author: OWEN, Judge. MAGER, Judge

text:
    Honorable James T. CARLISLE and all other judges of the County Court, Palm Beach County, Appellants, v. STATE of Florida ex rel. Michael Charles SMITH, Appellee.
    No. 74-1517.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Oct. 27, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellants.
    Barry L. Halpern of Halpern, Shenberg & Langer, Miami, for appellee.
   OWEN, Judge.

After misdemeanor charges against him for showing obscene films in violation of Fla.Stat. § 847.011(4) (1973) were nolle prossed, appellee-relator sought the return of the films (the subject of the charges) which had been seized by the State. The county court held that it could not return the films until it had had an opportunity to view them in order to determine whether they were obscene and whether they therefore ought to be destroyed in accordance with Fla.Stat. § 847.011(7) (1973), which provides:

“(7) There shall be no right of property in any of the materials, matters, ar-tides, or things possessed or otherwise dealt with in violation of this section, and upon the sezure of any such material, matter, article, or thing by any authorized law enforcement officer the same shall be delivered to and held by the clerk of the court having jurisdiction to try such violation. When the same is no longer required as evidence, the prosecuting officer or any claimant may move the court in writing for the disposition of the same and after notice and hearing, the court, if it finds the same to have been possessed or otherwise dealt with in violation of this section, shall order the sheriff to destroy the same in the presence of the clerk; otherwise, the court shall order the same returned to the claimant if he shows that he is entitled to possession. If destruction is ordered, the sheriff and clerk shall file a certificate of compliance.”

Appellee thereupon filed in the circuit court a suggestion for writ of prohibition. The writ was issued prohibiting the county court from viewing the films on the grounds that, since the case had been nolle prossed, the county court no longer had jurisdiction, and any determination as to the obscenity of the films after the criminal case had been nolle prossed would deny ap-pellee due process of law. We reverse.

Appellee, citing the concurring opinion of Judge Cross in Childers v. State, 277 So.2d 594 (4th D.C.A. Fla.1973), initially contends that once the nolle prose-qui was filed, the information became a nullity and was incapable of conferring jurisdiction on the court. While the entry of the nolle prosequi might have deprived the court of jurisdiction to prosecute this particular defendant, it did not, and could not, deprive the court of its statutorily conferred — per § 847.011(7) — jurisdiction over the evidence.

We think the procedure set out in § 847.011(7) is clear. Upon seizure of any materials alleged to have been possessed or otherwise dealt with in violation of § 847.-011, the same must be delivered to and thereafter held by “the clerk of the court having jurisdiction to try such violation.” When the materials are no longer needed as evidence, either the State or any claimant may move the court for disposition of same. That disposition will rest upon the court’s determination, after notice and hearing, of whether or not the material has been “possessed or otherwise dealt with in violation of this section.”

The Florida Supreme Court has upheld the constitutionality of § 847.011 and specifically determined subsection (7) to be remedial in nature and within the State’s police power. State ex rel. Gerstein v. Walvick Theatre Corp., 298 So.2d 406, 408-9 (Fla.1974). We therefore cannot conclude that its operation as the Legislature intended denies defendant due process of law.

The order granting writ of prohibition is reversed and this cause remanded with directions to dismiss the suggestion for the writ.

WALDEN, C. J., concurs.

MAGER, J., concurring, in part; di« senting, in part.

MAGER, Judge

(concurring in part; dissenting, in part):

I must respectfully disagree with that portion of the majority opinion which would permit the county court to make a determination as to whether the seized films were obscene and hence subject to destruction. Therefore, to the extent that the circuit court’s order would prohibit the county court from conducting any hearing leading to a determination of obscenity vel non it should be affirmed.

However, it is my opinion that the county court does possess jurisdiction to conduct a hearing pursuant to F.S. § 847.011(7), provided such proceeding does not embrace a determination of obscenity vel non. Hence the anomaly of a circuit court order which is partially correct and the majority opinion which I would suggest most respectfully is partially incorrect.

The writ of prohibition “may be employed to restrain exercise by the inferior court of jurisdiction which it does not possess, or to restrain action which is in excess of jurisdiction possessed”. State ex rel. Gore Newspaper Company v. Tyson. Fla.App.1975, 313 So.2d 777. A reading of sec. 847.011, as set forth in the majority opinion, reflects that the county court which was the court “having jurisdiction to try such (obscenity law) violation” had custody of the films in question and clearly possessed the jurisdiction to make a determination regarding its return or destruction. Sec. 847.011(7), which specifically provides for a hearing at which such a determination is made, is silent with respect to the predicate for the hearing except to the extent that the seized materials are “no longer required as evidence”. In other words, the authority to conduct the hearing is not dependent upon the outcome of a criminal proceeding, i. e., a conviction, an acquittal or a nol pros. Therefore, while a conviction, acquittal or a nol pros will, no doubt, have a bearing upon the outcome of such hearing it does not in my view affect the power, authority and jurisdiction of the county court to conduct such a proceeding.

Accordingly, the order of tfye circuit court seeking to prohibit the county court from conducting such a proceeding where the criminal charges against the defendant were nol prossed was overbroad.

However, although the county court is possessed of the jurisdiction to conduct a hearing for the determination of the return or destruction of the seized film it is my opinion that the county court would be acting “in excess of jurisdiction possessed” if it proceeds to make a determination of obscenity vel non with respect to the films held by the court as evidence. The determination of obscenity vel non is a determination to be made in the criminal proceeding giving rise to seizure of the films in question.

If a defendant in a criminal proceeding has been acquitted or if charges against that defendant are nol prossed neither the state npr the court gets a “second bite” at the obscenity apple. The hearing that would be held as a result of an acquittal or a nol pros would seem to be largely ministerial because an acquittal or nol pros would as a matter of law resolve the question of whether the seized material was “possessed or otherwise dealt with in violation of this (obscenity law)”. Under these circumstances the hearing would, perhaps, consist of nothing more than an authentication of the acquittal or nol pros. (A certified copy of the judgment or acquittal or a certified copy of the minutes reflecting the nol pros would seem to serve as a proper predicate upon which the court would enter its order returning the films to the claimant entitled to possession thereof.)

It is inconceivable to me that after a case has been nol prossed (or there has been an acquittal) a court possessing the seized evidence could then proceed to conduct a subsequent hearing on the very issue that was not resolved because of the nol pros (or was resolved because of an acquittal). A dangerous precedent would be established if after the obscenity charges were nol prossed for any number of reasons a new obscenity hearing could be held under the guise of determining whether the materials should be returned to the claimant or destroyed. Such a procedure should not be sanctioned.

It would seem to me that the hearing contemplated by section 847.011(7) has meaning if a defendant is convicted of possessing or otherwise dealing with materials in violation of the obscenity law. Under that circumstance if a claim were made for the return of the film either by the defendant or some other person claiming an entitlement thereto, the court would then ascertain whether the film or other items in question were those specific items determined by the court in the criminal proceeding to be obscene. Clearly, an item cannot be “possessed or otherwise dealt with in violation of this section” unless it has been declared to be obscene; and while a determination of obscenity would serve as a basis for a conviction of the individual involved in connection therewith it would not resolve the question of further disposition of the items used in evidence. Hence, the proceeding contemplated by sec. 847.011(7), i. e., return to the claimant or destruction.

Conceivably there may be situations where multiple films and books are seized some of which form the basis of a conviction while others may not in which latter case they would be subject to return. Additionally, where a nol pros or an acquittal occurs in a case involving a multiple seizure, it would be necessary to ascertain which of the specific items gave rise to the criminal proceeding resulting in the nol pros or acquittal.

It would be sheer speculation to attempt to spell out every circumstance in which the 847.011 proceeding might be applicable. The point is simply that 847.011(7) does not authorize the court to view films in order to determine whether they are obscene inasmuch as obscenity vel non is beyond the jurisdiction possessed by the court in the proceeding contemplated by sec. 847.-011(7).

In People v. Steskal, 55 Ill.2d 157, 302 N.E.2d 321 (1973), the Supreme Court of Illinois was presented with a factual situation somewhat analogous to the instant case. There, the defendant was charged with possessing obscene materials which materials the court ultimately suppressed. Subsequently the defendant petitioned the court to have the materials returned. The State took the position that these articles were contraband and subject to destruction. The Illinois court pointed out that the proof of defendant’s criminal conduct was never forthcoming because the items in question were suppressed and no further criminal proceeding ensued. The court specifically held:

“Therefore, while the State possesses no inherent right to destroy pornographic materials, such as those involved in the present case, if it could be established that these items were disseminated in a manner proscribed by law, they could be subject to forfeiture.
“As the State’s brief filed herein makes clear, this proceeding was instituted because of defendant’s alleged violation of the obscenity statute. No such proof of his criminal conduct, however, was forthcoming. There was only the unsupported allegation that he had offered these materials for rent or sale to the public. The fact that defendant did not deny that he used the items in an unlawful manner is of no consequence. The nature of this proceeding is comparable to that in United States v. U. S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, wherein the court held that one who is accused of significant involvement in criminal activity might invoke his fifth-amendment privilege in a forfeiture action which is designed to penalize such conduct.
“To allow a forfeiture under such circumstances would permit the State an opportunity to vindicate its allegation that defendant committed a criminal offense. It might also tend to create a situation where improper searches and seizures would be conducted with the knowledge that even though a criminal prosecution would be futile, the forfeiture proceedings would partially accomplish the same effect, i. e., the destruction of obscene materials.
“We hold that under the pertinent statutory framework applicable to the present case such articles may be destroyed only as a consequence of a successful criminal prosecution for violation of the obscenity statute. . . .” (at 323-324). (Emphasis added.)

