source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Albert E. SALTMARSH and Jane E. Saltmarsh, his wife, Appellants, v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE, a corporation, Appellee.
    No. 75-1822.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied May 2, 1977.
    Harris, Albury & Morgan and James T. Hendrick, Key West, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, Feld-man, Eden & Allen and Jeff D. Gautier, Key West, for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal an order granting defendant insurer’s motion to strike the prayers for punitive damages and emotional distress contained in their complaint.

Plaintiffs, Albert & Jane Saltmarsh, purchased automobile liability insurance from the defendant, Detroit Automobile Inter-Insurance Exchange, on May 10, 1971. The policy was automatically renewed from year to year. At the end of May 1973 plaintiffs received from Detroit a notice retroactively cancelling their insurance policy as of May 10,1973. On June 2 Jane was involved in a serious automobile accident. She reported the accident to Detroit and applied for benefits under the PIP and collision provisions of the policy. Detroit denied coverage and plaintiffs filed a complaint seeking the benefits due under their policy. In addition, the complaint contained prayers for damages for mental pain and suffering and punitive damages arising out of Detroit’s conduct in cancelling the policy and willfully and wantonly denying benefits to plaintiffs without regard for their rights. Detroit admitted in its answer that the cancellation was unlawful and that full benefits were due and payable, but denied liability for mental pain and suffering. Thereafter, Detroit filed a motion to strike the prayers for mental suffering and punitive damages. After hearing argument, the trial judge found as a matter of law that a cause of action does not exist under Florida law for a claim for punitive damages, emotional distress and/or mental pain and anguish arising out of the manner in which a first party insurance contract is breached in the absence of a battery. The motion was granted and plaintiffs appeal.

Butchikas v. Travelers Indemnity Company, 343 So.2d 816 (Fla.1976) is dispositive of the issues raised in this appeal.

As to the claim for punitive damages, Butchikas holds that to be entitled thereto, the case must be of the class involving deliberate, overt and dishonest dealing on the part of the insurer. The instant case does not fall within this category and, therefore, plaintiffs are not entitled to recover punitive damages.

With respect to plaintiffs’ prayer for damages for mental distress, the rule in Florida has been that, absent a physical injury, a plaintiff can recover damages for mental anguish only where it is shown the defendant acted with such malice that punitive damages would be justified. Crane v. Loftin, 70 So.2d 574 (Fla.1954); Butchikas, supra. Plaintiffs cannot recover punitive damages and, therefore, they are precluded from prevailing on their claim for damages for mental anguish.

Affirmed.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. William BARNETT, Appellee.
    No. 76-1136.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Robert R. Hagaman of Schryver, Haga-man. & Aaron, Chartered, Naples, for appel-lee.
   GRIMES, Judge.

This is an appeal from an order dismissing an indictment which was returned by the statewide grand jury and filed in Lee County.

The indictment reads as follows:

“THE GRAND JURORS OF THE STATE OF FLORIDA, pursuant to the authority vested in them by Florida Statutes 905.34, inquiring in and for the body of the County of Lee, State of Florida, other counties in the State of Florida, and elsewhere, having been duly empaneled by Order of the Supreme Court of Florida on December 18, 1974, upon their oaths present that RONNIE P. LONG of Hen-dry County; EDWARD SALEM of Dade County; ROBERT TOLAR of Hendry County; WILLIAM BARNETT of Collier County; JOHN SHEPPARD of Collier County; CORNELIUS McGILLICUDDY, JR., a/k/a CONNIE MACK, JR. of Lee County; GLENN DeVORE of Lee County; between the 1st day of October, 1975, and the 18th day of January, 1976, in the County of Lee, State of Florida, and in the County of Collier or Dade or Hendry, State of Florida, did unlawfully and felo-niously engage in a common bookmaking scheme with three (3) or more persons, contrary to Section 849.25(3), Florida Statutes, in such case made and provided and against the peace and dignity of the State of Florida.”

The indictment is subject to several criticisms. In the first place, it is woefully short of facts. Section 849.25, Florida Statutes (1975) reads in part:

“849.25 ‘Bookmaking’ defined; penalties.—
(1) As used in this section, the term ‘bookmaking’ shall be deemed to be the taking or receiving of any bet or wager upon the result of any trial or contest of skill, speed, power, or endurance of man, beast, fowl or motor vehicle.
* * * * * *
(3) Whoever engages in bookmaking to the extent that in any one day he receives or accepts more than five bets or receives bets totaling more than $500, or engages in a common bookmaking scheme with three or more persons, is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084. . . .
4c 4: 4t ft

Thus, it is apparent that the seven defendants have been charged simply by tracking the language of the statute without the allegation of any facts or circumstances concerning how the crime was allegedly committed. Yet, Fla.R.Crim.P. 3.140(d)(1) on the subject of indictments and informations specifies that each count “upon which the defendant is to be tried shall allege the essential facts constituting the offense charged.” In determining that an information failed to advise the accused as to what charge he was required to defend against, our Supreme Court in Rosin v. Anderson, 155 Fla. 673, 21 So.2d 143, 144 (1945), included the following quotation:

“ ‘The principal rule, as to the certainty required in an indictment may, I think, be correctly laid down thus: that where the definition of an offence whether by a rule of the common law or by statute, includes generic terms (as it necessarily must) it is not sufficient that the indictment should charge the offence in the same generic terms as in the definition, but it must state the species — it must descend to particulars.’ ”

More recently, in State v. Whisnant, 80 So.2d 611 (Fla.1955), the Supreme Court held invalid an information which charged a conspiracy to transmit racing information for illegal gambling purposes in essentially statutory language. The court said:

“In the case at bar failure of allegations did not concern technical or matters of common knowledge. The trial judge considered them such as made it impossible for defendants to prepare their defense. The place of the crime attempted to be alleged, that is to say the conspiracy, what the conspiracy consisted in, what race track was in the mind of the conspirators, what race or races were involved, what day or days were said races to be run. Certainly enough of these facts should have been set out in the information to charge the conspiracy. The essential allegations of fact or circumstances as contemplated by the Declaration of Rights is lacking.”

The allegations concerning the time of the offense also present problems. On this point, Fla.R.Crim.P. 3.140(d)(3) states:

“(3) Time and Place. Each count of an indictment or information upon which the defendant is to be tried shall contain allegations stating as definitely as possible the time and place of the commission of the offense charged in the act or transaction or on two or more acts or transactions connected together, provided the court in which the indictment or information is filed has jurisdiction to try all of the offenses charged.”

Informations alleging the commission of an offense “on or about” a specific date have been upheld. Sparks v. State, 273 So.2d 74 (Fla.1973). Our courts have also recognized that some crimes by their nature may be accomplished over a substantial period of time. Thus, the Supreme Court in Collier v. State, 116 Fla. 703, 156 So. 703 (1934), upheld an indictment for the conduct of a lottery alleged to have occurred on July 29, 1933, and “at divers times between July 1, 1933, and July 29; 1933.” See also Skipper v. State, 114 Fla. 312, 153 So. 853 (1934). On the other hand, the court in State v. Dayton, 215 So.2d 87 (Fla.3d D.C.A.1968), held insufficient an information which alleged that the defendants had conspired to commit grand larceny between April 1, 1965, and February 24, 1967, because there were no allegations that the conspiracy was of a continuing nature throughout the period. In Glasgow v. State, 292 So.2d 370 (Fla.4th D.C.A.1974), an information charging a conspiracy to commit bribery between February 6, 1972, and February 15, 1972, was held insufficient as a matter of law.

The common bookmaking scheme with which appellant is charged is somewhat akin to conducting a lottery in the sense that it could occur over a period of time, and it has some similarities to a conspiracy since it involves three or more persons. Yet, there is nothing in the indictment which states that the crime was continuing during the specified period or commenced at the beginning of the period and was not accomplished until the end. According to the wording of the indictment, the appellant would appear to have to be prepared to defend against proof that he was engaged in a common bookmaking scheme on any single day between October 1, 1975, and January 18, 1976.

Finally, the manner in which the venue of the crime is alleged is confusing. Perhaps this occurred because the indictment was a product of the statewide grand jury and an effort was being made to avoid the problems discussed in our recent decision in State v. Barnett, 339 So.2d 1159 (Fla.2d D.C.A.1976). Be that as it may, it is essential for an indictment to state the county within which the offense was committed. Rimes v. State, 101 Fla. 1322, 133 So. 550 (1931). The alleging of venue in the alternative is awkward because, absent a change of venue, appellant should be tried in the county where the crime is supposed to have occurred.

Indictments and informations should be upheld if they are in substantial compliance with the law. Barber v. State, 52 Fla. 5, 42 So. 86 (1906). Therefore, especially in view of the availability of a statement of particulars, it may be that no one of the deficiencies discussed above would, by itself, require the dismissal of the indictment. Yet, when the indictment is viewed in its entirety, we believe the court properly concluded that it was so vague as to prejudice the defendant in his ability to prepare a proper defense. Fla.R.Crim.P. 3.140(o). See Robinson v. State, 69 Fla. 521, 68 So. 649 (1915).

AFFIRMED.

