text:
    Mariano SANTIESTEBAN et al., Appellants, v. Raymond McGRATH, Appellee. Raymond McGRATH, Appellant, v. Mariano SANTIESTEBAN et al., Appellees.
    Nos. 75-272, 75-55.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.

      Whitman & Wolfe, Miami, for McGrath.
    ■Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for Santiesteban & Government Employees Ins. Co.
    Before HENDRY, HAVÉRFIELD and NATHAN, JJ.
   NATHAN, Judge.

This damage suit arises out of an automobile collision between Raymond Mc-Grath, plaintiff in the trial court, and Mariano Santiesteban, the defendant. Both plaintiff and defendant have brought separate appeals which we have consolidated. The issues, however, will be treated separately.

Plaintiff appeals from the final judgment following jury trial awarding him $5,400 in damages as a result of the accident. At the conclusion of all the testimony and both parties having rested, plaintiff moved for a directed verdict on liability. The trial court granted plaintiff’s motion but stated that it would permit the question of plaintiff’s contributory negligence to be resolved by the jury.

After closing argument of counsel, the court instructed the jury as follows:

“The court has determined and now instructs you as a matter of law that Mariano Santiesteban was negligent and that such negligence was the legal cause of injury and damage to Raymond Mc-Grath. If the greater weight of the evidence does not support the defenses of Mariano Santiesteban and the greater weight of the evidence does support the claim of Raymond McGrath, then your verdict should be for Raymond McGrath in the total amount of his damages.
If, however, the greater weight of the evidence shows that both Raymond Mc-Grath and Mariano Santiesteban were negligent and that the negligence of each contributed as a legal cause of injuries or damages sustained by Raymond Mc-Grath, then your verdict should be for Raymond McGrath and you should award Raymond McGrath the total amount of damages sustained by him, reduced in the same proportion as Raymond McGrath’s negligence contributed to his injury or damage.”

Thereafter, in special interrogatories propounded by the court to, and returned by, the jury, the jury found that the plaintiff was 10 per cent negligent, the defendant 90 per cent and that the total amount of damages McGrath sustained as a result - of the accident was $6,000.

Plaintiff argues that the trial court erred in submitting to the jury the special interrogatories as to comparative negligence for two reasons: (1) That there was, as a matter of law, no comparative negligence involved because there was no evidence from which the jury could find the plaintiff negligent. (2) That once the trial court directed a verdict finding that the defendant was negligent, it precluded and foreclosed the court from submitting to tbe jury the issue of plaintiff’s negligence, if any.

As to plaintiff’s first point, we do not find his argument well taken as there was sufficient evidence of plaintiff’s negligence to go to the jury. We now address ourselves to plaintiff’s second point. As there appear to be no Florida state court decisions on point since Hoffman v. Jones, Fla.1973, 280 So.2d 431, the record reflects that the trial judge applied the construction of the comparative negligence law under § 768.06, Fla.Stat., the comparative negligence act pertaining to railroads, which was declared unconstitutional in Georgia Southern and Florida Railway Company v. Seven-Up Bottling Company of Southeast Georgia, Fla.1965, 175 So.2d 39. In the case of Kirkpatrick v. Atlantic Coast Line Railroad Company, 5th Cir. 1958, 259 F.2d 409, the trial court found, as a matter of law, • that the plaintiff was guilty of contributory negligence but permitted the jury to determine the negligence, if any, attributable to the defendant railroad. Kirkpatrick held that in a comparative negligence case the trial judge could, if the facts so warranted, properly determine the negligence of the plaintiff as a matter of law, permit the jury to assess the percentage of negligence of the defendant, if any, and then, if the defendant was found to be negligent, assess the percentage of negligence of each. In our case under review, the trial court, in granting the directed verdict, determined as a matter of law, that the defendant was negligent; not that the defendant was solely negligent or 100 per cent negligent. The trial judge so instructed the jury. He further instructed the jury that if the plaintiff was negligent, plaintiff’s damages should be reduced in the same proportion as plaintiff’s negligence. We hold that the issue of the negligence of the plaintiff, if any, was properly permitted to go to the jury even though the negligence of the defendant had been taken from the jury. The trial court, in this regard, is affirmed.

Following the entry of final judgment for the plaintiff, McGrath, defendant, Santiesteban, moved for taxation of costs pursuant to Rule 1.442, RCP, as he had made a timely offer of judgment in the sum of $6,001, which-plaintiff refused to accept. The trial judge denied defendant’s motion for costs on the ground that the construction of language of the statute made the assessment of costs against the plaintiff discretionary. Defendant appeals from this order. The trial judge found, and plaintiff contends, that the wording of the rule “must pay the costs incurred after the making of the offer” is to be interpreted as discretionary and not mandatory. Plaintiff further argues that the rule must be considered in light of § 57.041, Fla.Stat., which provides that the party recovering judgment shall recover his legal costs. These arguments are not well taken. Rule 1.442, RCP, became effective January 1, 1973. There are no Florida cases interpreting this aspect of the rule. We, then, look to federal decisions under comparable federal rules. Dorr-Oliver, Inc. v. Linder Industrial Machinery Company, Fla.App.1972, 263 So.2d 237. From a reading of federal cases construing Rule 68 of the Federal Rules of Civil Procedure, which is identical to Rule 1.442, RCP, and from what we determine to be the intent of the Florida rule, we hold that the express language of the rule leaves no doubt that reasonable costs must be awarded to the defendant where, a proper offer of judgment is made thereunder, the plaintiff does not accept the offer, and the judgment finally obtained by the plaintiff is not more favorable than the offer. The rule itself is couched in mandatory terms and is designed to induce or influence a party to settle litigation and obviate the necessity of a trial. Therefore, the trial court erred, thus the order denying costs to the defendant is vacated with directions to assess reasonable costs for the defendant against the plaintiff.

Affirmed in part and reversed in part.

      . Rule 1.442, RCP, pertaining to offers of judgment, states in pertinent part that: “ . . . If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer. ...”

      . See, for example, Nabors v. Texas Co., W.D. La.1940, 32 F.Supp. 91.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald Lee WORTHLEY and Public Service Mutual Insurance Company, a New York Corporation, Appellants, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 75-347.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Stone, Sostchin & Koss, Miami, for appellants.
    Richard E. Gerstein, State Atty. and Milton Robbins, Asst. State Atty., for ap-pellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Surety company appeals an adverse final judgment entered pursuant to an appearance bond forfeiture.

On May 2, 1974, Donald Lee Worthley was arrested for unlawful sale or distribution of a controlled substance and appellant Service Mutual Insurance Company executed an appearance bond of $3,500 on his behalf. On June 10, Worthley was accepted in the Pre-Trial Intervention Program (deferred prosecution); however, prosecution was reinstated on July 26. Worthley, his attorney, and appellant surety were notified by mail of Worthley’s required court appearance on August 7. Worthley failed to appear and a certificate and order of bond forfeiture was entered by the trial judge. On October 25 a final judgment for $3,500 plus costs was entered against the surety company. Approximately two months later, appellant filed its motion to vacate final judgment on the grounds that it was exonerated from liability upon Worthley’s acceptance in the Pre-Trial Intervention Program. The motion was denied and this appeal ensued. We affirm.

First, there is nothing in the record reflecting that appellant surety was released upon Worthley’s acceptance in the Pre-Trial Intervention Program or at any other time thereafter. Second, it appears that appellant’s motion to vacate final judgment was untimely inasmuch as the filing thereof was in excess of 45 days after the order of forfeiture had been entered in violation of the time limit in § 903.-27(2), Fla.Stat., F.S.A.

Affirmed.


text:
    HOME OWNERS OF WINTER HAVEN, INC., Appellant, v. POLK COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 74-34.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.

      Bernard B. Weksler of Aronovitz & Weksler, Miami, for appellant.
    Barbara Dell McPherson and Geoffrey B. Dobson, Dept, of Transportation, Tallahassee, for appellee.
   PER CURIAM.

Appellant (landowner) appeals from an assertedly inadequate jury award in a condemnation proceeding under which Polk County (County), in widening two roadways which intersected in front of the landowner’s shopping center, consisting of 25.72 acres, in Winter Haven, took one strip of land 12.75 by 829.7 feet along State Road No. 544 (Avenue T N.W.) and another strip of land 17 by 652.6 feet along State Road No. 555 (U.S. Hwy 17) consisting of 0.505 acres which abutted the existing right of way as well as a three-year construction easement over an additional area.