It would seem that a nol pros presents a somewhat stronger case for the return of the seized materials; it certainly would not serve as a basis for a further hearing on obscenity vel non.

In conclusion, it is my opinion that the court having jurisdiction to try the initial criminal violation possesses the jurisdiction to conduct a hearing on the return or the destruction of the seized material. The jurisdiction to conduct such hearing is not conditioned upon a conviction, an acquittal or a nol pros. The county court in the instant case has the jurisdiction to conduct a hearing albeit largely a ministerial proceeding. However, prohibition will lie to restrain a court from acting in excess of its jurisdiction; and a determination as to whether the seized materials are obscene or not after criminal proceedings have been nol prossed is an action which is in excess of the jurisdiction possessed by the county court.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Robert Marion BAKER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-304.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1975.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   MILLS, Judge.

As a result of a plea agreement, Baker pled guilty to a charge of possession of dangerous drugs; he was adjudged guilty; and he was placed on probation for five years. Thereafter, Baker was charged with larceny of a firearm and possession of a firearm by a convicted felon. Then he was charged with violation of probation. As a result of a plea agreement, Baker pled guilty to the charge of violation of probation, and the State dismissed the charges of larceny of a firearm and possession of a firearm by a convicted felon. Thereupon, the trial court revoked his probation and sentenced him to three and one-half years in prison.

The trial court established that Baker’s plea of guilty was made knowingly and voluntarily. In addition, the trial court determined that Baker admitted violating his probation, and that there was a factual basis for the plea. However, after doing this, and at the conclusion of the revocation hearing, the trial court asked Baker why he took the firearm. Baker responded that he did not mean to; that he was intoxicated at the time. Now, Baker urges that the trial court erred in failing to make further inquiry into the factual basis for the plea, as Baker’s response indicated a possible defense to the charge of larceny which Baker should have knowingly and intelligently waived. The trial court did not err.

Probation is a matter of grace, not right. Section 948.06(1), Florida Statutes, provides that the trial court shall advise a probationer of the charge of violation, and if the charge is admitted to be true may forthwith revoke probation. A revocation hearing need not meet the strict requirements of a criminal trial. Baker was advised of the charge of violation, and after counselling with his attorney admitted the charge was true. This was sufficient.

In addition, Baker received a favorable plea agreement which resulted in the dismissal of the charges of larceny and possession of a firearm by a convicted felon.

Affirmed.

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


author: SMITH, Judge.

text:
    James Michael FERRARA, Appellant, v. STATE of Florida, Appellee.
    No. X-125.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.

      Donald G. Nichols, Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L, Knight, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

Ferrara appeals from judgments and consecutive sentences of imprisonment entered upon his pleas of nolo contendere, reserving the right of appeal, to two charges of knowing possession of controlled substances in violation of § 893.13, F.S.1973. The pleas were entered after the trial court denied Ferrara’s motion to suppress as evidence the cocaine which Jacksonville vice squad agents searched for and seized in Ferrara’s apartment on the night of his arrest on another charge of selling cocaine to Ms. Gail Wells.

Although the trial court made no explicit findings in support of its order denying the motion to suppress, the State offers two alternative hypotheses justifying the search and seizure: first, that the warrant-less search was required by the exigencies of time in that, after Ferrara’s arrest and during the time necessary to obtain a warrant, the cocaine might well have been destroyed or secreted by friends or companions of Ferrara in or having access to his apartment; and second, that Ferrara consented to the search.

In the officers’ search of the Wells home, pursuant to warrant, they found cocaine which Ms. Wells stated she purchased from appellant Ferrara, who she said had more of the same at his beach apartment. In the course of the proceedings at the Wells home, appellant telephoned and spoke unknowingly to one of the officers. He later arrived by automobile with three companions, entered the home alone, was arrested on the strength of Ms. Wells’ accusation and was advised by officer Don Taylor:

“Our conversation to Mr. Ferrara was to the extent that he was under arrest and that we felt like there was possibly a large quantity of drugs in his apartment down at the beach and our intention was to go down there and search his apartment. So, we kept him aware of just what we were going to do.”

The law officers, with Ferrara under arrest, then left the Wells home and departed for the beach in a patrol car, following another patrol car which was guided to Ferrara’s apartment, at the request of an officer, by a woman who had accompanied Ferrara to the Wells home. The officers entered Ferrara’s apartment with Ferrara’s key, searched the place and found the cocaine in a footlocker upstairs.

In reviewing the trial court’s order denying Ferrara’s motion to suppress the evidence, we give credence to officer Taylor’s testimony that he warned Ferrara upon his arrest as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that Ferrara told Taylor he had cocaine in his apartment while riding toward the beach in the police car, that at the apartment door Ferrara voluntarily produced a key to it and that, inside, Fer-rara led the officers to the footlocker containing the cocaine. For present purposes, we disregard Ferrara’s testimony denying the admission and contradicting officer Taylor’s testimony.

We reject as groundless speculation the State’s, contention that the war-rantless search was required by the exigencies of time. Hannigan v. State, 307 So.2d 850 (Fla.App. 1st, 1975). There is no evidence that anyone other than Fer-rara had access to Ferrara’s apartment, no evidence that his companiors in the car— including a secretary employed by the State Attorney — knew of or had the slightest inclination to destroy or secrete the cocaine, and no evidence that any justifiable fears the police may have entertained could not have been allayed by surveilling the apartment while other officers obtained a search warrant. As we said in Hannigan, 307 So.2d 850, 852,

“The alleged emergency is based on the officers’ alleged fears that the appellant would have time to be warned of his impending arrest and destroy the marked money during the five hour period in which the officers would be attempting to secure a search warrant. Such a speculative fear is not enough to overcome the strong presumption of invalidity that a warrantless search carries with it. Coolidge v. New Hampshire, 403 U. S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971): Nor is it sufficient basis for suspension of constitutional rights.”

Contending alternatively that Fer-rara consented to the search, the State’s burden was to make that asserted fact “clearly shown by competent evidence” [Moss v. State, 247 So.2d 327, 328 (Fla.App. 1st, 1971)] of “the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973).~

The evidence here is that the officers arrested Ferrara and decided to search his beach apartment on the basis of Ms. Wells’ statements incriminating Ferrara and that, in order to apprise Ferrara “of just what we were going to do,” the officers told him upon arrest of “our intention ... to go down there and search his apartment.” The officers therefore resolved to search the Ferrara apartment and so indicated to appellant before officer Taylor had the conversation with Ferrara on which the State relies as evidence of consent. The group exodus from the Wells home, the officers’ request that one of Ferrara’s companions lead the patrol cars to Ferrara’s apartment and the officers’ purposeful departure for the beach with Ferrara restrained and in custody all confirm an intention to search the apartment irrespective of Ferrara’s consent or the lack of it. Only after the search party was on its way did Ferrara advise officer Taylor, according to the State’s disputed evidence, that he had an ounce of cocaine in his apartment. Only when the search party of six to eight officers arrived at Ferrara’s door did Ferrara signify willingness to lead the group upstairs to the footlocker containing the cocaine.

Considering the totality of the circumstances of this search, we conclude that the State failed to prove that the officers entered and searched Ferrara’s apartment as a result of his “essentially free and unconstrained choice.” Schneckloth v. Bustamonte, 412 U.S. at 225, 93 S.Ct. 2041, quoting Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037. To postulate that Ferrara was free to consent or not after the search party was underway to its destination is to suppose something contrary to human experience. Talavera v. State, 186 So.2d 811 (Fla.App. 2nd, 1966). It appears rather that Ferrara, who previously had been arrested only for drunkenness on New Year’s Eve, merely submitted to the officers’ claim of lawful authority to do what they set out to do irrespective of appellant’s wishes and without a warrant. Such acquiescence is not equivalent to consent. Schneckloth v. Bustamonte, 412 U.S. at 233, 93 S.Ct. 2041; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Pekar v. United States, 315 F.2d 319 (5th Cir. 1963).

The incriminating evidence having been produced by an unlawful search and seizure, the judgments of conviction are

Reversed.

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

      . Ferrara was convicted and sentenced on two counts, one charging knowing possession of cocaine and the other charging knowing possession of more than five grams of cannabis on the same day. We must assume, since the record does not clearly show it, that the cannabis was seized in the course of the search for cocaine in appellant’s apartment.


text:
    ROSIE O’GRADY’S WAREHOUSE, INC., and Robert J. S. Snow, Appellants, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. X-36.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.

      Wilmer H. Mitchell, Holsberry, Emmanuel, Sheppard, Mitchell & Condon, for appellants.
    Gary B. Lane, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
   SMITH, Judge.

