author: MILLS, Judge.

text:
    JACQUIN-FLORIDA DISTILLING CORPORATION, Appellant, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, et al., Appellees.
    No. GG-391.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1978.
    Rehearing Denied April 10, 1978.
    Jesse F. Warren, Jr., Joseph C. Jacobs, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Charles T. Collett and Dennis E. La Rosa, Tallahassee, for appellees.
   MILLS, Judge.

Jacquin appeals from a final summary judgment entered in a declaratory judgment action which construed Sections 565.-12 and 565.14, Florida Statutes (1975), so as to require Jacquin to pay the higher excise tax required by Section 565.12 on 61,600.65 wine gallons of rum manufactured by it.

The issue here is whether rum resulting from a mixing of rum made from Florida raw materials with rum made from out-of-state raw materials should be wholly taxed under Section 565.12(l)(a) and (2)(a) or pro-ratedly taxed under Section 565.12(l)(b) and (2)(b) based on the percentage of Florida produced rum contained in the mixed product.

The facts in this case are not in dispute. Jacquin is a distiller and bottler who conducts its operations only in Florida and who is licensed under Section 565.03(l)(a) and (b), Florida Statutes (1975). Jacquin manufactured 11,004 proof gallons of rum made from cane molasses produced and manufactured out of state from sugarcane grown out of state. Later, it mixed this rum with 35,171.3 proof gallons of rum manufactured in Florida exclusively from Florida grown and produced products. The mixture resulted in 61,600.65 wine gallons of rum of which 61,348.65 gallons were under 48 percent alcohol by weight and 252 gallons were over 48 percent alcohol by weight.

The Division demanded $126,808.01 from Jacquin in excise taxes on the rum and advised it that if not paid within ten days a tax warrant would be issued. This was the maximum tax provided by Section 565.-12(l)(a) and (2)(a). Jacquin filed a declaratory judgment action seeking a determination that it owed a lesser sum in taxes and seeking an order temporarily restraining the Division from issuing the tax warrant. The restraining order was entered. Subsequently, the trial court entered a summary judgment in favor of the Division and dissolved the restraining order.

Section 565.12(l)(a) and (2)(a) sets the tax rate on liquor between 14 and 48 percent alcohol by weight and more than 48 percent alcohol by weight. Section 565.12(l)(b) and (2)(b) sets a lower tax rate for liquor which is manufactured and bottled in Florida from certain enumerated Florida grown products.

Section 565.14(1) sets forth the requirements necessary to qualify for the lower tax rate. The tax to be applied under Section 565.12 to this case depends upon the construction of the first sentence of Section 565.14(1) which reads:

“In order to qualify, in whole or in part, for the Florida tax rate provided in s. 565.12(l)(b), (2)(b), an alcoholic beverage must be manufactured exclusively from raw materials, except for flavoring extracts, produced in Florida and may not be blended with whiskey produced in any other state. . . . ”

In construing this statute, we must determine the legislative intent and, if possible, give meaning to all words and phrases used by the legislature in the statute.

Chapter 70-225, Laws of Florida [Chapter 565, F.S. (1975)], was adopted by the legislature to protect and encourage state industry and to protect state revenues by stopping the blending of out-of-state whiskey with in-state whiskey. Faircloth v. Mr. Boston Distiller Corp., 245 So.2d 240 (Fla.1970).

The title to Section 565.14 which reads “requiremehts necessary to qualify for tax rate for Florida-grown products” is additional indication of the legislative intent to give preferential tax treatment to alcoholic beverages made from Florida grown products.

Section 565.14(1) states that in order to qualify for the lower tax rate provided by Section 565.12 the beverage must be manufactured exclusively from raw materials produced in Florida and may not be blended with whiskey produced in any other state.

Section 565.12(l)(b) and (2)(b) provides that the lower tax rate applies to beverages manufactured and bottled in Florida from certain enumerated Florida grown products.

Clearly, the legislature intended that the tax break was limited to beverages that were manufactured in Florida exclusively from specific products grown in Florida and bottled in Florida.

Jacquin argues that because Section 565.-14(1) does not specifically prohibit proration of taxes where the beverage is produced from a mixture of Florida grown products and out-of-state grown products, because the section must be construed strictly and because the section must be construed in favor of the Florida taxpayer, it does not preclude a proration of the tax depending upon where the raw materials were produced. Thus, the use of the term “in part” in the section contemplates a proration of taxes under facts such as we have in this case.

We do not agree. The legislature went to great length to set forth the Florida grown products which qualify for the lower tax. This clearly indicates its intent to exclude out-of-state raw materials from qualifying for the lower tax rate. “In part” as used in the section permits a proration of the tax only when Florida grown raw materials enumerated in Section 565.-12(l)(b) and (2)(b) are mixed with Florida grown non-Section 565.12(l)(b) and (2)(b) enumerated raw materials.

Jacquin next argues that Section 565.-14(1) provides for the payment of taxes “in part” upon alcohol distilled in Florida so long as it is not blended with whiskey that is produced in another state. It contends that it blended out-of-state rum, not whiskey.

Again, we do not agree. To qualify for the lower tax the beverage must be produced exclusively from Florida products and not blended with out-of-state whiskey. It is unnecessary that we reach the latter requirement because Jacquin’s admittedly does not qualify for the first requirement.

The trial court correctly construed Sections 565.12 and 565.14(1) and properly entered a final summary judgment for the Division. The lower tax is permissible in part when mixing occurs, if the product mixed is manufactured and bottled from enumerated Florida products and nonenu-merated Florida products. The action of Jacquin in mixing the out-of-state grown products with Florida grown products disqualifies the entire resulting product from the lower tax.

We affirm the final summary judgment.

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


source: Caselaw Access Project

license: Public Domain

text:
    Glenwood PERRY and James Rushin, Jr., Appellants, v. STATE of Florida, Appellee.
    No. HH-200.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1978.
    Rehearing Denied April 10, 1978.

      Michael »J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Perry of robbery with a firearm as charged. He contends the trial court prejudiced his right to a fair trial by denying his request to call a witness as a court witness.

Perry’s codefendant, Rushin, was also charged with robbery with a firearm. However, the jury found him guilty of only robbery. He contends the trial court erred in denying his motion for judgment of acquittal.

The State adduced the following evidence at trial. Hunter, the victim was the operator of a poolroom. He saw a short man and a tall man come in the back door of the poolroom. The short man came to the counter and asked for change for two half dollars. Hunter gave him the change and the man sat down in a chair in front of the counter facing the pool tables.

Hunter sat down behind the counter, facing in the opposite direction, to watch television. At that moment, there was no picture on television and he saw the reflection of a man standing behind the counter. Hunter turned and saw the tall man was holding a pistol pointed at him. As a result, Hunter relinquished Fourteen or Fifteen Dollars to the man with the gun.

The short man who asked for the change remained on the other side of the counter, facing the pool tables, with his back to the counter, and with one hand in his coat pocket. After the robbery this man walked out of the back door first, followed by the tall man who kept looking backward until he exited through the back door.

The tall man who held the gun was identified by Hunter and witness Jones as Perry. On cross examination, Jones denied that he had told Detective Kanard he could not identify the man who held the gun. The short man was identified by Hunter and witness Jones as Rushin.

At the conclusion of the State’s case in chief, and prior to presentation of the defendants’ case, Perry asked the court to call witness Kanard, a detective of the Jacksonville Sheriffs Office, as a court witness. The reasons for the request were: at the taking of his deposition, Kanard testified that witness Jones told him that he was unable to identify the man with the gun; on the day of the trial, after presentation of the State’s case, Kanard appeared in response to a subpoena and informed defense counsel that he disclaimed his prior testimony and would deny that witness Jones told him he was unable to identify the man with the gun. The court announced that it would call Kanard as a court witness and allow counsel for both parties to cross examine him.

Kanard was then called out of the presence of the jury and a proffer of his testimony was made. At the proffer, Kanard testified that Jones told him he could identify the man with the gun; he admitted that at his deposition he testified that Jones told him he was unable to identify the man with the gun; he admitted that he did not recant his deposition testimony until the day of the trial, after presentation of the State’s case, just before presentation of the defendant’s case, when he informed defense counsel that he was confused at his deposition and would not testify as he did at that time. After the proffer, the court refused to call Kanard as a court witness.

Rushin moved for a judgment of acquittal on the ground that the State failed to prove a prima facie case of guilt on his part because the State failed to prove his intent to participate in the robbery. The court denied the motion.

Upon first reading the facts, one’s first impression is that the court erred in refusing to call the witness, Kanard, as the court’s witness. But upon reflection and on application of the existing law to the facts, it is readily apparent that the court did not err.

Perry wanted to establish as a substantive fact that Jones told Kanard he could not identify Perry. In order to do this, Perry would have been compelled to impeach his own witness, Kanard. Although impeachment of a party’s witness is permitted where the witness surprises the party by failing to give the beneficial evidence expected of him, and becomes adverse by giving harmful evidence that is contrary to what was expected, the conflicting statement may not be used as substantive evidence. Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976). Perry recognized this and made every effort to convince the court that it should call Kanard as the court’s witness. Under the circumstances of this case, the court properly refused Perry’s request. To have ruled otherwise, the court would have permitted Perry to get in through the back door that which he could not have gotten in through the front door.

The record reflects that the trial court was concerned with the actions of Kanard in changing his testimony. We also gathered from the record that the trial court intended to take such action as it could to forestall similar future situations. We agree with the court’s concern and action.

The trial court did not err in denying Rushin’s motion for judgment of acquittal. Rushin entered the poolroom through the back door immediately followed by Perry. While Perry relieved the victim of his money with the use of a pistol, Rushin faced the poolroom with his hand in his coat pocket. When Perry completed the robbery, Rushin immediately left the poolroom through the back door followed by Perry who kept looking backward. This evidence made a prima facie case of robbery on the part of Rushin which the jury resolved against him.