After careful consideration of the record, briefs, and oral argument, we have concluded that the amount of the verdict was within the limits of properly admissible expert testimony of the value of the property; and, reversible error not having been demonstrated, we affirm.

The testimony revealed that appellant had purchased the property taken in fee, which constituted the then-existing highway frontage, at an average price of $1.80 per square foot a few years before the taking. Primarily basing his opinion upon the value of the property independently of the parent tract, that is, without reference to the fact that after the taking the landowner would still own the shopping center with virtually the same frontage on the same roadways, the landowner’s expert, Carl Lake, evaluated the property in question at the time of taking at $57,300, or $3.70 a square foot. Polk County’s expert, John Causey, on the other hand, did consider the property not merely as “bulk land” in its location as highway frontage, but, rather, in relation to its value as part of the larger parcel which retained its frontage subsequent to the taking. In so doing, he evaluated the property at 97‡ a square foot, or $20,000. The jury verdict for the land taken was $27,496.25, or $1.25 a square foot, which was more than the County’s expert’s opinion, but less even than the price paid for the property in question some time before. The landowner’s primary point here complains of the inadequacy of the award, contending that Causey’s testimony, which was the only evidence which might sustain it, was based upon erroneous theories of value. We hold otherwise. Causey’s consideration of, as he said, “ . . . [not] just the strip that is being taken . . . [but, rather,] the entire parent tract . . . the entire ownership — and . . . what effect the loss of this strip will have on the market value of the remaining ownership or the remaining parent tract . . . ” was entirely appropriate for admission into evidence, and entirely proper for jury consideration as to the valuation of the parcels involved in this case.

The books are filled with arguments on each side of the question of whether, under varying circumstances, property valuation must be made, as it were, in bulk, without regard to the remaining tract, or whether one may consider — as did Mr. Causey and, obviously, the jury — the effect of its loss upon the landowner’s remaining property. See 4A, Ni chols on Eminent Domain, §§ 14.231, 14.31 [1], and cases collected. We think that whatever the result in other situations, the use of Causey’s method, denominated the “slide back” theory in City of Los Angeles v. Allen, 1 Cal.2d 572, 36 P.2d 611 (1934). City of Fresno v. Cloud, 26 Cal.App.3d 113, 102 Cal.Rptr. 874, 879-881 (1972), is particularly pertinent, and certainly admissible in a case such as this one which involves a strip taking of highway frontage of a large parcel which possesses the same characteristics and may be just as valuable after as before the condemnation. Frenel v. Commonwealth of Kentucky Department of Highways, Ky.1962, 361 S.W.2d 280, and cases cited; In re Fourth Avenue in City of New York, 255 N.Y. 25, 173 N.E. 910 (1930). As the court observed in Territory of Hawaii v. Adelmeyer, 45 Hawaii 144, 363 P.2d 979, 985-986 (1961):

Most of the partial taking cases applying the method of valuing the part taken in relation to the entire tract are those involving [as in this case] strips of land which had no real economic or market value standing alone. .

It seems clear to us, contrary to the appellant’s contention, that the experts, and the jury, are not required to conclude that the “value” for eminent domain purposes of an independently unusable strip of road frontage is even equal to, much less greater than, the amount a landowner who does not have it is willing to pay to get it. Since the verdict was thus adequately supported by expert testimony the jury was entitled to consider, its amount forms no basis for reversal. Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947); Sallas v. State Road Department, Fla.App.1st 1969, 220 So.2d 378; Territory of Hawaii v. Adelmeyer, supra.

The landowner strongly argues that this cause must be reversed and remanded for a new trial because of the prejudicial and improper remarks of the attorney for the County, made during the course of his final argument to the jury. We disagree. The complained-of remarks, hereinafter set out, are:

. I asked the question. I said, “We are talking about May 6, 1970. This is the date of the valuation. We are not talking about what may happen in the future. I am asking as of that date did that diminish the value of that land?”
Mr. Ulrey’s [a representative of the landowner] answer was, “By the extent that you take anything from anything it does diminish it. If you took an inch off your finger it diminishes the value of your hand. I don’t know how to answer your question.”
Now, that may seem insignificant as to the value of the property, but it was an example that Mr. Ulrey used, that of course if you take an inch off your finger it’s going to hurt you. Now, I can agree with that, but it made me think of an example that maybe the situation is rather than my taking a finger off of someone it would hurt that person, is if we have got a large individual such as this corporation in Miami, maybe it’s gotten a little fat.
MR. WEKSLER: [landowner’s attorney] Your Honor, I object to that.
MR. CARR: [condemnor’s attorney] If we take a few inches off of that front it might make it look a little better.
MR. WEKSLER: Your Honor, I object to that type of approach in a case of this nature. I don’t think that’s a proper argument.
THE COURT: I will overrule your objection. ...

The landowner’s attorney strongly contends the argument was calculated to and did combine two impermissible and inflammatory references, one to the wealth and financial status of the landowner, and the other contained a sectional appeal.

The testimony of Mr. Ulrey, who testified in behalf of the landowner, discloses that he is attorney and property manager for Food Fair Stores, Inc., in Florida, South Carolina, North Carolina, Georgia and Alabama; that the landowner was a wholly owned subsidiary of Food Fair Stores; that in excess of $1,000,000 had been expended in acquisition of the property and the improvements made thereon; that Food Fair Stores, Inc. owns J. M. Fields and the latter corporation had a store in the shopping center as did Food Fair Stores, Inc., under the name of Quality Discount Store. Under such factual circumstances it is difficult for us to conclude that the jury can be said to be prejudiced against the property owner when the attorney for the County in his argument said “ . . . we have got a large individual such as this corporation in Miami, maybe it’s gotten a little fat. . . . If we take a few inches off of that front it might make it look a little better.” We point out this is the only remark, reference, or comment in the entire record of this nature made by the county attorney. As shown above, the jury surely had substantial competent evidence presented to it from which to reasonably infer that the landowner was a large corporation, without being told that by the county attorney. We seriously question whether this case would now be before this court had the trial court either sustained the timely objection made by attorney for the landowner or admonished the jury to disregard the remark. Although the remark was, in fact, plainly improper; the ultimate question is: Does the fact that the trial court failed to do so constitute reversible error requiring a new trial. We hold it does not.

The landowner further contends that the trial court erred in excluding testimony proffered by the landowner of three comparative sales which occurred after March 20, 1970, the date the declaration of taking was filed in this case. Such testimony is “peculiarly a matter for the discretion of the trial court.” Jayson v. United States, (5th Cir. 1961), 294 F.2d 808, 810. After reading the proffered testimony as to the later sales, which the landowner attempted to introduce into evidence, we hold that the judgment of the trial court excluding testimony of such subsequent sales was within the trial court’s discretion. The record shows that one of said sales was consummated by deed dated May 10, 1971, and involved another parcel of land that is in this taking. The other sales took place on January 7, 1972 and July 17, 1973.

The landowner’s final point challenges the trial court’s allowance, in ruling on its motion to tax costs, of only $1,000 of the $2,250 bill submitted by Lake for his expert services. We find no error or abuse of discretion has been made to appear by the record before us.

For the reasons set forth above, the judgment of the trial court is

Affirmed.

HOBSON, Acting C. J., BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . It must be emphasized that this issue concerns only the value of the property being condemned and not the separate question— which was indeed separately considered and evaluated in the verdict in this very case— of the severance damages caused to the landowner’s remaining property by the partial taking itself.


author: BARKDULL, Chief Judge.

text:
    James S. KROGEN, Appellant, v. Jean V. KROGEN, Appellee.
    No. 74-1374.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.

      Richard H. W. Maloy and Richard J. Burton, Coral Gables, Helen Taños Hope, Miami, for appellant.
    Sinclair, Louis & Siegel, Miami, for ap-pellee. ,
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   BARKDULL, Chief Judge.

By this appeal, the appellant contests several portions of a final judgment dissolving his marriage.

We find no merit to any of his contentions relating to custody, lump sum alimony, awarding of country club membership, etc. Milander v. Milander, Fla.App.1968, 208 So.2d 876; Goldblatt v. Goldblatt, Fla.App.1973, 277 So.2d 34; Maroun v. Maroun, Fla.App.1973, 277 So.2d 572; Ebaugh v. Ebaugh, Fla.App.1973, 282 So.2d 14; Anderson v. Anderson, Fla.App.1974, 289 So.2d 463; Linares v. Linares, Fla.App. 1974, 292 So.2d 63; Todd v. Todd, Fla.App.1975, 311 So.2d 769.