The Charter Oak Fire Insurance Company insured appellants against certain losses and damage by “safe burglary or attempt thereat.” Within the policy period, an intruder broke into appellants’ business premises in Pensacola, opened the designated safe without violence and stole $2,061, for which claim was made under the policy. The trial court entered judgment for Charter Oak and the insureds appeal.

The critical term “safe burglary” is defined in the mercantile robbery and safe burglary endorsement as

“(a) the felonious abstraction of insured property from within a vault or safe described in the declarations and located within the premises by a person making felonious entry into such vault or safe . . . when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity, or chemicals upon the exterior of (i) all of said doors of such vault or such safe ... if entry is made through such doors, or (ii) the top, bottom, or walls of such vault or such safe . . . through which entry is made, if not made through such doors, or (b) the felonious abstraction of such safe from within the premises.”

Appellants’ money was taken from the safe during business hours after an employee had rotated the dial of the combination lock through the first two sequences. The dial had only to be rotated to a stop in the proper direction for the intruder to gain entry. The key to the locked door of the interior compartment was in the lock. The intruder who forcefully entered the premises by breaking a window opened the safe without force or violence and left no visible marks of any character on the doors of the safe.

While insurance policies such as this are to be read in such a way as to resolve all ambiguities favorably to the insured, we are unable to accept appellants’ arguments that in these circumstances their loss of money from within the safe was covered by the terms of the policy. We agree that “all doors” of the safe were “duly closed.” We may also assume for present purposes that the doors were “locked by all combination locks thereon.” But we cannot sustain coverage if we give effect to the policy requirements that the felonious entry into the safe be made by actual force and violence, of which there are visible marks on all doors of the safe.

In Moore v. General Cas. Co. of America, 91 So.2d 341 (Fla.1956), coverage was denied under a similar insuring agreement when entry to the premises was made by force and the safe itself was stolen. The taking of appellants’ safe as in Moore would have resulted in a loss covered by the policy now before us, by virtue of part (b) of the above-quoted definition of “safe burglary.” But in the circumstances of this case we are bound to give effect to Moore’s requirement of proof of visible marks on the safe. We must reject, as did the court by implication in Moore, the argument that the policy’s “visible marks” requirement is intended only as nonessential evidentiary assurance that the theft was by an intruder and not an employee. Compare Ferguson v. Phoenix Assur. Co., 189 Kan. 459, 370 P.2d 379 (1962).

We have also considered appellants’ reasoning that, if their money was not lost by “safe burglary,” it was lost by “attempt thereat.” In construing an insurance policy we are not necessarily bound by authorities defining a criminal attempt as an act done to commit a crime which, except for interference, would have resulted in the commission of that crime. See, e. g., Groneau v. State, 201 So.2d 599 (Fla.App. 4th, 1967), cert. den. 207 So.2d 452 (Fla.). But common understanding defies the notion that a successful effort to remove money from a safe may constitute an “attempt” at “safe burglary.” Charter Oak’s policy covered loss by damage to the safe and certain contents as well as by abstraction of money within, and the attempt coverage most apparently applies to damage caused by unsuccessful efforts to enter the safe.

Affirmed.

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


author: RAWLS, Acting Chief Judge.

text:
    Foy SKIPPER, Appellant, v. STATE of Florida, Appellee.
    No. X-132.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, and Virgil Q. Mayo, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   RAWLS, Acting Chief Judge.

Appellant-defendant, Foy Skipper, was charged by information with committing the crime of assault with intent to commit murder. A jury verdict was returned finding him guilty of aggravated assault. He now .appeals from a judgment of conviction and a 'three years sentence.

Appellant’s meritorious point, on appeal is:

“Whether the trial court erred in allowing into evidence irrelevant and highly prejudicial testimony concerning the conduct of appellant’s son that was not material to appellant’s guilt.”

On a Sunday afternoon, November 25, 1973, Foy Skipper became involved in a fracas at his home which resulted in his being charged with the crime of assault with intent to commit murder. Foy’s involvement was a result of his son’s, Wade Skipper, activities on that same afternoon. A more detailed account of same will hereinafter be related. At the outset of the trial, defense counsel for Foy vigorously objected to the state mentioning in its opening statement, or into evidence, events that occurred in Holmes County in which appellant’s son, Wade Skipper, was involved. Defense counsel further noted that some “shooting” had occurred in Holmes County and that Wade arrived at Foy’s home in Washington County “being chased by police officers with cars marked being out of county”. The state responded:

“I .anticipate that the defense is going to raise in this case some question about the authority of these officers to be at the home of Foy Skipper in the first instance. I think the testimony as to what happened in Holmes County in regard to Officer Poole and Wade Skipper, the son, which will establish — will establish their authority to pursue him across the county line into this county and pursue him to the home, has a definite bearing on this issue.”

After listening to further statements of counsel, the following transpired:

“THE COURT: Objection is overruled but the record will reflect this is a continuing objection to this line of thought. Mr. Holley, I will not permit completely opening that keg of' worms. I will restrict your inquiry into it to a very limited reference of what did occur in Holmes County. You refer to the specific to establish why the officers were doing what they were and not allow it to be inquired into the extent that it would prejudice Mr. Skipper.
“MR. HOLLEY: May I offer to the court what I intend to offer?
“THE COURT: Yes.
“MR. HOLLEY: I intend merely to offer in way of evidence from Mr. Poole that the son who he was pursuing to the home did fire at home [sic] that’s why he was chasing him. He did fire upon the person or car of Officer Poole in Holmes County. He was pursuing him for this reason.”

This record reflects that the “keg of worms” envisioned by the trial court was not only opened, but that the jury was inundated with them.

Counsel for Foy cogently describes the testimony in this case as providing a plot for a “B” movie script entitled “Washington County Line” or “Sunday Fun in West Florida”. The spotlight of this trial was focused upon Foy’s son, Wade Skipper, and William Poole, a 22-year old City of Bonifay policeman.

Geography is important. The City of Bonifay is located in Holmes County. Tri-County Airport is located in a rural area in the northeast section of Holmes County, some distance from the city limits of Bonifay. Appellant Foy Skipper’s residence is situated in Washington County. Officer Poole testified that he was “dispatched” to the Tri-County Airport where it was reported that drag racing was being conducted. Upon arriving at the airport, he parked his car at the end of the runway . . and got out of my car and I walked to the rear of my car and stood there. . . . and I saw Mr. Wade Skipper run to an orange 1966 Corvette. When come — when he come running back to his car, he had what appeared to be a nickle-plated [sic] hand gun in a holster.” He then related after Wade Skipper got into his car that:

“He put his car in reverse and smoked his tires and put the car in forward and drive, drove it directly at the Holmes County Deputy. When he did this I got into my car and turned my car on and went in pursuit of this man. Mr. Wade Skipper turned his car to the left in a circle with his left hand on the steering wheel and the right hand he threw a nickle-plated [sic] hand gun up and shot at me twice.”

Poole continued testifying that he was driving a police car with “two blue lights and siren in the middle and City of Boni-fay Police Department wrote on it”, and that “he [Wade Skipper] put a hole through the blue lamp”. Upon being interrupted by defense counsel, Poole said he did not mean the appellant Foy, but that it was Wade Skipper. The state then proceeded to introduce into evidence the blue light that Wade Skipper had allegedly shot out at the Tri-County Airport. The following colloquy then ensued :

“THE WITNESS [Officer Poole]: I pursued this man on back roads—
“Q. [Mr. Holley] If you would tell us
“MR. MAYO, Excuse me, this man on trial ?
“THE WITNESS: Excuse me, Mr. Wade Skipper.
“THE WITNESS: When we left the airport, we took a right on the road to, leads you into the airport. He took another right that leads to a new bridge that was under construction and it wasn’t finished. He turned his car, Mr. Wade Skipper turned his car sideways in the road. I asked him to ‘Hold it, police officer.’ I got out of my car. He said, ‘Well, let’s go back around to the airport.’ I said, ‘Hold it right here.’ And at that time he slung his car into the ditch and went around me.”

Poole continued in relating how he pursued “him” on dirt roads; that one of the tires on “his” car had been shot out by a Holmes County deputy sheriff; and “When we were leaving the exit of the airport I shot the right rear tire out.” In answer to the question: “With your pistol ?”, Poole stated:

“Yes, sir, when we were like I said, we were back on these dirt roads, again which I don’t know, I shot out his right front tire. The tire went up an embankment and hit my car and I rolled over and the only other time I know of hitting Wade Skipper’s car is he took a wide left and it was clear and I hit the left side of his car somewhere, I know it [sic] hit it.
“I shot exactly six times and the six times were just in Holmes County. I never did shoot in Washington County.”

Poole continued testifying on direct that while pursuing Wade Skipper along dirt roads, he radioed the Holmes County Sheriff’s Department for assistance and followed Wade to his father’s home, and it is at this point that appellant Foy appears for the first time in the script.