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

      . We do expressly reject the trial court’s conclusion that the indictment was invalid on its face because it failed to allege the jurisdiction of the statewide grand jury. The court’s reasoning was predicated on the fact that the indictment reflected that the statewide grand jury had been impaneled on December 18, 1974, and there was no statement that this grand jury was lawfully entitled to issue this indictment at a time beyond the original twelve month term of the grand jury prescribed by Sec. 905.33, Fla.Stat. (1975). We believe the indictment carried with it a presumption of validity and that it would be a matter of defense to show that the necessary six months’ extension of the grand jury’s term provided by the statute had not been obtained. See English v. State, 31 Fla. 340, 12 So. 689 (1893).


text:
    STATE of Florida, Appellant, v. Edward SALEM, Appellee. STATE of Florida, Appellant, v. Glenn DeVORE, Appellee.
    Nos. 76-1131 and 76-1135.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Julian Clarkson and Frank C. Alderman, III, Fort Myers, for appellees.
   PER CURIAM.

Affirmed on the authority of State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977).

HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert TOLAR, Appellee. STATE of Florida, Appellant, v. Ronnie P. LONG, Appellee. STATE of Florida, Appellant, v. John SHEPPARD, Appellee.
    Nos. 76-1132-76-1134.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    E. G. Couse, of Grace, Falbey & Couse, P. A., Fort Myers, for appellees.
   PER CURIAM.

Affirmed on the authority of State v. Barnett, 344 So.2d 863 (Fla.2d DCA 1977).

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    George Washington SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1110.
    District Court of Appeal of Florida, Fourth District.
    March 15, 1977.
    Rehearing Denied May 5, 1977.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, and George Washington Smith, in proper person, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

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

ANSTEAD, J., dissents.

ANSTEAD, Judge,

dissenting:

The State fell far short of its burden to prove, by clear and convincing evidence, that consent to search was freely and voluntarily given by the defendant.

George Washington Smith, characterized by the trial court as a known alcoholic, was arrested after an accident on March 2,1975 for driving a motor vehicle while under the influence of alcoholic beverages. Between 11:00 a. m. and 11:30 a. m., Smith was given a breathalizer test and scored .30, well above the statutory presumption of intoxication of .10. At the time he was arrested he made several statements, naming his lawyer and declaring that his lawyer would take care of his situation. The arresting officer reported that Smith was happy-go-lucky, singing, incoherent, and unconcerned about any possible penalties for his conduct.

Several hours later, Smith was questioned in his jail cell by another police officer who was seeking a signed consent by Smith to search Smith’s motor vehicle. Smith was advised that the police wanted to search his vehicle to look for “evidence that was used in the arson on Pershing Avenue.” Smith was told that he didn’t have to give permission, but if he didn’t a search warrant would be obtained. Smith was then given a written consent from which he read and after reading said, “I would like to call my attorney, Mr. Kirkland.” It was the police officers understanding of this statement that Smith wanted to call his attorney and discuss the consent form with him. Thereafter, in a manner that the police officer could not recall, the subject of Smith’s attorney was passed over; and after more conversation Smith eventually signed the consent form. At no time was a telephone offered to Smith or permission granted to call his attorney before the consent was signed.

This court, in Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976), invalidated a consent given after the defendant was told a search warrant would be obtained the next day, anyway, if he refused to give consent. And, in State v. McClamrock, 295 So.2d 715 (Fla. 3rd DCA 1974) the Third District held that a consent was invalid when secured several hours after a defendant had requested an attorney. The Third District relied on the principle set out in Miranda v. Arizona that all interrogation must cease when the defendant asks for counsel. While recognizing that Miranda type warnings are not required in consent cases, the Third District noted:

“Theoretically, when the defendants asked to see a lawyer, all police interrogation should have ceased at that point in accordance with Miranda. It, therefore, defies both logic and common sense that absent a lawyer and absent further police questioning, the defendants some five hours after requesting an attorney would have voluntarily relinquished their right to have their apartment remain free from a police search without a warrant.”

Smith, an acknowledged alcoholic and in a clear state of intoxication a few hours earlier, specifically asked for an attorney in connection with the consent sought. He was told a warrant would be secured if he didn’t sign the consent. The State maintains that Smith then voluntarily withdrew or waived his right to counsel and signed the consent. However, the State, through the testimony of the police officer, could not explain what took place between the time the request for counsel was made-and the consent was signed: “Like I said, I can’t remember who started talking about the form, but the form was brought back up and the form was discussed further.”

Under the circumstances of this case I would reverse on the grounds that the State did not, by clear and convincing evidence, prove that consent to search was given freely and voluntarily by the defendant.

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 295 So.2d 715 at 718.


author: McNULTY, Judge.

text:
    STATE of Florida, Appellant, v. Jesse O. BURKETT et al., Appellees.
    No. 76-695.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Rehearing Denied April 20, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    E. G. Couse of Grace, Falbey & Couse, Fort Myers, for Burkett.
    Wilbur C. Smith, III, Smith & Carta, Fort Myers, for Van Lawrence and Darby.
   McNULTY, Judge.

The information filed herein charging ap-pellees with conspiracy to tamper with a witness was dismissed for vagueness. We reverse.

The information alleged that Jesse 0. Burkett, Paul Van Lawrence, and Charles Darby, in Lee County,

“[D]id unlawfully, feloniously, and intentionally agree, conspire, combine or confederate to commit tampering with witness, inasmuch as the above defendants between September 9,1975 and September 23, 1975 did by the use of threat or offer of pecuniary benefit knowing that an official proceeding or investigation by a duly constituted prosecuting authority was pending, endeavor or attempt to induce or otherwise cause a witness, RUSSELL D. GOFF, to testify falsely or withhold testimony.”

Fla.R.Crim.P. 3.140(o) provides that no information shall be dismissed on account of any defect in the form or for any cause whatsoever, unless the court shall be of the opinion that the information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense. We think the information herein is not infirm for the reasons proscribed in the rule. On the contrary, we feel that the information is fully and sufficiently clear. Appellants were advised precisely of all the whys, hows and wherefores of the charge.

To begin with, the charge was laid in essentially the language of the applicable statutes. Ordinarily, this is sufficient and we do not see why it should be any different here.

Secondly, the gravamen of a criminal conspiracy being the criminal intent to commit a substantive offense formed by and through the confederation or agreement of two or more persons, no overt act need be alleged. The fact that an overt act is indeed alleged and, as in this case, such overt act constitutes the substantive offense itself is of no consequence. It is settled that, subject to any applicability of the doctrine of merger, one may be charged with and convicted of the crime of conspiracy to commit a substantive offense as well as the substantive offense itself even though the substantive offense is also charged in the conspiracy count as the overt act done pursuant to the conspiracy.

Thirdly, the time and place of the offense was set forth and the identity of the witness to be tampered with was alleged. As to the alleged material times, since the nature of the offense (conspiracy) is such that it can be accomplished by divers acts over a period of time rather than by a single occurrence, the 14-day span between September 9 and September 23 is not so vague or long a period as to embarrass appellees in their defense of the charge or preclude a possible double jeopardy defense upon a subsequent prosecution; and this is the real test of vagueness even though additional details may be required via a bill of particulars.

Finally, we reject appellees’ argument that the charge is bad because the nature and description of the “official proceeding or investigation” in which the named witness was to testify was not set forth. While these facts may unquestionably be relevant they need not be alleged in the information, in default of which the information would be too “vague” to stand. Such details again are easily obtained by, and are amenable to an order for, a bill of particulars.

In view whereof, the order dismissing the information herein should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J., and HOBSON, J., concur.

      . See § 833.04, Fla.Stat. (1973), relating to “conspiracy to commit [this class of] felony” and § 918.14, Fla.Stat. (1973), relating to tampering with a witness.

      . See, e. g., Parker v. State, 276 So.2d 98 (Fla. 4th DCA 1973).

      . See State v. Trafficante, 136 So.2d 264 (Fla. 2d DCA 1961).

      . See, 16 Am.Jur.2d, Conspiracy, § 5 at p. 130.


text:
    Carol Jean SHERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 75-572.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant-defendant, Carol Jean Sherman, appeals a judgment of guilty and imposition of sentence from a conviction for assault and battery.

Appellant was charged by information with aggravated assault. After a jury trial, appellant was found guilty of assault and battery. The appellant was adjudged guilty and sentenced to one year imprisonment, after serving four months she was to be placed on probation for one year and eight months.

The sole question presented for our determination is whether the trial court had authority to impose probation beyond the period of maximum sentence.

This question has recently been answered by this court in Holmes v. State, 343 So.2d 632 (Fla. 4th DCA, opinion filed February 11, 1977); and Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA, opinion filed February 25, 1977). A trial judge is permitted to enter a split sentence but the combined period cannot exceed the maximum period of time provided for that particular crime. The probationary sentence in this case is excessive by one year. Appellant’s sentence is hereby modified to eliminate the last year of her probationary period.

As modified the judgment and sentence are affirmed.

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


author: DAUKSCH, Judge.

text:
    MONDE INVESTMENTS NO. 2, INC., Appellant, v. R. D. TAYLOR-MADE ENTERPRISES, INC., et al., Appellees (two cases).
    Nos. 75-1997, 75-1998.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.

      Leonard L. Stafford, Port Lauderdale, for appellee Hardrives Co., Inc.
   DAUKSCH, Judge.

These two cases were presented to us jointly but we shall determine them separately in this opinion as we did in our considerations. They both involve the same Appellant who was the Defendant below and the owner of a building for which the Appellees provided goods and services. The Appellee-Taylor did not file a brief and therefore was not able to participate in the oral argument making our consideration of this matter much more difficult than it should have been.

