Grand Jury. On February 21, 1975, the Grand Jury of Seminole County indicted Meagher for Robbery.

Appellee Potter, also a 17 year old juvenile was taken into custody on January 30, 1975, charged with Robbery and Possession of a Controlled Substance. Delinquency Petition was filed against him in the Juvenile Division of the Circuit Court of Seminole County on January 31, 1975. On February 13, 1975, the State filed notice of its intention to present his case to the Grand Jury. On February 21, 1975, the Grand Jury of Seminole County indicted Potter for Robbery.

Appellees moved to dismiss the indictments upon the ground that Section 39.-02(5) (c), Florida Statutes, allows the State only fourteen days after a child is taken into custody in which to obtain an indictment. The Court below granted the motions and returned Meagher and Potter to the Juvenile Division, after concluding that “ . . . the legislature intended a fourteen-day period, beginning with the time a child is taken into custody within which a Grand Jury must indict if it is to indict a juvenile at all.” We respectfully disagree, and reverse.

The Trial Judge interpreted the following language of the Statute:

“ . . . should the grand jury fail to act within the fourteen-day period, the court may proceed as otherwise required by law.”

to mean that the Grand Jury could not indict after the fourteen-day period. He further was of the opinion that the Court could proceed only as otherwise" required by the Juvenile Laws of the State of Florida.

We believe that the word “may” as used above is permissive rather than mandatory. Harper v. State, Fla., 4 DCA, 217 So.2d 591 (1968); Fixel v. Clevenger, Fla., 3 DCA, 285 So.2d 687 (1973). When read with this connotation, the intent of Section 39.02(5) (c) is clear. In any case where a child is charged with a violation of Florida law punishable by death or by life imprisonment, the State has fourteen days to in-diet before there can be an adjudicatory-hearing in the Juvenile Court. The only exception is when the State Attorney advises the Court in writing that he does not intend to present the case to the Grand Jury or that he has presented it and the Grand Jury has declined to return an indictment. This procedure prevents the so called “race to the courthouse”, where a child, charged with a capital or life felony, rushes to an adjudicatory hearing before the Juvenile Court in order to avoid prosecution as an adult.

If, within the fourteen days, the Grand Jury indicts, the Juvenile Court is thereby divested of jurisdiction. F.S. 39.-02(5)(c); Also see: Johnson v. State, Fla., 314 So.2d 573 (1975). Should the Grand Jury fail to act within the fourteen days, the Juvenile Court would be free to proceed. If the child were then placed in jeopardy in the Juvenile Court, he could not thereafter be indicted and prosecuted as an adult. Breed v. Jones, 421 U.S. 519, 95 S.Ct, 1779, 44 L.Ed.2d 346 (May 27, 1975); Smith v. State, Fla., 316 So.2d 552 (1975). However, if jeopardy had not attached, and if the charges against the child were not barred by the “Speedy Trial” Rule or other statutes or rules of limitation, the Grand Jury may return an indictment after the fourteen days, and in such event, the Juvenile Court would be divested of jurisdiction.

Looking at the cases under consideration, we see that Appellee Meagher was indicted 16 days after his arrest and Ap-pellee Potter was indicted 22 days after his arrest. Although Delinquency Petitions were filed shortly after their arrest, no adjudicatory action was taken and they were not otherwise placed in jeopardy. It also appears that the charges pending against them have not been barred by the “Speedy Trial” Rule or other statutes or rules of limitation.

We conclude that the Trial Judge misinterpreted the effect of Section 39.02(5) (c) and erred when he dismissed the indictments. Both cases are remanded with instructions that the indictments be reinstated.

WALDEN, C. J., and OWEN, J., concur.

      . Florida Statutes, Section 39.02(5) (c), provides" as follows:
      “A child of any age charged with a violation of Florida law punishable by death or life imprisonment shall be subject to the jurisdiction of the court as set out in § 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. No adjudicatory hearing shall be held within fourteen days from the date that the child is taken into custody unless the state attorney advises the court in writing that he does not intend to present the case to the grand jury or that he has presented it to the grand jury but that the grand jury has declined to return an indictment. Should the court receive such a notice from the state attorney, or should the grand jury fail to act within the fourteen-day period, the court may proceed as otherwise required by law.”


author: OWEN, Judge.

text:
    Walter Michael KOZAKOFF, Appellant, v. STATE of Florida, Appellee.
    No. 75-303.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.

      Edward M. Kay, Varón, Stahl & Kay, P.A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, William L. Rogers, Asst. Atty. Gen., Miami, and Steven R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

The trial court’s informal but well-intended comments to the jury during the voir dire examination of the jury so prejudiced appellant’s right to a fair trial as to warrant reversal of his felony conviction and remand of this cause for a new trial.

While we fully appreciate, and commend, the good intentions of the trial judge to give the jury preliminary instruction regarding their function and basic principles of law necessary to fulfill that function, this case is a prime example of the inherent dangers involved in the giving of any jury instruction in the very informal and unstructured manner employed here. We wish to emphasize that we find nothing wrong with giving preliminary instruction to a jury; we recognize that such instruction, when properly given, can be highly beneficial to all interests concerned. However, like any judicial communication with the jury during the course of a trial, preliminary instructions must be carefully considered and properly circumscribed. Informal instructions to the jury afford great opportunity for a chance comment either to misstate the applicable law or to leave room for possible misunderstanding by the jury. It was at least partially for this reason that the Standard Jury Instructions were developed and promulgated by our Supreme Court. We respectfully suggest that a trial judge could greatly reduce the risk of error by utilizing these approved standard instructions, at the very least, as a guideline for formulating any preliminary instructions to the jury.

Here, after the first six prospective jurors were in the jury box, the trial judge conducted an extensive voir dire examination during which he explained, primarily by example or illustration, the State’s burden of proof and the meaning of reasonable doubt, the presumption of innocence attaching to the defendant, and the significance to be attached to the charging document. However, indicative of the unfor-seen error into which a trial judge may fall when his remarks become too informal are the following which the trial judge directed to one of the prospective jurors in the presence of the entire panel:

“Ma’am, in cases that we have here — We are in the decision-making business. We have to make decisions. Can you make a decision ?
“See, my problem is when I get through with the trial and when the case gets cranked up there has to be a decision made down the line somewhere. There are a lot of decisions to be made, but basically I want a verdict, I want people to go back there and have them make their minds up on something.” (e. s.)

Appellant contends, and we think quite properly, that these statements constituted, in effect, an Allen charge (sometimes referred to as a “dynamite” charge) to the jury even before the jury indicated that they might not be able to reach a decision and that, by demanding that the jury reach a verdict, the court prejudiced appellant’s right to a hung jury.

