author: HOBSON, Acting Chief Judge.

text:
    Thomas Preston BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1601.
    District Court of Appeal of Florida, Second District.
    March 1, 1978.
    Rehearing Denied March 28, 1978.

      Robert H. Nutter and F. Dennis Alvarez of Bonanno, Nutter, Crooks & Alvarez, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr. and Charles Corees, Jr., Asst. Attys. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Defendant appeals his conviction of sexual battery. He raises eight points on appeal. Only one of those points merits discussion. That point, dealing with the pretrial identification of defendant, has given this court great pause. However, a careful reading of the entire record convinces us that the suggestiveness of the photographic identification procedure did not affect the reliability of the identification witnesses’ testimony. Consequently, we affirm the trial court’s ruling denying defendant’s motion to suppress the pretrial identifications and the identifications made during trial.

The essential facts developed at trial were as follows: One very early morning in August 1975, someone entered prosecutrix’ apartment and awoke her from her sleep. As she awoke, she saw the figure of a man standing at her bedside. The man displayed a pistol and ordered prosecutrix into another room. He then subjected prosecu-trix to repeated sexual battery. Through much of the attack, the assailant'wore a ski mask. However, at various intervals prose-cutrix caught glimpses of the man without his mask as he stood in the dim light wearing a shirt. After the man left and the crime was reported, the prosecutrix gave the police a general description of the assailant. (Despite numerous repetitions of a description by the prosecutrix, and rigorous cross-examination, prosecutrix did not vary to any substantial degree in the characteristics she described.)

Shortly after the attack it occurred to prosecutrix that the assailant could possibly have been an acquaintance she had recently met. She subsequently confirmed that the acquaintance had not been the attacker. Later she briefly saw a man acting suspiciously towards her. She thought that this man may resemble the attacker and notified the police. She later saw a picture of that man and identified the man as not being the assailant.

In January 1976, a sheriff’s deputy brought to prosecutrix an envelope containing a photo-pak. The photo-pak consisted of eleven color photographs of men with similar facial features. Three of these photographs were of appellant. One of the three photographs depicted a frontal view of appellant. In that picture appellant sported a moustache and was wearing a loose-fitting shirt. In another picture appellant was not wearing a shirt, his head was turned to the side, and he was wearing a moustache. The third photograph of appellant was a number of years older than the other two photographs. In this third picture appellant was not wearing a mous-tache.

When prosecutrix was handed this envelope she removed the stacked photographs and began to look at them one by one. She could not see all the pictures at the same time. When prosecutrix came upon the first picture of appellant she exclaimed, “This is the face.” (Prosecutrix testified at trial that when she saw this picture she was perfectly certain that the man was the assailant.) She continued through the stack so as to leave no stone unturned. She then saw the second picture of appellant. When she saw appellant shirtless in the picture, she stated, “This is definitely the physique.” The prosecutrix did not identify the third, oldest, picture of appellant (without a moustache) as being of the assailant. After this identification, prosecutrix was shown numerous other photographs of appellant which were not in the photo-pak. The entire photo-pak was introduced into evidence before the jury. Prose-cutrix also made an in-court identification of appellant at trial.

The state presented Williams Rule testimony by the victim of another sexual battery to prove identity. A vast number of the details of the attack on the Williams Rule witness are virtually identical to those of the attack on the prosecutrix. This witness had an opportunity to view her attacker in the light of dawn. That assailant also did not take off his shirt. She was shown the stack of pictures in the same photo-pak shown prosecutrix. The first picture of appellant to appear in the stack was the picture of appellant without a shirt. She made a positive identification of appellant as the attacker immediately upon seeing this picture. At trial this witness again identified appellant as the assailant.

This photo-pak, shown to prosecutrix and the Williams Rule witness, was the fourth or fifth photo-pak shown to the women. It was the only photo-pak containing color photographs. This was the only photo-pak containing more than one picture of an individual. This was the only photo-pak containing a photograph of an individual not wearing a shirt. At no time did prose-cutrix or the witness identify a photograph of another person as a photograph of the assailant.

Appellant contends that the photo-pak was, of itself, suggestive. We agree. Appellant also contends that the manner in which this photo-pak was used was imper-missibly suggestive and therefore admission into evidence of the fruits of this procedure violated appellant’s right to due process. We disagree and find that there was no substantial likelihood of misidentification and hence due process has not been offended.

Appellant does not contend that he was denied his right to counsel. Appellant does contend that the photographic identification procedure employed by the law enforcement officers was so suggestive as to deny him his right to due process of the law under the Fourteenth Amendment to the Constitution and Article I, Section 9 of the Florida Constitution. Appellant relies heavily upon Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

The landmark cases applying due process requirements to extra-judicial identifications in criminal cases were penned against a backdrop of law admitting virtually all such evidence and leaving the determination of trustworthiness solely to the jury in the exercise of its duty to weigh the evidence. The suggestiveness of the identification procedure bore only on the weight of the evidence and not on its admissibility. Through these cases, due process intervenes to establish a threshold of reliability for this evidence. An impermissibly suggestive identification procedure so undermines the reliability of eyewitness identifications and presents such a danger of misidentification as to violate due process. Foster v. California, supra, note 1, 394 U.S. at 443, 89 S.Ct. 1127. It is the danger of misidentification, rather than the mere occasion of suggestion, that constitutes the basis for exclusion of the identification evidence. Neil v. Biggers, supra, note 1, 409 U.S. at 198, 93 S.Ct. 375.

Stovall v. Denno first set the standard for determining whether evidence of an extra-judicial identification meets threshold reliability. Evidence which is the fruit of a suggestive identification procedure does not meet threshold reliability where thp procedure gives rise to a very substantial likelihood of misidentification. Simmons v. U. S., supra; Neil v. Biggers, supra, note 1. See also Jenkins v. State, 228 So.2d 114 (Fla. 3d DCA 1969). Due process requires that evidence posing such a high danger of misidentification be withheld from consideration by the jury. This standard is applicable to photographic identification procedures. Simmons v. United States, supra. The degree of danger of misidentification required for exclusion of the evidence is appropriately high so as not to deprive the jury of evidence which is reliable despite the somewhat suggestive procedure and so as to preserve the jury’s function to weigh the evidence. Once threshold reliability is established, the accused may employ the traditional methods for testing the weight which the jury should attach to the evidence. The accused may use cross-examination, impeachment, rebuttal testimony, and closing argument to persuade the jury that the identification was mistaken. See Simmons v. United States, 390 U.S. at 384, 88 S.Ct. 967, and Jenkins v. State, supra. See also State v. Ciongoli, 313 So.2d 41 (Fla. 4th DCA 1975) (especially the concurring opinion of Coward, A. J.).

Essentially what we are dealing with is the competency of the witness to make the identification after that witness has been subjected to the suggestiveness of the identification procedure. In order to warrant exclusion of evidence of the identification, the identification procedure must have been so suggestive, and the witness’ unassisted ability to make the identification so weak, that it may reasonably be said that the witness has lost or abandoned his or her mental image of the offender and has adopted the identity suggested. Simmons v. United States, 390 U.S. at 383-84, 88 S.Ct. 967. In making this determination of threshold trustworthiness, the trial judge must consider' the totality of the circumstances surrounding the extra-judicial identification. These circumstances will include the ability of the witness to perceive and preserve a mental image of the offender, the method of identification employed, accompanying conversation or actions, the positiveness and manner of the witness’ identification, and, of course, whether the witness expressed doubts about the selection or failed to identify the accused. See Neil v. Biggers, supra, note 1, 409 U.S. at 199, 93 S.Ct. 375. A determination of suggestiveness in identification procedures is facilitated in the case of photographic identifications where all the photographs being compared for identification may be produced in court.

Applying these tests to the case at bar and considering the totality of the circumstances surrounding the identifications, we hold that the trial court did not err in finding the identifications sufficiently trustworthy to warrant consideration by the jury. First we consider the photo identification by the prosecutrix. We cannot say from prosecutrix’ testimony that she did not have an adequate opportunity to view the assailant and to form a mental image of his appearance. Shortly after the offense she gave a general description of the assailant and at all times thereafter did not substantially deviate from this description. Prosecutrix viewed numerous other photo-paks but did not identify anyone. When she saw the first picture of appellant she immediately identified him as the assailant. She was emphatically certain of this identification before she viewed any other pictures of appellant. See Neil v. Biggers, supra, note 1, 409 U.S. at 200-201, 93 S.Ct. 375. The fact that these were the first color photographs displayed to prose-cutrix does not establish impermissible suggestiveness, especially since all of the pictures in that photo-pak were color photographs. It is obvious that the suggestiveness of the photo-pak played no role in prosecutrix’ extra-judicial identification.

The in-court identification by pros-ecutrix was not tainted by the photo identification procedure. The trial court could have reasonably found that prosecutrix’ identifications were based upon a mental image of the assailant fixed prior to, and not supplied by, the photo-pak and other photographs of appellant. Coleman v. Alabama, supra, note 1, 399 U.S. at 6, 90 S.Ct. 1999. Consequently, the trial court did not err in allowing prosecutrix to make an in-court identification of appellant as the attacker.