We affirm the judgments appealed.

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


author: MILLS, Judge. BOYER, Judge,

text:
    Bernice L. DORSEY, Individually, as a member of Char-Lar Civic Association, and as a non-waterfront real property owner within Char-Lar Estate Subdivision, Putnam County, Florida, and that class of persons similarly situated, and Char-Lar Civic Association, Inc., a Florida non-profit Corporation, Appellants, v. Charles H. H. BEHM, Laura L. Behm, William W. Edmiston, Dorothy Edmiston, R. B. Raulerson, Ellen Raulerson and Beverly Weidenhof, Appellees.
    No. GG-336.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    Rehearing Denied April 10, 1978.
    Roy E. Dezern, Jacksonville, for appellants.
    Alan B. Fields, Jr., of Dowda & Fields, Palatka, for appellees.
   MILLS, Judge.

Appellants appeal from a judgment on the pleadings entered in favor of appellees in a declaratory judgment action. The issue here is whether the trial court erred in entering the judgment on the pleadings. It did not err and we affirm.

Appellants alleged in their complaint that the Behms (appellees) deeded a site in Char-Lar Estates to Dorsey (appellant) and prior to and subsequent to the transfer of the property to Dorsey orally represented to him that he as well as other nonwaterfront owners would be entitled to exclusive use of a pier and adjacent real property together with the boat basin and surrounding area. Attached to the complaint was a Grant of Easement which gave Dorsey the right to use the boat basin. Also attached to the complaint was a Quitclaim Deed To Pier which quitclaimed the Behms’ interest in a pier in Crescent Lake to the Edmistons, Raulersons and Weidenhof (appellees). Appellants sought a declaration of their right to use the pier and adjacent real property together with the boat basin and surrounding area because appellees had denied them these rights.

Appellees answered admitting the right of appellants to use the boat basin but denying their right to use the pier. They then moved for judgment on the pleadings which the trial court granted without giving its reasons. Although not pled, without objection, appellees argued orally and by written memorandum that the alleged oral promise to create an easement was barred by the statute of frauds.

Not only do appellees admit that appellants are entitled to use of the boat basin but the Grant of Easement clearly and unambiguously gives them this right, thus, there is no dispute on this issue.

Not only do the allegations of the complaint fail to describe the pier in question but an oral promise to create an easement violates the statute of frauds. Section 725.-01, Florida Statutes (1975), and Florida Real Property Practice I, page 584. There is no dispute on this issue.

The pleadings raising no disputed issues, the court properly granted judgment on the pleadings.

The judgment is affirmed.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent. In my view this is not a proper case for a judgment on the pleadings. See Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla.1st DCA 1975).


author: SMITH, Acting Chief Judge. ERVIN, Judge,

text:
    Isham W. ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. HH-120.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    Rehearing Denied April 10, 1978.
    Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Albritton, Asst. Atty. Gen., for appellee.
   SMITH, Acting Chief Judge.

Adams was convicted of unlawfully obtaining property by means of a worthless check he knew to be worthless, contrary to Section 832.05(3), Florida Statutes (1975), which provides in part:

It shall be unlawful for any person, . to obtain any . . . goods . by means of a check . . . upon any bank . . ., knowing at the time of the making, drawing, uttering, issuing or delivering of said check . . . that the maker thereof has not sufficient funds on deposit in or credit with such bank . . . with which to pay the same upon presentation .

Adams urges that the trial court erred in denying his request for a charge that intent to defraud is an essential element of the offense. We lack a transcript of the court’s charge, but the transcript of the charge conference indicates, and we must assume, that the court charged the jury using Florida Standard Jury Instruction (Criminal) 2.07 (2d ed. 1976), which incorporates the statutory defense:

It is a defense to this charge that at the time of delivery of the check the said payee knew, had been expressly notified or had good reason to believe prior to the drawing or uttering of the check that the person drawing the check did not have on deposit or to his credit with the bank sufficient funds to insure payment of the check upon presentation.

We hold that intent to defraud is not an essential element of the offense proscribed by Section 832.05(3). Anderson v. Bryson, 94 Fla. 1165, 115 So. 505 (1927), which concerned a predecessor statute requiring allegation and proof of intent to defraud, contains dictum that “[wjithout the element of fraud, the statute might be repugnant to section 16 of the Declaration of Rights, which provides that ‘no person shall be imprisoned for debt, except in cases of fraud’.” Other district courts of appeal, giving that dictum effect, have read intent to defraud into the statutory elements notwithstanding that the present statute omits reference to an intent to defraud but explicitly excepts innocent transactions of a certain character. Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976); Bailer v. State, 337 So.2d 415 (Fla. 4th DCA 1976); Berry v. State, 345 So.2d 828 (Fla. 4th DCA 1977). We believe, to the contrary, that the Supreme Court silently retracted the Anderson dictum in Ennis v. State, 95 So.2d 20 (Fla.1957), cert. den., 355 U.S. 868, 78 S.Ct. 117, 2 L.Ed.2d 74 (1957) and held, as did State v. Yarboro, 194 N.C. 498, 140 S.E. 216 (1927) and State v. Avery, 111 Kan. 588, 207 P. 838 (1922) under comparable statutes, that a conviction under Section 832.05 may be had absent proof of an intent to defraud. Contra, United States v. Frazier, 444 F.2d 235 (5th Cir. 1971). Therefore, the judgment and sentence are

AFFIRMED.

BOOTH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I do not read Ennis v. State, 95 So.2d 20 (Fla.1957), cert. den., 355 U.S. 868, 78 S.Ct. 117, 2 L.Ed.2d 74 (1957), as does the majority, as not requiring an intent to defraud. Ennis was concerned only with the constitutionality of Section 832.05, Florida Statutes (1955), which did not include within its provisions, as did a predecessor statute, the intent to defraud. The court was not confronted with a situation, as are we, in which a request to so instruct was declined. In two prior cases where the question was directly raised, Prince v. State, 333 So.2d 63 (Fla. 4th DCA 1976), cert. den., 339 So.2d 1172 (Fla.1976), and Berry v. State, 345 So.2d 828 (Fla. 4th DCA 1977), the Fourth District Court of Appeal held that the intent to defraud was an essential and indispensable element of the crime of obtaining property in return for a worthless check. Similarly, neither Section 831.02, Florida Statutes (1971), prohibiting the commission of forgery, nor Section 814.03(1), Florida Statutes (1973), proscribing larceny of a motor vehicle, contained specific provisions requiring an intent to defraud, yet both were construed as so requiring. Rapp v. State, 274 So.2d 18 (Fla. 4th DCA 1973); Austin v. Wainwright, 305 So.2d 845 (Fla. 4th DCA 1975).

I would remand for a new trial.


author: SCHEB, Judge.

text:
    TAMPA FARM SERVICE, INC., Appellant, v. CARGILL, INC., Appellee.
    No. 77-167.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.
    Rehearing Denied April 10, 1978.

      Michael C. Addison and George E. Copple of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for appellant.
    Arthur A. Simpson, M. W. Graybill and Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   SCHEB, Judge.

Appellant Tampa Farm Service assails the trial court’s summary final judgment finding it liable for having wrongfully canceled certain contracts for the purchase of corn from appellee Cargill. Tampa Farm contends summary judgment was improper because a material factual issue was present as to whether cancellation of the contracts was justifiable. We agree and reverse.

Appellant Tampa Farm is in the business of selling eggs produced by approximately a million chickens on its various owned and contract farms around the Tampa Bay area. Tampa Farm feeds its chickens a mixture which includes milled yellow corn. The corn is marketed in six separate grades, viz., 1, 2, 3, 4, 5, and sample, as determined by certain federal regulations. Number 1 is the highest grade of corn and sample is the lowest.

On October 15, 1974, appellee Cargill, a wholesale grain distributor, and Tampa Farm entered into a series of contracts whereby Cargill agreed to deliver a total of 600,000 bushels of No. 2 yellow corn to Tampa Farm. The contracts were identical in form, varying only with respect to quantity, price, and delivery dates. Each contract specified that it was to be governed by the Rules of the Grain and Feed Dealers National Association (GFDNA), and by the Uniform Commercial Code (UCC) to the extent not in conflict with these Rules. The GFDNA Rules limited the buyer’s remedies for nonconforming shipments of corn to those contained in the Rules, and specifically provided that the buyer could not rescind the entire contract because of nonconforming shipments.

Deliveries commenced in early January 1975. In late January or early February Tampa Farm refused to accept further deliveries, claiming that it was receiving corn inferior to the No. 2 grade Cargill had contracted to furnish. Negotiations ensued and resulted in the parties entering into an additional agreement in March 1975 which modified the original contracts in several respects. In the modification Cargill agreed to give Tampa Farm a discount on the corn it had already received. Additionally, Cargill agreed that it would furnish unofficial inspection certificates on all future deliveries to assure Tampa Farm that it was receiving No. 2 corn. Deliveries resumed in early April and continued until July 7, 1975, when Tampa Farm canceled the contracts.

Several weeks later Cargill sued Tampa Farm on two counts. In Count I Cargill sought recovery of the contract price for the corn it sold and delivered before the contracts were canceled. In Count II Car-gill sought damages for Tampa Farm’s wrongful cancellation of the contracts as related to future deliveries. Tampa Farm set up as a defense that Cargill had antici-patorily breached the contracts by delivering corn far inferior to No. 2. Tampa Farm contended that it was therefore justified in canceling because it reasonably believed that Cargill would not or could not continue to perform the contracts in the future. Cargill was awarded a summary judgment for $389,392.86 plus interest on Count I in March 1976, from which no appeal has been taken. In December 1976 summary judgment was also entered in favor of Cargill on Count II for $318,573.06 plus interest. Tampa Farm appeals this latter summary judgment.