While many . jurisdictions have banned the use of the Allen charge altogether because of its tendency to coerce verdicts, e. g., State v. Nicholson, 315 So. 2d 639 (La.1975); People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974); State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973); State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959), the Florida courts still adhere to the view that such a charge may be properly given, depending upon the circumstances of the particular case. State v. Bryan, 290 So.2d 482 (Fla.1974). However, it is equally well recognized by our courts that the charge must not be calculated to coerce a jury into reaching a verdict or to lead them to believe that they must reach a verdict. State v. Bryan, supra; Jones v. State, 92 So.2d 261 (Fla. 1957); Lee v. State, 239 So.2d 136 (1st DCA Fla.1970); Bell v. State, 311 So.2d 179 (1st DCA Fla.1975). In other words, a defendant has the right to have a hung jury, Lee v. State, supra; Bell v. State, supra, and “nothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lee v. State, supra, at 139.

Reversed and remanded.

MAGER, J., and STRAWN, DAVID U., Associate Judge, concur.

      . The name is derived from the ease of Allen v. U. S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), in which the United States Supreme Court approved an instruction to a deliberating jury urging the dissenting minority of the jurors to reconsider their views so as to enable the jury to reach a verdict if they could conscientiously do so.

      . For an excellent discussion of the rationale behind abolishing the use of the Allen charge, see U. S. v. Fioravanti, 412 F.2d 407, 414 et seq. (3rd Cir. 1969).


author: WALDEN, Chief Judge.

text:
    William GREENE, M.D., Appellant, v. CITY OF SUNRISE et al., Appellees.
    No. 74-1737.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.

      Ledford A. Parnell, Jr., Sunrise, for appellant.
    Arthur B. Parkhurst, Fort Lauderdale, for Appellees-Lapi, Parmenter & Nernen.
    Martin J. Sperry, Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for ap-pellees-City of Sunrise and Travelers Ins. Co.
   WALDEN, Chief Judge.

Plaintiff Greene brought suit against defendants City of Sunrise, individual police officers and their insurors for damages on account of an alleged illegal arrest. The cause was set for jury trial and an order entered upon the jury verdict denying Greene any recovery. We affirm.

Officers from the City of Sunrise stopped a traffic violator in the City of Plantation after having pursued him into that locale. Such pursuit and apprehension was proper under the “hot pursuit” ordinance in the City of Sunrise Charter, Article VII, § 7.02, which reads in part:

“Any police officer of the City of Sunrise is authorized to continue a ‘hot pursuit’ beyond the limits of the city to any point in Broward County, and arrest upon apprehension any person suspected of violating any ordinance of said city.
“ ‘Hot pursuit’ as herein used shall be construed to mean pursuit of a person suspected of violating an ordinance of the city and continuing without interruption beyond the limits of the city.”

The problem arose when plaintiff, within the City of Plantation, proceeded to interfere with the officer by harassing and threatening the officer as he was engaged in ticketing the traffic violator. The officer arrested plaintiff and summoned aid. A second City of Sunrise officer arrived at the scene.

Plaintiff urged the officer only had the authority officially to deal with the traffic violator, whom the officer had “hotly pursued” over municipal boundaries. Plaintiff, therefore, is arguing that the officer, not having pursued him over municipal boundaries, did not have the authority to detain him. The City of Sunrise Charter grants arrest powers to an officer in hot pursuit, the grant of powers to local officers is likewise granted by Fla.Stat. § 901.-25 (1973):

“901.25 Municipal officer arrest outside corporate limits in fresh pursuit. A police officer of a municipality, when necessary to make an arrest, may make a fresh pursuit of a person from within the municipality to any point in the county in which the municipality is located when the person pursued has violated a city ordinance or committed a misdemeanor within the municipality, or the officer reasonably believes that the person has committed or is committing a felony.”

We confirm the Attorney General’s Opinion No. 073-59 on this problem, in which he states:

“. . . [Sjince the Legislature has enacted Section 901.25 to give a municipal police officer the authority to make fresh pursuit arrests outside of his municipality but within the same county, I think that the necessary implication is that the Legislature intended that the pursuing officer have the authority to arrest any third person who knowingly and willfully obstructs him while in such fresh pursuit or while arresting the pursued violator or while lawfully safekeeping and transporting such violator after his arrest.”

The trial court gave the following instruction, which instruction we find to have been an applicable statement of the law:

“You are instructed that a Sunrise police officer of the City of Sunrise, when necessary to make an arrest, may make a fresh pursuit of a person from within the City of Sunrise to any point in the county in which the City of Sunrise is located when the person pursued has violated a City of Sunrise ordinance or committed a misdemeanor within the City of Sunrise.
“When a municipal police officer is in fresh pursuit or hot pursuit to an arrest, ... to arrest a person outside that municipality but in the same county, he may in his official capacity as a police officer arrest a person other than the one being pursued; if, and only if such third person does one of these two things. Knowingly and willfully obstructs the officer in the performance of his duty by offering to do harm to his person; that is, the person of the officer ; or, knowingly and willfully obstructs him, the officer, in the performance of his duty without doing or offering to do violence to his person contrary to the misdemeanor statute, which is 843.02, while that officer is engaged in such fresh pursuit or is making an arrest of one who he has pursued in the manner of fresh pursuit or hot pursuit.”

No reversible error having been made to appear, we affirm the appealed judgment.

Affirmed.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Mary S. KUBALSKI, Administratrix of the Estate of Leonard Kubalskl, Deceased, Appellee.
    No. 74-1705.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.

      William H. Davis and Frederick J. Ward, of Giles, Hedrick & Robinson, Orlando, for appellant.
    Charles A. Tabscott of Troutman & Parrish, Winter Park, for appellee.
   WALDEN, Chief Judge.

Plaintiff’s decedent was killed when an Eastern Seaboard Railway train collided with his pickup truck. Decedent was stopped on a railroad track because of traffic backed up from a red light. The jury found decedent 60% negligent and the railway 40% negligent. Decedent’s estate was awarded $130,000 in gross. Defendant railway has appealed. We reverse and remand for a new trial on the grounds that certain evidence was improperly and preju-dicially entered. The grounds were raised in Point IV on appeal:

Whether the trial court committed error in permitting the witness [the president of a consulting engineer and safety consultant firm in Orlando], ... to give . . . opinion testimony as to how an average man in the United States of America who drives a motor vehicle will react who finds himself in a line of traffic as [plaintiff’s decedent] did as he approached railroad tracks as assumed in the hypothetical propounded to the witness.