We do find that the support for the children should have ceased at the age of eighteen and, therefore, the award of support for the daughter who is eighteen should be removed and the support for the two minor children should cease when they reach the age of eighteen. These children being otherwise competent, we hold that support ceases upon reaching the age of majority. Perla v. Perla, Fla.1952, 58 So.2d 689; Fincham v. Levin, Fla.App.1963, 155 So.2d 883; White v. White, Fla.App.1974, 296 So.2d 619; French v. French, Fla.App.1974, 303 So.2d 668; Warren v. Warren, Fla.App.1974, 306 So.2d 197; Robertson v. Robertson, Fla.App.1975, 312 So.2d 246; Kowalski v. Kowalski, Fla.App.1975, 315 So.2d 497. We are particularly impressed by the language used by Judge Boyer in White v. White, supra, wherein the following is found:

% * * * * j|c
“[3] As stated elsewhere in this opinion the trial judge’s order giving rise to this appeal found that since the son was attending college and not employed he was entitled to support from his father, and further ‘in the court’s opinion, is entitled to a college education at the expense of his parents.’ It is certainly desirable and laudable for parents to encourage their offspring to get a college education if he or she is college material. However, there are many parents who enjoy complete domestic tranquility but who do not, either from personal choice or inability or otherwise, give their children a college education. The fact that domestic whirlwinds cause a severance of the marriage does not enhance the rights of the children nor alter the obligations of the parents. Certainly if the parents were still married and enjoying domestic harmony a suit would not lie by the child or either parent to require parental support for a college education. Neither may such be accomplished in a dissolution of marriage forum.
“When the legislature, in its infinite wisdom, emancipated 18 year old children, it specifically provided that they enjoy and ‘suffe^ the rights, privileges ‘and obligations’ of persons 21 years of age and older. We find nothing in the act which appears to us to have intended to afford 18 year old adults any bonus rights or privileges not enjoyed by persons over 21 years of age.
“In the case sub judice the harassed father testified that his son had ceased to treat him like a father and that he had essentially lost control of his son. The tightening of parental purse strings is often a very effective cure for such a disease. If the son deserves his father’s financial help we would encourage and urge the father, appellant here, to respond. However, inasmuch as the 18 year old adult in the case sub judice is mentally and physically able and has demonstrated his ability to be gainfully employed, and since there was no requirement of support to age 21 nor requirement of support during the attaining of a college education in the orders of the Circuit Court which preceded the effective date of Chapter 73-21, F.S., we do not construe the law as empowering us, or the trial judge, to require the appellant so to do.” [emphasis supplied]
******

We recognize that there have been several decisions which could be interpreted to the contrary of this ruling. Daugherty v. Daugherty, Fla.1975, 308 So.2d 24; Finn v. Finn, Fla.1975, 312 So.2d 726. However, these decisions are also supportable on the proposition that the 1973 statute, reducing the age of majority, was not to be applied retroactively.

Therefore, for the reasons above stated, the final judgment of dissolution here under review be and the same is hereby affirmed, except to the extent modified to eliminate support for the children when they reach the age of eighteen.

Affirmed, as modified.

      . We note that it could be argued that the Supreme Court of Florida, by inference, in this opinion could be said to have declined to follow the reasoning of Judge Boyer in White v. White, supra. However, it is apparent that any determination of the requirement that a father support his emancipated child beyond the age of 18 was because § 743.07, Fla.Stat. was not to be applied retroactively, the final judgment in the White case having been rendered in 1969, some four years before the adoption of the 18 year old statute in 1973.

      .- We think, for the benefit of the bench and bar of this State, this decision should be certified to the Supreme Court of Florida as passing upon a matter of great public interest in that it holds that a parent’s obligation to support a child ceases upon the child reaching the age of 18, unless, the child is found to be mentally or physically disabled.


text:
    Lafayette HART, Jr., Appellant, v. BANKERS FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 74-218.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1975.
    On Rehearing March 27, 1975.

      E. Hugh Chappell, Jr., Fort Lauderdale, for appellant.
    James A. Smith, Wicker, Smith, Pyszka, Bloomqvist & Davant, Miami, for appellee.
   PER CURIAM.

Upon review of the record and consideration of the briefs and oral argument we are of the opinion that the trial court erred in granting defendant’s motion for a directed verdict and entering a final judgment thereon. In particular, the evidence at that stage of the proceeding did not reflect compliance with Section 627.-728(5), F.S., regarding proof of mailing of notice of cancellation of insurance policies. Accordingly, the final judgment is reversed and the cause remanded, to the trial court for a new trial.

Reversed and remanded.

OWEN, C. J„ and CROSS and MAGER, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

A timely petition for rehearing has been filed by the defendant-appellee requesting a rehearing and reconsideration of this court’s order awarding attorney’s fees to the appellant-plaintiff (the prevailing party in this appeal) for services in the appellate court.

This court’s separate order awarding attorney’s fees, dated January 31, 1975, was entered pursuant to Rule 3.16, subd. e, F.A.R., which provides for the award (and assessment) “where attorney’s fees are allowable by law for services in the appellate court”.

Our reading of Section 627.428, F.S., which provides for the award of attorney’s fees in suits between an insurer and an insured presupposes the entry of a judgment against the insurer' in which recovery is had by the insured.

In the instant case (involving the issue of coverage) this court reversed a final judgment entered pursuant to a motion for a directed verdict in favor of the insurer and remanded the cause for a new trial for the insured. Therefore, there having been no judgment rendered by which insured has recovered against the insurer, the rationale expressed by our sister court in Dawson v. Blue Cross Association, Fla.App.1974, 293 So.2d 90, prevails, namely, that the award of attorney’s fees for service in the appellate court is conditioned upon a judgment rendered against the insurer allowing recovery in favor of the insured. Our order of January 31, 1975, which did not assess attorney’s fees but merely granted them subject to assessment by the trial court, is modified to the extent that such award is conditioned upon the insured ultimately prevailing.

Accordingly, the petition for rehearing is granted and our order of January 31, 1975, is vacated and a modified order is herein entered as follows:

The appellant’s motion for attorney’s fees is hereby granted for services rendered incident to this appeal, such award being conditioned upon the appellant prevailing below on the issue of coverage, in accordance with those guidelines set forth in Dawson v. Blue Cross, supra. In the event that the appellant prevails below the amount of the award shall be assessed by the trial court upon due notice and subject to review by this court under F.A.R. 3.16, subd. e.

OWEN, C. J., and CROSS and MAGER, JJ., concur.

      . It is to be noted that the entry of the directed verdict at the close of the plaintiff’s ease based upon the then existing facts and circumstances before the trial court was contrary to the principles enunciated in Tillman v. Baskin, Fla.1972, 260 So.2d 509; Simon v. Pope, Fla.App.1973, 279 So.2d 54; cf. Rule 6.16, F.A.R. Following the presentation of a prima facie case by plaintiff the trial judge should not have undertaken to weigh the evidence before the end of all the testimony.

      . In passing we would observe that contrary to the finding made by the trial court, there exists a serious question with respect to whether the defendant insurance company waived its claim of cancellation by acceptance of what appears to have been the balance of an increased down payment towards the total premium; hopefully, this issue as well as the issue regarding proof of mailing will be fully developed during the course of the new trial. See 18 Fla.Jur., Insurance, sec. 661.

      . “627.428 Attorney fee

      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.


text:
    The CONCORD FLORIDA, INC., et al., Petitioners, v. Morris and Ruth WEINECK et al., Respondents.
    No. 75-546.
    District Court of Appeal of Florida, Third District.
    April 10, 1975.
   PER CURIAM.