Poole testified that Foy was on the front porch when Wade Skipper “run into his house, come back with a shot gun and that’s when Mr. Foy Skipper was standing on the porch with the shot gun.” The state then adduced competent substantial evidence that Foy and Wade Skipper indiscriminately opened fire upon Poole and a Holmes County deputy sheriff, Melvin Deitz, who had responded to Poole’s call. The deputy sheriff responded with two shots from a .44 magnum rifle. Before the melee was calmed, three highway patrolmen and a Washington County deputy sheriff arrived on the scene, but they did not participate in the shoot out. In response to Mrs. Skipper’s (appellant’s wife) telephone call to the Washington County Sheriff’s office, Deputy Sheriff Alan Taylor arrived on the scene and calmed the storm. Taylor, unarmed, walked into the Skipper home (The Skippers testified at their invitation), took Wade into custody and carried him to “our jail”.

The foregoing facts speak for themselves. Appellant Foy was not an accomplice in his son’s Tri-County Airport escapade. The extensive and minutely detailed testimony of the state spotlights Wade Skipper as the protagonist in this drama. A simple statement by Poole that he was present at the Skipper home in pursuit of Wade Skipper, who had unlawfully shot at him, would have fully satisfied the trial court’s ruling that it would restrict the state’s inquiry to a very limited inquiry of what happened in Holmes County. The state’s evidence is that the appellant was peacefully at his home on this Sunday afternoon when his son made a mad dash inside his home with a city policeman from a neighboring county in hot pursuit.

The state relies upon the oft quoted legal phrase of “res gestae” and cites at length from Corpus Juris Secundum which states, inter alia:

“Matters are not admissible as part of the res gestae simply because they are contemporaneous with the main event; relation in time is not the sole criterion; the matters must be so connected with the main transaction as to be virtually and effectively a part thereof.”

If Wade Skipper had been put to trial, the matters beginning with the Tri-County Airport episode would have been admissible. The defendant was appellant, Foy Skipper, not Wade, although in several instances some confusion is shown as to who was the defendant. Thus the matter of which Foy was charged, i. e., his premeditated design and intent to kill one Melvin Deitz, were not “so connected” with Wade’s Holmes County escapade as to be “virtually and effectively” a part of Foy’s trial.

The state cites as Florida authority Kennedy v. State, wherein the Supreme Court, in discussing “res gestae”, held:

“Generally, it is harmful to admit evidence of other or collateral crimes independent of and unconnected with the crime for which the defendant is on trial.
“The general rule, supra, has several distinct exceptions, well supported by precedent, among which is that such evidence is admissible when it is relevant as part of the res gestae, or tends to establish the identity of the person committing the crime laid in the indictment, or where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.”

Kennedy was charged with having in his possession moonshine whiskey. The state, in proving the time of the charged offense, introduced testimony of witnesses which established the fact that Kennedy had previously been arrested on a similar charge. Unlike Kennedy, it was possible in the instant case to give a complete or intelligent account as to appellant’s part in the “shootout” without detailing Wade Skipper’s independent foray. The exception to the rule of hearsay that is termed “res ges-tae” is not an elixir that transforms a “keg of worms” into respectable evidence.

Watkins v. State controls. There, the Supreme Court, in discussing the rule “res inter alios acta” in considering collateral facts analogous to those present in the instant case, stated :

“The rule ‘res inter alios acta’ forbids the introduction against an accused of evidence of collateral facts which by their nature are incapable of affording any reasonable presumption or inference as to the principal matter in dispute, the reason being that such evidence would be to oppress the party affected, by compelling him to be prepared to rebut facts of which he would have no notice under the logical relevancy rule of evidence, as well as prejudicing the accused by drawing away the minds of the jurors from the point in issue.”

Reversed and remanded for a new trial.

SMITH, SAMUEL S., Associate Judge, concurs.

McCORD, J., dissents.

      . Defense counsel vigorously objected as follows :
      “MR. MAYO: Your Honor, we’re going beyond what the Court announced you were going to allow. You said you were going to allow this and again I’m going to announce to the court I’m in the position of having some forty something witnesses to prove a different set of facts, that I’m of the opinion it is not necessary for me to do. This is going beyond the point because it has nothing to do with Foy Skipper on trial here today in Washington County about something that occurred in that county. The Court’s ruling was you would allow just enough evidence in to what the police officers knew, if the State county, could, to justify the chase.
      “THE COURT: Objection overruled.”

      . 22A C.J.S. Criminal Law § 662(1) (1961).

      . Kennedy v. State, 140 Fla. 124, 191 So. 193 (1939).

      . O. Torcía, Wharton’s Criminal Evidence, § 297 (13th Ed. 1972) at 60-62.

      . Watkins v. State, 121 Fla. 58, 163 So. 292 (1935).


text:
    TIME INSURANCE COMPANY, a Wisconsin Corporation authorized to do business in the State of Florida, Appellant, v. Shelton ARNOLD, Appellee.
    No. Y-28.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.

      Milton H. Baxley, II, Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellant.
    Wayne M. Carroll and William R. Bur-well, Wershow, Burwell, Carroll & Wer-show, Gainesville, for appellee.
   SMITH, Judge.

Time Insurance Company appeals from a final judgment entered in favor of its insured, appellee Arnold, for an attorney’s fee in the amount of $1,200 and costs in the amount of $47.50 in Arnold’s action for benefits under a policy of disability insurance. Time paid the policy limits during litigation and urges that it is not responsible for the payment of attorneys fees under § 627.428, F.S.1973, because it did not act in bad faith or wrongfully in withholding payment for more than a year after the action was brought and for nearly two years after Arnold made claim under the policy.

Time’s policy, insuring Arnold against loss by reason of disability from “sickness which first manifests itself after the policy is in force,” was issued June 1, 1971. In December 1971, Arnold was stricken with a disabling illness. On January 20, 1972, on a form supplied by Time, Arnold submitted a notice of claim reciting that his sickness began on December 1 and referring Time to his physician’s statement on the reverse side of the form. There Dr. Swift described his patient’s illness and, in the space provided for the date on which “symptoms first appeared,” he inserted the date “Jan 1971.” The record does not inform us why Dr. Swift erroneously made this entry, or to what illness if any he may conceivably have been referring to, but it is agreed that the entry was erroneous and that the symptoms of Mr. Arnold’s sickness were first manifested in. December 1971, after the policy became effective in June.

Time rejected Arnold’s claim for disability benefits by letter in April 1972, explaining that the medical information it had received indicated that the condition disabling Arnold “had its inception prior to the issuance of your policy.” Arnold then consulted attorneys who protested to Time later in April that “I find no exclusion regarding pre-existing conditions” and that, in any event, Arnold’s illness did not antedate the issuance of the policy, as could be verified by Dr. Barry, Arnold’s family physician whose identity was shown on the original application for insurance. The lawyer’s letter concluded with a declaration that he was “not interested in a barrage of letters sparring . on the merits of this claim,” assertions that “complaint drafting is less time consuming for me than nit-picking” and that Florida law provides attorney’s fees to successful plaintiffs suing on insurance policies, and a statement that “Mr. Arnold is in need of his benefits, is entitled to them, and expects to receive them.”

Within a week Time replied to Arnold’s attorney, forwarded an underscored photocopy of the policy provisions excluding coverage for illnesses manifested before the policy date and explained that Time had indeed consulted Dr. Barry, who had said he had not seen Arnold since July 1969, about two years before the policy date. Time’s representative also pointed out that Dr. Swift had stated on the claim report form that- “the Insured’s condition began January, 1971,” which Time stated “would pre-exist the June 1, 1971 issue date.” Mr. Arnold’s attorney responded as follows a week later:

“I reply to your letter concerning Shelton Arnold. It is no surprise to me that you decline coverage in this instance. Please do not be surprised when you receive our claim in a more appropriate forum.
“You deliberately overlooked the error I pointed out concerning the date assigned by Dr. F. J. Swift concerning the date of the on set of this condition. I would send you a corrected copy, but do not feel inclined to investigate your case for you.
“Please consider this our final notice of claim in this matter.”

This communication was the last between the parties until appellee Arnold’s complaint was filed in November 1973. Dr. Swift’s deposition was at last taken on October 30, 1974, and the doctor then verified that his entry on the notice of claim form was erroneous. Within sixty days, Time paid to Mr. Arnold the full coverage afforded by the policy.

In these circumstances, it was error for the trial court to enter judgment for appellee Arnold assessing attorney’s fees pursuant to § 627.428, F.S.1973. The statutory provision for assessment of reasonable attorney’s fees for the benefit of a beneficiary who successfully obtains a judgment on his policy is in the nature of a penalty, to discourage wrongful refusals to pay policy benefits. Manufacturers Life Ins. Co. v. Cave, 295 So.2d 103 (Fla.1954), Equitable Life Assur. Soc. of U. S. v. Nichols, 84 So.2d 500 (Fla.1956), Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1974). See also our decision in Salter v. Nat’l Indent. Co., 160 So.2d 147 (Fla.App. 1st, 1964).