Defendant has correctly argued that, unless the subject of expert testimony is one beyond the ordinary understanding of the jury, such expert testimony is not admissible. In Smaglick v. Jersey Ins. Co. of New York, 209 So.2d 475 (4th DCA Fla.1968), it was clearly stated:

“Expert opinions are admissible only when the facts to be determined are obscure and can be made clear only by the opinions of persons skilled in relation to the subject matter of the inquiry; and when facts are within the ordinary experience of the jury, conclusions therefrom will be left to them, and even experts are not permitted to give conclusions in such cases.” Id. at 476-477.

We are not unaware of the train and car collision case of Seaboard Coast Line Railroad Co. v. Hill, 250 So.2d 311 (4th DCA Fla.1971), in which this court approved the opinion evidence of psychologist to the effect that an average driver would not have seen a train standing in the crossing at night, when the accident occurred. The court stated:

. . The witness testified that the darkness, the fog, the absence of flares, and the absence of sound would produce perceptional problems for a driver. The witness also testified that lights that were visible north of the crossing against a field of vision partially blocked by the box car would cause problems in depth perception. On the basis of these factors, the witness concluded that the. information that could have been gathered as to the obstruction on the tracks was so poor that an average driver would not have been able to react to it properly. Hence, it appears to us that the subject matter of the opinion was not just the visibility of the train on the crossing, but also the deceptive quality of various factors that were present in the environment according to the hypothetical situation posed by the question, and the manner in which a person would react to these factors. The significance of and the reaction of a human being to these factors might reasonably be held to involve a knowledge that was within the sphere of the witness’ expertise and beyond the scope of the common knowledge of the jurors.” Id. at 315.

In Hill there were extraordinary circumstances, a train stopped on a track in dark weather, with no warning devices. The expert was allowed to opine as to how these unusual circumstances would affect the human response. In the present instance the deceased was stopped on a railway track, in daylight, in the presence of numerous warning devices. There were no unusual circumstances to warrant any inroads upon the province of the jury to decide what the reasonable man should do or would do when faced with the instant situation. Further, in Hill, the court noted:

“Finally, although we do not rest our conclusion on this, we consider the admission of the opinion, if it were error, to be harmless. Improper expert testimony may be considered harmless error where there is sufficient other evidence to justify the jury in reaching the conclusion supported by the opinion.” Id.

In light of the facts in this case, we could not deem the error harmless. The jury found plaintiff’s decedent 60% negligent and the improper opinion evidence might well have tempered that verdict. The jury alone could, and should have assessed the facts and circumstances solely in light of their common knowledge. On this ground we reverse for a new trial on liability and damages.

We note that there is also merit in appellant’s Point I on appeal as follows:

Whether the trial court erred in refusing to grant that part of the defendant’s motion for new trial that requested the court to order a remittitur or in the alternative grant defendant a new trial on the ground that the verdict and/or that part of the verdict that found total damages in the amount of $130,000 for the estate of Leonard Kubalski was excessive and showed that the jury was influenced by passion and prejudice for the plaintiff and against the defendant.

and we would have reversed for a new trial on the issue of damages to the estate. The verdict granted the estate was excessive and not in accord with the proven tangible elements of damage. Fla.Stat. § 768.-21(1), (3) (1973). There is no merit in the other appellate points.

We reverse and remand on the basis of Point IV for a new trial on both issues of liability and damages.

Reversed and remanded with directions.

OWEN, J., and REASBACK, JAMES M., Associate Judge, concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Ernestine CROUSE, Appellant, v. H. O. CLARK FURNITURE, INC., et al., Appellees.
    No. 74-1196.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.

      Norman L. Paxton, Jr., Law Offices of Charles R. P. Brown, and Philip G. Nourse, Fort Pierce, for appellant.
    No appearance for appellees.
   PER CURIAM.

Appellant-plaintiff seeks review of an order vacating and setting aside a jury verdict awarding punitive damages on the ground that appellant did not present any evidence of the appellee-defendants’ financial ability to pay an award of punitive damages.

Upon consideration of the record, brief and oral argument of counsel for appellant, no appearance having been made by the appellee, we determine evidence of financial worth is not a requisite to award punitive damages, and it was error for the trial court to so require. Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). Accordingly, the order appealed is reversed and the cause remanded to reinstate the jury verdict for punitive damages and for entry of an amended final judgment awarding punitive damages.

Reversed and remanded with directions.

CROSS and MAGER, JJ., concur.

DOWNEY, J., specially concurs with opinion.

DOWNEY, Judge

(specially concurring).

I agree that Lassitter v. Walton, Fla. 1975, 314 So.2d 761, requires a reversal of the order vacating and setting aside the jury verdict awarding punitive damages.

Appellant complains also that the trial court failed to assess costs in her favor notwithstanding she was the prevailing party. However, it does not appear the trial court ever ruled on appellant’s motion to tax costs. Accordingly, it appears to me appellant should call her motion to the attention of the trial court and obtain a ruling thereon.

      . We note that at the time of entry of the order appealed the trial court relied on and followed International Union of Operating Engineers Local No. 675 v. Lassitter, etc., 295 So.2d 634 (Fla.App.1974), a case out of this court which was subsequently quashed by the Florida Supreme Court (Lassitter v. Walton, 314 So.2d 761 (Fla.1975)) insofar as it was inconsistent with Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975).


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Rowena MacGREGOR and Lester W. Bennett, Appellants, v. Daniel D. MacGREGOR, a/k/a Daniel E. MacGregor, Jr., Appellee.
    No. 73-1464.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.
    Rehearing Denied Dec. 29, 1975.

      Hal H. McCaghren of Hal H. Mc-Caghren Law Offices, West Palm Beach, for appellants.
    James W. Nowlin, Jr., of Nowlin Adams Nowlin & Sumrall, Delray Beach, for ap-pellee.
   SCHWARTZ, ALAN R., Associate Judge.

In 1969, Mr. and Mrs. MacGregor owned real property in Palm Beach County by the entireties. On August 12 of that year, Mrs. MacGregor, without the joinder of her husband, quit claimed the property to her father, Lester W. Bennett. Six weeks later, on September 24, 1969, Mr. Mac-Gregor, without the joinder of his wife, executed a quit claim deed in the same form to the same property to the same person, Mr. Bennett. On November 30, 1970, Mr. Bennett quit claimed the property back to his daughter, Mrs. MacGregor. On February 3, 1971, the MacGregors were divorced in Palm Beach County Circuit Court.