We shall first consider the appeal as it concerns the Appellee-Taylor. It appears from the complaint and other documents in the record that Taylor wanted to foreclose a mechanic’s lien against the property owned by the Appellant for certain work done to improve the real property. The particular work in question here is the finishing of some portions of the exterior of the building. Initially Taylor agreed to build the office building for $242,000 including the finishing of the exterior, 12,000 square feet, for $1.00 per square foot. At trial the court permitted Taylor to attempt to prove an “extra” as defined in Section 713.01(5), Florida Statutes (1975). In order for Taylor to prove this extra he had to do it by offering parol evidence to change the terms of a written contract. This was error. The Order of the trial court awarding Judgment to R.D. Taylor-Made Enterprises, Inc. against the Appellant is reversed. The Ap-pellee-Taylor not having been the prevailing party is therefore not entitled to attorneys’ fees below and the award of those attorneys’ fees is reversed.

Also, we must reverse the Judgment of the trial court against the Appellant in favor of the Appellee-Hardrives. This Appellee provided the paving around the building and was one of the last, if not the last, providers of services and material. He came in just as the money ran out. Har-drives was not in privity with the owner and is entitled to a lien under Section 713.-06, Florida Statutes (1975). The Appellant properly complied with all the requirements under Chapter 713, Florida Statutes and held back 10% of the original contract price as required under Section 713.06(3)(d)(5), Florida Statutes (1975) in order to pay Har-drives and all those similarly situated. The unfortunate part is that the 10% held back is not enough to cover the amount due Hardrives under contract and no improper payments by the owner were shown to have been made as contemplated in Section 713.-06(3)(h), Florida Statutes (1975). Therefore, Hardrives must accept its proportionate share of the 10% retained amount which was in the amount of $3,944.60. We are compelled to note the Appellee-Hardrives would have us change the law as we may feel we should but we have determined we cannot.

We further note that before the complaint was filed against Monde by Hardrives, Monde offered to pay to Hardrives the amount to which Hardrives was entitled, $3,944.60. Since Hardrives did not accept the amount it should have accepted it was not the prevailing party in this lawsuit as defined in Section 713.29, Florida Statutes (1975). Therefore, we most reluctantly must reverse the additional Judgment against Monde in favor of Hardrives which awarded attorney’s fees to the attorney for Hardrives.

The Judgments in favor of Hardrives Co., Inc. and R.D. Taylor-Made Enterprises, Inc. against Monde Investments No. 2, Inc., are REVERSED.

LETTS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . Evidence of this type of “offer of settlement” is peculiarly permitted in mechanics’ lien cases.


author: DOWNEY, Judge.

text:
    The CITY OF BELLE GLADE, Florida, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Appellee.
    No. 76-83.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.

      John E. Baker, Belle Glade, for appellant.
    Paul B. Erickson of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for ap-pellee.
   DOWNEY, Judge.

Florida East Coast Railway Company sued the City of Belle Glade to enjoin the City from constructing and maintaining a railroad crossing across the railway’s right-of-way in the City of Belle Glade without complying with the provisions of Section 338.21, Florida Statutes (1973). The Railway contended that before the City could open such a crossing Section 338.21(3), Florida Statutes (1973), required it to apply to and obtain a permit from the Department of Transportation. The trial court granted a permanent injunction in accordance with the prayer of the complaint and the City has perfected this appeal.

Some additional facts reflected by the record are essential to a complete understanding of the issues presented.

In 1972 the City filed an eminent domain proceeding to acquire an easement across the Railway’s right-of-way for the proposed crossing involved in this litigation. Although the Railway asserted as a defense the failure of the City to comply with Chapter 72-165, Laws of Florida (which amended Section 338.21 by adding subsection (3) thereto), the court entered an Order of Taking which granted the City a perpetual easement over the Railway’s right-of-way. However, as the appellant City sets forth in its brief, the 1972 eminent domain is still pending.

In 1975 the City notified the Railway that it intended to commence work on the installation of a road crossing on said easement. That notification precipitated this injunction suit by the Railway.

The City contends that the trial court erred in granting the injunction because: a) Section 338.21, Florida Statutes (1973), the statute which, among other things, authorizes the Department of Transportation to require a city to obtain a permit before opening and closing railroad crossings, is unconstitutional; b) the court previously held in the proceedings preceding the entry of the Order of Taking that Section 338.21, Florida Statutes (1973) was not applicable to this crossing; and c) Section 338.21, Florida Statutes (1973), is not applicable to the proposed crossing because of a savings clause contained therein. We have considered all points raised by the City and found them to be without merit.

In its first point the City contends Section 338.21 is unconstitutional because it is vague and contains inadequate guidelines in delegating regulatory authority. In order to test this thesis it is necessary to consider other sections of the statutes which are in pari materia with Section 338.-21. That section is included in a chapter that is but one part of the six part Florida Transportation Code found in Chapters 334 to 339, inclusive, of Florida Statutes 1973. Section 334.02, Florida Statutes (1973) is a “Declaration of legislative intent.” That declaration sets forth numerous legislative guidelines for the Department of Transportation to follow in carrying out its functions under the Florida Transportation Code. Other limitations upon the Department’s exercise of this authority are found in Chapter 338. For example, prior to the adoption of rules and regulations relating to the opening and closing of railroad crossings, the Department is required to give notice thereof and hold public hearings pursuant to the provision of the Administrative Procedure Act, Section 120, Florida Statutes (1973). See Section 338.21(5). Suffice it to say that our study of the entire Florida Transportation Code convinces us that the constitutional attack upon Section 338.21, Florida Statutes (1973), is unfounded.

Another point which warrants discussion is the City’s contention that the applicability of Section 338.21, Florida Statutes (1972), was decided adversely to the Railway by the Order of Taking entered in the eminent domain proceeding between the same parties. This position is unsound. Because the eminent domain proceeding is still pending, the Order of Taking, is not a final appealable order. Central Hanover Bank & Trust Co. v. Pan American Airways, Inc., 126 Fla. 736, 171 So. 808 (1937). And, contrary to the City’s position, the Railway had no duty to take an interlocutory appeal from the Order of Taking. (Fla. App. Rule 4.2a, which governs interlocutory appeals, starts out by providing that “Appeals may be prosecuted in accordance with this rule . . . .” It goes on to provide that “Nothing in this rule shall preclude the review of an interlocutory order in a civil action on appeal from the final judgment . .”) Moreover, it is not at all clear that the Railway had the right to an interlocutory appeal from the Order of Taking. See Camp Phosphate Company v. Marion County, 194 So.2d 302 (Fla. 1st DCA 1967); Trien v. Dade County, 222 So.2d 456 (Fla. 2d DCA 1969). Of course, in order for a matter to be res judicata it must be the subject of a final judgment. See 19 Fla. Jur., Judgments And Decrees, § 132.

Finally, the City urges that the savings clause of Section 2 of 72-165, Laws of Florida (1972), which provides: “All laws or parts of laws in conflict herewith which are not currently in litigation are repealed.” makes Section 338.21, Florida Statutes (1973), inapplicable to the proposed crossing. We reject this interpretation of the statute as did the trial judge. The clause in question refers to pending litigation involving statutes in conflict with Chapter 72-165. Thus, it does not refer to litigation such as the pending eminent domain suit.

Accordingly, since no error has been demonstrated the judgment appealed from is affirmed.

ALDERMAN, J., and DURANT, N. JOSEPH, Associate Judge, concur.

      . “338.21 Elimination of railway-highway crossing hazards.—
      “(1) The department of transportation, in cooperation with the several railroad companies operating in the state, shall determine and adopt a program for the expenditure of moneys now available, and of the moneys to become available, for the construction cost of projects for the elimination of hazards of railway-highway crossings.
      “(2) Every railroad company maintaining a railway-highway crossing shall, upon reasonable demand and notice from the department, install maintain, and operate at such crossing an automatic flashing light signal and ringing bell, the design of which shall be approved by the department so that it will give to the users of such road reasonable warning of the approach of trains or cars on the tracks of said railroad company, the cost of such signals and the expense of installation to be paid from the moneys described in subsection (1).
      “(3) The department shall have regulatory authority over all public railroad crossings in the state, including the authority to issue a permit for the opening and closing of such crossings.
      “(4) The department is authorized to regulate the speed limits of railroad traffic on a municipal, county, regional, or statewide basis.
      “(5) Prior to the adoption of any rule or regulation opening or closing such crossings or of any rule or regulation fixing such speed limits, due notice shall be given and a public hearing shall be held by the secretary of the department or his duly authorized hearing officer, pursuant to the provisions of chapter 120 Florida Statutes, the Administrative Procedure Act.
      “(6) Review of such rules and regulations shall be by writ of certiorari as provided in chapter 120, the Administrative Procedure Act. Jurisdiction to enforce rules and regulations so adopted shall be as provided in § 316.016 Florida Statutes, and any penalty for violation of a rule and regulation so adopted shall be imposed upon the railroad company. Nothing herein shall prevent a city, county, or other public authority from passing an ordinance relating to the blocking of a crossing as provided in chapter 351.”


author: WEAVER, SIDNEY M., Associate Judge.

text:
    George Alfred SANDERS, Appellant, v. STATE of Florida, Appellee. Bobby Eugene JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-307, 76-308.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, and Larry Weaver, Legal Intern, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   WEAVER, SIDNEY M., Associate Judge.

Appellants filed this timely consolidated appeal from convictions of robbery and subsequent sentences. Two points of error are urged for our consideration: (1) the State failed to prove commission of a larceny in its prosecution for robbery and (2) the exclusion by the trial court of a statement made by one defendant to the other immediately prior to the alleged robbery.

We find merit to the appellants’ first point and reverse, thus rendering the second point unnecessary for our determination.