Time’s refusal in this case to pay the policy benefits was not wrongful. It promptly paid when it learned, at the taking of Dr. Swift’s deposition, that the illness for which claim was made first manifested itself during the policy period. Until then, it was misled by Dr. Swift’s erroneous statement in the proof of claim which was erroneously submitted by Arnold, and for which Time bore no responsibility. Sec. 627.425, F.S.1973. While Time was patient and candid in explaining its position to appellee’s attorney in correspondence during the spring of 1971, counsel’s response was irascible and uncommunicative. Time had no obligation under the circumstances to doubt the erroneous information contained in the notice of claim. The assessment of attorney’s fee was therefore erroneous.

Although Time assigned as error the assessment of costs, appellant waived the point by failing to brief and argue it. Tri-State Enterprises, Inc. v. Berkowitz, 182 So.2d 40 (Fla.App. 2d, 1966); Nasrallah v. Corley, 180 So.2d 476 (Fla.App. 3rd, 1965). In this respect the judgment will be sustained.

Affirmed in part, reversed in part.

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


text:
    Raymond R. STALLINGS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-111.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.

      Raymond R. Stallings, in pro per.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Stallings appeals from an order denying his motion to vacate and set aside the judgment and sentence adjudicating him guilty of second degree murder, and sentencing him to life. The sole issue is whether the trial court erred in its denial of the motion.

In Stallings v. State, 297 So.2d 593 (Fla.App. 1st, 1974), this Court affirmed the trial court’s judgment and sentence. Thereafter, under Rule 3.850, Florida Rules of Criminal Procedure, Stallings filed a motion to vacate and set aside which the trial court denied without an ev-identiary hearing.

Stallings’ motion alleged that (1) the State knowingly adduced perjured testimony which resulted in his conviction; (2) the trial judge interjected himself into the case by examining a witness; (3) the trial court permitted a witness to testify to a statement made by him without first determining that it was freely and voluntarily made; (4) the attorney representing him at the trial was ineffective and incompetent; and (5) the attorney representing him on direct appeal did not raise prejudicial errors for consideration by this Court.

A motion to vacate and set aside judgment and sentence is properly denied when the matters could have been raised on direct appeal. Peterson v. State, 237 So.2d 223 (Fla.App. 1st, 1970). Grounds (2) and (3) of Stallings’ motion could have been raised on direct appeal. In addition, the record reflects that the trial court did no more than ask a witness several questions for the purpose of clarifying his previous answers, and that Stallings’ statement was freely and voluntarily made.

A motion which alleges that the State knowingly used perjured testimony to obtain a conviction without accompanying facts is insufficient to require an eviden-tiary hearing under Rule 3.850, Florida Rules of Criminal Procedure. State v. Matera, 266 So.2d 661 (Fla.1972). For this reason, ground (1) was properly denied because the bare allegation set forth above is not supported by accompanying facts.

Failure to call upon all of the defense witnesses to testify is a matter of personal judgment exercised by defense counsel, and is not a ground for collateral attack. Fuller v. Wainwright, 238 So.2d 65 (Fla.1970). Likewise, the failure of counsel to object to the introduction of certain evidence, and failure to cross-examine a state witness as vigorously as a defendant desires are matters within the range of judgment and strategy of defense counsel, and are not grounds for collateral attack. For the above reasons, ground (4) was properly denied.

The record in Stallings’ direct appeal, supra, demonstrates that the attorney handling the appeal raised those errors which in his judgment were prejudicial, and after an adverse ruling, sought review by the Supreme Court which was dismissed. As this is a judgment matter, it is not a ground for collateral attack. Ground (5) was properly denied.

Affirmed.

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


author: PER CURIAM.

text:
    Bernard WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1330.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., NATHAN, J„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Bernard Walker was tried by jury, convicted and sentenced to ten years in the state penitentiary for torturing or unlawfully punishing a child.

As his point on appeal, Walker suggests error in the trial court’s denial of his motion to suppress a confession, without making an express finding as to voluntariness. Originally, we relinquished jurisdiction of this cause to the trial court to make an express finding as to voluntariness; Walker v. State, Fla.App.1975, 311 So.2d 768; however, the trial judge is no longer on the bench.

We have, therefore, again taken jurisdiction and have examined the entire record which shows that Walker was read his rights, and that he signed a document stating that he was advised of his rights and that he understood them. There was no evidence adduced which amounts to a charge of coercion or coercion. In the absence of any evidence or contention of coercion, when considering the total record on appeal, which clearly indicates that the trial court had, in fact, deter'mined that the confession was voluntary by virtue of his denial of the motion to suppress, the error suggested is without merit and, at most, harmless error. Accord: Bunch v. State, Fla.App.1974, 303 So.2d 705; Wilson v. State, Fla.1974, 304 So.2d 119.

Affirmed.


author: PEARSON, Judge.

text:
    William Henry ETHERIDGE, Appellant, v. FIREMEN’S FUND INSURANCE COMPANY and Plymouth Van Lines, Inc., Appellees.
    No. 74-1509.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Horton, Perse & Ginsberg, Dunn & Johnson, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes, and Tully Scott, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

William Etheridge, the plaintiff in the trial court, appeals a final judgment based upon a jury verdict which awarded him $7,500 in damages after the trial of a negligence cause. On this appeal, he urges reversal of the judgment on two grounds: (1) that the court erred in denying his motion for a new trial because it was made to appear by his motion and exhibit thereto, together with an affidavit of the plaintiff, that the jury rendered a quotient verdict, and (2) that the court erred in denying plaintiff’s post-trial motion for permission to interview the jurors. This latter motion was made pursuant to Canon 7 of the Florida Code of Professional Responsibility.

Concerning appellant’s first point, we hold that the motion, affidavit and exhibit are insufficient in themselves to establish error upon the trial court’s denial of plaintiff’s motion for a new trial. See Jackson Grain Co. v. Hoskins, Fla.1954, 75 So.2d 306; Pix Shoes of Miami, Inc. v. Howarth, Fla.App.1967, 201 So.2d 80.

The real issue in this appeal arises from the trial court’s denial of plaintiff’s motion for permission to question the jurors regarding the method used in arriving at a verdict. In this case where comparative negligence was found to be applicable, the record shows that the jury assessed plaintiff’s damages at $15,000. The jury further found that both the plaintiff and defendant were guilty of negligence which was the legal cause of the accident and that each was fifty percent negligent. In accordance with this verdict, final judgment was entered for the plaintiff and against the defendant in the amount of $7,500. Plaintiff discovered and filed with the court a sheet of paper bearing handwritten notes indicating a careful analysis of the evidence and showing on the bottom portion thereof the names of the jurors with various amounts set forth opposite their names. These amounts were totaled and divided by six' showing a quotient of $14,000. Plaintiff’s affidavit showed that the sheet of paper was discovered in the jury room after the discharge of the jury.

The question, therefore, becomes whether these facts were sufficient to show an abuse of discretion by the trial court upon the denial of the motion for permission to interview the jurors. Cf. Mike Bradford & Co. v. Gulf States Steel Co., FIa.App.1966, 184 So.2d 911 at 915.

While we are convinced that it would have been wiser for the trial judge to have allowed an interview with one or more of the discharged jurors subject to conditions and directions that the trial judge might have set, we are still unable to hold that the denial of the motion under the circumstances of this case constituted reversible error. The exhibit containing the names of the jurors simply shows action by the jury to determine the approximate amount for which damages would be found. This view of the exhibit is strongly reinforced by the fact that the quotient amount differed by $1,000 from, the amount of the damages actually found in the verdict. Under these circumstances, it was a matter for the exercise of the trial judge’s discretion as to whether it was necessary to pursue the matter further. See Stager v. Florida East Coast Railway Company, Fla.App.1964, 163 So.2d 15.

In our view, the process of the jurors in determining an amount of damages different from the quotient, which was procured by an irregular procedure, cured the use of averaging the estimates of damages. The trial judge, being familiar with the trial of the case, of the evidence submitted, the length of time during which the jury deliberated, and other factors contributing to the verdict, was within the area of his discretion when he determined that the matter should not be pursued further. See Telford v. Telford, Fla.App.1969, 225 So.2d 165.

Affirmed.

      . Canon 7, Florida Code of Professional Responsibility is in pertinent part, as follows:
      “Both before and during the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Subject to any limitations imposed by law it is a lawyer’s right, after the jury has been discharged, to interview the jurors solely to determine whether their verdict is subject to any legal challenge provided he has reason to believe that ground for such challenge may exist, and further provided that prior to any such interview made by him or under his direction, he shall file in the cause, and deliver a copy to the trial judge and opposing counsel, a notice of intention to interview such juror or jurors setting forth in such notice the name of each such juror. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing his action in any subsequent jury service.” 32 F.S.A., Prof.Resp. EC 7-29.


author: HAVERFIELD, Judge. PEARSON, Judge

text:
    Linda Sheryl ROBB, as Administratrix of the Estate of Josephine Dineen Robb, Deceased, and Kenneth J. Robb, Individually and as the parent, natural guardian and next friend of Kurt Robb, a minor, Appellants, v. Joseph PICARELLI, and Liberty Mutual Insurance Company, a Foreign Corporation, Appellees.
    No. 74-1511.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.

      Abramson, Scremin, Mendigutia & Lib-man, Miami, for appellants.
    Sam Daniels, Miami, Richard E. Hard-wick, Coral Gables, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Appellants, plaintiffs in the trial court, appeal an order dismissing their complaint with prejudice.