In 1973, Mr. MacGregor filed this action to set aside the three quit claim deeds and to quiet title to the property in the then ex-Mrs. MacGregor and himself as tenants in common.. Although the complaint also alleged, apparently arguendo, that the deeds from his then-wife and himself were intended merely as a security device rather than to pass title, the primary thrust of his position was that the separate quit claim deeds to property held by husband and wife as tenants by the entireties were each totally void and ineffective to pass title. Mrs. MacGregor and Mr. Bennett, both of whom were made defendants in the case, answered the complaint, denying the ineffectiveness of the separate deeds and the allegation that the deeds should properly be viewed only as a mortgage. The defendants also raised affirmative defenses of es-toppel and laches on the part of Mr. MacGregor. The defendants, did not, however, deny either that the property had in fact been held by the entireties or that the MacGregors had executed separate instruments to the property on separate dates. Based upon these admissions, the plaintiff moved for judgment on the pleadings in his favor pursuant to Florida R.C. P. 1.140(c). The trial judge granted the motion and entered a Final Judgment voiding the quit claim deeds in question, thus holding, as a matter of law, that no set of facts could be adduced to defeat the right of the plaintiff to the relief claimed. Mrs. MacGregor and Mr. Bennett have brought this appeal from that Final Judgment on the pleadings.

The judgment below, and the contention of Mr. MacGregor as appellee here, are each based on an application of the often repeated “rule” that, as stated in 17 Fla. Jur., Husband and Wife, § 27, pp. 86-87:

“A husband and wife owning property in an estate by the entireties may together convey or mortgage such estate in a proper case. Neither spouse alone, however, can do anything to alter the tenancy of identifiable property held by the entireties. Although it is true that the estate held' by spouses in an estate by the entireties is one per tout et non per my, there are still two owners of the property, and both must join in a conveyance of it.” [emphasis supplied]

We hold that this “rule” may not be applied so as to invalidate the deeds involved under the specific circumstances of this case. Indeed, we hold, directly to the contrary, that identical, although separately executed, deeds by both husband and wife are effective to pass title to entireties property. Accordingly, we reverse the judgment on the pleadings below.

It is undeniably the case that broad and unqualified statements to the effect that “both [spouses] must join in a conveyance of . property [held by the entire-ties]” often appear in the Florida cases and commentaries. E. g., Montgomery v. Gipson, Fla.1954, 69 So.2d 305, 306; Glasser v. Columbia Federal Savings & Loan Ass’n, Fla.1967, 197 So.2d 6, 7; Hunt v. Covington, 145 Fla. 706, 200 So. 76, 77 (1941). These statements, however, almost invariably appear in dicta and have never been applied, even in dicta, to a factual situation such as this one, in which separate but identical deeds to the identical grantee have been executed to the entireties property by both spouses. It is a commonplace that, as stated by our Supreme Court in Ward v. Baskin, Fla.1957, 94 So.2d 859, 860:

“A judicial opinion should be evaluated as a precedent in the light of the factual situation that gives rise to the opinion. The law is not a mathematically exact science. A perfectly sound principle as applied to one set of facts might be entirely inappropriate when a factual variant is introduced.”

Accord, e. g. Dade County v. Brigham, Fla.1950, 47 So.2d 602, 603, and cases cited. Indeed, the impropriety of a District Court’s acceptance of an earlier decision of the Supreme Court as controlling precedent in a materially variant situation is so pronounced that it forms a well recognized basis for the exercise of certiorari jurisdiction in the Supreme Court on the ground that the one decision is in “direct conflict” with the other. McBurnette v. Playground Equipment Corp., Fla.1962, 137 So.2d 563.

An analysis of the reason for and basis of the rule precluding separate conveyances of entireties property in terms of this set of facts establishes, we think, that it may not be applied so as to render the MacGregors’ individual conveyances void. The real, as opposed to the metaphysical reason for this rule, as in the case of the entire concept of the estate by the entireties (despite all the neo-Platonic references in the cases to the four “unities” which form its basis), is essentially to prevent the interest of one spouse in the en-tireties property from being adversely affected by the independent act of the other. As what we consider to be the “true rule” was set forth in Tingle v. Hornsby, Fla. App.1959, 111 So.2d 274, 277:

“. . . neither spouse can without the assent of the other, alien or forfeit any part of an estate by the entirety so as to defeat the rights of the other.” [emphasis supplied]

Thus, separate transfers of entireties property may be set aside only if they both (a) adversely affect the interest of the other spouse and (b) occur without the other’s “assent”. In this case the separate deed of Mr. MacGregor can hardly be said to have adversely affected the interests of Mrs. MacGregor, and she of course makes no complaint as to the effect of her own deed. While Mrs. MacGregor’s separate deed may well be said adversely to have affected her then-husband’s interest, it seems clear that his subsequent, but identical, deed amounted to his “assent” to that conveyance.

We think that this result is supported by the Supreme Court’s decision in Rader v. First National Bank in Palm Beach, Fla. 1949, 42 So.2d 1. In that case, which dealt with personal property, the court specifically recognized the efficacy of separate acts of each spouse to alienate entireties property. At 42 So.2d 1, 2, the Court held:

“Bessie M. Rader was appellant's wife. They maintained a joint account in the bank and a safe deposit box to which both had access. On a certain day during World War II each of them, by separate paper, instructed the bank to purchase $5,000 worth of United States Treasury two and one-half per cent bonds, and the funds in the joint account were used to pay for them . . .”
* * * * * *
“In brief, it is appellant’s contention that inasmuch as the bonds, though separately ordered were purchased from the common account, the joint interest in that account was translated to the bonds and an estate by the entireties existed in them also. To support his position appellant cites the rule that neither spouse can alien or forfeit his part of any estate by the entireties without the consent of the other; that there can be no severance by the act of one. We do not pause to elaborate on, or take issue in any degree with, the authorities that have recognized this principle. In truth, we are counted among them. We held precisely that in Bailey v. Smith, 89 Fla. 303, 103 So. 833, 834, where we stated: ‘Neither spouse can alien or forfeit any part of the estate’; then we added ‘without the assent of the other * * * ’ »
“It seems to us that the qualification comes into play here, as it was established by evidence the jury believed that the parties in effect assented to a dissolution of the estate when they ordered the bonds separately. The funds were transferred by both in the same manner for the same purpose on the same day. Thus they can be said to have acted in concert, and we think a just interpretation of these acts is that they intended to sever the estate by each taking five of the bonds.” [emphasis supplied]

It seems to us of no moment at all that the separate deeds in this case were not executed on the same day. The pertinent issue is whether the abstractions of the en-tireties concept are such that separate alienations are irredeemably precluded or whether the intent of the parties is to prevail. The result in Rader, that the former proposition is not true, but that the latter is, directly applies here.