In the face of a record which disclosed disputed evidence on the issue of whether Tampa Farm could cancel its contracts as related to future deliveries, the trial court entered summary judgment in favor of Car-gill. In doing so the trial court implicitly determined, as a matter of law, the remedies provided by the GFDNA Rules for nonconforming shipments were exclusive. The court, in effect, held that Tampa Farm had no right to cancel the contracts.

The relevant GFDNA Rules provided: Rule 17. Off Grades: It shall be the duty of receivers, track buyers, and distributors of grain on regular market terms, to exercise due diligence in seeing that cars are promptly inspected on arrival, and on any cars which fail to grade according to the contract terms, notify the seller of such failure to grade by a telephone call placed, or by a telegram filed not later than twelve o’clock noon of the next business day after the date of official inspection, reporting the grade of the grain; whereupon it' shall be the duty of the seller receiving such notice to agree upon a discount with the buyer, or to wire disposition at once. Off grade grain sold for the account of shippers, shall not apply on contract.
Replacement shall be shipped within ten (10) calendar days.
Rule 43. Refusal of shipment: Failure to make any shipment in keeping with the terms and conditions of a contract shall be grounds for the refusal only of such shipment or shipments, and not for the rescission of the entire contract or any other contract between Buyer and Seller. (Emphasis added.)

At the outset, Tampa Farm contends the remedies made applicable to its contracts by Rules 17 and 43 were never meant to be exclusive. But, it argues, even if so intended, these remedies failed of their “essential purpose,” and resort could be had to the remedies provided by the UCC, including cancellation. Section 672.719(2), Florida Statutes (1975) (Section 2-719[2] of the UCC). Tampa Farm contends that the record demonstrated an issue of fact as to whether the contract remedies failed, and therefore the trial court erred in depriving it of a trial on this issue. We agree. Whether Tampa Farm should prevail is not now before us; however, we think that Cargill did not carry its burden of showing that there was no issue of material fact as to whether the remedies provided by the Rules failed of their essential purpose. This being so, the trial court erred in granting the summary final judgment. Fla.R.Civ.P. 1.510. See Stewart v. Gore, 314 So.2d 10 (Fla.2d DCA 1975).

Tampa Farm argues that to utilize the remedies provided by the GFDNA Rules, it had to follow a very cumbersome procedure. First, the truck loads of corn received had to be placed in separate and identifiable storage bins. Samples then had to be taken and sent to a grain inspection station at Live Oak. After the official grain inspection certificates were received, Tampa Farm then had to notify Cargill of each nonconforming shipment. Finally, at that point Cargill had the option of either replacing the substandard corn or awarding a discount.

Among the depositions on file when the summary judgment was entered was one from Herbert Bynum, president of Tampa Farm. Bynum testified in his deposition that his company only had storage facilities for 8,000 bushels of corn, yet used approximately 15,000 bushels of corn per week. This, he said, made it impossible to effectively utilize the unwieldy process outlined. Bynum did admit that on several occasions Tampa Farm had sent corn back and Car-gill had replaced it. He further said, however, that even after the March 1975 amendment Cargill continued to ship substandard corn. He pointed to the fact that Tampa Farm had twelve shipments tested, and the official grain certificates showed that only one of the twelve was of No. 2 quality. This, he explained, was why Tampa Farm canceled the contracts. After cancellation fourteen additional inspection certificates were received on shipments that arrived prior to cancellation. All fourteen certificates showed the corn to be below No. 2 grade. Thus, twenty-five of the twenty-six shipments tested between May and June of 1975 were below the quality Cargill contracted to furnish. Mr. Bynum put great emphasis on the fact that the quality of corn was of paramount importance, as inferior corn adversely affected egg production.

Cargill correctly points out that the remedies provided by the UCC may be modified by contract. Section 672.719(l)(a), Florida Statutes (1975). We recognize that the parties by incorporating the GFDNA Rules apparently intended to do just that. However, even when the parties agree upon a particular remedy, resort can be had to the additional remedies of the UCC if the agreed-upon remedy fails of its “essential purpose.” Section 672.719(2), Florida Statutes (1975).

There is, unfortunately, scant authority in the law as to examples of when a remedy fails of its essential purpose. In Wilson Trading Corp. v. Ferguson, Ltd., 23 N.Y.2d 398, 297 N.Y.S.2d 108, 244 N.E.2d 685 (1968), the buyer purchased a large amount of yarn for its sweater business. There the contract provided the buyer’s only remedy for defective yarn was replacement, so long as seller was notified of the defect before the yarn was knit. However, the defects buyer complained of were undiscoverable until after the yarn was knit into sweaters. The court held that the remedy provided by the contract failed of its essential purpose, and resort could be had to the remedies provided by the UCC.

On occasions courts have addressed the issue of whether there had been a failure of the essential purpose of a remedy where a buyer has purchased an automobile from a dealer or manufacturer. Most typically, the buyer’s remedy was limited by contract to either repair or replacement of defective parts. Soon after purchasing the car the buyer experienced difficulties that the dealer, after repeated attempts, was unable to repair. In these circumstances, courts have ruled that buyer’s remedies were not limited to those in the contract, and that resort could be had to the remedies of the UCC. E. g., Riley v. Ford Motor Co., 442 F.2d 670 (5th Cir. 1971). See also Orange Motors of Coral Gables, Inc. v. Dade County Dairies, Inc., 258 So.2d 319 (Fla.3d DCA), cert. denied, Fla., 263 So.2d 831 (1972); General Motors Corp. v. Earnest, 279 Ala. 299, 184 So.2d 811 (1966). We realize that the facts in the instant ease are somewhat different. Quite obviously this case involves a perishable farm product as opposed to an automobile. Moreover, unlike previously mentioned cases, Cargill replaced the substandard corn when given the opportunity. However, the basic rationale of these cases seems to be that the repeated necessity to utilize a prescribed remedy without appreciable results in correcting the defect can cause a remedy to fail. Here we think there was a genuine issue of material fact present as to whether Cargill’s failure to furnish the grade of corn agreed upon, even after the contract modification, caused the remedies provided by the Rules to fail.

In the instant case there was evidence that even though the difference between No. 2 and sample corn could sometimes be detected by the naked eye, the difference between No. 2 and No. 4 corn was not so easily discernible and tests were required in such instances. This, added to the evidence that Tampa Farm did not have adequate storage facilities to allow it to test the corn, bolsters our view that there was an issue as to whether the remedies provided failed of their essential purpose.

In White & Summers, Uniform Commercial Code, Section 12-10 (1972), the authors state that a remedy fails of its essential purpose only when circumstances arising since the inception of the contract cause the remedy to fail; that is to say, there must be changed circumstances. We doubt that either Cargill or Tampa Farm could have foreseen the situation which arose. We find that such a drastic failure of the quality of corn shipped could not reasonably have been anticipated by the parties when the contracts were entered into, and therefore could be construed as changed circumstances. After all, this was not a case of several isolated discrepancies. Twenty-five out of twenty-six shipments tested were below No. 2 quality. This issue needs to be explored through trial; it is not susceptible to judicial determination on summary judgment.

One last point needs to be addressed. Tampa Farm’s defenses included an allegation that Cargill had promised by the March 1975 amendment to inspect all corn before it was sent; that Cargill supplied unofficial inspection certificates for each shipment attesting that it was of No. 2 quality; and, that Tampa Farm relied upon these representations when in fact the corn shipped was a far inferior grade. Tampa Farm contends these allegations were sufficient to allege fraud, and that the trial court erred in granting summary judgment on this point as well. We do not agree. To begin with, the facts and circumstances constituting a fraud must be pled “with certainty, clarity, directness, and particularity.” 14 Fla.Jur. Fraud and Deceit, Section 64 (1957), and cases cited therein. The allegations must include the intent to deceive in order to state a cause of action in fraud. Houchins v. Case, 138 Fla. 368, 189 So. 402 (1939). Tampa Farm’s allegations fell short of this mark.

On remand the trial court, upon request, may permit an amendment to Tampa Farm’s defense to allow it to properly recast its allegation of fraud.

Summary judgment on Count II is hereby vacated and this cause is remanded for further proceedings consistent with this opinion.

GRIMES, A. C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    Abraham DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. GG-93.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1978.
    As Corrected March 21, 1978.
    Rehearing Denied April 6, 1978.

      Margaret Good, and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Markey, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks reversal of an adjudication of guilt of an assault in a lewd, lascivious or indecent manner on a female child under the age of 14 years in violation of F.S. 800.04 as a result of which he was committed for treatment and rehabilitation pursuant to F.S. 801.041 (apparently intending F.S. 801.091). He was initially indicted for two offenses in a two count indictment, the first count alleging a violation of F.S. 794.021(1) (apparently intending to allege a violation of F.S. 794.011(2)) and the second count in violation of F.S. 800.04. The trial court granted a motion for judgment of acquittal as to count one but denied the motion as to count two, the count of which he was convicted.

We have carefully considered the oral argument of able counsel in light of their briefs and the record on appeal.

By his first point appellant seeks our determination that the trial court erred in denying his pre-trial motion to strike count two and his subsequent motion in arrest of judgment, alleging that that count fails to state a crime under the laws of the State of Florida. We have carefully examined count two of the indictment and find that although it certainly is not a model it does allege a crime, viz: a violation of F.S. 800.-04.

Appellant next urges that the trial court erred in failing to grant his motion for a judgment of acquittal at the close of the state’s case upon the ground that the state failed to prove a material allegation of the indictment. We find that point to be without merit. Although there was a variance, not every variance between the allegation and proof is fatal. (Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972))

We also find that appellant may not prevail on his third point relating to the failure of the trial court to give an instruction because a careful review of the record reveals that the instruction the omission of which is now alleged to be error was never requested and the failure to give that particular instruction is not fundamental error.