The Williams Rule witness also testified to her extra-judicial identification of appellant as the man who attacked her. She identified appellant from the same photo-pak viewed by prosecutrix. She identified appellant in the same manner, that is, she was handed the stack of pictures which she viewed one at a time until she came upon the first picture of the appellant, which she positively identified as the assailant. Although this picture was the picture of appellant not wearing a shirt, this does not render the identification procedure im-permissibly suggestive since the witness did not see the assailant without a shirt and expressly based her identification on the face in the picture. There was no very substantial likelihood of misidentification. Additionally, shortly after the attack on this witness, she participated in the preparation of a composite sketch of the attacker. This composite sketch eventually led to the apprehension of appellant on charges of sexual battery of that witness. The trial judge had that sketch before him and certainly could have reasonably found that this image, fixed in the mind of the witness prior to the photo-identification procedure, represented appellant. Admission of that witness’ testimony of her extra-judicial identification was not error. Admission of this witness’ in-court identification of appellant was not error for the same reasons that prosecutrix’ extra-judicial identification of appellant did not taint her in-court identification.

While the identifications were sufficiently reliable to warrant submission to the jury, it cannot be said that they were the only evidence linking appellant to the offense. For instance: Prosecutrix testified that the assailant had bumps or marks in the same area in which appellant once had venereal warts. Prosecutrix described the pistol used by the assailant and the clothes worn by the assailant. At trial, prosecutrix identified a pistol and some clothes belonging to appellant as being at least very similar to those used by the assailant. (The Williams Rule witness also described and identified these articles.) During both attacks, the assailant removed almost all of his clothes except his shirt (which prosecu-trix testified was long-sleeved). Appellant has a tattoo including the name “Tommy” on his right arm. This evidence, both direct and circumstantial, negates any very substantial likelihood of misidentification. Jenkins v. State, supra.

The actual photo-identification procedures did not make it all but inevitable that the witnesses would identify appellant whether or not he was in fact “the man.” Cf. Foster v. California, supra, note 1, 394 U.S. at 443, 89 S.Ct. 1127. The trial court did not err in admitting the identification testimony into evidence. Appellant’s remaining points have been carefully considered and found to be without merit. Appellant having failed to demonstrate reversible error by the trial court, the judgment and sentence of that court are hereby

AFFIRMED.

SCHEB and GTT, JJ., concur.

        . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1969); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

      . See Annot., 71 A.L.R.2d 449 § 5 (1960); Simmons v. United States, 390 U.S. at 382, 88 S.Ct. 967; Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375.

      . Supra note 1.


source: Caselaw Access Project

author: DANAHY, Judge.'

license: Public Domain

text:
    James STEED, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 77-1296.
    District Court of Appeal of Florida, Second District.
    March 1, 1978.
    Rehearing Denied April 6, 1978.

      William A. Post of Post & Gable, Seminole, for appellant.
    O. Robert Wallace, III, of Harrison, Greene, Mann, Rowe, Stanton & Mastry, Tampa, for appellee.
   DANAHY, Judge.'

This workmen’s compensation case comes to us as an appeal from a final order of the trial judge dismissing with prejudice appellant’s petition for rule nisi pursuant to Section 440.24(1), Florida Statutes (1975).

Section 440.24(1) provides that, in case of default by an employer or carrier in the payment of compensation due under a compensation order of a Judge of Industrial Claims, the circuit court shall have jurisdiction to entertain a petition for rule nisi and issue such orders or other process as may be necessary to enforce the terms of the compensation order. Appellant is the workmen’s compensation claimant and appellee is his employer’s workmen’s compensation carrier. Appellant was awarded benefits by an order of a Judge of Industrial Claims. Appellee has made application to the Industrial Relations Commission for review of that award and contends that the application for review effectively presents the entire order for review. The trial judge agreed with appellee and ruled that he had no jurisdiction. Appellant contends that a portion of the award of the Judge of Industrial Claims was not effectively appealed and has become final; therefore, the trial judge had jurisdiction. We agree with appellant, and reverse.

In his order, the Judge of Industrial Claims made the finding that appellant had suffered a 20% permanent physical impairment of the whole body. He further found, however, that appellant was unable to obtain suitable employment, and, therefore, in accordance with the applicable statute, found appellant to be permanently and totally disabled. Accordingly, he ordered that the employer, through appellee, pay appellant permanent total disability compensation at the rate of $105 per week.

Appellee timely filed its application for review by the Industrial Relations Commission of the order entered by the Judge of Industrial Claims and that appeal is now pending. The application contains nine assignments of error as grounds for review. Not one of these refers to the finding of 20% permanent partial disability of the whole body. The first two assignments attack the finding of the Judge of Industrial Claims as to the date of maximum medical improvement. The remaining seven assignments all relate to the finding of permanent total disability and the award of benefits based on that finding.

Appellant argues that appellee is, therefore, bound by the finding of 20% permanent disability of the whole body and must pay benefits to appellant accordingly notwithstanding the pending appeal. We believe that this result is dictated by statutory and case law. Section 440.25(4)(a), Florida Statutes (1975) provides in part that:

“The compensation order rendered by the judge of industrial claims shall become final twenty days after the date copies of same are mailed to the parties at the last known address of each, unless within said time any interested party shall make and file with the commission or a judge of industrial claims an application for a review thereof by the commission in accordance with the provisions of this subsection . . . The application must state concisely and particularly the grounds upon which the appellant relies, and the consideration of the commission thereof will be confined solely to the grounds so presented . . . ” (Emphasis added).

The supreme court has held that the Industrial Relations Commission cannot consider a point, whether it relates to a finding, a ruling, or an award, not specifically raised in an application for review. Shell’s City Inc. v. Coles, 145 So.2d 489 (Fla.1962); Wesley’s v. Caramello, 156 So.2d 853 (Fla.1963); and Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209 (Fla.1974). The Industrial Relations Commission has so held. Stauffer Chemical Company v. Jacobs, I.R.C. No. 2-2650(s) (January 23, 1975). This rule is consistent with the intent of the Workmen’s Compensation Act to provide immediate relief as a substitute for the wages of the working man with little, if any, delay or long deliberation. Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968).

Appellee argues that its application for review effectively appealed the entire compensation order, for two reasons: first, because the application contained the general recital that it was to apply for “review of the order” entered by the Judge of Industrial Claims, and second, because the application attacked the finding of permanent total disability and this necessarily included the underlying finding of 20% permanent disability of the whole body. We find both points are without merit.

It is not enough to recite generally that a compensation order is contrary to the law and the evidence, or both. Shell’s City, Inc. v. Coles, supra. The general recital in ap-pellee’s application for review is not even that specific. And the finding of 20% permanent partial disability cannot be considered as essential to the finding of permanent total disability, since the latter rested upon findings as to appellant’s inability to obtain suitable employment. It seems to us clear that, although appellee has effectively appealed the finding of permanent total disability, its application for review in no way attacks the finding of 20% permanent partial disability of the whole body.

Accordingly, this case is reversed with instructions to reinstate and grant appellant’s petition for rule nisi and for further proceedings consistent with this opinion.

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

      . § 440.15(3)(u), Fla.Stat. (1975), applies and provides that “disability” means either physical impairment or diminution of wage earning capacity, whichever is greater.


author: BOOTH, Judge. . SMITH, Acting Chief

text:
    Mary S. H. JACOBS, Appellant, v. Berrien BECKS, Jr., Appellee.
    No. GG-484.
    District Court of Appeal of Florida, First District.
    March 3, 1978.
    Rehearing Denied March 31, 1978.

      R. Michael Kennedy of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellant.
    Wayne L. Hogeboom of Becks & Becks, Daytona Beach, for appellee.
   BOOTH, Judge. .

This cause is before the Court on appeal from the final judgment of the Circuit Court, Volusia County, denying recovery on promissory notes on the grounds that no evidence was presented of non-payment of the notes. The question here is whether Plain tiff/payee’s prima facie case for recovery on a promissory note requires evidence, outside the authenticated instrument itself, that the debt is unpaid.

Plaintiff is the named payee on two promissory notes in the principal amounts of $26,926 and $1,500, dated June 12, 1958, and July 12, 1951, respectively. The two notes, as well as a third instrument executed April 12, 1969 by the payor which waived the statute of limitations as to any indebtedness to the Plaintiff, were introduced into evidence in the suit against the payor’s estate.

The payor, Mary Hewitt, for many years a practicing attorney, is the mother of the payee, Mary Jacobs, and resided in her home for several years prior to Mrs. Hewitt’s death in 1973. Plaintiff was appointed personal representative of her mother’s estate.

Plaintiff duly filed a sworn claim in the estate for sums loaned and unpaid at the death of the deceased. A representative ad litem was appointed and the claim denied, resulting in this suit. The estate denied the indebtedness and affirmatively asserted in its answer the Statute of Limitations, the Statute of Frauds and set-off. The affirmative defense of payment was not pleaded.