Our result is sustained also by the holding in a case which recites and is often cited for the bare proposition that a husband may not convey his interest in entire-ties property “without the joinder of his wife in such conveyance . . . .” Hunt v. Covington, supra, at 200 So. 77. The Hunt case holds that notwithstanding this “rule” the husband, without the joinder of his wife, may deed his interest in entireties property directly to her, since

“the conveyance in this case evidences the intent of the parties to divest the husband of all interest which he had in the property . . .” [emphasis supplied]

200 So. at 77-78. The court based this determination, in turn, upon its citation with approval of the reasoning in a New York case, Hardwick v. Salzi, 46 Misc. 1, 93 N.Y.S. 265 (1904), that “by the acceptance of the conveyance the wife manifests her consent to the transfer . . .” [emphasis supplied] 200 So. at 77. Clearly the Hunt case stands for the propositions, adopted here, that the properly established consent of one spouse to a separate transfer validates the other’s transfer of entireties property. In accord also is First National Bank of Leesburg v. Hector Supply Co., Fla.1971, 254 So.2d 777, 780-781, which holds that one spouse may validly manifest his or her intent to permit the other spouse individually to dispose of a bank account held by the entire-ties.

Of course, in a case such as this one, which involves real property — unlike the situations in the Rader and the Hector Supply Co. cases — an effective assent or consent to a separate transfer of entireties property by one spouse may be validly manifested and established only by a properly executed deed, F.S. § 689.01; Parken v. Stafford, 48 Fla. 290, 37 So. 567 (1904); First National Bank of Leesburg v. Hector Supply Co., supra, at 254 So.2d 780. On the other hand, when, as in this case, such a deed is unambiguous and simply tracks the prior conveyance, it is impossible to determine otherwise than that it conclusively demonstrates the intention of the subsequent grantor-spouse, here, Mr. Mac-Gregor, to consent to the earlier transfer by his wife. 10 Fla.Jur., Deeds, §§ 114-115, pp. 159-160. Hence, we must and do conclude that the separate identical deeds from the MacGregors to Mr. Bennett validly effected a transfer of the entireties property to him, excepting only a showing, as alternatively alleged by Mr. Mac-Gregor, that the deeds should properly be regarded as creating no more than a security interest in the property. See F.S., § 697.01. The case is remanded for the sole purpose of determining the validity of this theory of the plaintiff’s case and of the defenses raised to it.

Reversed and remanded.

WALDEN, C. J., and OWEN, J., concur.

      . We are aware of the contents of Florida Real Estate Title Standard 6.3, to the contrary of our holding. For the reasons we have stated, we respectfully disagree with the conclusion there expressed.
      It might appropriately be pointed out that our decision — which both requires identical deeds by each spouse and gives conclusive effect to such deeds when they exist — does not create any uncertainty at all concerning the result in a particular case. It does, however, change the result as to this set of facts from what it was widely thought, but had never been held, to be.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Daniel Benjamin FUSSELL, Appellee.
    No. 74-1033.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Arnold D. Levine and Richard A. Laz-zara of Levine, Freedman & Hirsch, Tampa, for appellee.
   PER CURIAM.

Appellant, State of Florida, appeals an order dismissing two counts of an amended information. Count II of the amended information charged appellee-defendant, Daniel Benjamin Fussell, with aggravated assault, and count III thereof charged resisting arrest with violence.

Upon consideration of the record and briefs, we determine that the trial court erred in dismissing count II and count III of amended information No. CR 73-2351 on the ground of collateral estoppel, as the ultimate issue of fact to be determined in the instant counts has never been determined by any previous litigation between the parties.

Accordingly, the order appealed is reversed and the cause remanded with directions to reinstate count II and count III of amended information No. CR 73-2351, and for further proceedings consistent with the views herein expressed.

Reversed and remanded, with directions.

CROSS, MAGER and DOWNEY, JJ., concur.


author: MAGER, Judge.

text:
    Jack HEPWORTH and Marilyn Hepworth, Appellants, v. The ORLANDO BANK & TRUST COMPANY, Appellee.
    No. 74-1793.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 1975.
    Rehearing Denied Dec. 29, 1975.
    Lionel H. Silberman, Orlando, for appellants.
    J. William Stefan, of Andrews, Smath-ers, Tepper & Kemp, P.A., Orlando, for appellee.
   MAGER, Judge.

The issue presented in this appeal is whether a guarantor for the payment of a promissory note secured by collateral is a “debtor” under the terms and provisions of the Uniform Commercial Code so as to be entitled upon default of the note to no-' tice prior to the sale or disposition of the collateral; and, if so, whether failure by the secured party to give notice precludes the entry of a deficiency judgment against the guarantor.

The Jewell Citrus Company, Inc., of which defendant Jack Hepworth was vice-president, signed an installment note through its president, one Herman, covering a loan in the amount of $28,000. Separate guarantees for the payment of the note were executed by the Hepworths and the Hermans. Simultaneous with the execution of the note, Jewell, acting through Herman, signed a chattel mortgage covering certain trucks owned by Jewell, apparently to serve as security for the note.

Jewell failed to pay an installment payment due on the note resulting in a default pursuant to which the collateral under the chattel mortgage was sold by the plaintiff-bank to satisfy the outstanding indebtedness. The amount was insufficient and a demand was made upon the defendants, as guarantors, for the deficiency resulting in the action below and a judgment in favor of plaintiff bank. At trial the court struck defendants’ affirmative defenses which sought to assert the failure of the bank (the secured party) to give the Hepworths notice of the sale of the collateral which failure defendants contended precluded the entry of the deficiency judgment.

Upon a review of the Uniform Commercial Code, in particular sections 679.9-105(1)(d) and 679.9-504(3), F.S., cf. 679.-9-504(5), F.S., we are of the opinion that defendants, as guarantors of a promissory note, were “debtors” within the meaning of the cited sections and entitled to reasonable notification prior to the disposition of the collateral; and that the failure to provide such notice precluded the entry of a deficiency judgment against defendants. Turk v. St. Petersburg Bank and Trust Company, Fla.App.1973, 281 So.2d 534; T & W Ice Cream, Inc. v. Carriage Barn, Inc., 107 N.J.Super. 328, 258 A.2d 162 (Bergen Co. Ct.1969).