Finally, appellant urges that the trial court abused its discretion by denying his request that the jury be permitted to take the indictment to the jury room during deliberations. Fla.R.Crim.P. 3.400 provides that “The court may permit the jury, upon retiring for deliberation, to take to the jury room: (a) a copy of the charges against the defendant * * * However that rule is permissive and not mandatory. We do not find that the learned trial judge abused his discretion in denying appellant’s request.

AFFIRMED.

McCORD, C. J., BOYER, J, and MASON, ERNEST E., Associate Judge, concur.


author: MELVIN, Judge.

text:
    Valton SHEFFIELD, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES of the State of Florida, and the Career Service Commission of the State of Florida, Respondents.
    No. GG-417.
    District Court of Appeal of Florida, First District.
    March 7, 1978.
    Rehearing Denied April 12, 1978.
    Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, Dept, of Highway Safety & Motor Vehicles, Tallahassee, Betty J. Steffens, Asst. Atty. Gen., for respondents.
   MELVIN, Judge.

Petitioner Sheffield brings for review as final agency action an order of the Career Service Commission of the State of Florida finding that the Director of the Division of the Florida Highway Patrol had been delegated proper authority to accept Sheffield’s resignation; that the personnel action resulting in Sheffield’s departure from the Florida Highway. Patrol did not constitute a dismissal within the meaning of Chapter 110, Florida Statutes; and, lastly, that Sheffield was without further appellate rights to the Career Service Commission.

Sheffield was the commander of a troop of the Florida Highway Patrol, Department of Highway Safety and Motor Vehicles, and, as such, was a Career Service employee with permanent status. On July 29, 1975, Sheffield met with Colonel Beach, the Director of the Division of the Florida Highway Patrol, who by Section 321.02, Florida Statutes, is the commander of the Florida Highway Patrol, and orally tendered to Colonel Beach his resignation from the Highway Patrol. Colonel Beach, in turn, orally accepted the resignation, which, by their agreement, was to become effective January 31, 1976.

Sheffield subsequently reduced his request to writing, and on July 31, 1975, Colonel Beach acknowledged receipt of same by letter.

Thereafter, Sheffield, in late December of 1975, and in January, prior to the January 31, 1976 effective date of his resignation, attempted, in writing, on three occasions, to withdraw his request for retirement and resignation. On January 13, 1976, the Personnel Officer of the Department of Highway Safety and Motor Vehicles wrote Sheffield advising him that his resignation for retirement purposes was being processed and that he would be retired as originally requested on January 31, 1976.

Sheffield argues that: (1) Colonel Beach did not have the authority to accept his resignation; (2) that even if Colonel Beach did have the authority, he (Sheffield) may withdraw that offer to resign prior to the effective date of said request; and (3) that the instant personnel action constituted a dismissal vesting him with appeal rights to the Career Service Commission. The respondent Department negatives the position taken by Sheffield. For the reasons stated below, we agree with the conclusions reached by the Department and affirm.

A brief discussion of the hierarchy of the Department and some of the statutory law controlling it may be helpful. The Department of Highway Safety and Motor Vehicles was created by the Governmental Reorganization Act of 1969, Section 20.24, Florida Statutes. The “head” of the Department is the Governor and Cabinet (§ 20.-24(1)), who have employed an executive director to serve at its pleasure as provided by § 20.05(7). The Department is composed of four divisions, including the Division of the Florida Highway Patrol (§ 20.24(2)(a)). The Director of the Division of Highway Patrol is also the commander of the Florida Highway Patrol (§ 321.02).

Section 321.02, Florida Statutes, also provides, in pertinent part, that:

“. . . The said department shall set up and promulgate rules and regulations by which the personnel of the Florida highway patrol officers shall be examined, employed, trained, located, suspended, reduced in rank, discharged, recruited, paid and pensioned, subject to civil service provisions hereafter set out. .

The Governmental Reorganization Act contemplated that the administration of personnel functions and many other departmental functions could be delegated by the department heads to lower-level personnel. Specifically, Section 20.05(l)(b), Florida Statutes, provides that each head of a department shall:

“Have authority, without being relieved of responsibility, to execute any of the powers, duties, and functions vested in said department or in any administrative unit thereof through said administrative units and through such assistants and deputies as shall be designated by the head of the department from time to time, unless the head of the department is explicitly required by law to perform the same without delegation.”

Pursuant to Section 20.05(l)(b), Florida Statutes, the Governor and Cabinet, sitting as the head of the Department of Highway Safety and Motor Vehicles, delegated to Ralph Davis, the Executive Director of the Department, the authority to administer the various personnel programs required by Chapter 110, Florida Statutes, the personnel rules and regulations, and to further delegate such authority to the Department’s Division Directors. On the following day, March 5, 1974, Mr. Davis issued a letter delegating authority to administer personnel programs within their respective divisions to Colonel Beach, Director of the Division of Highway Patrol, and the three other division directors of the Department.

In the face of the above situation, petitioner Sheffield argues that a proper construction of Chapters 20 and 321, Florida Statutes, compels the conclusion that the Director/Commander of the Florida Highway Patrol is without statutory authority, and may not be delegated authority, to perform any function nor fulfill any responsibility enumerated in Chapter 321, Florida Statutes, except to establish an auxiliary to the Patrol as he, as Director, is specifically authorized to do by Section 321.24, Florida Statutes.

In further support of his contention, Sheffield urges that this Court’s opinion in Kawasaki of Tampa, Inc. v. Calvin, 348 So.2d 897 (Fla. 1st DCA 1977) addressed the identical question and, therefore, controls the instant case. We cannot agree.

In Kawasaki, the Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles, in acting on a license certificate application made .pursuant to Section 320.27(4), Florida Statutes (1975), held a hearing according to Department rule, issued findings of fact and conclusions of law and ordered that a license be issued. In its initial opinion, this court reversed and vacated the Director’s order, finding that, while Section 20.-05(l)(b), Florida Statutes (1975), granted authority to department heads to “delegate” any power, duty or function “. unless the head of the department is explicitly required by law to perform the same without delegation.”, Section 320.665(1), Florida Statutes (1975), required that the department conduct the licensure hearing pursuant to Chapter 120, Florida Statutes (the Administrative Procedure Act). The applicable section of the Administrative Procedure Act dealing with proceedings in which the substantial interests of a party are determined by an agency, Section 120.-57(l)(a), Florida Statutes (1975), provides in part:

“(a) A hearing officer assigned by the division shall conduct all hearings under the subsection, except for:
“1, Hearings before agency heads
“2. Hearings before a member of an agency head . . . ”

Construing the preceding statutes, in pari materia, with Section 120.52(3), Florida Statutes (1975):

“ ‘Agency head’ means the person or collegial body in a department or other governmental unit statutorily responsible for final agency action.”

and Section 20.24(1), Florida Statutes (1975):

“The head of the department of highway safety and motor vehicles is the governor and cabinet.”

This court found that Section 120.57(l)(a), Florida Statutes (1975), explicitly required the head of the department to fulfill its Section 320.655(1) hearing duties.

Having found so, this Court held:

“. . . that applications for motor vehicle dealer licenses shall be heard either by a hearing officer assigned by the Division of Administrative Hearings, the Governor and Cabinet, the Governor or a member of the Cabinet.” (348 So.2d at 900) (Emphasis supplied.)

On Petition for Rehearing, this court, because of a recent legislation enactment, vacated and set aside its original opinion; however, the basis for the original opinion continues as viable case law.

The legislature having passed retrospective and remedial legislation, enacted specifically to allow the Director of Motor Vehicles to conduct hearings pursuant to Section 320.27-320.274, this court vacated its original opinion in Kawasaki of Tampa, supra.

We reject petitioner’s contention that the Governor and Cabinet were statutorily precluded (as did Section 320.665(1), Florida Statutes (1975), and Section 120.-57(l)(a), Florida Statutes (1975), in the original Kawasaki opinion) from delegating the requisite authority to the Director of the Division of Highway Patrol to accept petitioner’s resignation for the purpose of retiring. We have not been cited, nor has our research disclosed a statute explicitly requiring that the Governor and Cabinet personally accept the resignation of each employee of the Department desiring to resign.

The resignation of petitioner was submitted voluntarily and was validly accepted by competent authority. Therefore, Sheffield’s resignation did not constitute a “dismissal” as contemplated by Chapter 110, Florida Statutes.

The order of the Career Service Commission is AFFIRMED.

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

      . “(4) LICENSE CERTIFICATE. — A license certificate shall be issued by the department in accordance with such application when the same shall be regular in form and in compliance with the provisions of this section. . . . ” (Emphasis supplied)

      . “Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.-642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director’s Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period is set by the Director in his order of determination.” Rule 15C-1.08, F.A.C. (Emphasis supplied)

      .“(1) In the event the department shall conduct any hearing pursuant to the provisions of ss. 320.60-320.70, the hearing shall be conducted pursuant to chapter 120, the administrative procedure act, and the department shall have the power to conduct hearings pursuant to that act. . . ” (Emphasis supplied)

      . By Chapter 77-357, Section 23, Laws of Florida, the Legislature amended Section 320.274 to read:
      “320.274 Hearing procedure, dealers’ licenses.—
      “(1) In the event that the department shall conduct any hearing pursuant to the provisions of ss. 320.27-320.274, the hearing or hearings shall be conducted pursuant to chapter 120, the Administrative Procedure
      Act, and the department Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles shall have the power to conduct such hearings pursuant to that act., notwithstanding the provisions of s. 120.57(1), (a), and the director shall thereupon make his rulings and orders which shall constitute final agency action. . . . ”


author: MILLS, Acting Chief Judge. ERVIN, Judge,

text:
    E. Helen COOK, Petitioner, v. DIVISION OF PERSONNEL, DEPARTMENT OF ADMINISTRATION, Respondent.
    No. GG-32.
    District Court of Appeal of Florida, First District.
    March 10, 1978.
    Rehearing Denied April 11, 1978.