Certiorari denied.


text:
    WINCAST ASSOCIATES, INC., Appellant, v. Lawrence J. HICKEY et al., Appellees.
    No. 74-1785.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1975.
    Rehearing Denied Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Dennis E. HAMILTON d/b/a Hamilton Machine Corporation, Appellant, v. MITCHELL CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellee.
    No. 75-1339.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1975.
    Rehearing Denied Sept. 29, 1975.
   Appeal dismissed.


text:
    STATE of Florida ex rel. Elijah BIVINS, Appellant, v. Honorable William G. TYE, Acting Circuit Judge of the Nineteenth Judicial Circuit in and for St. Lucie County, Florida, Appellee.
    No. 75-1220.
    District Court of Appeal of Florida, Fourth District.
    Aug. 28, 1975.
    Rehearing Denied Sept. 29, 1975.
   Prohibition denied.


text:
    Georgia KWART, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY, et al., Respondents.
    No. 75-1352.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 1975.
    Rehearing Denied Oct. 15, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Eugene FORRESTER, Appellant, v. FALKNER, INC., a Florida Corporation, Appellee.
    No. 75-988.
    District Court of Appeal of Florida, Fourth District.
    Sept. 4, 1975.
    Rehearing Denied Oct. 21, 1975.
   Appeal from Circuit Court, Orange County; B. C. Muszynski, Judge.


text:
    John JACKSON and Lemar Jackson, Jr., by their mother, Annette Jackson, et al., Appellants, v. STATE of Florida and Reubin O’D. Askew, Governor of Florida, et al., Appellees.
    No. X-342.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 20, 1975.
   PER CURIAM.

Affirmed.


text:
    Uvaniel JONES, Appellant, v. STATE of Florida, Appellee.
    No. X-449.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    Jean RYDER, Appellant, v. MONROE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 75-586.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 1975.
    Rehearing Denied Oct. 15, 1975.
   PER CURIAM.

Appeal quashed.'


text:
    R. W. WEITZENFELD, as Sheriff of Manatee County, Florida, and not individually, Appellant, v. The STATE of Florida on the relation of Wayne POSTON, Appellee.
    No. 75-975.
    District Court of Appeal of Florida, Second District.
    Sept. 11, 1975.
    Rehearing Denied Oct. 28, 1975.
   Appeal quashed.


text:
    Richard F. (Dick) HAYES, Appellant, v. The DADE COUNTY CANVASSING BOARD et al., Appellees.
    No. 75-428.
    District Court of Appeal of Florida, Third District.
    Sept. 11, 1975.
    Rehearing Denied Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Lindy LEVISON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-727.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed and quashed.


text:
    Steven Jay COOPERMAN, Petitioner, v. FLORIDA REAL ESTATE COMMISSION and Jack King, Respondents.
    No. 75-515.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 24, 1975.
   PER CURIAM.

Petition for writ of certiorari denied.


text:
    Leonard FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1069.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    MARYLAND CASUALTY COMPANY, a Foreign Corporation, Royal Crown Bottling Company of West Palm Beach, Inc., a Florida corporation, and James Pinke, Appellants, v. Larry L. ATKINS and Deatrick Leasing Corporation, a Florida Corporation, Appellees (two cases).
    Nos. 74-195, 74-196.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Rehearing Denied Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas E. BOND, Appellant, v. Wayne E. HARRIS et al., Appellees.
    No. 75-445.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Hamilton D. HARVEY, Appellant, v. Gloria Adalyn HARVEY, Appellee.
    No. 74-1373.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    Alfred Peter SEMINARIO, Appellant, v. Lee Anne SEMINARIO, Appellee.
    No. 74-1791.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 21, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. The SCHOOL BOARD OF LEE COUNTY, Florida, Relator, v. John H. SHEARER, Jr., Circuit Judge, Twentieth Judicial Circuit in and for Lee County, Florida, Respondent.
    No. 75-631.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1975.
   Prohibition granted.


text:
    John ANDERSON, Relator, v. FLORIDA DEPARTMENT OF COMMERCE et al., Respondents.
    No. 75-1297.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 1975.
   Mandamus dismissed.


text:
    Robert Lee COOPER, Appellant, v. PALM BEACH COUNTY COURT JUDGE T. P. POULTON, Appellee.
    No. 75-1524.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 1975.
   Habeas corpus denied.


text:
    HACIENDA ASSOCIATES, INC., et al., Relators, v. James A. McCAULEY, Sr., a Judge of the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 75-1669.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 1975.
   Prohibition denied.


text:
    John E. HERMAN, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee.
    No. 75-1609.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 1975.
   Habeas corpus denied.


text:
    Alfredo MALDANADO, Appellant, v. Louie L. WAINWRIGHT, Director, Florida Department of Offender Rehabilitation, Appellee.
    No. 75-1571.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 1975.
   Habeas corpus denied.


text:
    ACCREDITED SURETY AND CASUALTY INSURANCE COMPANY, INC., and K. B. Price, Jr., Appellants, v. The STATE of Florida for the Use and Benefit of PALM BEACH COUNTY, Appellee.
    No. 75-635.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   Appeal from Circuit Court, Palm Beach County; James R. Stewart, Jr., Judge.

Appeal dismissed.


text:
    Alfreda H. BACHMAN, Appellant, v. William C. BACHMAN, Appellee.
    No. 75-177.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    John Alexander BOND, Appellant, v. Sara Hendry BOND, Appellee.
    No. 74-1080.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Bobby FALAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1040.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    John Lee GENTRY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1345.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Marc KOVENS, Appellant, v. MACK INDUSTRIES, DIVISION OF HOLLYWOOD LAND COMPANY, INC., a Florida Corporation, Somerset Construction Corp., a Florida Corporation, Appellees.
    No. 75-1561.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   Appeal from Circuit Court, Broward County; George Richards, Judge.

Interlocutory appeal dismissed.


text:
    Daniel J. LEONARD, Appellant, v. Dorothy LEONARD, Appellee.
    No. 74-1810.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Horace LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1770.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    John D. MacARTHUR, Appellant, v. Adeline K. MOFFETT, Appellee.
    No. 75-615.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    R. J. E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 74-1271.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Jack RITTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1175.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    John Stewart SELCER, Appellant, v. STATE of Florida, Appellee.
    No. 74-724.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   Appeal from Circuit Court, Palm Beach County; T. P. Poulton, Judge.

Appeal dismissed.

I


text:
    James A. VANN, Appellant, v. STATE of Florida, Appellee.
    No. 74-752.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    The WACKENHUT CORPORATION, Appellant, v. GRASSHOPPER DEVELOPMENT, INC., a Florida Corporation, et al., Appellees.
    No. 74-1212.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Glen Edward WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-952.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
   PER CURIAM.

Affirmed.


text:
    Jack J. KELLY, Appellant, v. Joyce J. KELLY, Appellee.
    No. 75-468.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1975.
   Appeal dismissed.


text:
    Thomas N. LINTON et al., Appellants, v. Albert B. FEW et al., Appellees.
    No. 75-956.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1975.
   Appeal dismissed.


text:
    William R. OMASTA, Jr., Petitioner, v. SIXTH JUDICIAL CIRCUIT COURT IN AND FOR PASCO COUNTY, Florida, Respondent.
    No. 75-1234.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1975.
   Petition for mandamus dismissed.


text:
    GENERAL RENT-A-CAR, INC., et al., Appellants, v. Julius WOLF and Allstate Insurance Company, Appellees.
    No. 75-52.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    James D. GRADY, Appellant, v. Marcia Minnich GRADY, Appellee.
    No. 75-817.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    7565 RESTAURANT, INC., d/b/a the Mad Hatter, Appellant, v. Ralph EPSTEIN, Appellee.
    No. 75-1078.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    STATE of Florida ex rel. William SHAPIRO, Relator, v. Ira L. DUBITSKY, Circuit Judge, and Gene Williams, Administrative Judge, Criminal Division, Respondents.
    No. 75-1499.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Richard BERGER, Appellant, v. Ruth BERGER, Appellee.
    No. 75-623.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    Ashley FREDERICK, Appellant, v. The STATE of Florida, Appellee.
    No. 75-379.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    John Albert McMICHAEL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-370.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    S. O. S. REPRODUCTION SYSTEMS OF TAMPA, INC., and Alfred Meana, Appellants, v. SAXON BUSINESS PRODUCTS, INC., a Foreign Corporation authorized to do business in Florida, Appellee.
    No. 75-574.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
   PER CURIAM.