The victim left a bar in the early morning hours with forty dollars in his wallet, located in a back pocket of his pants. Appellants, also inside the bar, chased him and when he stumbled and fell, helped him to his feet. After this incident the victim discovered his wallet and money to be missing. Witnesses testified to various versions of the incident. One witness indicated he “thought” the appellants went into the victim’s pocket and threw something into a nearby canal which contained approximately five inches of water. Another witness stated that he saw the appellants pick the victim’s pocket but later admitted he noticed only a downward motion of the hand. Still another witness stated the appellants made their motion toward the victim’s front pocket. The victim testified he kept his wallet in his back pocket and that he did not remember anyone reaching into his pocket although he later amended his statement to indicate that the appellants searched his pockets. The appellants remained at the scene and a search, by the police, of the appellants and the canal failed to reveal the “missing” wallet and money.

After a careful review of the record and the arguments of counsel, we reach the conclusion that the element of “taking”, or larceny, has not been proved by the State. By inference it may be said that the victim’s wallet was present before the incident and missing after the incident and therefore taken by the appellants. But this is not sufficient as circumstantial evidence must be so strong and convincing as to exclude every reasonable hypothesis except the defendants’ guilt and must exclude any reasonable hypothesis of the defendants’ innocence. Smith v. State, 276 So.2d 91 (Fla. 4th DCA 1973). The evidence in the instant case falls short of the mark as a matter of law.

REVERSED.

DAUKSCH and LETTS, JJ:, concur.


author: ALDERMAN, Judge.

text:
    Dawn Marie REID by her next friend Margaret Henshall, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation et al., Appellees.
    Nos. 76-619, 76-1532.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.

      S. Victor Tipton, Orlando, for appellant.
    James O. Driscoll, of Driscoll, Langston & Layton, Orlando, for appellee, State Farm Fire and Cas. Co.
   ALDERMAN, Judge.

Dawn Marie Reid seeks review of two summary final judgments. Pleading alternatively, she sought judgment against State Farm Fire and Casualty Company for injuries received by her as a passenger in an automobile driven by her sister, owned by her father, and insured by State Farm. Separate appeals have been consolidated. The first appeal challenges a provision of the policy which excludes liability coverage for injury of a family member residing in the same household as the insured. In the second appeal, appellant contends that if there is no primary coverage by reason of the family-household exclusion, she is covered by the uninsured motorist provision of the policy. We affirm the judgment in each appeal.

FIRST APPEAL

Appellant’s father obtained an automobile liability insurance policy on the family car. State Farm agreed to pay on behalf of its “insured” all .sums which the insured should become legally obligated to pay as damages because of bodily injury sustained by other persons caused by accident arising out of the ownership, maintenance or use of this car. The unqualified' word “insured” was defined to include any person while using the car, provided the operation and the actual use of the car were with the permission of the named insured. At the time of the accident, appellant’s sister was driving their father’s car with his permission. Her sister therefore qualified as an “insured” under the terms of the policy.

Appellant filed suit against her sister and State Farm alleging that she was injured as a proximate result of her sister’s negligence. State Farm denied liability, relying upon a provision in the policy that the insurance does not .apply to bodily injury to any insured or any member of the family of an insured residing in the same household as the insured. Appellant and her sister resided in the same household. If the exclusion is valid, it applies.

It is generally accepted, in the absence of a statutory prohibition, that provisions of automobile liability insurance policies excluding from coverage members of the insured’s family or household are valid. 46 A.L.R.3d 1024. This is also the rule in Florida. Newman v. National Indemnity Company, 245 So.2d 118 (Fla. 3d DCA 1971); see also Zipperer v. State Farm Mutual Automobile Ins. Co., 254 F.2d 853 (5th Cir. 1958). The reason for the exclusion is obvious: to protect the insurer from over friendly or collusive lawsuits between family members.

Appellant contends that Florida law does prohibit the use of the family-household exclusion in automobile liability insurance policies. The basis of her argument is the Florida Automobile Reparations Act, which became effective January 1, 1972. Specifically, she relies upon the language of Section 627.733, Florida Statutes (1975).

One of the express purposes of the Act is to require medical, surgical, funeral and disability insurance benefits to be provided without regard to fault under motor vehicle policies that provide bodily injury and property damage liability insurance. Section 627.731, Florida Statutes (1975). The policy in this case does provide for payment of the “no fault” benefits in accordance with the Act. No issue has been raised concerning the payment of these benefits.

The Act is limited in scope and is separate from the Financial Responsibility Law, Chapter 324, Florida Statutes (1975). The provision of Section 627.733, that every owner or registrant of a motor vehicle required to be registered and licensed in the state shall maintain security, must be read in context with the rest of the Florida Automobile Reparations Reform Act. In this context, the purpose of the required security is clearly to provide financial responsibility to pay any “no fault” personal injury protection benefits due under Section 627.736. Except for providing security for this “no fault” coverage, the Florida Automobile Reparations Reform Act can not reasonably be construed to require an additional or different proof of financial responsibility than is required by the Financial Responsibility Law.

Although it is certainly within the power of the Legislature to prohibit all family-household exclusions in automobile liability insurance policies, we hold that it did not do so by its enactment of the Florida Automobile Reparations Reform Act. The summary final judgment in Case No. 76-619 is affirmed.

SECOND APPEAL

Appellant contends that if she cannot recover upon the first appeal, she can recover under the uninsured motorist provision of the policy, which provides uninsured motorist coverage to her father and the members of his family residing in the same household. However, another exclusion provides that an “uninsured motor vehicle” may not be the vehicle defined in the policy as the insured motor vehicle. In other words, her father’s ear can not be an uninsured motor vehicle under the terms of the policy, even though, as we held in the first appeal, it is in fact uninsured as to her.

We hold that the family car in this case is not an uninsured motor vehicle. It is insured and it does not become uninsured because liability coverage may not be available to a particular individual. Taylor v. Safeco Insurance Co., 298 So.2d 202 (Fla. 1st DCA 1974); Centennial Insurance Co. v. Wallace, 330 So.2d 815 (Fla. 3d DCA 1976).

We recognize, as a general rule, that an insurer may not limit the applicability of uninsured motorist protection. Hodges v. National Union Indemnity Company, 249 So.2d 679 (Fla.1971); Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971); Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla.1972). We believe, however, that the present case is factually distinguishable from previous cases and is an exception to the general rule. Here the family car, which is defined in the policy as the insured motor vehicle, is the same vehicle which appellant, under the uninsured motorist provision of the policy, claims to be an uninsured motor vehicle. We find no merit in appellant’s argument that this exclusion conflicts with Section 627.727, Florida Statutes (1975).

We have considered the recent case of Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla. 2d DCA 1976). That decision may be distinguished factually from the present case because the “uninsured motor vehicle” which caused the injury in Lee was not the same vehicle as the “insured motor vehicle” named in the policy. Also, in Lee the court was not dealing with a policy provision which provides that the term “uninsured motor vehicle” does not include the vehicle named in the policy as the “insured motor vehicle.” However, even with these factual distinctions we recognize that there is an underlying conflict between the two cases. The court in Lee appears to say that all restrictions on uninsured motorist coverage, without exception, are against public policy and are. void. On the other hand, we say that the particular restriction on uninsured motorist coverage in the present case is not against public policy and is not void. To hold otherwise in this case would completely nullify the family-household exclusion.

The summary final judgment in Case No. 76-1532 is affirmed.

LETTS, J., and CLARK, HAROLD R., Associate Judge, concur.


text:
    Sylvia BURLAND et al., Appellants, v. HASAM REALTY d/b/a Diplomat Hotel, Inc., Appellees.
    No. 76-643.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Frank X. Gliozzo, Coral Gables, for appellants.
    Glenn P. Falk of Preddy, Haddad, Kut-ner, Hardy & Josephs, Miami, for appellees.
   DAUKSCH, Judge.

This is a personal injury case wherein the Appellant alleged she slipped and fell as a result of the negligence of the Appellee. Upon a review of this matter we find the trial court erred in granting a Summary Judgment for the Appellee because genuine issues of fact remain to be resolved by a trier of the facts. Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976); Topercer v. Knox, 330 So.2d 520 (Fla. 4th DCA 1976); Clark v. Van De Walle, 332 So.2d 360 (Fla. 2d DCA 1976).

REVERSED and REMANDED.

MAGER, C. J., and WEAVER, SIDNEY M., Associate Judge, concur.


text:
    The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Appellant, v. Juan PINON, Appellee.
    No. 76-97.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied May 4, 1977.

      Shutts & Bowen and Don A. Lynn, Miami, for appellant.
    West, Friesner, Goldman & Major, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant-insurer, defendant below, appeals from a final judgment rendered in favor of appellee-insured, plaintiff below, which incorporated by reference a prior partial summary judgment entered in ap-pellee’s favor on the issue of liability, awarded damages and assessed attorneys’ fees against appellant.

Appellee’s wife and daughter were injured in an automobile accident in Dade County, Florida. As a result of said injuries, appellee sought and received personal injury protection benefits from his “no fault” insurance carrier, Allstate Insurance Company. Appellee also sought recovery of benefits allegedly due and owing under a lifetime major medical expense policy, issued by appellant.

Appellant denied policy coverage by reason of the fact that the insured’s claim did not exceed the “deductible amount” set forth in the policy, in that the insured had received benefits under “other medical expense coverage” as defined in the policy equal to the amount of “covered charges” incurred by him as a result of the subject accident.