The notes were introduced into evidence over the estate’s objection based on the dead man’s statute. No question was raised at the time the notes were introduced, or at any other time during trial, as to Plaintiff’s possession of the instruments.

Neither party presented evidence of payment or lack of payment. Both parties assert here that the dead man’s statute prevents evidence as to payment. That question was not directly ruled on below and is not before us now.

The trial court’s original order denying recovery states that the record is “void of any evidence of non-payment.” On Petition for Rehearing, Plaintiff pointed to Defendant’s failure to plead or present evidence of payment, an affirmative defense. In the alternative, Plaintiff moved the court to reopen the case to allow Plaintiff to present evidence of non-payment, if that was her burden to prove. In denying rehearing and denying re-opening of the case, the trial court ruled in part as follows:

“It is true . . . that payment is an affirmative defense; however it is in this Court’s opinion likewise elementary law that a Plaintiff must show a prima facie case to prove her cause of action before the Defendant is required to proceed with his affirmative defenses, • and since this Court has concluded that the evidence is insufficient to raise a presumption of non-payment or breach of the obligations alleged it was not necessary for the defense to proceed with the affirmative defense . . ”

On appeal, Defendant asserts for the first time that the notes may have been retained by the deceased payor and that Plaintiff could have recovered possession of the notes in her capacity as personal representative of the deceased. Defendant asserts that this possibility prevents a presumption of non-payment which would normally arise from the payee’s possession of the uncancelled instrument of indebtedness. Here, there is no evidence which would support such a defense, even had it been pleaded. Plaintiff is not required to present evidence explaining her possession since that fact was never at issue.

The trial court’s ruling was that the Plaintiff failed to present evidence outside the promissory notes themselves that the debt was unpaid and therefore failed to establish a prima facie case. That decision is contrary to Knauer v. Levy, 115 So.2d 776, 777 (3d DCA 1959), wherein the court stated:

“The sole question to be decided is: In a suit upon a promissory note must the plaintiff prove by evidence dehors the instrument that the debt is due and unpaid in order to establish a prima facie case?
The promissory note is itself evidence of the existence of the debt and its introduction into evidence is sufficient to establish a prima facie case. When it is regularly admitted into evidence no additional evidence of the present existence of the debt is necessary upon the case of the Plaintiff.”

In Touchberry v. Nemec, 264 So.2d 466, 467 (4th DCA 1972), the court stated:

“Payment is an affirmative defense, the burden of proof of which rests upon the defendant . . . Appellant, having satisfactorily shown the authenticity of the note and the signature of defendant’s decedent, and having placed in evidence the original of the note, established a prima facie case and had no burden to prove that the note remained unpaid.”

Plaintiff’s possession of the uncan-celled notes at the time of trial is consistent with her interest as the named payee in the notes and is presumed to be proper. The presentation of these instruments, authenticated as to execution by the payor and regular on their face, establishes a prima facie case for recovery on the notes. There is no requirement that the Plaintiff present evidence as part of her case in chief that the notes remain unpaid, and no issue was made by Defendant’s pleading or proof as to either payment or right to possession.

Accordingly, the judgment is REVERSED and the cause REMANDED for entry of judgment on behalf of Plaintiff.

ERVIN, J., concurs.

SMITH, Acting C. J., dissenting with opinion.

SMITH, Acting Chief

Judge, dissenting:

This is a simple case of a plaintiff failing to adduce necessary evidence which one must assume was readily available to plaintiff; a trial judge who quite properly declined to speculate on what plaintiff might have been able to prove, and who therefore entered judgment for defendant; and an appellate decision that covers the omission in plaintiff’s proof by unduly stretching a legal presumption.

Without a doubt, a plaintiff-payee who proves his possession of the defendant-maker’s matured promissory note, and who introduces the authenticated note into evidence, has made a prima facie showing of the defendant’s subsisting obligation. Ordinarily it troubles plaintiff little to add that the note is unpaid. Here, plaintiff’s counsel evidently considered that such testimony by his client would be barred by Section 90.05, Florida Statutes (1975) — a matter we need not decide — and so plaintiff relies entirely on the presumption of nonpayment which attends the payee’s possession of the note, as in Knauer v. Levy, 115 So.2d 776, 777 (Fla.3d DCA 1959):

The administrator [of the deceased payee] was the only witness for the plaintiff. Upon his testimony, that he found the note among his uncle’s (William Liebow’s) papers, it was admitted into evidence. The administrator was unable to testify of his own knowledge as to what amount, if any, was due upon the debt represented by the note.
The promissory note is itself evidence of the existence of the debt and its introduction into evidence is sufficient to establish a prima facie case.

The dictum in Touchberry v. Nemec, 264 So.2d 466 (Fla.4th DCA 1972) does not reveal whether the payee’s possession of the note was proved as it was in Knauer. I consider, nevertheless, that plaintiff’s possession of the note' is part of plaintiff’s prima facie showing, and that possession ought not to be presumed, so thereby to presume further that the defendant’s debt is subsisting. That, I think, is a matter of common sense as well as of law. That is the implicit holding of Speier v. Lane, 254 So.2d 823, 824 (Fla.3d DCA 1971):

[Tjhere is evidence that Speier retained possession of the collateral notes from the date of execution until the time of trial, or slightly over eight years after they were argued to have been extinguished by the accord and satisfaction. These notes were not returned, destroyed, marked paid, or otherwise marked. Thé appellees have cited several cases for the principles, which appear well-settled, that possession of an uncanceled note raises a rebuttable presumption of non-payment and that the burden of proving payment is upon the party asserting payment.

See also J. Ogden, Negotiable Instruments 632 (5th ed. 1947):

An allegation that the plaintiff is the owner and holder of a note is sufficient prima facie allegation that he is the holder in due course with the right of recovery. And possession and production of the note uncanceled constitute prima fa-cie evidence of its non-payment, [emphasis added]

Plaintiff’s counsel accurately paraphrased that principle in argument to the trial court on motion for rehearing:

I would maintain that just the mere fact of a promissory note speaks for itself. And that is buttressed by the fact that the promissory note is not marked paid in full but still in the possession of the creditor.

The major flaw in plaintiff’s case was and is that there was no proof of any kind that the notes were “still in the possession of the creditor.” Plaintiff did not testify that the notes were in her possession at the time of trial, or at the maker’s death, or on the dates shown on the • notes, or ever. Even assuming that plaintiff might not have testified that the decedent never paid the notes, Broward Nat’l Bank of Ft. Lauderdale v. Bear, 125 So.2d 760 (Fla.2d DCA 1961), plaintiff surely could have testified to the fact, if it was a fact, that she possessed the notes — a fact of which she had knowledge independently of any transaction with the deceased, although possession presumably resulted from such a transaction. See Seeba v. Bowden, 86 So.2d 432, 433 (Fla.1956) (dictum).

Absent proof of plaintiff’s possession of the notes, no evidentiary presumption of nonpayment arose, and there was no occasion for the administrator ad litem to plead or to prove, as the majority seem to have required, that plaintiff’s possession of the notes was explicable on grounds other than that the notes were subsisting obligations.

I know of no reason why the administrator ad litem, who neither admitted nor was called on to admit that plaintiff possessed the notes, should now be held to have tacitly conceded the critical evidentiary point on which the majority bases its judgment of reversal. I know of no reason why we should assume the existence of a critical fact, unproved, in order to reverse a judgment entered upon a fair trial. Plaintiff’s case rests entirely on the fact that a promissory note payable to plaintiff, signed by the decedent, was introduced into evidence by plaintiff’s lawyer. In my opinion, that act has only slightly more legal significance than if plaintiff’s counsel had thrown his hat upon the table. That event does not support the chain of presumptions necessary for a reversal. I would affirm.

      . Florida Statute § 90.05.

      . Broward National Bank v. Bear, 125 So.2d 760 (2nd DCA 1961).

      . Speier v. Lane, 254 So.2d 823 (3d DCA 1971).


author: SMITH, Acting Chief Judge. BOOTH, J.,

text:
    FLORIDA HOME BUILDERS ASSOCIATION et al., Petitioners, v. DIVISION OF LABOR, BUREAU OF APPRENTICESHIP, FLORIDA DEP’T OF COMMERCE, Respondent.
    No. II-63.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Stephen W. Metz, Tallahassee, for petitioners.
    Kenneth H. Hart, Jr., Tallahassee, for respondent.
   SMITH, Acting Chief Judge.

Petitioners, a group of voluntary associations of home building contractors, petition for review of Emergency Rule 8 CER 77-26, Fla.Admin.Code, adopted by the Division of Labor, Florida Department of Commerce, pursuant to Section 120.54(9), Florida Statutes (Supp.1976). The emergency rule was adopted effective November 7, 1977, for a 90-day period, after petitioners challenged proposed amendments to the Division’s permanent rules, thus staying adoption of the permanent rule amendments until after the hearing officer rules on petitioners’ challenge. § 120.54(4), Fla. Stat. (Supp.1976). Both the emergency rule and the proposed amendments to the permanent rule establish standards to govern the approval of apprenticeship programs by the Division’s Bureau of Apprenticeship. Petitioners sponsor such programs.