Affirmed.


text:
    AMERICAN SERVICE MUTUAL INSURANCE COMPANY, Appellant, v. George Knauff SWARTZFAGER, Appellee.
    No. 75-842.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   Appeal dismissed.


text:
    Virginia Lee HADDAD, Appellant, v. Maurice HADDAD, Appellee.
    No. 74-1391.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Jan Franklin MASSEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-310, 75-311, 75-312, 75-313, 75-314, 75-315, 75-316 and 75-317.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   Appeal dismissed.


text:
    John MOTSINGER, Jr., as Trustee, and John Motsinger, Jr., Individually, Appellant, v. Alan H. GINSBURG, as Trustee, and Wilbur Brantley, Appellees.
    No. 74-1217.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Jeffrey A. POPPENS, a minor, by and through his mother and next friend, Natalie V. Poppens, and Natalie V. Poppens, Individually, Appellants, v. The SCHOOL DISTRICT OF PINELLAS COUNTY and Aetna Insurance Company, a Foreign Corporation, Appellees.
    No. 75-937.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Billie SMITH a/k,/a John Henry Walker, Appellant, v. STATE of Florida, Appellee.
    No. 75-322.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 1975.
   PER CURIAM.

Affirmed.


text:
    Raymond BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1113.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Appeal from Circuit Court, Seminole County; Clarence T. Johnson, Judge.

Appeal dismissed.


text:
    Mark A. BOLLUYT and Helen E. Bolluyt, Appellants, v. SUN BANK OF COCOA, N.A., a corporation existing under the laws of the United States, et al., Appellees.
    No. 75-1255.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Appeal from Circuit Court, Brevard County; Virgil B. Conkling, Judge.

Appeal dismissed.


text:
    Isabelle CARBONE, Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Appellees.
    No. 75-237.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Hiram Lyle HAMLIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1107.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Appeal from Circuit Court, Seminole County; Clarence T. Johnson, Judge.

Appeal dismissed.


text:
    Michael T. MALLON, Appellant, v. Mary A. BROWN, Appellee.
    No. 75-1041.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Petition for Certiorari dismissed.


text:
    SCHOOL BOARD OF BROWARD COUNTY, a political subdivision of the State of Florida, Unigard Mutual Insurance Company, etc., et al., Petitioners, v. Darlene DORR, a minor, By and Through her mother and natural guardian, Dorothy Fugere, and Dorothy Fugere, Individually, Respondents.
    No. 75-1489.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Petition for Certiorari dismissed.


text:
    SLATER PROPERTIES, INC., Appellant, v. MOTEL MANAGEMENT COMPANY, INC., a Florida Corporation, et al., Appellees.
    No. 75-1625.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 1975.
   Appeal from Circuit Court, Broward County; James F. Minuet, Judge.

Appeal dismissed.


text:
    Prince Harvey BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-256.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Patricia A. BROWER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1129.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    John BUSH, Appellant, v. STATE of Florida, Appellee. Lueagle PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1014, 74-1015.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Steven W. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1505.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    John COTTRILL, Appellant, v. STATE of Florida, Appellee.
    No. 74-1025.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Lee Alexander CUTHBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 75-117.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    James H. DANIELS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-215, 75-216 and 75-217.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald JENKINS, Appellant, v. Alicia JENKINS, Appellee.
    No. 75-522.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    INVESTMENT CORPORATION OF FLORIDA et al., Appellants, v. SAN REMO, INC., a Condominium, etc., Appellee.
    No. 74-1175.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    John Leon McPHEE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1238.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Eddie Lee MOTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-85.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Eugene NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1442.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Homer L. PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 74-716.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    SAN REMO, INC., a Condominium, etc., Appellant, v. INVESTMENT CORPORATION OF FLORIDA et al., Appellees.
    No. 74-1197.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Jimmy Lee SNELLING, Appellant, v. STATE of Florida, Appellee.
    No. 74-1789.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Dec. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Naser ARAP, Relator, v. The Honorable Edward D. COWART, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Respondent.
    No. 75-1194.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    TALE OF THE SAIL, INC., Appellant, v. Robert DOHERTY et ux., Appellees.
    No. 75-127.
    District Court of Appeal of Florida, Fourth District
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    U. S. HOMES OF FLORIDA, INC., Appellant, v. John L. EARLY et al., Appellees.
    No. 75-6.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Douglas WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-428.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-152.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Lewis H. WILSON, Appellant, v. Eleanor P. WILSON, Appellee.
    No. 75-871.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Nigel WINFIELD and Patricia Winfield, Appellants, v. MARSHALL’S INTERIORS, INC., Appellee.
    No. 75-923.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Franklin WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1762.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Aretha P. YOUNG, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION and St. Joseph’s Hospital, Respondents.
    No. 75-195.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
   PER CURIAM.

Certiorari denied.


text:
    Paul C. ALFORD and Paul C. Alford, as Administrator of the Estate of Elizabeth H. Alford, Deceased, Appellant, v. WINTER PARK MEMORIAL HOSPITAL ASSOCIATION, INC., a Florida Corporation, et al., Appellees.
    No. 73-1117.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. Mr. William ADAMS and Mrs. Charlene Adams, his wife, Appellees.
    No. 75-621.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 1975.
   Appeal from Circuit Court, Broward County; James Minnet, Judge.


text:
    In the Interest of A. S. C. and W. H., Minors, Appellants, v. STATE of Florida, Appellee.
    No. X-311.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Bertha M. GOODIN, Appellant, v. WORLD SERVICE LIFE INSURANCE COMPANY, Appellee.
    No. Y-462.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER CURIAM.

Certiorari denied.


author: PER" CURIAM.

text:
    Marilyn K. Trochelman BERMUNDO, Appellant, v. Norman T. TROCHELMAN, Appellee.
    No. W-518.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER" CURIAM.

Affirmed.


text:
    Lewis Dexter HAYES, Appellant, v. STATE of Florida, Appellee.
    No. W-314.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Keith J. KOROLDEN, Appellant, v. Jane B. KOROLDEN, Appellee.
    No. 75-168.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Keith J. KOROLDEN, Appellant, v. Jane B. KOROLDEN, Appellee.
    No. 75-1112.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Chris ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. X-432.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Stanley MORGAN, Relator, v. Jack SANDSTROM, as Director, Dade County Corrections and Rehabilitation Department, Respondent.
    No. 75-1407.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Habeas corpus denied.


text:
    George Franklin THARPE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-372.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Lee DETRE and Alice Leona Detre, d/b/a Lee’s Marine and Lee’s Construction, Appellants, v. DeGEORGE PAVING, INC., Appellee.
    No. 75-624.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
   Appeal dismissed.


text:
    MISSISSIPPI MOBILE HOME BROKERS, etc., et al., Appellants, v. Jesse E. BLADES and Georgia M. Blades, his wife, Appellees.
    No. X-493.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Willie Lee PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. Y-375.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Irving D. ROYCE, M.D., and National Guaranty Insurance Company, Petitioners, v. John F. ANASTASIO, Respondent.
    No. 75-1500.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    John H. GAY, Jr., Appellant, v. ALBANY M. C. S. C. FEDERAL CREDIT UNION and Automobile Recovery Bureau of Florida Finance Services, Inc., Appellees.
    No. 75-967.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
   Appeal dismissed.


text:
    Roger Lee HERMAN, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1449.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
   Habeas corpus denied.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Robin HARRIS and James E. Harris, her husband, Appellees.
    No. 75-93.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    Rehearing Denied Nov. 5, 1975.
   PER CURIAM.