In response to said denial, appellee filed suit seeking benefits under the policy, attorneys’ fees, interest and costs. After discovery, both parties moved for partial summary judgment on the liability question. By order dated August 12, 1975, the court denied appellant’s motion for summary judgment while granting appellee’s motion. The reasoning of the court appeared to be based upon an alleged ambiguity in the pertinent section of the insurance contract, which, in light of the applicable rules of construction, the trial judge construed in favor of appellee.

On December 17, 1975, subsequent to a hearing held to assess attorneys’ fees and pursuant to an agreement of the parties with respect to the amount of damages, the court entered its final judgment in favor of the insured. This appeal follows.

The only question of import raised in this appeal is whether the following provision from appellant’s insurance policy is ambiguous and therefore to be construed against appellant-insured and in favor of appellee-insured.

“Other Medical Expense Coverage. As used in this policy, the term ‘Other Medical Expense Coverage’ means coverage provided for hospital, surgical or other medical expenses by any other insurance or welfare plan or prepayment arrangement (including Blue Cross and Blue Shield plans), whether provided on an individual or family basis or in a group basis through an employer, union or membership in an association . . [Emphasis added.]

Appellee argued at trial, and so contends here, that the above provision excludes no-fault insurance coverage from the definition of “other medical expense coverage” or at best, is so ambiguous as to require interpretation against the insurer. We disagree.

Generally speaking, it is true that where the terms of an insurance policy are ambiguous, they should be construed most strongly against an insurer so as to allow greater indemnity. Travelers Indemnity Company v. Kassner, 322 So.2d 80 (Fla.3d DCA 1975). However, the above rule demanding strictness in construing an insurance contract should not extend to adding meaning to language that is clear. Ringenberger v. General Accident Fire and Life Assurance Corporation, 214 So.2d 376 (Fla.4th DCA 1968), cert. denied Fla., 232 So.2d 381.

In construing the provisions of any insurance contract, «a court is bound to give the language therein its plain and normally accepted meaning. Fontainebleau Hotel Corp. v. United Filigree Corporation, 298 So.2d 455 (Fla.3d DCA 1974); National Union Indemnity Company v. Hodges, 238 So.2d 673 (Fla.3d DCA 1970).

With the above in mind, after reading the above quoted provision and applying a practical, reasonable interpretation to said language, we are of the opinion that no ambiguity exists. Travelers Indemnity Company v. Milgen Development, Inc., 297 So.2d 845 (Fla.3d DCA 1974). Therefore, it was error for the trial judge to enter partial summary judgment in favor of the insured based upon the aforementioned rule pertaining to ambiguous provisions in insurance contracts.

After having considered the record, all points raised in the briefs and arguments of counsel, we conclude that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed must be reversed and remanded with directions to the trial judge to enter summary judgment in favor of appellant-insurer.

Reversed and remanded with directions.


author: HENDRY, Chief Judge.

text:
    EASTLAND INVESTMENT COMPANY et al., Appellants, v. Thompson S. BAKER et al., Appellees.
    Nos. 76-228 and 76-307.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied May 4, 1977.

      Richard F. Hayes, Coral Gables, for appellants.
    Julian H. Kreeger, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   HENDRY, Chief Judge.

Appellants, defendants below, bring this consolidated appeal from two judgments of the trial court, to-wit: a partial summary judgment and a final judgment of foreclosure.

The only question presented for our determination is whether there remained genuine issues of material fact left unresolved, precluding the entrance of summary judgment and subsequent final judgment and foreclosure.

Briefly stated, the facts are as follows: Appellees, trustees of Barnett Mortgage Trust, instituted suit to foreclose upon a mortgage and note executed by appellant Eastland Investment Company and assumed by appellant Palmetto Associates, Ltd. Appellants filed an answer raising the affirmative defenses of usury and negligent disbursements of construction loan funds.

At summary judgment hearing, it was uncontroverted that the principle and interest due on the loans had not been paid, the construction project had been halted and taxes were in arrears. It was also uncon-tradicted that, pursuant to the loan agreement, appellants had undertaken the responsibility of being their own supervising architect and had the duty to insure the quality of workmanship at the construction project before certifying draw requests to appellee for additional disbursements of the construction loan.

Appellants filed affidavits in opposition to summary judgment based upon their aforementioned affirmative defenses. The trial judge was of the opinion that the affidavits and affirmative defenses of ap-pellees were insufficient to preclude entrance of summary judgment. We agree with the trial judge and affirm.

In light of the terms of the construction loan agreement which specified that appellants would insure that the project was completed timely and in accordance with specifications, we find no merit in appellants’ barren allegation that appellees were negligent in not inspecting the construction site before disbursing funds in reliance upon appellants’ certification of draw requests. Cf. Rice v. First Federal Savings and Loan Association of Lake County, 207 So.2d 22 (Fla.2d DCA 1968).

In addition, appellants’ affidavit alleging usury was devoid of any independent calculations evidencing the conclusions expressed therein, as requested by the trial judge. Without such calculations, the affidavit amounted to a bare conclusion and was thus insufficient to generate an issue of material fact, in view of the abundance of evidence furnished by appellees showing a non-usurious interest rate. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965).

In conclusion, after reviewing the record, all points in the briefs and arguments of counsel, we are convinced that no genuine issue of material fact remained and that appellees were entitled to a summary judgment as a matter of law. Pratt v. Lavender, 319 So.2d 88 (Fla.2d DCA 1975).

Affirmed.


author: BOYER, Chief Judge.

text:
    In re ADOPTION OF Robert Charles SCOTT, an adult.
    No. DD-306.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Rehearing Denied May 11, 1977.
    Clyde N. Wells, Jr., Jacksonville, for appellant.
   BOYER, Chief Judge.

This is an appeal by a prospective adoptive father from a final order dismissing without prejudice his petition for adoption of an adult for failure to prosecute with diligence. (See Popkin v. Crispen, 213 So.2d 445 (Fla.4th DCA 1968), cert. den. 222 So.2d 748 (Fla.1969).) Although filed as an appeal from a final order, it is in fact an interlocutory appeal (Fla.App. Rule 4.2a) and we will treat it as such. (Fla.App. Rules 3.2 and 4.2 ; Crepaldi v. Wagner, 128 So.2d 759 (Fla.1st DCA 1969); Jonton, Inc. v. Fidelity Mortgage Investors, 329 So.2d 45, 46 (Fla.1st DCA 1976).)

The record reveals that the petition was filed in early April 1976, and that two amended petitions were filed prior to the trial court’s final order of August 27. In none of those petitions, however, was the mandate of Section 63.062(3)(b), Florida Statutes (1975), complied with. As statutes providing for adoption of adults are in derogation of the common law, such statutes must be strictly construed. (In Re: Adoption of Miller, 221 So.2d 73 (Fla.4th DCA 1969).) The statute clearly provides that the natural parents must either consent to the proposed adoption or that the prospective adopter file proof of service of process upon the natural parent or parents who have not so consented. In the instant case, however, although three petitions have been filed, each reciting the address of the natural father, there is no indication that the natural father consents to the adoption nor that the natural father was served with notice of the proceeding. Having thus failed to comply with the obvious terms of the statute, it cannot be said that the petition was being diligently prosecuted nor that the trial judge abused his discretion in dismissing it. Further, the dismissal being without prejudice, the petitioner is free to refile in compliance with law.

AFFIRMED.

RAWLS and McCORD, JJ., concur.

      . “(3) A petition to adopt an adult may be granted if:
      (a) . . .
      (b) Written consent to adoption has been executed by the natural parent or parents, if any, or proof of service of process has been filed, showing notice has been served on the parent or parents as provided herein.”

      . A written consent was filed by the adult sought to be adopted, his spouse and his natural mother.


author: PER CURIAM. DOWNEY, Judge,

text:
    Gary Albert RECHT, Appellant, v. STATE of Florida, Appellee.
    No. 75-984.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Richard L. Jorandby, Public Defender, and Channing E. Brackey, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Margarita Esquiroz, Asst. Atty. Gen., and Gary S. Rackear, Legal Intern, Miami, for appellee.
   PER CURIAM.

Appellant, Gary Albert Recht, was charged by an amended information with delivery of methylenedioxyamphetamine, a hallucinogenic drug commonly called MDA. Appellant entered a plea of nolo contendere to the charge. The trial court, withheld adjudication of guilt, suspended the imposition of sentence, and placed the appellant on probation. Subsequently, on April 28, 1975, an order was entered revoking probation. Also entered on April 28, 1975 was a judgment of adjudication of guilt with the imposition of a sentence. On May 22, 1975 a notice of appeal from the order revoking probation was filed. No appeal was taken from the entry of the judgment of guilty and imposition of ’sentence.

On appeal appellant attacks the judgment and sentence from which no appeal was taken and over which, by lack thereof, we have no jurisdiction. Therefore, no error having been demonstrated by appellant as to the order revoking probation, we affirm.

Affirmed.

CROSS and ALDERMAN, JJ., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

Unquestionably the appellant erred in failing to designate the judgment and sentence of April 28, 1975, in his notice of appeal. However, it is quite clear from the record that appellant intended all along to have the judgment and sentence of April 28, 1975, reviewed, together with the order of April 28, 1975, revoeating probation which was designated in the notice of appeal.

In State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967), the Supreme Court set out the significant factors for an Appellate Court to consider in determining whether a notice of appeal is adequate to vest jurisdiction in the appellate court where the notice erroneously designates the order appealed from. Those factors are:

“ . . . [Pjroper identification of the litigation in the notice, a clear intent to prosecute an effective appeal, specification of errors reviewable only upon appeal from the final judgment, presentation of a record sustaining such an appeal, and the absence of any record basis for genuine prejudice as a result of the defective notice.”