The Division initiated permanent rule-making in response to a recent amendment to Chapter 446, Florida Statutes (1975), providing in part:

446.071. Apprenticeship sponsors. — One or more local apprenticeship sponsors shall be approved in any trade or group of trades by the Bureau of Apprenticeship upon a determination of need when ev-er-a-demand is made, provided the apprenticeship sponsor meets all of the standards established .

Ch. 77-183, § 1, Laws of Fla. (italicized words added; struck through words deleted). When the proposed amendments to the permanent rules were automatically stayed, the Division found, as justification for emergency rulemaking, that the absence of rules pending the outcome of the rule challenge “has an adverse effect on the statewide apprenticeship program and is unfair to applicants whose applications are pending.” Fla. Admin.Weekly, Nov. 10, 1977 at 24. Petitioners here challenge the sufficiency of the Division’s statement justifying emergency rulemaking.

Section 120.54(9)(a)3, Florida Statutes (Supp.1976), requires, as an essential predicate for emergency rulemaking, that the agency publish in writing “the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare . . '. .” Such a statement, which is a principal element of the abbreviated record for judicial review of emergency rulemaking, must be factually explicit and persuasive concerning the existence of a genuine emergency. See Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977). Agencies whose permanent rule-making has been temporarily stymied by a rule challenge may of course resort to emergency rulemaking when the delay creates an emergency; but the unusual conditions giving rise to the emergency must be clearly documented. Delay alone cannot suffice. If the delay attending permanent rule challenge proceedings were alone sufficient to justify emergency rulemaking, the legislature’s provision for an automatic stay could in every case be neutralized for 90 days by emergency rulemaking. We cannot approve such a result.

The Division’s statement concerning the emergency in this matter is subject to grave doubt. Its generality is augmented by factual recitals in the Division’s brief, but we cannot properly consider those recitals as having been made by the agency in the statement required by Section 120.-54(9)(a)3. Nevertheless, we find it unnecessary to decide whether the Division’s statement of emergency sufficiently supports the Division’s emergency rulemaking. A unique provision in the emergency rule deprives petitioners of standing to complain in this court as parties adversely affected by the emergency rule. § 120.68(1), Fla.Stat. (Supp.1976).

The emergency rule provides:

A program applicant may file a written request with the Bureau . . . that no action be taken on its application under these emergency rules but that action to approve or to disapprove the application be held in abeyance until final, permanent rules are promulgated.

Fla.Admin.Code Rule 8 CER 77-26. The quoted provision operates to relieve petitioners, at their election, of any application to them of the emergency rule. Petitioners have therefore not shown that they are adversely affected by the emergency rule. See Florida Dep’t of Offender Rehab. v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978). To the extent that the emergency rule retards petitioners’ creation of new appren-/ ticeship programs or their expansion of existing ones, by enunciating policy factors in the registration decision which are inconsistent with petitioners’ proposals, petitioners are empowered by the emergency rule to suspend their registration applications until a decision is made on their challenge to the permanent rules. If there is a public need for petitioners’ proposed apprenticeship programs, and the need is too pressing to await final disposition of the challenge proceedings staying the permanent rules, the Division, momentarily without rules applicable to petitioners without their consent, may entertain petitioners’ applications for registration in proceedings for an agency order determining petitioners’ substantial interests. § 120.57, Fla.Stat. (Supp.1976), § 120.60, Fla.Stat. (1975).

Petitioners have made no colorable claim here that they are adversely affected, and therefore entitled to judicial review, by the availability of the emergency rule to other applicants for registration.

We have frequently emphasized the primacy of rulemaking in the proper conduct of public business under the Administrative Procedures Act, especially when statutory standards for agency decisions are stated in general language. Cross Key Waterways v. Askew, 351 So.2d 1062, 1069 (Fla. 1st DCA 1977); Albrecht v. Dep’t of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1977); General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1209 (Fla. 1st DCA 1977) and cases there cited. Here the Division appears to have attempted conscientiously to make rules lending specificity to the general statutory standard of need for sponsorship of local apprenticeship programs. We are not here concerned with whether the statutory standard is sufficiently explicit to support the agency’s rulemaking effort; the petition for review does not challenge the constitutionality of Section 446.071, as amended by Chapter 77-183, Laws of Florida. Our decision here is simply that licensing registrants who are permitted by an agency’s emergency rule to exempt themselves from application of the emergency rule have no standing as adversely affected parties to obtain judicial review under Section 120.68(1).

The prayer of the petition for review is DENIED.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, J.,

dissenting.

An agency’s assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power. Fuller v. Gardner, 138 Fla. 837, 190 So. 442 (1939).

Here, there was no emergency allowing for the adoption of emergency rules under Florida Statute § 120.54(9). Respondent also failed to publish adequate notice as required by § 120.54(9)(a)(3). Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. 1st DCA 1977).

The emergency rule is substantially identical to the proposed permanent rule amendment which is held in abeyance under Florida Statute § 120.54(4)(c) pending court determination of validity. Respondent has simply used its emergency rule-making power to avoid the effect of § 120.54(4).

The majority holds that the “escape clause” of this patently invalid rule can validly operate to deny a party standing to challenge to the rule. This holding eliminates any possible judicial review of an emergency rule which includes an “escape clause,” and is contrary to Florida Statute § 120.54(9)(a)(3), which provides:

“The agency’s findings of immediate danger, necessity and fairness shall be judicially reviewable.” (e. s.)

The escape clause stands or falls with the rule itself, and cannot operate to prevent challenge under § 120.54(9) by a party otherwise directly affected.

I respectfully dissent.

      . “An emergency rule adopted under this subsection may not be effective for a period longer than 90 days and shall not be renewable." § 120.54(9)(c), Fla.Stat. (Supp.1976).

      . The Division’s proposed permanent rules list six factors to be considered in determining the - need for a sponsor’s-apprenticeship program:
      1. the number of registered apprenticeship programs in the jurisdictional area training apprentices in the occupation in which registration is sought;
      2. the number of unemployed apprentices in registered apprenticeship programs in the jurisdictional area;
      3. the administrative feasibility of the Bureau providing proper services for the proposed apprenticeship program;
      4. the sufficiency of training opportunities being offered by registered apprenticeship programs in the jurisdictional area;
      5. the immediate economic conditions of and the economic outlook for the jurisdictional area; and
      6. the ability and willingness of sponsors in the jurisdictional area to train additional apprentices.
      The emergency rules clarify factor 2 and omit factors 3 and 5.


author: OTT, Judge.

text:
    The CITY OF CLEARWATER, Florida, a Municipal Corporation, and Picot B. Floyd, City Manager, Appellants, v. Bobby L. GARRETSON, Appellee.
    No. 76-1674.
    District Court of Appeal of Florida, Second District.
    March 8, 1978.
    Rehearing Denied April 5, 1978.
    Thomas A. Bustin, City Atty., Clear-water, for appellants.
    Loyd C. Mosley, Clearwater, for appellee.
   OTT, Judge.

The City of Clearwater (appellant) terminated the employment of appellee as Water Superintendent. Appellee was served with charges and specifications growing out of the allegedly improper administration of a water main extension contract. Allegations were made that appellee was incompetent and inefficient in the performance of his duties (charge I), was guilty of malfeasance or misfeasance (charge II) and had received gifts from the contractor during the life of the contract (charge III).

After a hearing the Civil Service Board of the City of Clearwater (hereinafter referred to as the Board) found that the evidence supported charge II, specification C and charge III as follows:

As to charge II, specification C:

[The appellee], in his position as Water Superintendent, did permit operators of backhoes and payloaders to be charged both as operators and as laborers, while being used in work associated with [the water main extension contract] resulting in excess charges of $50,000.
As to charge III:
That [the appellee] in his position as Water Superintendent has violated Rule 14, Section 1(1) of the Civil Service Rules, to wit: has taken for personal use a fee, gift or other valuable thing in the course of his work or in connection with it when such fee, gift or other valuable thing is given him by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons.

After finding that the evidence supported both charge II, specification C and charge III, the Board voted (3 to 2) to rescind the action of the appellant in dismissing the appellee and issued a one paragraph order which stated:

After considering the evidence and testimony presented by the employee and the Appointing Authority and after considering the testimony of witnesses and arguments submitted by counsel for the employee and the Appointing Authority, the Civil Service Board, by majority roll call vote rescinded the action of the Appointing Authority in the dismissal of the . employee, . . . in regard to Charge I, Charge II, and Charge III of the Termination and Dismissal Notice in that there was not just cause for such dismissal. Further the Civil Service Board, by majority roll call vote moved for the reinstatement of the employee with all back pay and benefits.

The appellant sought review in the circuit court by petition for a writ of certiorari. The circuit court denied the petition and affirmed the Board decision. We reverse.

The power of the executive to remove government employees has been the subject of comment and consideration from this nation’s beginning.