Affirmed.


text:
    Marion ANZUALDA, Appellant, v. Jason T. HALL et al., Appellees.
    No. 75-642.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Harry J. BODINE, Appellant, v. Charles W. CARR et al., Appellees.
    No. 75-641.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Sam F. DAVIS, Appellant, v. WITHLACOOCHEE RIVER ELECTRIC COOP., INC., and the Employers Insurance of Wausau, Appellees.
    No. 75-433.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION and Pinellas County, Appellants, v. BANK OF INDIAN ROCKS et al., Appellees.
    No. 75-123.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION and Pinellas County, Appellants, v. BANK OF INDIAN ROCKS et al., Appellees.
    No. 74-1516.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Raymond G. DUNHAM, Appellant, v. Mary Anne DUNHAM, Appellee.
    No. 75-582.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Barbara H. GARCIA, Appellant, v. Lou Anna BROOKER et al., Appellees.
    No. 75-607.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Michael HALL, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1461.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Habeas corpus denied.


text:
    Frances Sharon JAYNE, formerly Frances Sharon Dennison, Appellant, v. Calvin B. DENNISON, Appellee.
    No. 74-1497.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    John MATTHEWS, Appellant, v. PAN AMERICAN BANK OF SARASOTA, as Administrator CTA of the Estate of Wanda Jean Matthews, Deceased, et al., Appellees.
    No. 75-494.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    SANIBEL ENTERPRISES, INC., Appellant, v. CITY OF SANIBEL et al., Appellees.
    No. 75-176.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    Theodore TENAGLIA et al., Appellants, v. BAY PINES AUTO SERVICE, INC., et al., Appellees.
    No. 75-681.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
   Appeal dismissed.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Robert MELTSNER, Appellee.
    No. 75-1185.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Herbert H. JOHNSON, Appellant, v. Elizabeth W. JOHNSON, Appellee.
    No. 75-1180.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Angelo PEDROSO, Petitioner, v. Louie L. WAINWRIGHT, as Secretary of the Department of Offender Rehabilitation, Respondent.
    No. 75-1483.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
   Habeas corpus denied.


text:
    Vincent J. PETERS, Appellant, v. FERENDINO, GRAFTON, SPILLIS & CANDELA, a partnership, Appellees.
    No. 75-496.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Charley PRATT, Appellant, v. Louis PRATT, Appellee.
    No. 75-584.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    SAFEGUARD MUTUAL INSURANCE COMPANY, a Pennsylvania Corporation, Appellant, v. Warren David SHULMAN, Appellee.
    No. 74-1344.
    District Court of Appeal of Florida, Third District.
    Oct 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    The STATE of Florida ex rel. Mrs. Stanley (Joyce) GOLDBERG, Relator, v. The Honorable Ellen J. MORPHONIOS, as Circuit Judge of the Eleventh Judicial Circuit, In and For Dade County, Florida, Respondent.
    No. 75-1586.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Prohibition dismissed.


text:
    Marc B. STEVENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 74-426.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Wanda Louise FUCHS, Appellant, v. Frank G. FUCHS, Appellee.
    No. 75-338.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1975.
   Appeal dismissed.


text:
    GENERAL DEVELOPMENT CORPORATION and Allstate Insurance Company, Appellants, v. Larry J. HOBBS et al., Appellees.
    No. 75-99.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1975.
   Appeal dismissed.


text:
    LAR-MAC CORPORATION, a Florida Corporation, Appellant, v. Edward D. MANSEAU and Frances L. Manseau, husband and wife, Appellees.
    No. 75-680.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1975.
   Appeal dismissed.


text:
    In the Interest of P. D. C. Appeal of Wanda COZBY.
    No. 75-1292.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1975.
   Appeal dismissed.


text:
    W. D. MIZELL and Royce Parker, d/b/a M & P Productions, Appellant, v. MODERN FOODS, INC., Appellee.
    No. 75-451.
    District Court of Appeal of Florida, Second District.
    Oct. 16, 1975.
   Appeal dismissed.


text:
    Richard CRAVERO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1510.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    John F. MARTIN et al., Appellants, v. John GOMES and Adeline Gomes, his wife, Appellees.
    No. 75-1552.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    James E. O’DONNELL and Martha O’Donnell, etc., et al., Appellants, v. Dora Lopez ALVAREZ and Raphael Lopez Alvarez, individuals, Appellees.
    No. 75-1553.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    UNIVERSITY OF MIAMI, a Florida Corporation, and Henry King Stanford, Petitioners, v. John GORMAN, Respondent.
    No. 75-693.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    UNIVERSITY OF MIAMI, a Florida Corporation, and Henry King Stanford, Appellants, v. John GORMAN, Appellee.
    No. 75-711.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Henry Martin DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 75-401.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    John H. HESTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-489.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    George McDOUGALL, Appellant, v. STATE of Florida, Appellee.
    No. 74-184.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    John Leonard NAVE, Appellant, v. STATE of Florida, Appellee.
    No. 75-323.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Warren Kingsbury PENDER, Appellant, v. George HATCHER et al., Appellees.
    No. 75-362.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Roslyn SILVERSTEIN, Appellant, v. Herbert SILVERSTEIN, Appellee.
    No. 75-82.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Janice Spratling WHITSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-170.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Cecil A. WOMMACK, Appellant, v. STATE of Florida, Appellee.
    No. 75-139.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Rocky Marvin COLLINS et al., Appellants, v. Lyle POWELL, Appellee.
    No. 75-75.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1975.
   Appeal dismissed.


text:
    Jack Wilfred DEMPSEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1403.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1975.
   Appeal dismissed.


text:
    Willie James FLETCHER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-675.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1975.
   Appeal dismissed.


text:
    Martin ERGAS, Appellant, v. Michelle ERGAS, Appellee.
    No. 75-1410.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Martin ERGAS, Appellant, v. Michelle ERGAS, Appellee.
    No. 75-1521.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    GENERAL DEVELOPMENT CORPORATION, a Delaware Corporation, Appellant, v. RAYMOND BUILDING SUPPLY CORP., d/b/a Raymond Lumber Co., Inc., a Florida Corporation and B. J. E. Industries, Inc., a Florida Corporation, Appellees.
    No. 75-1264.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1975.
   Appeal dismissed.


text:
    Richard SELLARS, d/b/a Durable Concrete Pipe and Safeco Insurance Companies, Appellants, v. Carl BLACK and Mildred Black, husband and wife, Appellees.
    No. 75-1348.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1975.
   Appeal dismissed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Wiley D. FOXX, Appellee.
    No. 75-935.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1975.
   Appeal dismissed.


text:
    STATE of Florida ex rel. Robert GARLAND, a minor, Relator, v. William LANG, Superintendent of Hillsborough County Juvenile Detention Center, Respondent.
    No. 75-1315.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1975.
   Habeas corpus denied.


text:
    FRED CURTIS, INC., a Florida Corporation, et al., Appellants, v. GO-KARTS OF TAMPA, INC., a Florida Corporation, and Sun Bank of Tampa Bay, a Florida Banking Corporation, Appellees.
    No. 75-1337.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    Nicholas FRITZ, Appellant, v. PEOPLES FINANCIAL CORPORATION OF LARGO, INC., et al., Appellees.
    No. 75-1289.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    William A. MUIRHEAD et al., Appellants, v. Lewis BLACKBURN and Venice Dolomite Company, Appellees.
    No. 75-1205.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. John Robert DUMMETT, Appellee.
    No. 75-1150.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    Donna Lee THOMASON, Appellant, v. Eugene Earl THOMASON, Appellee.
    No. 75-1191.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    Howard Bernard HALE, Appellant, v. STATE of Florida, Appellee.
    No. 75-1456.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 1975.
   Appeal dismissed.


text:
    Gerald Everett PIERCE, Appellant, v. STATE of Florida, Appellee.
    No. 75-578.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 1975.
   Appeal dismissed.


text:
    SPEIR CONSTRUCTION COMPANY, a Florida Corporation, et al., Appellants, v. Gene SHONKWILER and Mary Shonkwiler, his wife, Appellees.
    No. 75-1266.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 1975.
   Appeal dismissed.


text:
    Jean D. CAMPBELL, Appellant, v. B. Brooks CAMPBELL, Appellee.
    No. 75-812.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   Appeal dismissed.


text:
    David EVERINGHAM, Appellant, v. Barbara SWEITZER, formerly known as Barbara Everingham, Appellee.
    No. 75-1336.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   Appeal dismissed.


text:
    GENERAL MOBILE HOME DEVELOPMENT COMPANY, Appellant, v. John C. GARDNER, Appellee.
    No. 75-179.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   Appeal dismissed.


text:
    Franklin D. HOFFMAN, Appellant, v. Wanda J. HOFFMAN, Appellee.
    No. 75-1338.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   Appeal dismissed.


text:
    LEE COUNTY, a political subdivision of the State of Florida, and Board of County Commissioners of Lee County, Appellants, v. NATIONAL CAR RENTAL, INC., a Nevada Corporation, Appellee.
    No. 75-1096.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1975.
   Appeal dismissed.


author: DIXON, Justice. TATE, Justice

text:
    Eddie ELLERSON v. Richard I. SCOTT et al.
    No. 56015.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Nov. 4, 1975.
    Byron Magbee, Baton Rouge, for plaintiff-applicant.
    Horace C. Lane, Lane & Clesi, Baton Rouge, for defendants-respondents.
   DIXON, Justice.

Writs were granted in this case because of a conflict between the circuits in the interpretation of a provision in automobile insurance policies.