This resolution of the problem has been followed by the Supreme Court in De Loache v. De Loache, 274 So.2d 883 (Fla.1973), by this Court in Kucera v. Kucera, 330 So.2d 36 (Fla. 4th DCA 1975), and Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976), and the Second District Court of Appeal in Hanna v. American International Land Corporation, 289 So.2d 756 (Fla. 2d DCA 1974).

Here the notice of appeal properly identifies the litigation; it is evident appellant intended to present an effective appeal; one of the assignments of error is reviewable only upon appeal from the judgment and sentence; the record presented will sustain such an appeal; and any record basis for genuine prejudice as a result of the defective notice is absent. As to the latter factor appellee does not even complain of any defect in the notice of appeal, so obviously the State did not feel prejudiced by the inadvertent oversight.

Accordingly, I would consider the appeal on the merits. Having done so, I find no support in the record for appellant’s contentions except his assertion that the sentence of April 28, 1975, did not give him full credit for time served in jail prior to the sentence of April 28, 1975. Therefore, I would affirm the orders and judgments appealed from in all respects except as to the sentence and I would remand the cause to the trial court with instructions to give appellant full credit for all jail time which he served in conjunction with this criminal episode.


author: SMITH, ROBERT P., Jr., Associate Judge. COBB, WARREN H., Associate Judge,

text:
    Earl Wayne EBERLY, Appellant, v. Helen Dianna EBERLY, Appellee.
    No. 75-1714.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.

      Joseph A. Rosier of Byrd & Rosier, Orlando, for appellant.
    Kenneth W. McIntosh of Stenstrom, Davis & McIntosh, Sanford, and Marcia K. Lippincott, Orlando, for appellee.
   SMITH, ROBERT P., Jr., Associate Judge.

Mr. Eberly seeks reversal of an order entered after final judgment in this marriage dissolution proceeding. In the judgment the circuit court dissolved the marriage and retained jurisdiction of the parties and the “entire subject matter.” By the later order he determined the money, property and custody issues. Mr. Eberly asserts that the circuit court, having entered judgment, was without jurisdiction later, and he urges the court erred in awarding alimony and child support.

The trial court, having properly retained jurisdiction, had power to act in respect to the issues reserved. Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA 1975), cert. disch., 329 So.2d 299 (Fla.1976); Becker v. King, 307 So.2d 855 (Fla.4th DCA 1975), cert. disch., 317 So.2d 76 (Fla.1975); Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976).

In most respects Mr. Eberly’s attack fails because the trial court’s decision largely rests on testimony of which Mr. Eberly had supplied no transcript, and we are without means to review the circuit court’s rulings. Steinhauer v. Steinhauer, 336 So.2d 665 (Fla.4th DCA 1976) and Haller v. Santona Land Corp., 275 So.2d 591 (Fla. 1st DCA 1973). In one respect, however, we conceive error appears notwithstanding absence of a transcript. The court ordered Mr. Eberly to keep in effect two insurance policies having a face value of $115,000 and directed him to declare the parties’ minor children—two daughters in his custody and four sons in Mrs. Eberly’s custody—equal beneficiaries of the policy benefits until the youngest child reaches 18 years of age.

Numerous appellate decisions have upheld orders such as the one before us: Riley v. Riley, 131 So.2d 491 (Fla.1st DCA 1961); Harloff v. Harloff, 279 So.2d 91 (Fla.2d DCA 1973); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Becker v. King, supra; Perkins v. Perkins, 310 So.2d 438 (Fla.4th DCA 1975); Moore v. Moore, 311 So.2d 152 (Fla.3d DCA 1975), cert. den., 324 So.2d 87 (Fla.1975). The earlier cases sustained such orders as proper to provide security for child support payments otherwise ordered, even though those orders appeared to make the children absolute beneficiaries of the policies, subject to change only by court order. The orders thus sustained evidenced no purpose that the children’s insurance interests should be for security only, to the extent of prospective child support lost by the father’s death. The orders affecting insurance in Riley, Harloff and Bosem were unambiguously for the absolute benefit of the minor children, yet they were sustained on appeal as means properly taken under Section 65.14, now Section 61.13(4), Florida Statutes (1975), to secure support payments otherwise ordered. Judge Sturgis, dissenting in Riley, 131 So.2d at 495, questioned the appellate process by which an order absolute in terms should be regarded as for security only. Nevertheless, the Supreme Court similarly transformed such an order in Bosem and announced that a divorced father may be required to maintain life insurance “as security for the support of his minor children in the event of his death.” 279 So.2d at 865. On the authority of Bosem, similar orders have been affirmed without the formality of transforming them into “security.” See Perkins and Becker.

The order now before us illustrates the ambiguity in the line of decisions beginning with Riley and requires that its provision for life insurance be either excised or clarified. The order in this case has these undesirable results:

First, the order leaves unresolved whether the insurance is to create an estate for the Eberly children upon their father’s death, which if intended is subject to serious question, or is intended only to secure payment of child support otherwise ordered. Conferring on the children a seemingly absolute interest in the insurance policies and naming them absolute beneficiaries may well establish unintended rights and duties between the insurers and the children and may generate future controversy, upon Mr. Eberly’s death, between the insurer, the children, be they minors or adults, and Mr. Eberly’s estate.

Second, the order leaves unresolved whether each child’s attainment of majority will divest his or her interest in the prospective insurance benefits. Thus, the order tends to generate future controversy among the children, should Mr. Eberly die when only the youngest child is still a minor, whether majority siblings are to be denied shares in the policy proceeds.

And third, the order exacerbates in this case the ambiguity created in Riley, Bosem, and the other decisions cited. It makes the two daughters placed in Mr. Eberly’s custody equal insurance beneficiaries with the four sons placed in Mrs. Eberly’s custody. Under the view of Simon v. Simon, 319 So.2d 46 (Fla.3d DCA 1975), it is improper to require a father with custody of minor children to maintain insurance on his life as security for support owed those children. That view is surely consistent with the idea of insurance securing support payments otherwise ordered. In Simon, as here, the chancellor did not order and presumably could not have ordered the husband to set aside a certain part of his income for the particular benefit of children in his custody. Yet, if the purpose of the order is to create a support fund independent of the father’s obligations otherwise adjudicated, it would be manifestly unjust to exclude the Eberly daughters and divide their prospective shares among the sons simply because the daughters are to be in their father’s custody rather than their mother’s. We conceive this circumstance, evidently not present in the earlier cases, here reveals an undesirable ambiguity in orders of the type approved by those decisions and relieves us of obedience to those precedents.

We hold that the chancellor in a dissolution proceeding may not, absent the father’s agreement, order him to maintain life insurance for the absolute benefit of his minor children. Insurance protection may be so required only for the benefit of children for whom money support is otherwise lawfully ordered, and only as security for the payment of that support during minority.

The chancellor’s order will be vacated insofar as it pertains to insurance and the case will be remanded for further proceedings consistent with our decision. Mrs. Eberly’s motion for an allowance of fees for her counsel’s appellate services is granted, the amount to be determined by the circuit court.

AFFIRMED in part, REVERSED in part.

CROSS, J., concurs.

COBB, WARREN H., Associate Judge, concurs in part, dissents in part, with opinion.

COBB, WARREN H., Associate Judge,

concurring in part and dissenting in part:

In Bosem v. Bosem, 279 So.2d 863 (Fla.1973), the Florida Supreme Court expressly held that a trial judge has the power, pursuant to Section 61.13, Florida Statutes Annotated, to require maintenance of a life insurance policy insuring the life of the payor of child support payable to the minor children until they reach majority or are emancipated. In respect to the four sons in Mrs. Eberly’s custody, that is precisely what the trial judge did in this case. The majority opinion, without benefit of a trial record, or even a factual stipulation, which would show the circumstances considered by the trial judge in making this determination, undertakes to reverse Bosem. See Haller v. Santona Land Corporation, 275 So.2d 591 (Fla.1st DCA 1973).

As stated by the Supreme Court in Hoffman v. Jones, 280 So.2d 431 (Fla.1973): “To allow a District Court of Appeal to overrule controlling precedent of this Court would be to create chaos and uncertainty in the judicial forum, particularly at the trial level.”

In Simon v. Simon, 319 So.2d 46 (Fla.3d DCA 1975) it was held that life insurance can be required by the court as security for maintenance and support awarded (emphasis added) to minor children, but cannot be required, even as security, when the minor beneficiaries are in the custody of the person obligated for their support.

Accordingly, I would affirm the trial court in all respects except as to the requirement, shown on the face of the ancillary order, that the two minor daughters in Mr. Eberly’s custody be mandatorily included as beneficiaries of the two insurance policies.

      . “It seems to be the general rule that a court has no power to require a divorced father to build an estate payable to his children upon his death. Thus it has been held erroneous as an abuse of judicial power to require a divorced father to provide for an insurance estate payable to his child or children after majority; to place capital stock of private corporations in trust payable to his children after they reach their majority; or to make an irrevocable will in favor of his children which would devolve to them after his death. ...” Riley, 131 So.2d at 491-92 (footnotes omitted).


author: PER CURIAM. DAUKSCH, Judge

text:
    Thomas E. RICHTER, Appellant, v. Carolyn A. RICHTER, Appellee.
    No. 76-494.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.

      James R. Eddy of Eddy, Spindler & Hughes, Pompano Beach, for appellant.
    C. Lavon Ward, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Husband appeals from a final judgment in a Dissolution of Marriage case. Several questions are presented but only two have merit.