James Madison was a leading advocate of presidential power. His statement has remained the basic argument for the executive’s power of removal:

The danger to liberty, the danger of maladministration, has not yet been found to lie so much in the facility of introducing improper persons into office, as in the difficulty of displacing those who are unworthy of the public trust. If it is said that an officer once appointed shall not be displaced without the formality required by impeachment, I shall 'be glad to know what security we have for the faithful administration of the Government? Every individual, in the long chain which extends from the highest to the lowest length of the Executive Magistracy, would find a security in his situation which would relax his fidelity and promptitude in the discharge of his duty. 1 Annals of Cong. 496 (Gales ed. 1789)

Ultimately, Congress adopted the approach favoring executive authority, a result known as the “Decision of 1789.”

The next significant historical occurrence prompting renewal of the debate arose out • of Andrew Jackson’s flagrant and extensive application of the “spoils system.” Civil service reform grew in favor as a means of curbing the arbitrary and disruptive quadrennial turnover of government.

The relation of property to employment has been the subject of a very interesting article by Charles A. Reich in which he defined property as a “legal institution the essence of which is the creation and protection of certain private rights in wealth of any kind.” Reich, The New Property, 73 Yale L.J. 733, 771 (1964). Suffice it to summarize by saying that under the law of master-servant, employment was an “at will” relationship. Thus, in the absence of a specific statute or contract, the master could arbitrarily discharge his servant without interference from the courts. See, e. g., Pearson v. Youngstown Sheet & Tube Co., 332 F.2d 439 (7th Cir. 1964); Hablas v. Armour & Co., 270 F.2d 71 (8th Cir. 1959). It was a logical extension of the new property rights of the age. The standard governing the employment relationship was freedom of contract. In order to encourage individual initiative it was considered necessary to allow men to establish their own law through consent. See Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State, 55 Calif.L.Rev. 1247, 1249 (1967).

Unfortunately, what evolved was the subjugation and exploitation of the working class. Employers were allowed to exercise dominion over their employees without any corresponding protection of or regard for the employee’s interest. Absolute freedom enabled unconscionable employers to place intolerable conditions upon their employees. Thus, organized labor in the private sector and civil service reform in the area of government employment stemmed from such conditions.

Originally, public employment was regarded as a privilege not a right. The basic concept was that government had unlimited power over its employees because government employment was a privilege and not a right. This approach or attitude was perhaps most pointedly expressed by Mr. Justice Holmes, in McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892) where he concluded that “[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” 29 N.E. at 517.

Gradually, the courts intervened in instances of extreme injustice and eroded the right-privilege distinction, affording some protection to government employees. For example, in Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 1853, 29 L.Ed.2d 543 (1971), the Supreme Court “rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege’.” Cf. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) [involving unemployment benefits].

The final product and the essential limitations of executive power to hire and fire are now found in legislative enactments applicable to all levels of government employment.

Therefore, the basic issue in this case is one of statutory construction. Section 20 of Chapter 21153, Laws of Florida, Special Acts of 1941, was enacted by the legislature of Florida as the Civil Service Law of the City of Clearwater. By its broad grant the original act seems to have vested the Board with the right to independently decide whether or not an employee could be administratively discharged as a result of disciplinary actions. Apparently conceiving this grant a bit too supplantive of executive power, the legislature amended Section 20 in Chapter 24431, Laws of Florida, Special Acts of 1947, and Section 12 of Chapter 25731, Laws of Florida, Special Acts of 1949. As amended, it now provides in pertinent part as follows:

The Board shall, after due consideration, render its administrative determination affirming, disaffirming or modifying the act of the appointing authority.
The Board may order reinstatement of an employee only if the hearing establishes that the removal was made for reasons other than just cause. (Emphasis supplied.)

The latter more specific provision acts as a limitation upon the former more general grant. See Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932). In essence, the broad scope of review granted to the Board in 1941 was specifically limited in reinstatement cases by the “just cause” standard of review as redefined in 1947 and 1949.

In Blackburn v. Brorein, 70 So.2d 293, 299 (Fla.1954) the court stated that:

Civil Service laws for public employees have been widely approved and such laws have served a most useful purpose in giving to such employees security and protection.

Moreover, it was held in State ex rel. McIver v. Swank, 152 Fla. 565, 12 So.2d 605, 607 (1943) that:

[T]he salutary purpose of all civil service laws is to safeguard the faithful, honest and competent employee or official from removal for unworthy causes .

We could not agree more with these expressions of the very worthy purposes for which civil service came into being and the type of employee it was designed to protect. However, as the legislature so wisely concluded, there must be a balance between protecting individual employee rights on the one hand and enforcing a proper level of competency and performance on the other. Public hiring authorities must have some latitude and power in personnel actions. Where such flexibility and power does not exist situations arise in which there exists a permanence of tenure in the public service which is inconsistent with the efficiency of that service. See 19 U.S. Civil Service Commission Ann. Rep. 18 (1902).

Civil service and its “just cause” standard are valid and necessary limitations upon the common law right to hire and fire. However, the antidote may be worse than the disease. It is very difficult to fire a civil service employee today. As a result, the productivity of government workers is far less than their counterparts in private industry. The problem lies in “the inability of the manager to discipline nonproductive or insubordinate employees or to dismiss those who have ceased to be productive or constitute chronic supervisory problems.” J. Macy, Public Service: The Human Side of Government 20 (1971).

Without abrogating the rights of hardworking employees, we must still preserve the indispensable right of the employer to hire and fire within acceptable limits. As was pointed out in Florida Department of Health & Rehabilitative Services v. Career Service Commission, 308 So.2d 597, 598 (Fla. 1st DCA 1975):

Government is becoming increasingly large a,nd unwieldy. A significant portion of the taxpayers’ dollar goes to pay government employees. Taxpayers, via their government, are entitled to have their employees perform a day’s work for a day’s pay.

See State Department of Pollution Control v. State Career Service Commission, 320 So.2d 846 (Fla. 1st DCA 1975). In the State Department of Pollution Control case the court held that “the role of the Career Service Commission on appeal is to determine whether there existed competent substantial evidence to sustain the action taken by the agency (meaning the hiring authority) and whether the facts established ‘just cause’.” 320 So.2d at 848. The court noted that the hiring authority has “the sole discretion to determine whether the employee is to be dismissed or suspended . the only limitation being that the disciplinary action must be for just cause.” 320 So.2d at 848. Likewise, the First District Court of Appeal recently held that once just cause was established it was the prerogative of the hiring authority — not the Career Service Commission — to determine the disciplinary action to be taken. Collins v. Florida Department of Offender Rehabilitation, 355 So.2d 131, Case No. GG-364 (Fla. 1st DCA, filed January 26, 1978). See Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976); State Department of Administration v. Hunter, 323 So.2d 24 (Fla. 1st DCA 1975).

In the instant case the Board exceeded its authority. There was competent substantial evidence in the record to support a “just cause” termination of the ap-pellee. The Board’s own findings mandate such a conclusion. In the face of such findings, the Board had no authority to reinstate the appellee. Bee City of Clearwater v. Garretson, 204 So.2d 46 (Fla. 2d DCA 1967). There is nothing in the record or in the Board’s deliberations which supports the conclusion that the appellee was dismissed for reasons other than just cause.

The Board merely concluded that “there was not just cause for such dismissal.” We hold that the legislative requirement that reinstatement be ordered “only if the hearing (evidence) establishes that the removal was made for reasons other than just cause” was not met.

Appellee contends that rule 14 of the Board’s rules and regulations is authority for affirming. That rule states:

The Board may order the reinstatement of an employee only if the hearing establishes that the suspension, demotion, or dismissal was made for reasons other than just cause. In arriving at its determination of “just cause” as used in this section, the Board shall carefully consider all testimony and evidence presented and shall additionally give careful consideration to the appellant employee’s entire personal record which shall be deemed cumulative.

Of course, the first sentence is nothing more than a restatement of the statute. The second sentence cannot change the statutory basis for reinstatement. In Forehand v. Board of Public Instruction, 166 So.2d 668 (Fla. 1st DCA 1964), the court held:

It is true that a rule or regulation of an administrative board is deemed prima fa-cie reasonable and valid, but that prima facie character is overcome upon it being made to appear that the rule or regulation is clearly contrary to, or exceeds, the provisions of the act by which the administrative board is created. 166 So.2d at 672.

See Edgerton v. International Company, 89 So.2d 488 (Fla.1956). Accordingly, to the extent the rule of the Clearwater Civil Service Board is considered an expansion of the authority granted by the statute to the Board, the rule can have no effect. The clear command of the statute that “the Board may order reinstatement of an employee only if .the hearing establishes that the removal was made for reasons other than just cause” controls.

The order of the Civil Service Board of Clearwater rescinding the order of dismissal and ordering reinstatement of the discharged employee with all back pay and benefits is quashed and set aside. The original order of dismissal of the City of Clear-water is reinstated and affirmed. The order of the trial court denying the certiorari is

REVERSED.