A personal injury suit was filed against Scott and State Farm Mutual Automobile Insurance Company, arising out of an automobile accident involving a 1966 Ford owned by Scott.

State Farm moved for summary judgment, attaching an automobile liability insurance policy and an affidavit by thq defendant Scott.

Scott owned two automobiles at the time he purchased the policy involved. The policy, however, insured only a 1970 Ford automobile. A 1963 Chevrolet automobile, which Scott had owned for some time, was not listed in the policy. The accident occurred on February 6, 1972; the policy period was from August 21, 1971 to February 21, 1972. The 1966 Ford involved in the accident was acquired by Scott on November 19, 1971 in a transaction in which Scott disposed of the 1963 Chevrolet. No notice was given to the insurance company, and no request was made by Scott for coverage of the 1966 Ford.

The allegations in Scott’s affidavit are as follows:

“On November 19, 1971 he purchased the said 1966 Ford automobile, and in connection with the purchase of said 1966 Ford he traded in a 1963 Chevrolet, which he had owned for approximately three and one-half years prior to November 19, 1971.
“The 1963 Chevrolet was uninsured on November 19, 1971, at the time it was traded in connection with the acquisition of the 1966 Ford, and, in fact, the 1963 Chevrolet was never listed as a described vehicle on any policy issued by State Farm Mutual Automobile Insurance Company.
“He never reported acquisition of the 1966 Ford to State Farm Mutual Automobile Insurance Company during the policy period mentioned in Article 1 above, and he never requested to State Farm Mutual Automobile Insurance Company that any insurance coverage be extended on the 1966 Ford.”

Summary judgment was rendered in favor of State Farm, and affirmed by the Court of Appeal. 306 So.2d 877 (La.App., 1st Cir. 1975).

The policy provision involved is:

“ ‘owned automobile’ means
(a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded.
(b) a trailer owned by the named insured.
(c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided
(1) it replaces an owned automobile as defined in (a) above, or
(2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile, or .” (Emphasis added).

In affirming the trial court’s summary judgment dismissing plaintiff’s action against the insurer, the First Circuit followed other opinions of that circuit. Hartzog v. Eubanks, 200 So.2d 303 (La.App.1967); Altazan v. Reed, 154 So.2d 610 (La.App.1963). Its opinion conflicts with Conner v. Motors Insurance Corp., 216 So.2d 555 (La.App., 3d Cir. 1968).

The plaintiff Ellerson contends that the additional vehicle was automatically covered by virtue of the provisions in the policy quoted above, by which automatic insurance is provided for a vehicle acquired during the policy period either if it replaces a described vehicle or if at the time of acquisition the company insures all automobiles owned by the insured. Plaintiff’s argument is based on the contention that the only car Scott owned at the moment prior to the acquisition of the 1966 Ford was the 1970 Ford listed in the policy, and that, therefore, State Farm insured all automobiles owned by Scott at the time of acquisition of the 1966 Ford and, therefore, the 1966 Ford is automatically covered.

State Farm denies coverage for the reason that, on the date of acquisition of the new vehicle, the insurance policy did not afford coverage to all automobiles owned by the named insured.

The only reasonable construction that can be placed on the affidavit attached to State Farm’s motion for summary judgment is that the disposition of the 1963 Chevrolet and the acquisition of the 1966 Ford was a simultaneous transaction. Scott traded the Chevrolet for the 1966 Ford. An exchange takes place by the “bare consent of the parties.” C.C. 2661. A sale is perfected when there is agreement on the object and the price. C.C. 2456. There is no state of suspension for ownership of automobiles in a car trade. Ownership changes simultaneously upon agreement of the parties.

We find no ambiguity in the policy provisions involved. It is clear that the insurance policy afforded protection for liability involving automobiles described in the policy, additional newly acquired vehicles provided either- that they replaced a described vehicle- or provided that the policy covered all automobiles owned by the insured at the time of the acquisition.

Conner v. Motors Insurance Corp., 216 So.2d 555 (La.App.1968) is overruled.

The Court of Appeal and district court are correct in dismissing plaintiff’s suit against State Farm Mutual Automobile Insurance Company. The judgment of the Court of Appeal is affirmed, at plaintiff’s cost.

SANDERS, C. J., dissents for the reasons assigned by TATE, J.

TATE, J., dissents and assigns reasons.

BARHAM, J., does not participate.

TATE, Justice

(dissenting).

I respectfully dissent.

In the first place, even conceding that the majority’s interpretation of the automatic insurance clause is correct, disputed issues of fact prevent summary .judgment in this case. In the second place, the majority interpretation of the clause overlooks its deliberate broadening so that the 1963 standard family automobile policy will provide continuous and all-inclusive coverage not only to the described automobile but also to all automobiles acquired during the policy year.

I.

The majority opinion quotes the artfully worded affidavit submitted by State Farm in connection with its motion for summary judgment. The affidavit merely avers that the 1966 Ford “in connection” with trading in the uninsured Chevrolet. This is far from averring that the Chevrolet was simultaneously traded in for the 1966 Ford.

As the plaintiff notes, the choice of language perhaps deliberately does not negative two separate transactions at two different times: a sale of the Chevrolet for cash or credit; and a purchase of the 1966 at some subsequent time, perhaps weeks or months later. That is, the affidavit does not attempt to establish a virtually simultaneous transaction.

Merely because an uninsured automobile is sold and at some time later a new automobile-is acquired does not prevent application of the automatic insurance clause. The majority does not intend to so hold. Yet in effect it permits an affidavit open to such construction to support a holding of a simultaneous transaction.

This is contrary to the well-settled jurisprudence that summary judgment does not lie except in the case of undisputed material fact and that affidavits are not construed in favor of the pleader who ex parte confected them but rather in favor of full trial on the merits, with cross-examination by the opposing party to be available to test the truth of matters within the knowledge of the affiant far more than of his opponent. La.C.Civ.P. arts. 966-68; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3d Cir. 1966).

II.

The plaintiff Ellerson contends that the additional vehicle was automatically covered by virtue of an after-acquired provision in the policy. By this provision, automatic insurance is provided to a vehicle acquired during the policy period either if it replaces a described vehicle or if at the time of acquisition the company insures all automobiles owned by the insured.

(The policy clause, Footnote 1, applies to the newly acquired automobile if on the “date of such acquisition” the company insured all automobiles owned by the named insured. State Farm does not dispute that the prime meaning of “date” is “the time at which an event occurs” or “a given point of time”, not the calendar day. Webster’s New International Dictionary, verbo “date” (3rd ed. 1961); Webster’s Seventh New Collegiate Dictionary, verbo “date” (1961).)

State Farm does not deny that, under the policy definition, coverage is automatically afforded to additional automobiles acquired during the policy period. However, it principally denies coverage here because, on the date of acquisition of the new vehicle, it did not afford coverage to “all” automobiles owned by the named insured. It primarily contends that the áfter-acquired provision is only intended to afford coverage to additional vehicles when they do not replace other non-insured vehicles. State Farm summarizes its contention in brief: For the provision to apply to the after-acquired vehicle, “it must be either a replacement vehicle, or an additional vehicle, increasing the number of cars owned by the insured.”

The majority does not adopt State Farm’s construction. In effect, it holds for no explained reason that a simultaneous trade-in of an uninsured vehicle for a new vehicle prevents application of the automatic insurance clause to the newly acquired automobile.

Under circumstances similar to the present the Third Circuit has to the contrary construed this provision as affording coverage to the after-acquired vehicle. Conners v. Motors Insurance Corporation, 216 So.2d 55 (La.App., 1968); Collins v. Government Employees Insurance Co., 168 So.2d (La.App., 1964). So did the only out-of-state decision cited to us. Auto Owners Insurance Co. v. Keller, 370 Mich. 496, 122 N.W.2d 728 (1963).

In holding to the contrary, the decisions of the majority of the-Third Circuit and of the Michigan Supreme Court point out that, under the unambiguous wording of the insurance policy, the automatic coverage is provided for any additional vehicle acquired by the insured during the policy period, if indeed the company insures all other vehicles owned by the insured — owned at the time the new vehicle is acquired; not at the time the policy is issued. They further reason:

Since the previously uninsured second vehicle is traded at the time the new .automobile is purchased, at the time (instant) of the latter’s acquisition of the only vehicle owned by the insured is that described by the insuring policy. Thus, the new vehicle is automatically insured by the terms of the after-acquired provision; for at the instant (time) of its acquisition, the company is insuring all other vehicles then owned by the named insured.