We hold that the trial court erred in ordering an automatic five percent per annum cost-of-living increase in child support. We also hold that the trial court improperly ordered that the rehabilitative alimony awarded to wife continue regardless of her remarriage. See Blackmon v. Blackmon, 307 So.2d 887 (Fla. 3d DCA 1974). The objectionable provisions are stricken and the remainder of the final judgment is affirmed.

Reversed in part, affirmed in part, and remanded.

ALDERMAN and ANSTEAD, JJ., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge

(concurring specially).

I understand rehabilitative alimony to be meant to assist the recipient in making a life for herself when the support from her former husband is no longer available or necessary. It is the impetus to shake prior reliances and live free. Without the statutory availability of rehabilitative alimony the court might have awarded lump sum alimony payable in installments or permanent periodic alimony to accomplish the same purpose. But these types of awards are too speculative and have the onerous ring of unnecessary support, in some cases. Rehabilitative alimony is a bit speculative but is usually awarded for a purpose, for example, to obtain an education, a certificate or some retraining in a former occupation. The amount needed is more easily determined but it is not an absolute, in most instances. Therefore the court should not absolutely have said rehabilitative alimony shall continue regardless of remarriage. Very possibly the remarriage might accomplish the rehabilitation in that the former wife has established herself in the occupation of housewife and receives her income and support from that source. On the other hand, a remarriage may not demonstrate the absolute rehabilitation of the wife. The days when women married for support have passed and the roles of the partners to a marriage are not stereotyped but vary from family to family. Thus for this court to determine that rehabilitation occurs or doesn’t occur upon remarriage is not grounded on reason. The provision that rehabilitative alimony would continue regardless of remarriage should be amended to read may continue regardless of remarriage in order to give to the parties an opportunity to “show cause” if remarriage occurs. I agree with the result in the majority opinion but resist the implication therein that rehabilitative alimony must always cease upon remarriage. But see dictum in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976).


text:
    L. P. CONTELLA, Appellant, v. PAN AMERICAN BANK OF ORLANDO, N. A., a National Banking Corporation, formerly known as Citizens National Bank of Orlando, Appellee.
    No. 76-950.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    A. J. Stanton, Jr., of Colling & Stanton, Orlando, for appellant.

      Robert D. Gatton, of Johnson, Motsinger, Trismen & Sharp, Orlando, for appellee.
   DOWNEY, Judge.

We have reviewed the briefs in this cause, together with the record, and conclude that the entry of a summary final judgment for the appellee on Count I of its complaint and on appellant’s counterclaim was improper since it appears there is a genuine issue of material fact involved in Count I and in the counterclaim as to whether the note in question was a note payable on demand or payable in installments.

Since the appellant conceded the propriety of the judgment as to Count II of appel-lee’s complaint, we affirm the judgment on appeal insofar as that judgment concerns Count II. However, for the reasons given above, we reverse that judgment insofar as it concerns (a) appellee’s Count I and (b) appellant’s counterclaim and remand the cause for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; and remanded.

CROSS and LETTS, JJ., concur.


text:
    Thomas TERRELL, Appellant, v. Beverly TERRELL, Appellee.
    No. 76-1555.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Stanley M. Sacks, Fort Lauderdale, for appellant.
    Paul D. Lucas of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal by the husband in a dissolution of marriage case. Three points have been raised on appeal, but only one has merit.

The trial court found that a certain diamond ring was the wife’s separate property and ordered the husband to deliver the ring to the wife. However, the court further ordered that the husband could have the right to possession and ownership of the ring upon payment to the wife of $5,000.00. At the trial, the husband testified that he merely loaned the ring, which was a family heirloom, to his wife. The wife, on the other hand, contended that her husband gave the ring to her with the understanding that the ring was hers, subject to the condition that she give it to one of his children when she died. In other words, the wife claimed a gift for life, while the husband claimed that he only meant for his wife to wear the ring during their marriage and did not intend to transfer ownership to her.

The testimony is in conflict; the trial court, as the finder of fact, could have accepted either version. If the court believed the husband’s testimony, the ring should have been given to the husband without the requirement that he pay $5,000.00 to his wife. If the court believed the wife’s testimony, the ring should have been given to the wife for life, subject to the condition that she give the ring to one of the husband’s children upon her death. There is no basis in the evidence, however, to find that the ring is the wife’s separate property subject to the husband’s right to purchase the ring for $5,000.00. This portion of the final judgment is reversed and the case is remanded for the trial court to determine, consistent with this opinion, the ownership and right of possession of the ring. The remainder of the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded with instructions.

DOWNEY, ALDERMAN and DAUKSCH, JJ., concur.


text:
    QUADOMAIN CONDOMINIUM ASSOCIATION, INC., Appellants, v. Nathan POMERANTZ et al., Appellees.
    No. 76-1838.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Barry A. Mandelkorn, of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellant.
    Patricia S. Levey, of Chonin & Levey, Miami, for appellees Pomerantz.
   PER CURIAM.

This is an interlocutory appeal by which appellant, Quadomain Condominium Association, Inc., seeks review of a temporary injunction prohibiting payment of legal fees and costs from a certain fund of the association.

In an earlier appeal we determined the complaint was insufficient to state a cause of action for injunctive relief. Accordingly, the order appealed is reversed.

Reversed.

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

      . Quadomain, etc. v. Pomerantz, Fla.App., 341 So.2d 1041, Opinion filed January 21, 1977.


author: ANSTEAD, Judge.

text:
    Morton WOLFMAN, Appellant, v. Irene WOLFMAN, Appellee.
    No. 76-1872.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Robert E. Dubow, Dania, for appellant.
    Merle Litman, of Litman, Muchnick & Wasserman, Hollywood, for appellee.
   ANSTEAD, Judge.

This is an appeal by the husband of an award of alimony and child support. We reverse.

The trial court ordered alimony of $200.00 monthly and child support of $400.00 monthly for a total of $600.00. In addition, the wife received exclusive possession of the marital residence and was awarded title to the furnishings in the residence. The husband also had to provide medical insurance for the children.

The husband was earning $1,000.00 net monthly. He claimed expenses of $358.00 weekly. The wife was acknowledged to be disabled from employment and was receiving $370.00 monthly disability income. The wife had custody of two eight-year-old children and claimed total weekly expenses of $278.00. The record shows the husband’s income was slightly higher several years previously. In one intervening year his income dropped because he was off work three months due to a serious heart attack. But his earnings at the time of trial had increased and there was no evidence tending to show any fraud, deceit, or wilfulness by the husband with respect to his earnings.

The trial court, at the conclusion of the final hearing, noted that the amount awarded the wife and children was:

about the maximum I can take from him. That doesn’t leave him nearly what he has to live on but he’s going to have to increase his income to satisfy his problems and his needs. .

And the trial court told the husband:

Well, sir, you’re going to have to earn it, sir. You’re capable of earning more than you’re showing. You’ve earned more than you’re showing, you’re capable of earning more than you’re showing, and if she comes back and shows me you’re earning more, I’m going to give them more. I think right now you have to earn a little more just to maintain yourself, but I think you’re capable of doing that, sir.

Awards of alimony and child support must be determined essentially on the elements of needs of the wife and children and ability of the husband to respond. 10A Fla.Jur. Dissolution of Marriage, etc. §§ 54 and 80. As can be seen from the comments of the trial court, the husband did not have the ability to pay the amount of alimony and child support that he was actually ordered to pay. And there were no other circumstances shown by the evidence to support an award beyond the husband’s ability to pay.

Accordingly, the child support payments are hereby modified to $100.00 for each child; the award of $200.00 for alimony is affirmed; and the total monthly support obligation of the husband is set at $400.00. The judgment is reversed with directions that a judgment be entered in accordance with the terms of this decision.

DOWNEY and DAUKSCH, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    C. H. ROBINSON COMPANY, a Foreign Corporation, Appellant (Defendant), v. L & M BROKERAGE CO., INC., a North Carolina Corporation, Appellee (Plaintiff).
    No. Z-473.
    District Court of Appeal of Florida, First District.
    March 29, 1977.
    Rehearing Denied May 9, 1977.
    William C. Frye of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, Harold F. Baker and Alan Wiseman of Howrey & Simon, Washington, D. C., for appellant.
    Angus W. Harriett of Harriett & Sproull, Palatka, for appellee.
   MILLS, Acting Chief Judge.

Robinson appeals from a judgment entered in favor of L & M following a nonjury trial in a breach of contract action. L & M contends Robinson breached an agreement to collect payments for potatoes purchased by Dixie Snack Foods from L & M, resulting in the loss of $19,798.96 by L & M. Robinson contends that it neither guaranteed collection nor guaranteed the debt in the event of Dixie’s default.

L & M engaged in the business of selling potatoes. Robinson was a broker of potatoes. Prior to the transactions giving rise to this case, Dixie had purchased potatoes from L & M through its broker, Robinson, but due to financial difficulties filed for Chapter 11 bankruptcy, at which time it owed L & M $30,000.00 to $40,000.00 for potatoes.

Dixie contacted Robinson seeking to purchase additional potatoes from L & M. L & M agreed to sell Dixie the potatoes provided Robinson collected the purchase price following each shipment to Dixie. Robinson agreed to make the collection from Dixie. In connection with each purchase by Dixie from L & M, Robinson, as broker, issued and mailed to both L & M and Dixie a Brokers Standard Memorandum of Sale embodying the terms of the transaction. L & M in turn sent Robinson an invoice for each sale, reflecting the amount Dixie owed for each shipment of potatoes. The Brokers Standard Memorandum of Sale provided: “It is understood . . . this sale is made in contemplation of and subject to trade terms and definitions of the PACA [Perishable Agricultural Commodities Act] . .” The written agreement further stated that the terms of sale between the parties were those specified therein and that “unless the seller or the buyer makes immediate objection upon receipt of his copy ... he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated.” It is uncontradicted that L & M received the respective written agreements and did not object to the terms expressed therein. L & M’s invoices provided that “C. H. Robinson to collect and remit”.