On October 2, 1973 plaintiffs filed an amended complaint against the defendants Joseph Picarelli and his liability insurer, Liberty Mutual Insurance Company, for injuries arising out of an automobile accident due to the alleged negligence of Pic-arelli. Plaintiffs utilized §§ 48.161, 48.171, Fla.Stat., F.S.A. in order to effect service of process upon the defendant Picarelli who the plaintiffs alleged was concealing himself to avoid service of process. Defendant Liberty Mutual Insurance Company moved to dismiss the cause as to it on the grounds, inter alia, that no service of process was obtained on the insured, Joseph Picarelli, and under the applicable law plaintiffs could not maintain their suit solely against the defendant insurance company. After hearing argument of counsel on this motion, the trial judge deferred his ruling thereon. Plaintiffs continued to make diligent search and inquiry as to the whereabouts of Joseph Picarelli, but were unable to locate him. On October 3, 1974 the trial judge entered the following order:

“ORDER GRANTING MOTION TO DISMISS
“Upon hearing argument by counsel for the respective parties herein, and it appearing that the Plaintiff has failed to obtain service upon the Defendant, JOSEPH PICARELLI, over approximately an eight-month period, and the Statute of Limitations having run in this cause, it is
“ORDERED AND ADJUDGED, as follows:
“1. This cause is hereby dismissed as to the Plaintiffs with prejudice.”
******

Plaintiffs appeal therefrom. We reverse.

One seeking to effect service under §§ 48.161 and 48.171, Fla.Stat. has the burden of presenting facts which clearly justifies its applicability and this burden is met if such facts appear from a consideration of the entire record. Fernandez v. Chamberlain, Fla.App.1967, 201 So.2d 781. Further, if a defendant owner or operator conceals his whereabouts and makes it impossible for an aggrieved party to serve him with notice by registered mail as provided by the statute and such aggrieved party shows that he has used due diligence in endeavoring to make service, this will not prevent the court from obtaining jurisdiction over such owner or operator. Steedman v. Polero, Fla.App.1965, 181 So.2d 202; Fernandez, supra; Richardson v. Williams, Fla.App.1967, 201 So.2d 900.

A review of the record in the cause before us demonstrates that after plaintiffs unsuccessfully attempted to serve defendant Picarelli at his last known address, they conducted an investigation which established the fact that Picarelli was concealing his whereabouts. Thereupon, plaintiffs filed the instant amended complaint along with the issuance of a summons with the Secretary of State. A certified copy thereof was sent by registered mail (return receipt requested) to Pic-arelli’s last known address. Counsel for plaintiffs also filed an affidavit of compliance with §§ 48.161, 48.171, Fla.Stat. The record is replete with evidence as to the efforts to locate Picarelli such as the employment of private detectives and the checking of the Florida Registry of Motor Vehicles, the National Crime Center and various local police departments. Plaintiffs even contacted in New York Picarel-li’s father, who alleged he had not heard from or seen his son in 18 months. We conclude that although plaintiffs did not serve notice to defendant Picarelli by registered mail under the prevailing law cited hereinabove, the trial court obtained jurisdiction over the defendants. Therefore, the trial judge was in error in dismissing the cause with prejudice as to the plaintiffs on the grounds that plaintiffs failed to obtain service upon Picarelli. The dismissal on the grounds that the statute of limitations had run also was erroneous as the filing of the complaint tolled the running thereof and thereafter plaintiffs exercised due diligence in attempting to serve Picarelli. See Friday v. Newman, Fla.App.1966, 183 So.2d 25 and cases cited therein.

For the reasons stated hereinabove and -upon the authorities cited, the order of dismissal is reversed and the cause remanded to the trial court to reinstate plaintiffs’ complaint.

It is so ordered.

PEARSON, Judge

(concurring specially and dissenting in part).

I would concur fully in the opinion of the majority if it were not for the fact that appellant filed his notice of appeal prior to securing a ruling on his petition for rehearing. Under the unfortunate state of the record, I concur in the reversal of the order dated October 3, 1974, which dismissed the complaint with prejudice and I would remand the case for the purpose of allowing the plaintiffs to establish service pursuant to §§ 48.161 and 48.-171, Florida Statutes.


text:
    Cleveland V. McKNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-17.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant in the trial court seeks review of his conviction of assault with intent to commit murder in the first degree and second degree, and the 10 year concurrent sentences.

Defendant, Cleveland McKnight, was indicted on August 29, 1973 for one count of murder in the first degree and two counts of assault with intent to commit murder in the first degree. After a plea of not guilty was entered, defense motion for a psychiatric evaluation was granted and two disinterested qualified experts were appointed to examine the defendant. These experts determined that defendant was competent to stand trial held on April 15-18, 1974. Conflicting evidence was presented at trial as to whether defendant had sustained permanent organic brain damage as a result of his suffering from alcoholism. The jury returned a not guilty verdict on the murder count and found the defendant guilty on the two counts of assault with intent to commit murder. Defense motion to set aside verdict was denied and thereafter several experts examined the defendant to determine his competency to be sentenced. In May 1974, having been found incompetent for sentencing, defendant was committed to the Division of Mental Health. On November 8, 1974 he was adjudged competent for sentencing and on November 21, 1974 readjudged competent therefor. The trial judge on December 3, 1974 sentenced the defendant to 10 year concurrent sentences on the two counts. This appeal followed.

Defendant first contends that the trial court erred in denying defense motion to set aside verdict on the grounds that he was incompetent to stand trial.

The record reflects the pretrial examination resulted in a determination that the defendant was competent to stand trial. Defense counsel made no objection thereto nor did the defense make any motion for a mental examination during the trial proceedings. Further, the after trial reports finding the defendant mentally incompetent to stand sentencing in no way indicated that defendant was such during the actual trial. We conclude that this point is lacking in merit. Cf. Surrette v. State, Fla.App.1971, 251 So.2d 149.

Defendant secondly urges as error the finding of the trial judge in November 1974 that he was competent to stand sentencing.

The record contains conflicting expert testimony as to whether the appellant was mentally competent to stand sentencing. There being competent substantial evidence contained therein to support the trial judge resolving the conflict in favor of the mental competency of the defendant, we will not disturb this determination on appeal. See Crum v. State, Fla.App.1965, 172 So.2d 24. Thus, this point of appellant must fail.

For the reasons stated, the judgment and sentences are affirmed.

Affirmed.


author: SUGG, Justice:

text:
    Carol BROWN et al. v. CITY OF WATER VALLEY, Mississippi.
    Misc. No. 543.
    Supreme Court of Mississippi.
    Sept. 22, 1975.
    William P. Dobson, Oxford, for appellants.
    Murray L. Williams, Water Valley, for appellee.
   ON MOTION FOR WRIT OF CERTIORARI

SUGG, Justice:

This case is before the Court on application for writ of certiorari praying that a writ issue to the official court reporter and the Chancery Clerk of Yalobusha County, directing them to file here the record of proceedings in Cause No. 5488 which was tried in the Chancery Court of the Second Judicial District of Yalobusha County.

We have uniformly issued writs of certiorari requiring clerks of trial courts to prepare and file records of cases on appeal in aid of our appellate jurisdiction. We have consistently declined to issue writs of certiorari requiring court reporters to prepare and file transcripts of evidence on the theory that this Court has no control over court reporters employed in trial courts. Upon this premise, we have said that we cannot coerce the filing of a transcript of evidence for use in an appeal to this Court. See State ex rel. Patterson v. Autry, 236 Miss. 316, 110 So.2d 377 (1959); Warren v. State, 165 Miss. 783, 144 So. 698 (1932); State v. White, 153 Miss. 697, 119 So. 807 (1928); Planters’ Oil Mill v. Yazoo & M. V. R. Co., 150 Miss. 813, 117 So. 242 (1928); Ocean Springs Bank v. Frederick, 145 Miss. 553, 110 So. 366 (1926); Bankston v. City of Clarksdale, 134 Miss. 721, 99 So. 266 (1924); Robertson v. Southern Bitulithic Co., 129 Miss. 453, 92 So. 580 (1922); Berry v. Brown, 109 Miss. 64, 67 So. 662 (1915); Charles Brooks & Co. v. Gentry, 106 Miss. 506, 64 So. 214 (1913).

There are two good reasons for ending this practice. First, it is important for litigants to have their cases filed here and docketed in chronological order as appeals are perfected so that cases might take their rightful place on the docket. This is especially true in view of the crowded docket with which this Court is faced. When a case is appealed and the record made in the trial court is not filed when required by law, a final decision is delayed to the detriment of the parties.