Considering the well-settled principle that ambiguities in insurance contracts are construed against the insurer (which wrote the policy) and in favor of coverage, I believe the latter decisions represent the better view.

The clause unambiguously insures vehicles acquired during the policy period, if all other vehicles owned by the policyhold- • er are insured by the company. The provision does not limit this coverage to vehicles additional in number to those owned at the time the policy is issued, nor does it exclude from the benefits of this provision new automobiles which replace an automobile owned by the policyholder at the time the policy was issued but not then insured by him.

Despite State Farm’s skillful argument, we should be unwilling to write in these restrictions on coverage of after-acquired automobiles when the policy itself does not do so. In this regard, we might note that a former automatic-coverage provision of standard policies did indeed explicitly limit it somewhat as now requested. This reenforces my view that the courts should not re-write the present broad provision so to re-include the limitations on automatic coverage now omitted by the company itself in the present standard policy issued for a premium based on this broader coverage.

The trade-in of the uninsured vehicle is not shown to have occurred on the same calendar day, nor are the transfers shown to have occurred within minutes or even moments of one another.

Even if such had been the case (as oral argument may have implied), the same reasoning affords coverage to the newly-acquired vehicle. As the Michigan Supreme Court noted in affording coverage to the new vehicle received in trade for the uninsured vehicle: The insured could not “own both at the same time. The instant title to the [uninsured] 1952 car passed to the dealer, title to the [newly-acquired] 1949 car passed to the principal defendant [the insured].” Auto Owners Insurance Co. v. Zeller, 370 Mich. 496, 122 N.W.2d 728, 729 (1963). Or, as stated in Conner v. Motors Insurance Co., 216 So.2d 555, 557 (La.App.3d Cir. 1968), “in the connotation of ordinary speech, the reference to owning two vehicles on a given date connotes simultaneous ownership of them at the same time on that day, rather than ownership of one during only one part of the day and ownership of the other during only another part of the day.”

In summary, I believe that the after-acquired 1966 Ford became entitled to automatic coverage under the terms of State Farm’s policy, despite the circumstance that it was purchased to replace an uninsured vehicle: For at the time (instant) of its acquisition, the insured had divested himself of ownership of the uninsured automobile.

IV

State Farm alternatively contends that, in any event, the named insured did not give notice to it within thirty days of acquisition of the new vehicle of his election to insure it under the present policy, as allegedly required by the after-acquired provision. See footnote 1, where the provision is quoted in full.

Preliminarily, the provision for automatic insurance of additional vehicles acquired during the policy period requires that the name insured do so either during the policy period or within thirty days of the acquisition. The intent of the provision is to give the insured whichever is the longer period. Knotts v. Hardware Mutual Casualty Co., 272 So.2d 788 (La.App.2d Cir. 1973).

In the instant case, the policy period was August 21, 1971 to February 2Í, 1972. The new car was acquired on November 19, 1971. Nevertheless, the notice period for election of coverage extended to February 21, 1972, the end of the policy period. The accident occurred on February 6, 1972, within the notice period.

State Farm points out, however, that the policyholder never did give his insurer notice of the new vehicle.

Nevertheless, the uniform jurisprudence holds that the right to coverage vests when the accident occurs during the notice period, whether or not notice has been or is subsequently given.

See: Pendleton v. Ricca, 232 So.2d 803 (La.App. 4th Cir. 1970); Mathews v. Marquette Casualty Co., 152 So.2d 577 (La.App.2d Cir. 1963), certiorari denied, 244 La. 662, 153 So.2d 880 (1963) (* * * no error of law.”) ; Annotation, Construction and application of automatic insurance clause . . . ”, 34 A.L.R.2d 936, 944 (Section 7) (1954) and Later Case Service. See also: 7 Appleman, Insurance Law & Practice, Section 4293 p. 87 (1962); 7 Blashfield, Automobile Law and Practice, Section 316.6, pp. 671-72 (3d ed. 1966); 12 Couch on Insurance, 2d 45:205, (1964).

The theory is that notice is not a condition for the coverage to exist, for the coverage is automatically extended by the policy terms upon acquisition of the new or additional vehicle whether or not notice is given and whether or not the additional premium owed has been paid. Thus, if an accident occurs during the notice period when coverage of the policy has automatically been extended to cover the after-acquired vehicle, the coverage vests at that time, even if the notice has not been and never is given.

This being so, I need not here discuss the possible application by analogy of other Louisiana jurisprudence arising out of interpretations of our direct action statute, La.R.S. 22:655 (1963). This statute permits a direct action by an injured person against the tortfeasor’s liability insurer, and it further provides that an automobile liability is issued for the benefit of injured persons and the public as well as the policyholder. In view of this, our courts have held an injured person’s direct action against the liability insurer vests at the time of the accident and cannot be defeated by subsequent acts of the policyholder, such as the willful or negligent failure to give notice of an accident.

See: Futch v. Fidelity & Casualty Co., 246 La. 688, 166 So.2d 274 (1964); West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950); Jackson v. State Farm Mutual Auto. Insurance Co., 211 La. 19, 29 So.2d 177 (1946). Cf. also, Farm Bureau Automobile Insurance Co. v. Martin, 97 N.H. 196, 84, A.2d 823, 29 A.L.R.2d 811 (1951) and the accompanying annotation at 29 A.L.R.2d 817 (1953), concerning an insurer’s liability to an injured person under policies issued by virtue of a compulsory automobile insurance law, despite a policyholder’s failure to give notice of an after-acquired vehicle.

I therefore do not find merit in State Farm’s alternative contention that the injured plaintiff’s right to recovery against the insurer should be defeated by the policyholder’s failure to give the insurer notice of the acquisition of the after-acquired vehicle.

Therefore, for the reasons assigned, the writer respectfully dissents.

      . The provision of the present 1963 standard family automobile insurance policy which applies to automatic insurance of additional automobiles is found at clause (c) (2) of the definition of an “owned automobile”, which in full states:
      “ ‘owned automobile’ means
      (a) a private passenger, farm or utility automobile described in this policy for which a specific premium charge indicates that coverage is afforded
      (b) a trailer owned by the named insured
      (c) a private passenger, farm or utility automobile ownership of which is acquired by the named insured during the policy period, provided:
      (1) it replaces an owned automobile as defined in (a) above, or
      (2) the company insures all private passenger, farm and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the company during the policy period or within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile,
      or
      (d)a temporary substitute automobile”.

      . The “Premium” condition of the policy provides for a premium adjustment to be made when the insured acquires a different or new automobile. The jurisprudence uniformly construes the additional coverage as effective despite the failure of the insured to have paid the additional premium; partly because of the absence of any policy provision depriving him of such automatic coverage, partly because the “automatic” coverage would be defeated in practically all instances due to the usual negligence or failure of the insured to give the notice to the insured on the basis of which the premium adjustment is made. Annotation, construction and application of automatic insurance clause, 34 ALR2d 926, Sections 7 and 8 (1954) and Later Case Service. See Part IV of opinion below. Presumably, in calculating the initial premium, the insurer takes into account the additional coverages which may be provided by the automatic insurance clauses of the policies issued by it and the appreciable number of instances in which the additional premium will not be collected.

      . The Third Circuit through Judge Culpepper relied too upon this broadening in the new standard family policies as a basis for affording the interpretation we too now adopt of the broader provision conferring automatic coverage on newly acquired vehicles. Collins v. Government Employees Insurance Co., 168 So.2d 415, 417 (La.App.1964).
      The superseded provision is there quoted as providing coverage for an after-acquired vehicle:
      “(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or (b) if it is an additional automobile and if the company insures all automobiles owned by the named insured at such delivery date, but only to the extent the insurance is applicable to all such previously owned automobiles." (Italics ours.)

      . This provision of the 1963 standard family automobile policy in this respect broadened the provision of the prior standard family automobile policies. The purpose of the thirty day provision is stated at Risjord-Austin, Automobile Liability Insurance Cases, Standard Provisions and Appendix 186 (1964) as: “When all automobiles are insured with the same Company, the insured may give notice of the acquisition of a newly acquired automobile at any time during the policy period, as formerly, or within 30 days after the acquisition if this period extends beyond the policy period.”