Robinson collected and remitted for a period of time but did not collect for the last six shipments because Dixie failed or refused to pay. Subsequently, Dixie filed for bankruptcy. This resulted in the suit by L & M against Robinson.

It is well established that when an agreement between the parties is expressed in writing, prior oral negotiations or agreements which are not embodied in' the unambiguous contract cannot contradict its written terms. The written instruments represent the final expressions of the agreement between the parties which may not be contradicted by parol or extrinsic evidence. Section 672.202, Florida Statutes (1975). We are concerned here, therefore, with the terms of the written agreements between the parties and are not concerned with the prior verbal agreements.

The invoices that L & M sent to Robinson provide that Robinson is “to collect and remit”. The terminology “collect and remit” is standard in the commodities brokerage business. Pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C. 499a, the Department of Agriculture of the United States promulgated Regulation 7 C.F.R. 46.28(c), which provides in part:

“In the absence of a specific agreement, a broker is not responsible for payment to the seller by the buyer. Agreement to collect from the buyer and remit to the seller is not a guarantee by the broker that the buyer will pay for the produce purchased, unless there is a specific agreement by the broker that he will pay if the buyer does not pay. .

At the most, L & M established an agreement with Robinson whereby Robinson would collect the invoice price for the potatoes from Dixie and remit to L & M. Robinson incurred no liability for Dixie’s failure or refusal to pay. There was no provision in the agreements that Robinson would pay L & M if Dixie did not pay. Robinson neither, guaranteed collection nor guaranteed the debt in the event of Dixie’s default. The $19,798.96 liability L & M seeks to impose on Robinson is so large as to be out of proportion to the $324.57 brokerage commission L & M agreed to pay Robinson. This raises considerable doubt as to whether Robinson would have assented to such a liability unless the consideration to be paid by L & M to Robinson was raised to correspond in some respect to the liability assumed and was set forth in the written agreements between the parties. The written agreements contained no such provision.

The trial court’s award of $324.57 to Robinson has not been contested.

We reverse that part of the judgment awarding L & M $19,474.39. We affirm that part of the judgment awarding Robinson $324.57.

SMITH, J., and DRURY, ARVEL, Associate Judge, concur.


text:
    COMMODORE CRUISE LINE, LTD., Appellant, v. Ilona KORMENDI and George Kormendi, Appellees.
    No. 75-1375.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Fowler, White, Burnett, Hurley, Banick & Knight and Frank Marston, Miami, for appellant.

      Horton, Perse & Ginsberg, Stanley M. Rosenblatt, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant below, appeals from a final judgment entered pursuant to a jury verdict which awarded appellees, plaintiffs below, both compensatory and punitive damages for an assault and battery alleged to have been committed upon appellee Ilona Kormendi by an employee of appellant during a cruise on appellant’s ship; and from a post judgment “order denying defendant’s motion to alter or amend final judgment and/or to set aside the judgment and/or for new trial.”

Appellee, traveling without her husband, was allegedly assaulted and battered by an employee of appellant. The incident was alleged to have occurred one evening, during a Carribbean cruise on appellant’s ship, while appellee was a passenger. The assailant apparently attempted to rob appellee’s cabin, but was taken by surprise by appel-lee’s presence in said cabin. A scuffle ensued after which the knife-wielding individual ran from the scene. This retreat was, however, not taken before appellee identified the person as a black man in crewman’s garb. A subsequent investigation by the ship’s captain and officers transpired, however, the identity of the assailant was never discovered.

The cause proceeded to trial upon the theory of breach of contract of common carriage. At trial, there was ample testimony to suggest that the aforementioned investigation to ascertain the identity of the assailant was far from adequate, as there were no black passengers aboard the ship during the cruise and only two black crewmen.

At trial’s conclusion, a jury returned a verdict for appellees and against appellant in the sum of Eighty-five Thousand Dollars ($85,000.00) compensatory damages and Two Hundred Thousand Dollars ($200,-000.00) punitive damages. Post trial motions were filed by appellant and denied by the court and this appeal follows.

Appellant raises two points on appeal. The first point challenges the sufficiency of the evidence in support of appellees’ claim for assault and battery. After reviewing the record, we are of the opinion that there was substantial competent evidence adduced that would support a verdict for appellees. As such, there was no error in denying either appellant’s motion for directed verdict or its post-trial motion for entry of judgment notwithstanding the verdict, properly styled a motion for judgment in accordance with motion for directed verdict. Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla.3d DCA 1969); Hall v. Ricardo, 331 So.2d 375 (Fla.3d DCA 1976).

Appellant’s second point concerns the correctness of an award of punitive damages. It is appellant’s contention that, pursuant to a cause of action based upon a breach of contract of common carriage, punitive damages are only awardable against an employer when its employee commits an intentional, wilful, wanton or malicious act while within the scope of his employment. Sub judice, no contention or argument was made by appellees that the assault occurred while within the official duties of the employee and therefore, appellant argues, it was error to allow punitive damages.

For the reasons that follow, we agree with appellant’s contention and reverse.

Under Florida Law, punitive damages are not generally recoverable for breach of contract unless the acts constituting the breach also amount to an independent cause of action in tort, sustained by proper allegations and proof of an intentional wrong, insult, abuse or gross negligence. Country Club of Miami Corporation v. McDaniel, 310 So.2d 436 (Fla.3d DCA 1975).

Furthermore, under Florida law, a contractual duty arises between a passenger and common carrier obligating the carrier to transport the passenger to his or her destination, exercising the highest degree of care and vigilance for the passenger’s safety. Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151 (1921); 5 Fla.Jur. Carriers, § 108. The carrier’s duty is transferred by and through its employees and any wilful misconduct by its employees are actionable as against the carrier-employer. Hall, supra, 14 Am.Jur.2d Carriers, § 1059.

In addition, in comparison to an ordinary master-servant relationship, a common carrier is liable to a passenger for the wrongful acts of his or her employees during the contractual period, notwithstanding the fact that said acts are not within the scope of the employees employment. Pelot v. Atlantic Coast Line R. Co., 60 Fla. 159, 53 So. 937 (1911); Columbia By The Sea, Inc. v. Petty, 157 So.2d 190 (Fla.2d DCA 1963); 14 Am.Jur.2d Carriers, § 1061. Compare Reina v. Metropolitan Dade County, 285 So.2d 648 (Fla.3d DCA 1973), where the contract of carriage had terminated before the employee — bus driver assaulted the former passenger.

The only question, then, for our determination, is whether the expanded liability of a common carrier for damages occasioned by a breach of contractual duty owed by its employee to a passenger includes liability for punitive damages, over and above compensatory damages, notwithstanding the fact that the complained of act or acts were committed by the employee outside the scope of his employment.

While case law and authority for awarding punitive damages against a common carrier and in favor of a passenger for the wrongful acts of an employee done within the scope of the employee’s employment are ample, Miami Transit Co. v. Yellen, 156 Fla. 351, 22 So.2d 787 (1945); Atlantic Greyhound Lines v. Lovett, 134 Fla. 505, 184 So. 133 (1938); 5 Fla.Jur. Carriers § 144; our research and research of counsel have failed to reveal dispositive authority from within this state for the question posed above.

Research of the law in other jurisdictions which have considered the question does reveal the following. In order for a common carrier to be liable to a passenger for punitive damages, the insulting, abusive or intentional wrong must be committed by the employee while discharging duties within the scope of his employment, McManigal v. Chicago Motor Coach Company, 18 Ill.App.2d 183, 151 N.E.2d 410 (1958); or the act must be authorized by the employer or subsequently ratified by him. Pullman Co. v. Hall, 46 F.2d 399 (4th Cir. 1931); Soucy v. Greyhound Corporation, 27 A.D.2d 112, 276 N.Y.S.2d 173 (1967); Sullivan v. Yellow Cab Company, 212 A.2d 616 (D.C.App.1965).

In that the assault was not committed by the employee while discharging duties within the scope of his employment, it was therefore incumbent upon appellees to allege and prove at trial that the act was subsequently ratified or initially authorized by appellant. This was never done, however, assuming arguendo, that the theory of ratification was attempted by appellees, this would be to no avail. The law is clear that unless the original act under scrutiny is done on the behalf of the employer, no ratification can take place. G. & M. Restaurants Corp. Tropical Music Service, Inc., 161 So.2d 556 (Fla.2d DCA 1964). In addition, the Florida Supreme Court has stated that a criminal act committed outside the scope of a servant’s authority cannot be ratified by the master. Mallory v. O’Neil, 69 So.2d 313 (Fla.1954).

In conclusion, we hold that where, as here, a passenger injured by an employee of a common carrier files suit based upon a breach of contract of carriage, punitive damages can only be awarded to the passenger upon a proper allegation and proof that the complained of act was committed by the employee while within the scope of his employment or, when the act was initially authorized by the carrier or subsequently ratified by him. McManigal, supra, Sullivan, supra.

Accordingly, it was error to award punitive damages to appellees and therefore, the judgment appealed must be reversed and remanded with instructions to the trial judge to deduct the award of punitive damages from the total recovery. Once done, the final judgment as modified is affirmed.

Affirmed in part; reversed and remanded in part.