Although the Turk and T & W Ice Cream cases are factually distinguishable (the closest being the T & W Ice Cream case involving an accommodation endorser), the rationale of these decisions and the analysis of the pertinent provisions of the Uniform Commercial Code lend persuasive support for the proposition that a “guarantor” is a “debtor” entitled to notice prior to sale of collateral. As the court pointed out in Turk, at p. 536,

“ . . . [T]he language is clear that before a secured party (in this instance the bank) can obtain a deficiency against a debtor (in this instance Turk) the debtor must be given notice of what is about to occur. This is as it should be because the debtor in this instance, Turk, could have done many things. He could have purchased the automobiles himself; he could have paid the extent of the liability, i. e., $20,000; he could have secured purchasers for the automobiles. He was not afforded the opportunity to do anything. If the bank in this instance wanted to dispose of the collateral without judicial process or notice to the debtor as the statute provides, it may do so; but it is not then entitled to a deficiency against any debtor not so notified.

The guarantor stands in the shoes of the debtor not only with respect to liability for the payment or other performance of the general obligation but also in regard to the entitlement to notice prior to the sale of collateral. A sale of collateral without notice by a secured party effectively eliminates the options available to the guarantor, see Turk, supra, and defeats the rights which the guarantor is otherwise entitled to exercise. See 679.9-504(5), F.S. Apart from what we perceive to be the purpose and intent of the provisions of the code with respect to the rights and duties of a “debt- or”, fundamental principles of equity and fairness urge that the secured party give a guarantor notice of the sale of collateral securing the promissory note. Cf. 679.9-507, F.S.

We therefore conclude that the trial court erred in striking the defendants’ affirmative defense of notice. Accordingly, the final judgment is reversed and the cause remanded to the trial court with respectful directions to reinstate the affirmative defenses and proceed to determine whether notice was in fact given and for such other action as may be consistent herewith.

Reversed and remanded.

WALDEN, C. J., and CROSS, J., concur.

      . “679.9-105 Definitions and index of definitions
      (1) In this chapter unless the context otherwise requires:
      ❖ * s¡: í¡s *
      id) ‘Debtor’ means the person who owes payment or other performance of the obligation secured, whether or not he owns or has rights in the collateral, . . . ”.

      . “679.9-504 Secured party’s right to dispose of collateral after default; effect of disposition

      (3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any publio sale or reasonable notification, of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”


text:
    John W. LAMAR, Appellant, v. Ruth Gloria LAMAR, Appellee.
    No. 75-345.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.

      Howard Todd Jaffe, of Kaplan, Jaffe & Associates, Hollywood, for appellant.
    John D. Kruse, Fort Lauderdale, for ap-pellee.
   WALDEN, Chief Judge.

Husband appeals from a modification order entered after a final dissolution. We agree with husband’s contention that the trial court should not have ordered him to pay $1,445 for wife’s attorney fees based only upon her counsel’s affidavits of work done and fees charged. In Ortiz v. Ortiz, 211 So.2d 243 (3d DCA Fla.1968), the court noted:

“. . . a chancellor may not fix attorney’s fees without expert testimony. Lyle v. Lyle, Fla.App.1964, 167 So.2d 256; Thoni v. Thoni, Fla.App.1965, 179 So.2d 420.” Id. at 245.

The attorney fees should not have been awarded without testimony from an expert witness.

The modification was made upon the motion of husband to hold the wife in contempt for failure to quit-claim to him her interest in certain property and her subsequent petition to modify. The wife had agreed to transfer her interest in that property to the husband in accord with a property settlement agreement, made a part of the final dissolution. She has not yet transferred that interest. The modification order held the wife in contempt for the failure to do so, and ordered her to execute a quit-claim deed on the property to husband, that deed to be held in trust by her attorney. The deed was to be transferred to husband upon the fulfillment by him of certain directives, including payment of wife’s attorney fees, a dental bill for the minor child, extra monthly schooling funds for the child and the transferraL of certain civil service benefits to wife. We affirm that portion of the modification order making delivery of the deed to the husband dependent upon his performance of duties which had accrued at the time of the modification order, on the grounds that a trial court may require security of a party to a dissolution in order to assure fulfillment of obligations. Stern v. Stern, 75 So.2d 810 (Fla.1954); Black v. Miller, 219 So.2d 106 (3d DCA Fla.1969):

“A court in a divorce action may, . require the husband to give security for the payment of alimony or child support.” Id. at 109.

Fla.Stat. §61.11 (1973):

“. . . When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.”

The accrued obligations include the attorney fees (when properly determined), doctors’ bills for the child and civil service benefits due the wife. We reverse, however, as being in excess of the trial court’s discretion, that portion of the modification decree making delivery of the deed to the husband dependent upon making subsequent additional monthly payments for the education and care of the child. Although security may be had for future obligations, we feel that to encumber this property in such fashion would hinder the purpose of the order. The husband would not be able to expect full property ownership until the minor child completed her schooling, and it would render him incapable of dealing with the property in such manner as to enable him to fulfill his obligations. We reverse this portion of the modification without prejudice to the trial judge to order such bond or other security as he may see fit to impose to assure compliance.

We find no merit in husband’s remaining contentions.

Reversed and remanded, with directions.

OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.


author: GRIMES, Judge.

text:
    CORTEZ ROOFING, INC., a Florida Corporation, and Cotton States Insurance Company, Appellants, v. Joanna T. BAROLO and Louis J. Barolo, her husband, Appellees.
    No. 75-118.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 1975.

      Joseph R. Kalish, Lawrence & Gordon, P. A., Tampa, for appellants.
    Clyde C. Goebel, Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appellees.
   GRIMES, Judge.

Cortez appeals a judgment entered against it upon a jury verdict in favor of Mr. and Mrs. Barolo in the sum of $25,000 each.

Mrs. Barolo was shopping for carpeting at the Cortez warehouse. The carpet had been rolled on steel pipes which had been placed on racks. While Mrs. Barolo was being shown the carpet, one of the rolls fell off a rack. The steel pipe in the roll struck Mrs. Barolo on the top of her head. The only witnesses to the accident were Mrs. Barolo and a Mr. Clark, who is the president of Cortez. Mrs. Barolo brought suit for the injuries which resulted, and her husband sued to recover , for the medical expenses and loss of services and consortium.

The main argument on liability is directed to the applicability of the doctrine of res ipsa loquitur. In Brooks v. Plant, Fla. App.2d 1974, 296 So.2d 71, this court recently said:

“. . . Florida courts have established three requirements for the application of res ipsa loquitur: (1) the instrumentality involved was within the exclusive control of the defendant at the time of the injury, both as to operation and inspection; (2) the injury was not the result of any voluntary action or contribution on the part of the plaintiff; and (3) the accident would not have occurred had the defendant used due care.