      Jerry G. Traynham, of Ben R. Patterson Law Offices, Tallahassee, for petitioner.
    Mary E. Clark, Tallahassee, for respondent.
   MILLS, Acting Chief Judge.

Petitioner seeks review of a final order determining that Florida Administrative Code Rule 22A-7.10B is a valid rule enacted by the Division of Personnel, and does not conflict with the provisions of Chapter 110, Florida Statutes (1975). The issue here is whether Rule 22A-7.10B is a valid exercise of delegated legislative authority.

The Rule provides that an employee within the Career Service who is absent without authorized leave of absence from work for three consecutive days shall be deemed to have abandoned the position and to have resigned. The Rule denies the employee the right to appeal to the Career Service Commission but gives the employee the right to petition the State Personnel Director for a review of the facts in the case and for a ruling as to whether the circumstances constitute an abandonment of the position.

The Petitioner, a Career Service employee of the Department of Transportation, was notified by the Department that because of certain facts she had abandoned her position with it and was no longer an employee of the Department. She was stricken from the rolls of employees and all actions were taken that would normally take place when an employee resigns or is terminated. As provided by the Rule, the State Personnel Director held a hearing and ruled that Petitioner had abandoned her position and was no longer an employee of the Department. Petitioner then initiated a Section 120.56, Florida Statutes (1975), hearing, seeking an administrative determination of Rule 22A-7.10B of the Division of Personnel, Department of Administration, which resulted in the order under review by us.

Petitioner argues that the Division’s authority to promulgate rules is subject to the limitations provided by Sections 110.-041(2)(a), 110.042(22) and 110.061(1), (2)(a), Florida Statutes (1975). These Sections require that any rule promulgated must: (1) insure that appeals arising under Chapter 110, or rules adopted thereunder, are heard by the Career Service Commission; (2) insure that a permanent Career Service employee may only be terminated for cause; and (3) provide that suspensions, reductions in pay, transfers, layoffs, demotions and dismissals are heard by the Career Service Commission. Petitioner contends that Rule 22A-7.10B makes a number of impermissible encroachments upon Chapter 110 by denying to employees, who have separated under certain circumstances, the right to appeal their termination to the Career Service Commission, by denying the employee the right to have “cause” for termination determined by the Career Service Commission, and by providing for the hearing of appeals by persons other than the Career Service Commission.

The Division has broad rulemaking powers in connection with personnel matters. In accordance with the mandates of Section 110.022, the Division established Rule 22A-7.10 describing personnel actions designated “separations”. A resignation is one form of separation under this Rule. Resignations may be written or nonwritten as provided in Rule 22A-7.10B. Employees who resign in writing have no right to appeal to the Career Service Commission, nor do employees who abandon their position, or in effect, resign without the written explanation. Rule 22A-7.10B relates directly to the establishment and maintenance of uniform attendance and leave policies [110.022(l)(e)], relates to separations of employees in the Career Service [110.-022(l)(g)], and relates to the maintenance of a current and sound program of uniform personnel administration [110.022(l)(i)]. Therefore, the subject matter of the challenged Rule falls within the scope of the Division’s statutory rulemaking authority.

Section 110.061(2)(a) provides for the investigation and hearing of appeals by the Career Service Commission in six types of actions: suspensions, reductions in pay, transfers, layoffs, demotions, and dismissals. The Career Service Commission only has jurisdiction to hear appeals from the actions enumerated in the statute. Resignation, either by writing or by abandonment, does not appear in that Section. Therefore, Rule 22A-7.10B does not conflict with Section 110.061(2)(a) nor does it conflict with Section 110.041(2)(a) since the only appeals arising under Chapter 110 are the appeals enumerated in Section 110.-061(2)(a).

While the term resignation is nowhere mentioned in Chapter 110, this form of personnel action is a common occurrence. While some employees go through the formal process of submitting a resignation in writing, others leave abruptly or simply fail to show up for work. There must be some point at which the Division may be able to say that the employee is not returning, process the paper work and refill the vacant position. Rule 22A-7.10B puts all Career Service employees on notice that absence without authorized leave for three consecutive days is tantamount to a formal resignation. The particular time period is less significant than the principle which provides for some term of absence being construed as a resignation. The hearing officer rightfully recognized that the implied presumption in the rule that abandonment constitutes a resignation is “sensible and inherently correct”.

We deny the petition for review and affirm the order.

MELVIN, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

Section 110.022(l)(g), Florida Statutes (Supp.1976), authorizes the Department of Administration to adopt rules providing for appeals of employees in Career Service. If we had before us only the applicability of Section 110.061(1), (2)(a), I would readily agree the Department may limit appeals to the Career Service Commission to actions specified in that subsection, i. e., suspension, reduction in pay, transfer, lay-off, demotion or dismissal, etc., since subsection (2)(a) makes no reference to an employee’s abandonment of a position. Section 110.-041(2)(a), however, mandates the Career Service Commission to “[h]ear all appeals arising from this chapter or from the rules adopted by the department.” (Emphasis supplied.) The above subsection is in the disjunctive, providing two separate, alternative bases for review. Rule 22A-7.10B (now 22A-7.10(2)(a)) was a rule adopted by the Department of Administration. I do not see any way we can avoid the plain language of Section 110.041(2)(a) providing only for a review to the Career Service Commission from a rule adopted by the Department of Administration. It is a general principle of statutory construction that the mention of one thing implies the exclusion of another.

In the absence of any statute permitting such review to the State Personnel Director, it is my opinion Rule 22A-7.10B is an invalid exercise of delegated legislative authority. Section 120.56, Florida Statutes (Supp.1976).

I would grant the petition for review and reverse the order.


author: BOYER, Judge.

text:
    Iris Jean SMITH and Charles Arthur Wright, on behalf of themselves and other Employees of Atlantic Boat Builder Company and others similarly situated, Appellants, v. ATLANTIC BOAT BUILDER COMPANY, a Florida Corporation, Atlantic Bank of St. Augustine, a Florida Banking Corporation and Ford Motor Credit Company, a corporation, Appellees.
    No. HH-298.
    District Court of Appeal of Florida, First District.
    March 13, 1978.
    Rehearing Denied April 5, 1978.

      Geoffry B. Dobson of Meredith & Dobson, St. Augustine, for appellants.
    Edward L. Kelly of Ulmer, Murchinson, Ashby & Ball, Jacksonville, for appellees.
   BOYER, Judge.

By interlocutory appeal appellants seek review of an order of the trial court denying to them class action status and holding certain security agreements in favor of the Atlantic Bank of St. Augustine to be superior liens to those claimed by appellants under Chapter 713, Florida Statutes.

Although the record before us is silent as to how it was accomplished, the name of Charles Arthur Wright does not appear in the pleadings, even in the style, subsequent to the amended complaint. He was apparently dropped as a party plaintiff, but no order to that effect appears in the record. However, since no issue as to his status is presented on appeal we will seek no further. We allude to his absence only for clarification of the balance of this opinion.

Cognizant as we are that there is not pending before us any motion to dismiss the interlocutory appeal, we are nevertheless ever conscious of our jurisdiction and anxious that we not attempt to function in excess of it. The order here sought to be reviewed provides, inter alia:

“The case of Iris Jean Smith, on behalf of herself and other employees of Atlantic Boat Builder Company and others similarly situated, * * * cannot be maintained as a class action and the complaint be and the same is hereby dismissed without prejudice to allow plaintiff, Iris Jean Smith, to pursue her claim of lien individually, if she so desires. * * * ”

We held in Cordell v. World Insurance Company, 352 So.2d 108 (Fla. 1st DCA 1977), that an order virtually identical to the one here appealed finally determined the class action status and was, therefore, although it permitted the individual plaintiffs to amend and proceed, nevertheless a final order from whence a plenary appeal would lie. (See also Eisen v. Carlisle & Jacquelin, 2 Cir., 370 F.2d 119 (1966), cert. den., 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967) and Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). However, we held that such was not fatal to our jurisdiction but instead treated the notice of interlocutory appeal as a notice of full or plenary appeal. We will give the same treatment to the case sub judice and inasmuch as the case has been fully briefed and orally argued, we will resolve the issues presented, treating the record and appendices which have been filed as a record on appeal.

The amended complaint by which appellants sought to assert the aborted class action named as party defendant Atlantic Boat Builder Company, a Florida corporation, and alleged that the plaintiffs and all other hourly employees of the defendant, constituting a class so numerous as to make it impracticable to bring them before the court, and all similarly situated, were employed by the defendant to perform labor on various vessels or water crafts being constructed by defendant at its plant in St. Augustine, Florida; that on August 19, 1977 there was due and owing to plaintiff Iris Jean Smith the sum of $284.00 and to plaintiff Charles Arthur Wright the sum of $320.00 and to each of the hourly employees various amounts for labor performed in the construction of various vessels or water crafts then in possession of the defendant; that defendant had failed and refused to pay the amounts due the plaintiffs and others similarly situated; that there are approximately 100 hourly employees sought to be included in the class; that defendant had in its possession five vessels in various stages of completion, being Hull Numbers 19, 20, 21, 22 and 23; that all hourly employees have performed work on one or more of said hulls; and that all the plaintiffs claimed a lien pursuant to F.S. 713.60 against said vessels.

The Atlantic Bank of St. Augustine immediately thereafter commenced an action against Atlantic Boat Builder Company seeking to enforce certain security agreements held by the Bank.

An order was then entered, reciting that it was in accordance with a stipulation of the parties, permitting the Bank to intervene in the class action suit and permitting the plaintiffs in that suit to intervene in the Bank’s action and consolidating the cases. Each of the intervenors then answered, alleging, inter alia, various affirmative defenses. Thereafter a hearing was held (recited in the trial court’s order to have been in accordance with an agreement of the parties) following which was entered the order here appealed.