BOARDMAN, C. J, and GRIMES, J, concur.


author: SCHEB, Judge. OTT, Judge,

text:
    Artist L. McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1864.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.

      Ben Kay, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant asks this court to reverse his conviction for felony murder. He contends that the trial court erred in denying his motion to dismiss that charge since as a matter of law he could not be guilty of the crime. We agree and reverse.

On November 11, 1975, appellant and Lawrence Carl Wright entered a convenience store where they committed robbery. Marvin Robertson waited for them in a car parked outside the store. As Wright and appellant returned to the car, members of the St. Petersburg Police Department surprised them. Appellant shot at the officers. The officers returned fire, wounding appellant and killing Robertson. The state charged appellant with the robbery, and additionally with the second-degree felony murder in the death of Robertson.

Appellant pled guilty to robbery; however, he entered a plea of nolo contendere to the second-degree felony murder charge, specifically reserving the right to appeal the denial of his motion to dismiss. The trial court adjudged appellant guilty of both crimes, and imposed a general sentence of life imprisonment.

Appellant contends that when the police kill a participant in a felony, as in this case, the coperpetrators are not guilty of felony murder. As authority for this proposition appellant cites Wright v. State, 344 So.2d 1334 (Fla.2d DCA 1977), wherein the state prosecuted appellant’s codefendant Wright for the same crimes. We think this case is controlled by Wright and for the reasons therein stated appellant’s conviction of second-degree felony murder cannot stand.

The conviction for second-degree murder is vacated. Since the trial court imposed a general sentence, it is impossible to determine what sentence the trial court intended to impose for the robbery conviction; therefore, this cause is remanded with directions to resentence appellant for the crime of robbery. Appellant shall be entitled to be present at the resentencing.

GRIMES, Acting C. J., concurs.

OTT, J., dissents with opinion.

OTT, Judge,

dissenting.

The action of the majority is an acceptance and further application of this court’s opinion in State v. Williams, 254 So.2d 548 (Fla.2d DCA 1971), followed and further extended by this court in Wright v. State, 344 So.2d 1334 (Fla.2d DCA 1977).

Section 782.04(3), Florida Statutes (1976) provides in relevant part:

When a person is killed in the perpetration of, or in the attempt to perpetrate any . . . robbery . . . by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree . . . . (Emphasis supplied)

In Wright, the court declined “. to extend the umbrella of this statute to impose criminal liability on a guilty party for the death of another guilty party.” 344 So.2d at 1337. To the contrary I am of the opinion that this court thereby imposed an unwarranted restriction of the clear and unambiguous language of the statute. In so holding, this court reiterated the finding of Williams that “a person” is to be defined as meaning an “innocent person.” This is simply adding a word that a reading of the statute does not in any way suggest or support.

In promulgating the “innocent person” test in Williams, Judge McNulty stated as follows:

The test we suggest is predicated upon the obvious ultimate purpose of the felony-murder statute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. . But we emphasize that the statute is primarily designed to protect the innocent public; and it would be incongruous to reach a conclusion having the effect of placing the perpetrators themselves beneath its mantle. (Emphasis in original.) 254 So.2d at 550-51.

I submit that the protection of the public is best served by holding the perpetrators criminally liable for any death that results. This seems to be the clear intention of the legislature. In retrospect, the Williams court was faced with a situation in which there existed no statutory second degree felony-murder charge since, at that time, the statute provided for only two degrees of felony-murder, i. e., first and third degree felony-murder. Moreover, the unique facts in Williams militated against holding the defendant liable for first degree murder. There, the defendant had conspired with one Hannsen for Hannsen to burn defendant’s hunting camp so that defendant could collect the fire insurance proceeds thereon. While attempting the arson, Hannsen accidentally set fire to himself. He died from the burns. The court made much of the fact that the defendant — who was out of the county at the time of the arson — had not been an active participant in Hannsen’s death.

What happened in Williams was that this court was faced with a difficult factual situation and an incomplete statute; the result of this hard case was bad law.

In Vocelle v. Knight Brothers Paper Company, 118 So.2d 664, 667 (Fla.1st DCA 1960) the court stated:

When the words of a statute are plain and unambiguous the courts must give to them their plain meaning. ... If the language of a statute is clear and not entirely unreasonable or illogical in its operation, the court has no power to go outside the statute in search of excuses to give a different meaning to words used in the statute.

It would be difficult to argue that this court in Wright and especially in Williams have not gone outside Section 782.04(3), Florida Statutes. Of course, the 1975 amendment — which provided the specific language now effective — was legislated after the Williams case.

The present case raises serious questions 'as to the wisdom of the Wright-Williams line of authority. We have here a situation where a pistol-wielding robber, such as McRae, who initiates a gun battle with police stands protected against the resulting death of one of his coperpetrators. Under the present facts — governed by Section 782.04(3) because of the fact that the death bullet could not be traced to McRae and therefore must be considered as having been fired “by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony”— McRae may not be prosecuted for the homicide. Going one step further, under the Williams test approved in Wright, had McRae’s deceased coperpetrator been killed by one of McRae’s bullets directed at the police, McRae could not even then be prosecuted under the felony-murder statute (specifically under Section 782.04(1)) because his coperpetrator would not be regarded as an “innocent victim.”

In addition, the “innocent victim” test will, in other readily conceivable instances, inject a sticky issue of whether or not the person killed was “innocent.” This can only further confuse and complicate what was otherwise a clear, forthright statutory crime.

      . The court was persuaded by the reasoning of a Pennsylvania court in Commonwealth v. Bolish, 391 Pa. 550, 138 A.2d 447 (1958). There, according to the Williams court “it was stressed that the appellant was present at the scene of the arson and was an active participant.” 254 So.2d at 550. (Emphasis in original)


text:
    SENTRY WATER SYSTEMS, INC., Appellant, v. ADCA CORPORATION, Appellee.
    No. 77-574.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.
    Earl I. Rosenthal, Punta Gorda, for appellant.
    Robert G. Jacobson of Farr, Farr, Hay-mans, Moseley & Odom, Port Charlotte, for appellee.
   OTT, Judge.

This is an action by the appellant/landlord against the appellee/tenant for various damages including unpaid rentals and increased costs of insurance for fire and windstorm coverage. The appellee/defend-ant defended and counterclaimed on the ground of constructive eviction. The trial court ruled that the facts established a constructive eviction of the appellee by the appellant which constituted a complete defense to the action and a right to recover on the counterclaim. We reverse and hold that the evidence when considered in the light most favorable to the appellee failed, as a matter of law, to establish constructive eviction.

The trial was a far cry from a model in the marshalling and presentation of the evidence establishing the essential elements of the claims of the two parties. We have examined the record and gleaned the following facts as those most favorable to the appellee.

The parties entered into a written commercial lease of premises from which the tenant proposed to operate his business as a building contractor. The lease was entered into in January of 1975, was to commence on February 1, 1975 and was to run for a period terminating on December 31, 1977— approximately three years. The monthly rental was $582.50. Insofar as material to the controversy the pertinent provisions of the lease were as follows:

Paragraph 5 of the lease provided in relevant part:

It is further understood and agreed that the Lessee shall construct a substantial frame fire-resistent interior wall with a minimum % [inch] drywall construction which shall be satisfactory to the Lessor, and which shall meet all the State and local health and safety regulations; .

Paragraph 6 of the lease stated:

The Lessee promises and agrees to keep the premises adequately insured against fire and windstorm, and shall carry public liability insurance indemnifying and affording protection to the Lessor against claims of persons injured upon the premises.

On May 13, 1975 the appellant was notified by the fire insurance company of various violations of the Charlotte County fire regulations that existed on the premises occupied by the appellee under the lease. Unless rectified such violations would occasion cancellation of the insurance or a material increase in the premiums applicable to that portion of the coverage. The actual increase in the annual premium in order to secure fire coverage under the existing conditions amounted to approximately $4,000. The appellant promptly notified the appel-lee of the letter, the violations complained of, and the resulting loss of insurance or increased premium. The insurance company ultimately cancelled the insurance on June 2,1975. The appellant thereupon procured fire insurance coverage in view of the requirements of his mortgage and demanded payment of same from the appellee/ten-ant. Unfruitful and nonproductive negotiations occurred over a period of months and eventually the appellee/tenant vacated the premises on October 10th or 11th of 1975. Subsequently, the appellant succeeded in reletting the premises in May of 1976 for a monthly rental of $290. Vacation of the premises by the appellee returned the cost of the fire insurance to approximately its pre-violation level.