Were these requirements fulfilled in the instant case ?

Exclusive Control

The warehouse doubled as a display room for Cortez. Mr. Clark said that customers did not go into the warehouse to look at the carpet unless a Cortez employee went with them. He acknowledged that it had to have been him or one of his employees who placed the carpets on the racks.

No Contribution By Plaintiff

The pipe came off the rack and struck Mrs. Barolo on the top of the head. She stated that she did not touch the rack or the carpet before she was struck. Mr. Clark said that he did not see Mrs. Barolo touch anything before the carpet fell off the rack.

Accident Would Not Have Occurred If Defendant Had Used Due Care

A roll of carpet placed on a rack would not normally fall out of the rack if the rack was properly made and the roll was properly placed on the rack. There was no evidence of a collapse of the rack. The circumstances strongly suggest that the roll was not properly placed on the rack. In any event, it is most unlikely that the accident could have occurred except for the negligence of Cortez.

Since all of the prerequisites were met, the court properly determined to instruct the jury on the doctrine of res ipsa loqui-tur. Therefore, it was not error to deny Cortez’ motion for directed verdict even though there was no' evidence of specific acts of negligence. Anderson v. Sarasota County Public Hospital Board, Fla.App.2d 1968, 214 So.2d 655. The charge given was taken from Florida Standard Jury Instruction 4.6, and no suggestion is made that the doctrine was misstated.

Inferentially, Cortez makes the contention that the Barolos could not rely on res ipsa loquitur because their complaint alleged only specific acts of negligence. There is a split of authority on this point around the country. Annot., 2 A.L.R.3d 1335 (1965). The Florida position is equivocal. See American Dist. Electric P. Co. v. Seaboard Air L. Ry. Co., 1937, 129 Fla. 518, 177 So. 294. Be that as it may, we need not reach the point because, even though the complaint purports to set forth certain particulars with respect to how Cortez was negligent, at least some of these allegations are sufficiently broad as to be construed as generally alleging the Cortez had carelessly allowed a dangerous condition to exist. There is no doubt that res ipsa loquitur is available on general allegations of negligence. American Dist. Electric P. Co. v. Seaboard Air L. Ry. Co supra. The fact that specific allegations of negligence are also made could not, in itself, preclude the application of res ipsa loquitur since Florida follows the rule that, in a proper case, proof of specific acts of negligence does not forestall a plaintiff from relying on the doctrine. South Florida Hospital Corporation v. McCrea, Fla. 1960, 118 So.2d 25.

Cortez also complains that the verdicts were excessive. From our vantage point, the verdict for Mr. Barolo does seem high. However, the trial court declined to enter of remittitur, and on this record we cannot say, as a matter of law, that error was committed.

The remaining points on appeal are without merit.

Affirmed.

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


text:
    Richard WELCH, Appellant, v. STATE of Florida, Appellee.
    No. 75-962.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.

      Wilbur C. Smith, III,' of Smith & Carta, Fort Myers, for appellant.
    Joseph P. D’Alessandro, State’s Atty., Fort Myers, for appellee.
   ON MOTION TO REVIEW REVOCATION OF BAIL

GRIMES, Judge.

Welch was convicted of possession of a controlled substance and sentenced to thirty months in the state prison. Upon the filing of an appeal, the lower court entered an order granting bail. Welch posted the required supersedeas bond. Thereafter, Welch was arrested for sale of a controlled substance and possession of firearms by a convicted felon. The state then filed a motion to revoke supersedeas bond. Following several hearings the court entered an order revoking Welch’s superse-deas bond. All of these matters occurred prior to the filing of the record on appeal with this court.

The order revoking the supersedeas bond stated that the court was applying the principles of Younghans v. State, Fla.1956, 90 So.2d 308, and gave as reasons for the revocation “that the court has probable cause to believe that the defendant has no respect for the law and has a high propensity to commit criminal acts.” Citing this court’s opinion in Waller v. State, Fla.App.2d, 1968, 208 So.2d 147, Welch contends the denial of bail pending appeal cannot be predicated upon disrespect for law and the propensity to commit crime unless these matters relate to the tendency of the defendant to remove himself from the jurisdiction of the court. Welch correctly states that Waller stands for the proposition that the defendant’s disrespect for the law and the probability that he may commit the same crime again locally cannot be equated with whether he would flee from the jurisdiction to avoid punishment if his conviction was affirmed. We note that the Fourth District Court of Appeal in Baker v. State, Fla.App.4th, 1968, 213 So.2d 285, has interpreted Younghans so as to reach a contrary conclusion. Referring to Waller, that court said:

“. . . We are aware of our sister court’s opinion in Waller v. State, to the effect that any lack of respect for the law, as contemplated by Younghans has reference to whether the defendant would be tempted to remove himself from the jurisdiction of the court. We do not believe the language employed in Younghans was intended as this restrictive and therefore place a broader construction upon the criterion of respect for the law.”

We now have the opportunity to reconsider Waller, and we have reached the conclusion that the principles stated therein should be modified. In so doing, we approve the language of Baker in which the court said:

“In the administration of justice it is the courts’ duty to protect society from the habitual offender. Obviously then, in determining bail the court may consider the record of a felon where it can be anticipated that he will continue a course of crime until finally behind prison walls. In so doing, the responsibility of the court is fulfilled while giving application to settled principles of law and constitutional guarantees. In fact under the common law and early English statutes, the form of recognizance upon the bail of a defendant was ‘for his appearance to take his trial and to be of good behavior in the meantime.’ Reg. v. Badger, 4 Q.B. 467; 114 Eng. Reprint 975.
“It must be recognized that the granting of bail and the amount thereof is not a strict legal right but rather is a legal favor, resting in the sound judicial discretion of the trial judge.”

While the holding in Waller may have been correct on the facts, we no longer subscribe to the rationale of that opinion.

The record in the instant case reflects that Welch was convicted of a previous felony several years ago. At the time of sentencing for the judgment now on appeal, Welch made an impassioned plea that he now saw the error of his ways, and he promised to lead a new life free of crime. Yet, less than three months later he was arrested for selling a controlled substance to an undercover agent. In addition to the thirty months he will have to serve if his conviction is affirmed, he faces the possibility of further sentences in the maximum amount of twenty years for the new offenses. Applying what we now conceive to be the law to the facts of the case, we conclude that the court did not abuse its discretion in revoking Welch’s bail.

Motion denied.