We will first consider the propriety of the denial of class action status. Appellants urge that the Bank, upon whose motion the order was entered, was without standing, as an intervenor, to challenge the plaintiffs’ class action status, citing Krouse v. Palmer, 131 Fla. 444, 179 So. 762 (1938). We note, however, that Fla.R.Civ.P. 1.230 while providing that intervention “shall be in subordination to, and in recognition of, the propriety of the main proceeding” concludes with the qualifying clause “unless otherwise ordered by the court in its discretion.” Although the court’s order did not specifically provide that the intervention of the Bank would not be in subordination to the main proceeding, the recitations in the order and its conclusion clearly indicate the court’s purpose. In any event, since both parties to this appeal were allowed, by their own agreement, to intervene in the suit commenced by the other and the cases were consolidated, the case has been removed from the ambit of Rule 1.230, therefore we find there was no error in permitting the Bank to challenge the class action.

In Cordell v. World Insurance Company, Case No. GG-398 and GG-399, 355 So.2d 479, opinion filed February 24, 1978, we, citing various authorities, set forth the purpose, requisites and standards for class actions. No useful purpose will be achieved by repetition here, it being sufficient to observe that the authorities there cited and quoted are equally applicable sub judice.

Further on the subject of class actions, our sister court of the Fourth District in Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976) said:

“A class may also be defined in terms of the result sought, however.
‘A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or in the question involved in the action. There must be a common right of recovery based on the same essential facts.’ Port Royal, Inc. v. Conboy, 154 So.2d 734 (Fla.App. 1963).” (338 So.2d at page 1084; emphasis added by that court)

In the last cited case the class action was challenged on the grounds that: (1) the lack of identity, similarity or commonality of causes, issues and right to recovery among the alleged representatives and absent class members; (2) the lack of standing of the alleged class representatives to maintain this action on behalf of the absent class members; (3) the existence of disparate, divergent and conflicting circumstances, issues and defenses between defendants collectively as to the plaintiffs collectively and among the defendants severally and the plaintiffs severally; and (4) the absence of a single fact, or any single set of facts which would be decisive of any of the several claims of all the parties named. The trial court held the case not maintainable as a class action and later dismissed it. The District Court, recognizing the asserted defenses, reversed, observing: “These differences may permit subclasses to be designated for the purpose of determining damages”.

We are of the view that the statement of the late Justice Glenn Terrell of the Supreme Court of Florida in Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (Fla.1942), quoted with approval in Cordell v. World Insurance Company, supra, is applicable and that the learned trial judge erred in dismissing appellants’ suit as a class action.

We turn now to the even more vexing problem of lien priorities. Clearly the bank has liens perfected under security agreements in its favor. Equally clearly the appellants have alleged liens pursuant to F.S. 713.60. The issue therefore is which lien has priority.

The trial judge, in the order here appealed recited and held:

“1. Atlantic Bank of St. Augustine, hereinafter called Bank, is the holder of four security agreements executed and delivered in September, 1976 and October, 1976, securing three promissory notes in the amounts of $130,000.00, $180,000.00 and $75,000.00 respectively. The financing statement filed with the Secretary of State and recorded with the Clerk of the Circuit Court of St. Johns County, Florida, in September, 1976 and covering the original goods which were the subject of the security agreements also cover the products into which the goods have been manufactured, processed or assembled. The security agreement marked exhibit “E”, dated September 27, 1976, and attached to the complaint filed by Bank covered all inventory, raw materials, work in progress and materials to be used or consumed in the debtor’s business. This security instrument covered after acquired property and secured payment of all indebtedness of every kind owing by the debtor to the secured party whether now existing or hereafter incurred, direct or indirect. The security agreement marked exhibit “F”, dated October 27, 1976 and attached to the complaint filed by Bank covered the same goods and contained an after acquired property clause and the same provision regarding the indebtedness secured. Therefore the three promissory notes of $130,000.00, $180,000.00 and $75,000.00 were secured by exhibits “E” and “F”.
“2. Atlantic Boat Builder Company, hereinafter called Boat Builder, owes $385,000.00 under said notes and the notes are in default.
“3. Hulls # 19 and # 20 owned by Boat Builder were constructed of materials and equipment owned by Boat Builder (and encumbered by Bank’s security agreements (exhibits “E” and “F”)) and constitute work in progress. The hulls have been in the possession of Boat Builder and are now in possession of the receiver.
“4. Section 679.204(4)(a) and (b) and section 679.109(a), Florida Statutes, provides for a lien upon after acquired property. Section 679.315, Florida Statutes, provides that if a security interest in goods is perfected and subsequently the goods become a part of a product or mass the security interest continues in the product or mass. Bank’s financing statement covered the product as required by Section 679.315, Florida Statutes.
“5. A reading of Part II, Florida Statutes, Chapter 713, which includes Section 713.60 under which the Employees claim reveals that the chapter creates mechanic liens for a variety of labor, services performed and materials furnished. Liens for labor on or for vessels under Florida Statute 713.60, are not maritime liens, but are mechanics liens. Such liens are not governed by maritime law.
“6. The case of International Harvester Credit Corporation v. American National Bank of Jacksonville, 296 So.2d 32, (Fla.1974), does not govern the disposition of the issue before the Court. In that case when the after acquired property came in to the debtor’s possession it was encumbered by a purchase money security interest retained by the vendor of the property. The case before the Court does not involve a purchase money security interest. Bank’s security interest attached to all inventory and raw materials prior to the creation of any liens under Section 713.60, Florida Statutes.
4c * sf: 4: 4c 4c
“It is therefore,
“ORDERED
“1. The lien of Bank’s security agreements marked exhibits ‘E’ and ‘F’ attached to the complaint filed by Employees and filed in evidence as part of Bank’s composite exhibit no. 1, securing three promissory notes also a part of Bank’s composite exhibit no. 1, evidencing unpaid debt in the amount of $385,-000.00 plus interest, is superior and prior in dignity to the liens asserted by Employees under Florida Statute, section 713.60. * * *”

F.S. 713.60 provides for a lien:

“In favor of any person performing for himself or others, any labor, or furnishing any materials or supplies for use in the construction of any vessel or watercraft; and in favor of any person performing for himself or others, any labor or service of any kind, on, to or for the use or benefit of a vessel or watercraft, including masters, mates and members of the crew and persons loading or unloading the vessel or putting in or taking out ballast; upon such vessel or watercraft, whether partially or completely constructed and whether launched or on land, her tackle, apparel and furniture.”

Appellants urge that the statute under which they claim creates for them state-created maritime liens on hulls 19 and 20 which take priority over the bank’s lien which is non-maritime. In so urging, they rely upon The Diane, 45 F.Supp. 510 (D.C.S. D.Fla., 1942) and Burdine v. Walden, 91 F.2d 321 (CA 5, 1937). While it is true that in those two cases the claimants were held to have state-created maritime liens cognizable in admiralty by virtue of F.S. 713.60, the liens there asserted were for masters’ wages and were maritime in nature. It is well settled that a state-created lien for the building of a ship is not recognized in admiralty since a ship building contract is a contract made on land to be performed on land is not maritime in nature. (The J. E. Rumbell, 148 U.S. 1, 13 S.Ct. 498, 37 L.Ed. 345 (1893)). Accordingly, a state statute allowing a lien arising out of such a contract is not a maritime lien and cannot be enforced in admiralty. It therefore does not enjoy the maritime lien priority.

Appellants also seek haven in F.S. 679.9-310 which provides:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

There is, though, no refuge there because the essential element in that statute is possession. Neither the appellants nor the bank have possession of the subject hulls so F.S. 679.310 has no applicability.

Appellants also argue that the bank is equitably estopped to claim priority because it was aware that Atlantic Boat Builder Company was in financial difficulties and yet the employees were allowed to continue working in anticipation that their wages would be secured as the value of the hulls were increased by their labors and for the further reason that an officer of the bank’s holding company promised the president of the boat building company that the employees would be paid if the boat builder would consent to receivership. As appealing as the argument is, we cannot adopt it sub judice. First, it is not alleged, nor does the record reveal, that the bank had any authority to terminate the employees and it might well have subjected itself to liability had it intruded into the business of its debtor. Further, as to the promise by the officer of the holding company, though argued, the record reveals no such promise. There being no other allegation of actual misrepresentation, and no proof of misrepresentation, the case of Continental Casualty Company v. Associated Plastic, Inc., 347 So.2d 822 (Fla. 3rd DCA 1977) has no applicability.

The learned trial judge and both parties to this appeal treat the issue as being controlled by the Uniform Commercial Code adopted by the Florida legislature in 1965. However, neither cite us to any specific provision of that Code touching upon priorities as between laborers and other lien claimants. We note from independent research that F.S. 679.9-104 provides:

“This chapter does not apply:
* * * * * *
“(3) To a lien given by statute or other rule of law for services or materials except as provided in section 769.310 on priority of such liens; or
“(4) To a transfer of a claim for wages, salary or other compensation of an employee; * * *”

As we have already observed, clearly F.S. 679.310 has no applicability here because of the possession requirement set forth in that statute. The absence of possession in either party does not render the statute negatively applicable. It simply has no application at all.

Although the trial judge in the order here appealed, and both parties in their briefs, cite and argue the applicability of International Harvester Credit Corporation v. American National Bank of Jacksonville, 296 So.2d 32 (Fla.1974) (the trial judge and appellee taking the position that it is inapplicable and the appellant that it is applicable) neither have led us to any other authority.