As stated earlier, the tenant defended the action brought by the landlord on the ground of a constructive eviction by reason of “harassment.” The only evidence in this regard is to be found in the following testimony of the appellee/tenant:

Q. [W]hat ... did the Plaintiff harass you about?
A. [I]t would be in terms of our lease arrangement .
Q. What in particular .
A. Primarily it centered around an increase of rental request made by Bill Wolf, that we almost double our amount that we were paying per month, supposedly because of insurance. And this came up almost daily; several times a week.
Q. What happened?
A. Well, Bill came to work about eight o’clock in the morning, and you could almost count on him coming to the office and asking what our position on this was. [T]he insurance policy . . . was cancelled and there were some reasons given which we tried to ascertain whether if in fact we did make these changes
[T]hat would decrease the premium.
Q. What did Mr. Wolf tell you he wanted you to do?
A. Well, he wanted it solved. Really he wanted it solved, and it was my problem.
And in essence, his most urgent need was that I give him roughly $100.00 more a week because it was, there was 52 weeks in the year, and it was over $4,000.00. So it was going to amount to $400.00 a month increase in our cost of doing business.
Q. And then you could keep the cabinet shop or you had to get rid of the cabinet shop too?
A. No, I think we could have kept the cabinet shop, yes. That’s the impression I was under.

The earliest appellate decision in Florida announcing the fundamentals of constructive eviction is found in the supreme court case of Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931). In that opinion the supreme court defined constructive eviction as an act by the landlord “which although not amounting to an actual eviction, is done with the express or implied intention, and has the effect, of essentially interfering with the tenant’s beneficial enjoyment of the leased premises.” 138 So. at 495. The supreme court went on to say that constructive eviction arises out of any wrongful act or any default or neglect of the landlord “whereby the leased premises are rendered unsafe, unfit or unsuitable for occupancy in whole, or in substantial part, for the purposes for which they were leased.” 138 So. at 496. The basic authority cited and relied on by the supreme court was 36 C.J.S. Landlord & Tenant §§ 980, 992.

Most of the appellate decisions since that date have all cited and relied upon the Hankins definition and language essentially as stated above. See, e. g., Fountas v. Ziegler, 305 So.2d 864 (Fla.3d DCA 1974) (reversed on other grounds by the same court after remand to the circuit court) 338 So.2d 39 (Fla.3d DCA 1976); Richards v. Dodge, 150 So.2d 477 (Fla.2d DCA 1963). Perhaps the classic illustration of the typical constructive eviction is found in Berwick Corporation v. Kleinginna Investment Corp., 143 So.2d 684 (Fla.3d DCA 1962). (Covenant to keep roof watertight violated when premises rendered uninhabitable by water.)

Underlying or implicit in all the decisions is that the act of the landlord constituting the constructive eviction be wrongful, unwarranted or unlawful. Eviction, whether actual or constructive, to be actionable must be wrongful. Actionable eviction is “a wrongful act in the nature of a trespass . . . ” and “there can be no eviction from ... a termination of the lease for a default of the lessee in fulfilling his obligations under the lease . . ..” 52 C.J.S. Landlord & Tenant §§ 445, 447 (1968).

In Section 455 it is stated:

It is essential that there be wrongdoing on the part of the landlord, and a constructive eviction does not arise from an attempt by the landlord to hold the tenant to the terms of the lease.

For a more thorough discussion of wrongful eviction we refer the reader to 52 C.J.S. Landlord & Tenant §§ 445-461 (1968); 49 Am.Jur.2d Landlord & Tenant §§ 280-299 (1970).

Conceivably a wrongful eviction— actual or constructive — could occur in the acts of the landlord to enforce provisions of the lease but certainly there is nothing in the evidence in this case to suggest any such possibility.

Even assuming that the above testimony of the appellee/tenant established “harassment” and that such harassment could qualify as effecting an eviction, it was clearly predicated upon his material breach of the lease covenants and cannot form the basis of a wrongful eviction. The resulting increase in the insurance premium became the appellee’s obligation under the provisions of the lease. If he chose not to pay (or correct the violations causing the increase) and vacated the premises he thereby voluntarily abandoned the lease.

We therefore reverse the judgment of the trial court and remand the cause for an entry of a judgment on the complaint of the appellant/landlord for such damages as the trial court may find are established by the evidence.

BOARDMAN, C. J., and DANAHY, J., concur.


author: SCHEB, Judge.

text:
    SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, for the Use and Benefit of THERMAL ACOUSTIC CORPORATION, Appellant, v. MILLER CONSTRUCTION CO., INC. OF LEESBURG and the American Insurance Company, Appellees.
    No. 77-1060.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.
    Joseph I. Goldstein of Mateer, Harbert, Bechtel & Phalin, Orlando, for appellant.
    George H. Russ of Ranston E. Davis, Leesburg, for appellees.
   SCHEB, Judge.

The issue presented by this appeal is whether a performance, payment, and guaranty bond delivered to a governmental entity incident to a public works contract was a statutory bond given pursuant to Section 255.05, Florida Statutes (1975), or a more broadly written common law bond;

Appellant/plaintiff Thermal sued appel-lees/defendants Miller and American, as principal and surety on a bond furnished incident to a public works contract. Thermal’s second amended complaint alleged that Miller contracted to construct a building for the Southwest Florida Water Management District (SWFWMD); that incident to the contract, Miller and its surety American filed a performance, payment, and guaranty bond in a penal sum of $414,-407. Thermal alleged that it had not been paid and claimed against the bond for a sum in excess of $12,000 for labor and materials furnished to one of the subcontractors on the project. A copy of the bond and notices of claim were attached to the complaint.

On motion by Miller and American the trial judge dismissed the complaint with prejudice, holding that it failed to state a cause of action for recovery on either a statutory or common law bond. From this order, Thermal appeals. We reverse and hold that Thermal’s second amended complaint alleged sufficient ultimate facts to establish a claim under a common law bond, i. e., one which grants coverage in excess of the requirements imposed under Section 255.05.

Since the appellees’ bond was furnished incident to a government project, we first examine the bonding requirements imposed by law for work on public works projects. Section 255.05, Florida Statutes (1975) states:

(1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building for such state, county, city, political subdivision, or public authority . . . shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor shall promptly make payments to all persons supplying him labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work provided for in said contract .
(2) Any person supplying labor, material or supplies used directly or indirectly in the prosecution of the work to any subcontractor and who has not received payment therefor, shall, within ninety days after performance of the labor or after complete delivery of materials and supplies, deliver to the contractor written notice of the performance of such labor or delivery of such materials and supplies and the nonpayment therefor, and no action or suit for such labor or for such materials and supplies may be instituted or prosecuted against the contractor unless such notice has been given. No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after one year from the performance of the labor or completion of delivery of the materials and supplies.

The primary purpose of the statute is to afford additional protection to persons who perform labor or furnish materials to a public works project on which they cannot acquire a lien. Winchester v. State ex rel. Florida Electric Supply, Inc., 134 So.2d 826 (Fla. 2d DCA 1961). But not every bond furnished incident to a public works project falls within the ambit of the statute. Rather, the courts recognize a distinction between a statutory bond issued in connection with such a project and a common law bond. A bond, even though furnished pursuant to a public works contract, will be construed as a common law bond if it is written on a more expanded basis than required by Section 255.05, Florida Statutes (1975). Moreover, ambiguities in the form of such a bond must be construed in favor of granting the broadest possible coverage to those intended to be benefited by its protection. United Bonding Insurance Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971).

The bond furnished SWFWMD by Miller and American referred to the construction agreement; however, the bond did not provide that it was furnished pursuant to the statutory requirements for bonds on public works projects, nor did it refer specifically to Section 255.05. No specific notice requirement, nor time limitations for filing claims or bringing action on the bond as prescribed by the statute were included. Further, the bond, in addition to covering payments, was also written to assure performance of the contract and to guarantee Miller’s workmanship for one year after acceptance by the city. Finally, and perhaps most importantly, the class of claimants benefited under the payment portion of the bond included “all persons supplying labor and material in the prosecution of the work. . . . ” This is a more expansive coverage than the statutory requirement that the bond cover “all persons supplying him [contractor] labor, material, and supplies, used directly or indirectly by the said contractor or subcontractors in the prosecution of the work . . . This difference is significant because this statutory language has been construed to limit recovery under a Section 255.05 bond to sub-subcontractors. William H. Gulsby, Inc. v. Miller Construction Co., 351 So.2d 396 (Fla. 2d DCA 1977); North Broward Hospital District ex rel. Southern Insulation Corp. v. Crosewell, 188 So.2d 54 (Fla. 2d DCA 1966). Since the instant bond obviously enlarged upon the statutory language, it provided a broader coverage than does the statute.

In United Bonding Insurance Co. v. City of Holly Hill, supra, a materialman sued the surety on a bond furnished the city by Rowell, as general contractor. The bond was conditioned upon payment to all persons furnishing labor, material, and supplies in the construction of the city’s sewer system. The bond was a payment, performance, and guaranty bond. It also provided additional coverage for patent infringement and several other matters. The trial court struck the surety’s defense that the suit was barred by the one-year statute of limitations contained in Section 255.05, and the surety appealed. The First District Court of Appeal affirmed, finding that the surety’s undertaking was a’common law bond and therefore not controlled by the one-year limitation period of Section 255.05. Speaking for the court, Judge Wigginton stated:

It is our view that had appellant surety company intended that the performance bond which it issued to Rowell be a statutory bond given for the sole purpose of meeting the minimum requirements of F.S. Section 255.05, F.S.A., it would have so provided in the bond itself and specified the time limitation of one year within which suits could be brought against it on the bond as restricted by the statute. By granting extensive coverage in excess of that required by the statute, it is not unreasonable to construe the bond involved herein as a common law undertaking subject to liability at the suit of any materialman if commenced within the time allowed by the general statute of limitations. Any ambiguity which may exist in this regard must be construed against appellant surety company and in favor of granting the broadest possible coverage to those intended to be benefited by the protection of the bond. 249 So.2d at 724-25 (footnote omitted).