A second reason is that Mississippi Code Annotated section 11-3-13 (1972) provides for dismissal of an appeal if a copy of the record in the court below is not filed with the Clerk of the Supreme Court on or before the return day to which the appeal is returnable by law or by rule of court. In addition, Mississippi Code Annotated section 11-3-5 (1972) provides not only that an appeal to the Supreme Court shall not be dismissed because of failure of an officer to comply with the requirements of law in reference to appeals, but also that the Court may dismiss an appeal for a failure of an appellant to do, within a reasonable time, what may be necessary to perfect his appeal. In cases where the record was not filed on a proper return day, we have held that appellant had the duty of taking steps to secure certiorari or other proceedings to compel the filing of the record in this Court. Brown v. State, 253 Miss. 765, 176 So.2d 895 (1965); Miller v. Phipps, 152 Miss. 437, 119 So. 170 (1928); Yazoo & Miss. V. R. Co. v. McCarley, 106 Miss. 92, 63 So. 335 (1913); Martin v. Phelps, 53 Miss. 134 (1876). We have dismissed cases when a copy of the record was not filed with the Clerk of the Supreme Court on or before the return day an appellant failed to apply for a writ of certiorari within a reasonable time after the record was due. See Harris v. Sykes, 207 So.2d 344 (Miss.1968); Cobb v. Frazer, 209 Miss. 603, 48 So.2d 124 (1950).

Since a proper decision of most cases on appeal requires a detailed consideration of the testimony in the trial court, it is futile to require a clerk to file a record that does not include a transcript of the testimony. We recognize that Mississippi Code Annotated section 9-13-41 (1972) permits a bill of exceptions in the absence of a transcript of the testimony, but where the court reporter’s notes are available, a transcription of the notes is preferable to a bill of exceptions. A bill of exceptions is a poor substitute.

In order to exercise effectively the appellate jurisdiction vested by Article VI, Section 146 of the Constitution of 1890, this Court must have before it all records necessary for the proper consideration of cases on appeal. As far back as 1872 this Court held that it could hear and determine all motions and issues necessary for the exercise of its appeal powers and necessary for the enforcement of its orders. Planters’ Insurance Co. v. Cramer, 47 Miss. 200 (1872); Brown v. Carraway, 47 Miss. 668 (1872).

In Matthews v. State, 288 So.2d 714 (Miss.1974) we said:

The inherent power of the Supreme Court to promulgate procedural rules for the efficient disposition of its case load stems from the fundamental constitutional precepts of separation of powers and the vesting of judicial powers in the Courts. Miss. Constitution, Art. I, § 1, Art. VI, § 144 (1890). (288 So.2d at 715).

We held in Newell v. State, 308 So.2d 71 (Miss.1975), that this Court has inherent power to prescribe rules of procedure to facilitate the administration of justice in the courts throughout the state. The authority to promulgate rules of procedure in aid of our appellate jurisdiction includes the power to issue writs of certio-rari to court reporters requiring the preparation and filing of transcripts of testimony in cases appealed to this Court.

In order to establish a uniform procedure throughout the state with reference to requests by court reporters for additional time in which to transcribe their notes, we hereby adopt Supreme Court Rule No. 44 as follows:

If a court reporter finds that he will not be able to complete his transcript of the notes in any case within the time prescribed by Mississippi Code Annotated section 9-13-25 (1972), and within a 30 day extension granted in accordance with Mississippi Code Annotated section 9-13-37 (1972), the court reporter may apply to the Supreme Court for an extension of time. No application will be considered unless accompanied by a certificate of the judge or chancellor who presided at the trial, setting forth in detail the facts necessitating the requested extension of time. For cause shown, the Supreme Court may grant such extension as it deems necessary consistent with justice.

We overrule all cases holding that this Court has no power to require a court reporter to prepare and file a transcript of the evidence taken on the trial of a case. We specifically overrule the cases cited in the second paragraph of this opinion to the extent that they conflict with our holding here.

We order that a writ of certiorari issue to Mrs. Norma Newman, court reporter of the Third Chancery Court District, directing her to file a transcript of the evidence taken in this case within 30 days from the date of the mandate. We further order that a writ of certiorari issue to Mr. Gerald Harris, Chancery Clerk of Yalobusha County, directing him to file the record in this Court within 60 days from the date of the mandate.

This motion was considered by a conference of the Judges en banc.

All Justices concur.

      . These cases construed Article VI, Section 4, Constitution of 1869 which reads as follows :
      The supreme court shall have no jurisdiction but such as properly belongs to a supreme court.


author: BROOM, Justice.

text:
    In the Interest of Henry Charles William WAY, a minor.
    No. 48656.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      George S. Monroe, II, Newton, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley and Karen Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice.

At issue is the validity of an order of the Youth Court of Newton County adjudicating Way to be a delinquent and placing him on parole. Subsequently his parole was revoked. This case is not legally distinguishable from In Interest of Ferguson, A Minor, Miss., 317 So.2d 899, rendered on August 25, 1975, which requires reversal.

I.

It is clear in the record that when the original petition was heard, charging Way with delinquency, there was a failure on the part of the state and the court to advise the “minor and his parents” of their right to counsel as required by In Interest of Long, 184 So.2d 861 (Miss.1966). The same rule or requirement was restated in In Interest of Edwin Ferguson, a Minor, supra. In that case it was said that “both the minors and their parents” should be advised of their right to counsel. See also, In Re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527, 554 (1967).

II.

At the hearing of the original petition, according to the state’s brief, no evidence was presented except the oral confession given, by Way himself. Since no corpus delicti was established, the confession was erroneously admitted. Ferguson, supra; In Interest of Earles, 294 So.2d 171 (Miss.1974).

Reversed and rendered.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.


author: PATTERSON, Justice:

text:
    PAYMASTER OIL MILL COMPANY, a Division of Anderson Clayton and Company, Plaintiff-Appellant, v. Dennis MITCHELL, Defendant-Appellee.
    No. 48281.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Brunini, Everett, Beanland & Wheeless, Robert A. Weems, Vicksburg, for plaintiff-appellant.
    David Shoemake, Collins, for defendant-appellee.
    Before PATTERSON, INZER and SUGG, JJ.
   PATTERSON, Justice:

Paymaster Oil Mill Company brought suit in the Circuit Court of Covington County to recover damages for breach of contract. It alleged that Dennis Mitchell, the appellee, failed to deliver the quantity of soybeans he had agreed to supply, thereby monetarily damaging the plaintiff. After hearing evidence of both plaintiff and defendant, the trial court “directed a verdict” for Mitchell based upon the “force majeure” statute of the Uniform Commercial Code, specifically Mississippi Code Annotated section 75-2-617 (1972).

In July 1972 Mitchell, a farmer of Cov-ington County, discussed with Benny Franklin, the plant manager of Paymaster Oil Mill Company, the prospects for fall delivery of soybeans to Paymaster. An oral agreement between the two was reached whereby Mitchell contracted to deliver 4000 bushels of soybeans at $3.11 a bushel in October and November of 1972. On July 19, 1972, a written confirmation, prepared by Paymaster, was executed by Mitchell and Franklin corroborating their oral agreement. In addition to the amount, price, and time of delivery the confirmation contains the following language: “We confirm the purchase from you, as per our conversation Dennis Mitchell/Benny Franklin. . . .”

In August Covington County suffered a severe and unusual drought, greatly damaging the soybeans Mitchell was cultivating. He did not notify Paymaster of his damages, but delivered to Paymaster in October and November 1835.51 bushels, his entire crop.

In the meantime Paymaster, relying on the agreement for delivery of 4000 bushels of soybeans at $3.11 a bushel, had contracted for its products to be sold and when the failure to deliver 4000 bushels occurred, was compelled to purchase soybeans at $3.-66 per bushel to cover the deficit. This suit is for the losses incurred by Paymaster by reason of the greater price it had to pay for beans to make up the shortage occasioned by Mitchell.

As mentioned, the trial court “directed a verdict” for Mitchell after evidence had been introduced by both parties and both had rested their case. We are of the opinion the “directed verdict” was properly granted and that the case should be affirmed. The reasons therefor require that the appellant’s assignments of error be considered in conjunction with each other rather than separately. They are: (1) The court erred in sustaining the defendant’s motion for a directed verdict, (2) erred in admitting testimony in violation of the parol evidence rule and (3) refused to admit evidence of custom and uses of the soybean trade.

The plaintiff's case was based upon the written agreement for the delivery of 4000 bushels of beans at $3.11 per bushel and evidence that Mitchell delivered only 1835.51 bushels, creating a deficit which was overcome by the purchase of beans at a higher price. This evidence established a cause of action upon which the plaintiff was entitled to recover. The trial court therefore correctly overruled the defendant’s motion for a directed verdict at the close of the plaintiff’s case.

However, the defendant then testified, over objection, to the conversation between him and Franklin in explanation and supplement of the written agreement. This evidence follows:

A. I was directed back to his office, introduced myself, he introduced himself, we shook hands, I told him I was a soybean farmer in Collins, Mississippi, I had 200 acres of soybeans, I’d love to book them, and what’s the price today. He explained to me the price was $3.11. He asked me how the beans looked. I told him excellent.
Q. You told him what ?
A. Excellent. He asked me how my neighbors’ beans looked and I told him wonderful. He gave me the price of $3.-11. We discussed how many acres to book and, to be on the conservative side, he suggested 20 bushels to the acre, which was agreeable to me; and I dismissed myself and come on back to the house.
Q. All right, sir. Now, tell me, based upon the conversation between you and Mr. Franklin, tell me whether you discussed this in terms of bushels or in terms of acres and expected production from those acres ?
***** *
A. Mr. Adams, the conversation reflected all three. I believe he initiated, “How many acres do you have?” My answer, “200 acres.” Okay. To be on the conservative side, let’s book 20 bushels to the acre, which would — 4,000 bushels; and that is what we agreed on, 4,000 bushels.