No one can question the appellees’ contention that the Supreme Court’s decision in the International Harvester case is based upon clearly distinguishable facts. However, the rationale of that decision is persuasive. In that case the bank held a properly perfected security agreement encumbering the debtor’s after-acquired property. Florida Truck and Tractor Company sold to the bank’s debtor by retail installment contracts on two separate occasions various items of farm equipment, the latter contract being subsequently assigned to International Harvester. No financing statement was ever filed in the office of the Clerk of the Circuit Court relating to the first sale. A financing statement was filed by International Harvester some twenty-three days after the second transaction. Upon default of the debtor-purchaser an issue arose as to priorities. When the case reached this court (American National Bank v. International Harvester Credit Corporation, 269 So.2d 726 (Fla.App. 1st 1972)) Judge Rawls, dissenting in his typically colorful fashion, said:

“The law is an ass. [Charles Dickens, Oliver Twist, p. 399 (Oxford Press, 1961 ed.): ‘If the law supposes that said Mr. Bumble . . . the law is a ass — an idiot.’] This aphorism is especially applicable to the instant facts for by detailing various provisions of the Uniform Commercial Code the majority has reached an illogical result.
Sfc :{! * Jfc S{S *
“By unduly emphasizing the formalistic language of the Uniform Commercial Code, the majority has determined that the subject machinery became the ‘after-acquired property' of Machek Farms free and clear of all vendor liens solely because the security instrument of the vendor was not properly recorded within 10 days of the transaction. My question is: How did the bank acquire as security for its debt property that the debtor did not even own? It is my view that Machek Farms was liable to Florida Truck and Tractor Company and International Harvester Credit Corporation for the sums remaining unpaid on the machinery. The bank’s interest in this ‘after-acquired property’ was limited to Machek’s equity in same. To permit the bank under these facts to replevy the subject farm machinery from Florida Truck and Tractor Company and International Harvester Credit Corporation, in my opinion, constitutes legal larceny. * * * ” (269 So.2d at pages 731-732)

The Supreme Court of Florida reversed this court, substantially relying upon the dissent of Judge Rawls, and said:

“ * * * However, we differ with the district majority and agree with Acting Chief Justice [sic] Rawls that this priority security protection to the earlier creditor must be limited to the debtor’s equity in the after-acquired property. This position is consistent with contractual constitutional requirements and equitable principles. The new seller’s contract rights with his purchaser and any ownership retained in the property sold must be respected; moreover, it would be an invidious preference to the earlier creditor-bank without so much as a showing that there was a compelling public interest or purpose served by such arbitrary requirement of outright priority to the earlier creditor in the total after-acquired property.”
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“ * * * It would be abhorrent to equity and justice that the earlier creditor should acquire the subsequent creditor’s property or ‘interest’ in this manner. Upon principles of equity and in the avoidance of unjust enrichment, the limitation to the debtor’s equity in after-acquired property appears to be the better and more logical rule. We would accordingly agree with Acting Chief Judge Rawls in this respect.”
“Logical and traditional equitable reasons preclude a result which would allow the bank as mortgagee to subject the after-acquired farm equipment as its collateral, while not changing its position and giving no ‘new value’ because of the later sale of equipment; consequently, the bank was not misled by the failure of the seller of the equipment to record his purchase money security.
“To give the prior creditor the seller’s retained interest in such property simply because of such seller’s failure to record and to permit the original creditor to replevin the sold equipment would be to give to such earlier creditor a windfall not favored by the code (see § 679.108 and U.C.C. Comment 19C F.S.A. 198) contrary to established principles. Compare County of Pinellas v. Clearwater Federal Savings & Loan Ass’n, 214 So.2d 525 (Fla.App.2d 1968).
“Our viewpoint regarding a limitation (to the buyer’s equity) of the security of the earlier creditor, allows a just result to such creditor and yet is consistent with constitutional requirements as to the subsequent seller. Our position acknowledges, yet modifies, the view expressed by Judge Wigginton and that of the other jurisdictions cited in his opinion.” (296 So.2d at pages 34 and 35)

That logic and reasoning is equally applicable sub judice. In the words of the Supreme Court of Oklahoma in Home Building & Loan Ass’n et al. v. White et al., 141 Okl. 240, 284 P. 889 (1930):

“ * * * the underlying motive of the law was to prevent the inequity of one enjoying the handiwork of another without recompense. The law does not go beyond the constitutional guaranty to secure unto the laborer his right to the enjoyment of the fruits of his own industry, nor does it deprive another of his right of property likewise secured unto him.” (284 P. at page 894)

And so it is in the case sub judice. Were it not for the labor of the employees of Atlantic Boat Builder Company there would be no hulls upon which the after-acquired property provision of the bank’s lien could attach. The bank, of necessity, had to know at the time that it acquired its liens that the boat builder had employees who were performing labor and incorporating materials into the boats. Such was an essential element of the manufacturing process. Without those labors the boat building company would not have been in business and there would have been no need for the bank loans. The hulls and boats in the possession of the boat builder were subject to the liens of its employees who performed labor incident to the construction. Its ownership was therefore subject to the liens of its employees who performed labor incident to the construction. Its ownership was therefore subject to those liens. Its equity, then, was the hulls or boats or value thereof reduced by the laborers’ liens. In accordance with the rationale of the International Harvester case, it is upon that equity, but only that equity, that the bank’s lien on after-acquired property attached.

The same logic was applied by the Supreme Court of Florida in Exchange Nat. Bank of Tampa v. Kennedy, 109 Fla. 386, 147 So. 572 (1933). In that case Kennedy, an employee of an abstract plant, sought priority of a lien claimed under a statute similar to the one under which appellants claim sub judice. The bank held a chattel mortgage on the abstract plant. It was obtained during the time that Kennedy was engaged in working on the plant. Affirming a decree holding the employee’s lien superior, the court said:

“It is a matter of common knowledge of which all persons must take notice that an abstract plant is a thing which is under continuous construction. Its records must be built up from day to day as transfers and other documents are filed and recorded in the office of the clerk of the circuit court of the county to which the abstract plant applies. The construction of the plant, to make it of value and dependable, must go on from day to day. It is also a matter of common knowledge, and of which all must take notice, that clerical labor is required to perform that work incident to the continuing and continuous construction of such a plant.
“It follows, therefore, that one who takes a chattel mortgage on an abstract plant, takes such mortgage with notice that the plant is at all times in the course of construction, and that those who are employed in such construction acquire by the rendering of such services a lien for their labor upon such plant.
“Such a lien is within the purview of section 3505, Rev.Gen.St. section 5366, Comp.Gen.St. section 5366, Comp.Gen. Laws, and section 3517, Rev.Gen.St., section 5380, Comp.Gen.Laws.
“It therefore follows that Exchange National Bank took its mortgage, and notice of the lien in favor of the complainant. “The mortgagee having taken the mortgage with constructive notice of the lien of the complainant, it was not necessary for her to file any notice of lien in the office of the clerk of the circuit court. In fact, there is no provision of the law which contemplates the filing of a notice of lien in such cases. The fact that the record shows that she did file a lien within three months after the performance of the last work is immaterial.
“The decree should be affirmed, and it is so ordered.
“Affirmed.” (147 So. at page 573)

Flynn-Harris-Bullard Co. v. Johnson, 90 Fla. 654, 107 So. 358 (1925) appears at first blush to be contra. However a careful reading of that opinion reveals that the basis for the decision, and the feature which distinguishes it from Exchange Nat. Bank of Tampa v. Kennedy, supra, as well as the case sub judice, is the recitation by the court that:

“The services or labor for which the liens are claimed did not contribute to the construction or repair of property * * *.” (107 So. at page 360).

The underlying purpose, we think, of F.S. 713.60 is to prevent the inequity of one enjoying the handiwork of another without recompense, securing unto the laborer his right to the enjoyment of the fruits of his own industry while not depriving another of his right of property likewise secured unto him. It would be an invidious preference to the creditor-bank, without so much as a showing that there is a compelling public interest or purpose served by such an arbitrary requirement should it be given an outright priority superior to the laborer’s lien in the total after-acquired property and would be abhorrent to equity and justice and contrary to the equitable principles of the avoidance of unjust enrichment.

We make no determination here as to the extent of the class, nor do we determine whether employees of Atlantic Boat Builder Company who did not perform labors or services directly related to the constructing of the hulls upon which liens are sought are entitled to liens. Those issues have not been considered by the learned trial judge nor are they presented in the briefs. Addressing them at this juncture would be premature. We only hold that a class action may be maintained and that those members of the class entitled to liens pursuant to F.S. 713.60 are entitled to priority over the lien on after-acquired property as provided in the security agreements held by the Atlantic Bank of St. Augustine.

Whether the bank has any priority or equality of lien by virtue of any lien held by it upon any materials incorporated by the employees’ labors into the hulls is not revealed by the evidence nor addressed in the briefs and therefore not decided here. (But see F.S. 679.315)

REVERSED AND REMANDED for further proceedings consistent herewith.

McCORD, C. J., and MELVIN, J., concur.


text:
    Dr. Robert WENDLAND and Donna Wendland, jointly and severally, Appellants, v. Janet AKERS and N. D. Petschulat, Appellees.
    Nos. 76-1616 and 76-1844.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 7, 1978.
    Nancy Little Hoffman and Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellants.
    Carey M. Fischer of Ferrero, Middle-brooks & Houston, Fort Lauderdale, for appellee-Akers.
    Gerald E. Rosser and Lawrence B. Craig, III, of Corlett, Merritt, Killian & Sikes, Miami, for appellee-Petsehulat.
   DREW, E. HARRIS (Ret.), Associate Judge.