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


author: BOARDMAN, Judge.

text:
    Janet AMICK and Nationwide Insurance Company, Appellants, v. Patricia HANOUSEK, Individually and as next friend and guardian of Tereasea Patterson, a minor, and Joseph Hanousek, Appellees.
    No. 75-887.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    Daniel A. Carlton, Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellants.
    Robert C. Widman, Nelson, Payne, Hesse & Cyril, Sarasota, for appellees.
   BOARDMAN, Judge.

Appellants filed this timely interlocutory appeal from an order of the trial court denying their motion for change of venue from Sarasota County to Charlotte County. The controversy arose out of a personal injury action. The appellees, Patricia Hanousek, individually and as next friend and guardian of Tereasea Patterson, a minor, and Joseph Hanousek, filed a complaint in the Circuit Court for Sarasota County against the appellants, Janet Amick and Nationwide Insurance Company (properly named Nationwide Mutual Fire Insurance Company). Appellants filed a motion to dismiss complaint, to abate, or to -transfer the action on the ground that venue did not properly lie in Sarasota County. After hearing, the trial court entered its order denying said motion. The trial court, in its order, found that the cause of action arose in Charlotte County; that appellant/defendant, Janet Amick, was a resident of that county; that Nationwide Insurance Company, appellant, had an office for the transaction of its business in Sarasota County, but that this fact alone was not sufficient to place venue in Sarasota County, pursuant to Section 47.051, Florida Statutes. The court further found that the minor appellant, Tereasea Patterson, and her family, would suffer extreme physical and emotional hardship if required to travel to Charlotte County for the trial of the case; and, further, found that for the convenience of the parties, and in the interest of justice, the venue should remain in Sarasota' County pursuant to Section 47.122, Florida Statutes.

Upon careful review of the record, briefs and having heard oral argument, we reverse for the reasons stated below.

The sole issue presented for our determination is one of proper venue. Section 47.011, Florida Statutes, provides in essential part:

. . . Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. . . . [Emphasis supplied].

According to the authority contained in Section 47.122, Florida Statutes, a change of venue may be granted by the trial court for the convenience of the parties or witnesses or in the interest of justice and the cause transferred to another court in which it might have been brought. Based on our interpretation and construction of the statutory law applicable, and in light of the factual circumstances presented in this case, we hold that the instant action could have been brought only in Charlotte County and could not have been properly brought in Sarasota County. Therefore, we submit, Section 47.122, Florida Statutes, does not control this case and it was error for the trial court to have denied appellants’ motion for change of venue on authority of said statutory law.

We do agree with that portion of the order appealed which finds appellant, Nationwide Insurance Company, a foreign corporation authorized to do business in the State of Florida, did have an office in Sarasota County and that this fact, standing alone, would not be sufficient to retain venue in Sarasota County under Section 47.051, Florida Statutes.

It is dear from the record before us that Janet Amick, appellant, timely asserted her personal privilege of venue pursuant to 47.011, Florida Statutes, and it should not be defeated because she is joined as a party defendant with her insurer, a foreign corporation. See England v. Cook, Fla.App.3d, 1972, 256 So.2d 403.

Reversed and remanded with directions to the trial court to enter an appropriate order granting the motion for change of venue.

HOBSON, Acting C. ]., and SCHEB, J., concur.


text:
    Beatrice E. BUONI, Appellant, v. ORLANDO FEDERAL SAVINGS & LOAN ASSOCIATION et al., Appellees.
    No. 75-180.
    District Court of Appeal of Florida, Fourth. District.
    Dec. 5, 1975.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellant.
    Marvin E. Rooks of Rush Marshall Bergstrom, Robison & Chapin, Orlando, for appellee-Orlando Federal.
    Michael R. Walsh, Orlando, for appellee, Florence Self.
   PER CURIAM.

Appellant-plaintiff, Beatrice E. Buoni, appeals final judgment entered in favor of the appellees-defendants, Orlando Federal Savings & Loan Association, et al., in an action for damages for non-payment of a savings certificate of deposit.

Upon consideration of the record and briefs, we are of the opinion the trial court erred in entering final judgment granting a motion for involuntary dismissal of plaintiff’s complaint at the time plaintiff concluded presentation of her evidence, as plaintiff had established by facts a prima facie case. Accordingly, the final judgment and order taxing costs is reversed and the cause remanded for further proceedings.

Reversed and remanded.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


text:
    In re ESTATE of Michael RYECHECK, Deceased. W. J. CALLAHAN, Individually and as Executor of the Estate of Michael Ryecheck, Deceased, and Edward C. Vining, Jr., Appellants, v. ESTATE of Leona MIGON, Appellee.
    Nos. 75-499, 75-531.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.

      Edward C. Vining, Jr., Miami, for appellants.
    Richard Karl Goethel, Coral Gables, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

W. J. Callahan as executor of and Edward C. Vining, Jr., as attorney for the estate of Michael Ryecheck challenge respective awards of $17,000 and $30,000 for their services as inadequate.

In 1974 Michael Ryecheck died and left an estate valued in excess of $477,000. Appellant Callahan was appointed executor and appellant Vining attorney for the estate. With the exception of a brief will contest which was settled on the initiative of the contestant’s attorney, the administration of the estate proceeded smoothly. Thereafter, Vining petitioned for attorney’s fees of $45,000 (450 hours at $100 per hour) and Callahan for ordinary and extraordinary services of $27,500. The petitions were opposed by the attorney for the residuary legatee. At the hearing on these petitions, Vining testified that the 450 hours was an educated guess. Two lawyers testified that Vining’s services were worth between $45,000 and $50,000. The chancellor entered his order awarding Vining $30,000 and Callahan $17,000.

Appellants argue that where there were neither objections nor opposing testimony, the court erred in awarding the above fees in disregard of the uncontro-verted evidence. We cannot agree.

The testimony of expert witnesses is to aid and assist in the determination of the amount of fees recoverable, but such testimony is neither conclusive nor binding on the court. Folmar v. Davis, Fla.App.1959, 108 So.2d 772. The court was not compelled to make an award within the range set by the expert testimony.

■ An order of a probate court rendered in the exercise of its lawful discretion is clothed with a presumption of correctness and will be disturbed on appeal only upon a clear showing by the appellant that it is contrary to the manifest weight of the evidence. In re Estate of Hobein, Fla.App. 1970, 238 So.2d 497. We conclude appellants have failed to make error clearly appear as we find the fees awarded were not unreasonable when the estate at the time of distribution had a value of approximately $300,000 and the administration proceeded fairly smoothly. Cf. In re Dean’s Estate, Fla.App. 1962, 144 So.2d 65.

The awards herein appealed are affirmed.