Franklin, Paymaster’s manager, when queried on the contract between him and Mitchell, stated that he did not recall whether the conversation occurred in person or whether it was by telephone, testifying: “I cannot testify as to the specifics of the conversation, I cannot,” and when reexamined on the point, repeated that he simply did not know and could not recall any part of the conversation with Mitchell. When pressed by counsel, he stated he did not know Mitchell’s occupation and consequently did not know that he was a farmer.

At the time of the defendant’s motion for a peremptory instruction the trial court had evidence before it additional to that at the conclusion of the plaintiff’s case. The trial court sustained the motion, reasoning there was no conflict of evidence or inferences arising for resolution by the jury. We are of the opinion the peremptory instruction was properly granted.

We have held many times that in passing on a motion for a directed verdict the court must look only to the testimony adduced for the plaintiff and accord truthfulness to it and indulge all favorable inferences that could be drawn therefrom, and if either is sufficient to support a verdict, then the motion for a directed verdict should be overruled. We have also stated in considering a motion for a directed verdict that it should be .overruled even though a verdict in favor of the plaintiff would be contrary to the overwhelming weight of the evidence. King v. Dudley, 286 So.2d 814 (Miss.1973).

In announcing this rule we have often used the term “solely” or “only,” or their equivalent, thereby restricting the evidence considered for the purposes of the motion to that of the plaintiff. Ezell v. Metropolitan Ins. Co., 228 So.2d 890 (Miss.1969); Meaut v. Langlinais, 240 Miss. 242, 126 So.2d 866 (1961); Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126 (1958), and other cases not necessary to cite. We have also stated the test for determining whether or not a motion for a judgment notwithstanding the verdict should be sustained is the same. Carlize v. Richards, 216 So.2d 422 (Miss.1968); Hawkins v. Hillman, 245 Miss. 385, 149 So.2d 17 (1963), and the cases cited therein.

These rules probably emanate from a common law “demurrer to the evidence,” but whatever their source, they have been implemented by this Court, doubtless to preserve the plaintiff’s statutory right to two new jury trials if there be a conflict of fact for resolution. [Miss.Code Ann. § 11-7-213 (1972)]. This necessitates a different result when a motion for a directed verdict, a peremptory instruction or a motion for a judgment n. o. v. is sustained from that of a motion for a new trial because the verdict is against the preponderance of the evidence. The former denies a new trial. The latter permits it.

In Mobile & O. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581 (1932), it is stated:

. . . The rule is that, laying aside and leaving out of view the testimony in behalf of defendant, if the evidence in behalf of the plaintiff is sufficient in law to establish the legal right of the plaintiff in issue and is not inconsistent with the admitted physical facts or with natural laws or common knowledge, and, so viewed, the plaintiff’s testimony taken alone is such that reasonable men, acting reasonably, could reasonably believe that the testimony and prudently act upon it, then a peremptory instruction for the defendant must not be given. When, however, all the testimony has been heard and all the arguments delivered and the verdict returned, if, upon a completed view of the entire case, the trial judge is then of the opinion that the verdict is against the overwhelming weight, or clearly against the great preponderance, of the evidence, his duty is, upon a motion for a new trial, to set aside the verdict and grant a new trial. In the latter respect, and to the extent mentioned, the trial judge has a responsible part in the final determination of the issue upon the facts, and his duty of superintendence in that regard is one of his constitutional obligations. 165 Miss. at 403, 141 So. at 582.

See also Gunn v. Grice, 204 So.2d 177 (Miss.1967); Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564 (1932); and Columbus & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817 (1928).

The motions, which preclude a new trial if sustained, of course arise at different stages of a case: the motion for a directed verdict at the conclusion of the plaintiff’s evidence, a request for a peremptory instruction at the conclusion of the plaintiff’s and defendant’s case and a motion for a judgment n. o. v. upon the jury’s verdict, but prior to judgment. These motions necessarily contemplate a consideration of different evidence and inferences arising during the course of trial. A motion for a directed verdict encompasses testimony of the plaintiff and its favorable inferences, whereas, the evidence considered on a request for a peremptory instruction or a judgment n. o. v. embraces the testimony on behalf of the plaintiff as well as that of the defendant, there being no difference between that considered for a peremptory instruction and a judgment n. o. v. since the latter is entertained only to correct the court’s error in refusing a requested peremptory instruction. Floyd v. Lusk, 190 So.2d 451 (Miss.1966); and Palmer v. Gardner, 226 Miss. 123, 83 So.2d 800 (1955).

An incongruity, however, arises from our decisions since we have held the test for a directed verdict is the same as that for a peremptory instruction or a judgment n. o. v. This has been compounded by our language indicating that the consideration of a peremptory instruction or judgment n. o. v. is restricted to the “sole” evidence of the plaintiff when in fact there is other evidence. This is illustrated, we think, by the posture of this case. If we look solely to the evidence of the plaintiff, a written confirmatory contract of purchase, a breach of its terms and resultant damages, the defendant is not entitled to a directed verdict.

On the other hand, if not so restricted and permitted to consider the un-contradicted testimony of the defendant in conjunction with the written confirmatory contract introduced by the plaintiff, the entire contract emerges with a different legal result, entitling the defendant to a peremptory instruction. In General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969), we applied, in considering a judgment n. o. v., the following:

The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105.

The quotation above, we believe, expresses the better rule for a peremptory instruction or a judgment n. o. v. since it permits the court to examine the evidence of both parties that is not in conflict, as here, in order to reach a legal conclusion; or stated differently, the jury resolves conflicts of fact — the court resolves issues of law arising from nonconflicting facts.

In reviewing the present evidence, we conclude, as did the trial court, that the written confirmation was not the entire contract between the parties since the conversation of Mitchell and Franklin was incorporated into it. This conversation, when explained by Mitchell, indicates that Paymaster agreed to purchase 4000 bushels of beans produced by Mitchell from 200 acres he was cultivating as a farmer, in short, his soybean crop, but not in excess of 4000 bushels. We think this construction by the trial court was reasonable and logical, leaving no conflict of fact for resolution'by a jury. We therefore conclude the peremptory instruction was correctly ■granted if the parol testimony was properly permitted into evidence.

In responding to the last question, we first note that Mississippi Code Annotated section 75-2-202 (1972) provides :

Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
(a) by course of dealing or usage of trade (Section 1-205) [§ 75-1-205] or by course of performance (Section 2-208) [§ 75-2-208]; and
(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.

We ascertain the legislative intent from this enactment. to be that parol evidence may not be used to contradict the terms of confirmatory memoranda of a written agreement intended as the final expression of a. contract, but that it might be explained or supplemented by evidence of consistent additional terms unless there be an adjudication the writing was intended as an exclusive statement of the agreement. In our opinion the terms of the present written memoranda were not intended as the exclusive statement of the agreement as is evidenced by the reference to the conversation made a part of it. This accords with out decision in Valley Mills v. Southeastern Hatcheries, 245 Miss. 71, 145 So.2d 698 (1962) (pre UCC], permitting parol evidence in explanation of a written agreement. And see Bunge Corporation v. Miller, 381 F.Supp. 176 (W.D.Tenn.1974). Cf. Noble v. Logan-Dees Chevrolet-Buick, Inc., 293 So.2d 14 (Miss. 1974), a written contract intended as the final expression of the parties, which was the subject of an interesting discussion in 46 Miss.L.J. 192 (1975). We conclude the parol testimony to have been properly admitted to bring the entire contract before the court.

We are of the opinion the contention of the appellant directed to the “force majeure” clause, Mississippi Code Annotated section 75-2-617 (1972) [UCC], is controlled by Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788 (Miss.1974), since there was no contradiction of the drought conditions affecting Mitchell’s crops. We there stated:

. . . The rule is that if the parties contract for the purchase and sale of all or a part of a particular crop to be grown in the future from a particular tract or tracts of land and by reason of weather conditions or other forces of nature the seller is unable to plant all or part of the crop or if all or part of the crop fails or is destroyed by conditions beyond the control of the seller, nonperformance to the extent of the failure is excused in the absence of an expressed condition in the contract to the contrary. The reason for this rule is that the parties to the contract for the sale of a crop to be grown in the future are well aware of the fact that weather and other conditions of nature control to a large extent the ability of the seller to grow and harvest the crop contemplated. Therefore, the absence of an express condition in the contract to the contrary, the foregoing rule is an implied condition of the contract. 294 So.2d at 792.

Finally, we think the trial court did not err in rejecting the plaintiff’s evidence relating to custom and usage of the soybean trade. Mississippi Code Annotated section 75-1-205 (1972) provides in part:

(6) Evidence of a relevant usage of trade offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter.

A study of the record indicates the trial court did not abuse its discretion in rejecting this offer of evidence by Paymaster since it came late in the trial and probably would have denied the defendant an opportunity to rebut it absent continuance or other disruption of trial.

Affirmed.

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