Janet Akers, an assistant to Dr. N. D. Petschulat, a veterinarian, sued Robert and Donna Wendland, the owners of a large German Shepherd dog, for injuries received by her while assisting her employer, Dr. Petschulat, extract blood from the leg of the dog for the purpose of confirming a previous diagnosis by another veterinarian of heart worms. The Wendlands filed a third party complaint against Dr. Petschu-lat alleging negligence on the part of Dr. Petschulat in handling the dog as the sole, proximate cause of Akers’ injuries. Dr. Petschulat denied negligence and pled the affirmative defenses of assumption of risk and contributory negligence by Akers, lack of contractual duty, and strict liability on the part of the Wendlands. From a verdict and judgment of $25,000 in favor the plaintiff against the defendants Robert and Donna Wendland this appeal has been taken.

Plaintiff’s case is bottomed on Section 767.04, Florida Statutes. That statute was first enacted in 1949. In Romfh v. Berman, 56 So.2d 127 (Fla.1952) it was said to impliedly repeal Section 767.01, Florida Statutes. Later, in Sweet v. Josephson, 173 So.2d 444 (Fla.1965), the Supreme Court decided that the two statutes were not inconsistent. In that case the Court said;

“In sum, the first statute [Section 767.01] fixes liability on the owner for any damage at all caused by his dog; the second statute [Section 767.04] puts upon him responsibility only for injury caused by the bite of his dog.” (Emphasis supplied.) 173 So.2d at 446.

Hence, it is unnecessary to discuss Section 767.01, supra, and the numerous cases involving damages occasioned by other acts of dogs.

Turning now to Sec. 767.04, it is clear that this enactment was a recognition that the need to protect an agrarian society from depredations of dogs on live stock and crops, as was the purpose of the then existing statute, 767.01, was no longer the main purpose to be served and that such statute should be revised, not only for the purpose of protecting those damaged by acts of dogs but to relieve the owners of dogs used for pets and protection of the owners in modern society from the harshness of the strict liability created by the former statute. It especially relieved the owner of liability under the conditions set forth therein, to which we will refer at greater length later in this opinion.

We find nothing in this statute which indicates any intention to hold a dog owner strictly liable in a dog bite case where the proximate cause of the injury was the intervening negligence of another person. On the contrary, the provision of the statute that “no owner of any dog shall be liable for any damages to any person when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage” (emphasis supplied) clearly expresses a contrary intention. It is for the protection of an owner who is free from fault or negligence which proximately causes the injury.

The facts here establish without dispute that Dr. Petschulat was an experienced and qualified veterinarian. Mrs. Wendland, who brought the dog to him for treatment and employed the veterinarian for that purpose, surrendered the possession and control of the dog to the veterinarian who thereafter put the dog on the examining table, called on his assistant for aid and was proceeding to perform the professional services that he had been employed by Mrs. Wend-land to perform. He was the person of superior knowledge and in possession and control of the agency which inflicted the injury. He was presumed to have the superior knowledge of the proper manner of performing the duties of his profession. He was an independent contractor under the law.

“The right of control as to the mode of doing the work contracted for is one of the principal considerations in determining whether one employed is an independent contractor or a servant.” Gulf Refining Company v. Wilkinson, 94 Fla. 664, 114 So. 503. Also see American Jurisprudence 2nd, Independent Contractors, Para. 6.

The veterinarian determined absolutely the method of treatment and handling of the dog. While Mrs. Wendland was present, and while Dr. Petschulat said he asked Mrs. Wendland if the dog would bite, was gentle, or had a history of insubordination, and was disarmed by her negative answer, he had no legal right to rely on such statements under the circumstances where the possibility of injury to others was so obvious and well proven.

We have referred to the provision of the statute with reference to carelessly aggravating or provoking a dog. Here is a classic example of what the Legislature intended to relieve an owner for liability for — a large German Shepherd dog in strange surroundings, with strange odors, held by two people he had never seen, one standing by him with her arms around his neck to immobilize the front leg for insertion of a needle and the other pressing his head down. This conduct can be described as nothing less than “carelessly aggravating and provoking” the animal as the statute says. Assumption of risk and lack of proximate cause are clearly applicable defenses. An intervening efficient independent fault which solely causes or results in injury relieves the owner of an animal from liability.

Throughout these cases, there is the constant reference to strict liability under the statute. Many years ago the Supreme Court held that an automobile was a dangerous instrumentality and said the owner was liable for damages inflicted on others by said automobile when the same was operated on the public highways by any person with his actual or implied consent. The rule of law growing out of these cases is very analogous to that which has arisen out of the statutes above discussed. Liability flowing from the operation of a dangerous instrumentality and inherently dangerous work is subject to the exception of independent contractors.

“It may well be said that such doctrines (dangerous instrumentalities and inherently dangerous work) apply without exception to third party members of the general public, but we do not believe they apply without exception under all circumstances where an independent contractor and his employees are involved, absent any allegation or showing of an act of negligence or omission of duty or proper care on the part of a defendant engaged in a hazardous occupation who has contracted with an independent contractor to perform inherently dangerous work.”

Logic and reason compel the conclusion that such exception should be applied here. The record here leaves no doubt as to the status of Dr. Petschulat as one of an independent contractor. His employment and his complete control over the performance of the contract made the alleged negligence of the Wendlands in not telling Dr. Petschulat that the dog would bite, if true, remote and unrelated to the proximate cause of plaintiff’s injury.

We have alluded to the defense of assumption of risk by Mrs. Akers. Three veterinarians testified. Each testified that dog bite was an occupational hazard in the veterinary profession. The plaintiff also conceded that when she started work with Dr. Petschulat, she was well aware of that. This defense, however, is applicable only to claim of Mrs. Akers against Dr. Petschulat — and that judgment is not before us for review.

In capsulized form we hold: the owner of a dog is not liable to a third party for damages from being bitten or otherwise injured by such dog subsequent to the delivery of possession and control of the dog to a qualified veterinarian for care or treatment and the acceptance of such employment and possession by the veterinarian, in the absence of a showing of active negligence by the owner which contributes directly to and becomes the proximate cause of said injury.

For the reasons stated herein, the defendants’ motion for a directed verdict should have been granted by the trial judge. The cause is reversed and remanded to the trial court with directions to enter judgment for the defendants Robert Wendland and Donna Wendland.

REVERSED AND REMANDED.

ALDERMAN, C. J, and MOORE, J., and STETTIN, HERBERT, Associate Judge, concur.

       Justice Drew wrote this opinion prior to his death. It is now adopted as our decision in this case.

      . The record reveals that Akers’ medical expenses were paid from Workmen’s Compensation insurance. The appropriateness of the defenses of contributory negligence and assumption of risk here was not raised, nor was the question of the employer’s immunity under the Workmen’s Compensation Act from tort liability or third party claims for indemnity or contribution raised or discussed.

      . “Liability of owners. — The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words ‘Bad Dog.’ ” Sec. 767.04, Fla.Stat.

      . 767.01 “Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.”

      . Sweet v. Josephson, supra; Brandeis v. Felcher, 211 So.2d 606 (Fla. 3d DCA 1968); Allstate Ins. Co. v. Greenstein, 308 So.2d 561 (Fla. 3d DCA 1975); Mapoles v. Mapoles, 350 So.2d 1137 (Fla. 1st DCA, filed October 24, 1977; Smith v. Allison, 332 So.2d 631 (Fla. 3d DCA 1976); English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971), writ discharged, 259 So.2d 136 (Fla. 1972); Rutland v. Biel, 277 So.2d 807 (Fla. 2d DCA 1973) and Christie v. Anchorage Yacht Haven, Inc., 287 So.2d 359 (Fla. 4th DCA 1973).

       It is interesting to observe, however, the historical background of this statute. As originally enacted in 1881, the wording was;
      “That all owners of dogs shall be held liable and responsible for damages to sheep or other stock killed or maimed by their dogs.” Chapter 3294, Laws of Florida (1881).
      Thus, damage to persons was not included. But in the 1892 Compilation, Section 2341 provided:
      “Owners of dogs shall be held liable for damages to persons and stock killed or injured by their dogs.” (Emphasis supplied.)
      We find no legislative enactment to include damages to persons within the scope of the statute.
      Later, in 1901, the legislature enacted Chapter 4979, Laws of Florida (1901), which provided:
      “When any dog or dogs shall kill or in any way damage sheep or other domestic animals in this State, the owner of such dog or dogs shall be liable upon the action for damages to the owner of such sheep and other domestic animals for the damage committed upon the same by such dogs.”
      But in the next Compilation in 1906, Section 3142 provided:
      “Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or live stock, or to person." (Emphasis supplied.)
      Thus once again the compiler placed words in the Compilation which were not there when the act was adopted by the legislature. Although the validity of Section 767.01, Florida Statutes (1975), cannot now be questioned because of the rules relating to statutory re-enactments, Section 767.01 should be given a restrictive scope because the legislature never specifically included damage to persons within the purview of the statute, at the time of the enactment of these laws.

      .“It is the general rule that a physician or surgeon, being a professional man, is entirely free to exercise his skill and his soundest judgment in rendering medical or surgical services without any interference from one who employs him and is not a servant or agent in the usual sense of those terms.” 41 Am.Jur. Physicians and Surgeons, Para. 116. Anno: 19 A.L.R. 1185.

      . This evidence of Dr. Petschulat, Akers and Mrs. Wendland is in conflict in many details.

      . Dr. Petschulat and the other veterinarians who testified readily conceded that being bitten by a dog was a usual hazard of their business and that muzzling a dog before examination or treatment was the accepted measure for protection against such occurrences.

      . Hall v. Ricardo, 297 So.2d 849 (Fla. 3d DCA 1974).

      . Isaacs v. Powell, 267 So.2d 864 (Fla. 2d DCA 1972).

      . Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Also see U. of Miami Law Review, Vol. 22, pages 367, et seq.

      . Fla. Power & Light v. Price, 170 So.2d 293 (Fla.1964).

      . Dr. Petschulat, Dr. Nelson and Dr. Phillips.

      . See footnote # 1.