Just as the United bond provided broader coverage than the statute required, so the bond in the instant case covers a broader class of claimants than is statutorily required. Similarly, neither the United bond nor the instant bond made direct or indirect reference to the statute, nor did either encompass any time limitations for making claims or filing suit. In short, we think the United case is controlling and requires reversal of this case.

One further point merits brief discussion. Appellees Miller and American contend that the trial court properly dismissed Thermal’s complaint because the attached notice did not comply with the requisites of Section 255.05(2). The notice requirements of Section 255.05(2) are not binding upon those claiming redress against a common law obligation. See American Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So.2d 229 (Fla. 4th DCA 1976). Since we have construed the bond in this case to be common law in nature and not statutory, it is unnecessary for us to address this issue.

Reversed and remanded for further proceedings consistent with this opinion.

GRIMES, Acting C. J., and DANAHY, J., concur.

      . The United case has been specifically recognized by this court in United States Fidelity and Guaranty Company v. North American Steel Corporation, 335 So.2d 18 (Fla. 2d DCA 1976), and by the Fourth District Court of Appeal in American Cast Iron Pipe Co. v. Peabody-Petersen Co., 328 So.2d 229 (Fla. 4th DCA 1976).


author: ALDERMAN, Chief Judge.

text:
    GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., Appellant, v. John APPLETON, Appellee.
    No. 77-468.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Wallace W. Tudhope of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Orlando, for appellant.
    Michael Maher, of Maher & Overchuck, P. A., Orlando, for appellee.
   ALDERMAN, Chief Judge.

General Accident Fire and Life Assurance Corporation, the defendant in the trial court, seeks review of a partial summary judgment in favor of its insured, John Appleton. Appleton claims damages under the uninsured motorist provision of his automobile liability insurance policy. General Accident admits that it extended uninsured motorist coverage to Appleton but denies liability, contending that it agreed only “to pay all sums which the insured . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury . . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile . . . .” As will be explained, we conclude that Appleton is not entitled to recovery from his insurance company under the uninsured motorist coverage of his policy.

The facts are not in dispute. At 2:00 a. m. on the night in question, after spending some time in a bar, Appleton started to drive himself home in his automobile. Almost immediately one of his tires blew out, but he was able to drive to a nearby service station. There he discovered that all of his tires had been slashed and he was told by the service station attendant that he could not get replacement tires that night. About that time three men drove into the station. The driver offered to give him a ride home. At first Appleton said no, that he would take a cab, but after further conversation he changed his mind and left the service station in the automobile with the three men. As the automobile was being driven on the highway, the two men who were passengers in the car attacked and robbed him. He passed out and remembers nothing further until some time later when he woke up in a ditch by the side of the road. The three men in the car were subsequently arrested and prosecuted. The driver was an uninsured motorist.

In support of his contention that the bodily injury suffered by him resulted from an accident arising out of the ownership, maintenance or use of an uninsured automobile, Appleton relies upon Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.2d DCA 1975). In Leatherby the question was whether an insured under an uninsured motorist clause may recover from his own carrier because of injuries resulting from an intentional wrong by an uninsured motorist. In that case an uninsured motorist intentionally drove his truck into the plaintiff. The court acknowledged the holdings of earlier cases involving- ordinary liability coverage, that public policy mandates that an intentional tort is not an accident because one ought not be permitted to indemnify himself against his intentional wrongs, but the court noted that under uninsured motorist coverage the innocent injured party, and not the intentional tort-feasor, is the insured. In that light, the court held the injury to be an accident. We do not quarrel with the holding in Leatherby. From the insured’s viewpoint, he was the victim of an accident, regardless of whether the truck was intentionally or negligently driven into him, and unquestionably his injury arose out of the use of an uninsured motor vehicle.

A different situation is presented in Appleton’s case. His injury was caused not by an automobile but by the fists of the criminals who assaulted him. True, the assault took place inside an uninsured automobile, but the automobile was only the physical situs of the attack, not the instrumentality of the assault as in Leatherby.

In addition to Leatherby, we have considered two other decisions by the Second District. The first, Watson v. Watson, 326 So.2d 48 (Fla.2d DCA 1976), was a wrongful death action in which the plaintiff sued her father-in-law and his insurance carrier for the death of her husband, who was killed when a pistol discharged as he was removing it from the defendant’s automobile at the scene of an accident. The court said that the term “arising out of” does not require a showing of proximate cause between the accident and the use of the automobile, but that there must be a causal connection or relation between the two for liability to exist. The court then held that there was not a sufficient causal relation because the automobile was merely the physical situs of the accidental discharge of the pistol which could have occurred anywhere. That the fatal event occurred at or near the automobile was fortuitous. In the second case, Feltner v. Hartford Accident and Indemnity Co., 336 So.2d 142 (Fla.2d DCA 1976), the court, in denying a claim under the Personal Injury Protection provision of an automobile liability policy, held that injuries suffered by an insured, who had just driven a young woman to her boyfriend’s house and then returned her to her home when he was attacked by her father, did not arise out of the ownership, maintenance or use of an automobile. The court rejected the contention that the use of the automobile was an integral part of the events surrounding the attack, finding that its use was only incidental to the assault. From Watson and Feltner we conclude that it is not enough that an automobile be the physical situs of the injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist.

Two cases from the Third District have been considered in formulating our conclusion. The court in National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla.3d DCA 1971), decided that an automobile liability insurance carrier was obligated to provide a defense to its insured when a passenger in the insureds’ automobile was bitten by insureds’ guard dog while the dog was being transported in the automobile from the insureds’ home to their place of business. The automobile in that case was more than just the physical situs of the dog bite; it was being used for the specific purpose of transporting the dog. The causal connection between the dog bite and the use of the car is apparent. An analogous situation would exist if the insureds were using their automobile to transport explosives or other dangerous substances and someone was injured. In the other case, Valdes v. Smalley, 303 So.2d 342 (Fla.3d DCA 1974), cert. denied, 341 So.2d 975 (Fla.1977), the court found that the wrongful death of a pedestrian, struck by a beer mug thrown by a passenger in a moving automobile, arose out of the use of the insured’s automobile. There, the automobile from which the mug was thrown was being driven at a high rate of speed which no doubt greatly contributed to the velocity of the mug. In both Corbo and Valdes there was a factual basis for the court to find a causal connection or relation between the injury and the use of the automobile.

We recognize that bodily injury resulting from a criminal assault, under the terms of an uninsured motorist policy, may be caused by accident and arise “out of the ownership, maintenance or use of an uninsured automobile,” as was the case in Leatherby. However, the risks of bodily injury from a criminal assault are not normally contemplated by the parties to an automobile liability insurance policy. For there to be coverage there must be a causal connection between the use of the automobile and the bodily injury resulting from the criminal assault. This may be established by showing that the automobile itself was used to inflict the bodily injury, as in Leatherby, or that the automobile was used in some manner that contributed or added to the bodily injury, as in Valdes. Considering the facts in this case, we conclude that Appleton failed to show a sufficient causal connection between the uninsured automobile which was the situs of the criminal assault and the bodily injury that he suffered as a result of the assault. Accordingly, we hold that the trial court erred in entering summary judgment in his favor.

REVERSED and REMANDED.

LETTS, J., concurs.

CROSS, J., dissents without opinion.


author: DOWNEY, Judge.

text:
    Richard V. DONAHUE, Appellant, v. Howard N. HEBERT, Appellee.
    No. 77-888.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    William H. Harrell, of Reinman, Harrell & Silberhorn, Melbourne, for appellant.
    William C. Potter, of Nabors, Potter, McClelland & Griffith, Melbourne, for ap-pellee.
   DOWNEY, Judge.

Appellant seeks review by interlocutory appeal of an order denying his objections to interrogatories directed to him in a libel suit. Such an order in an action formerly cognizable at law is not reviewable by interlocutory appeal, but we will treat the matter as a Petition for Writ of Certio-rari. Obviously, if Donahue answers the interrogatories, the departure from the essential requirements of law, if such there be, cannot be rectified upon plenary appeal from the final judgment. Therefore, common law certiorari is the appropriate remedy.

Appellee Hebert sued appellant Donahue for libel. After the cause was at issue Hebert directed sixteen interrogatories to Donahue, who answered six of them and objected to the other ten. The interrogatories to which Donahue objected related to the discovery of his financial resources, particularly to his 1) interests in any partnerships, joint ventures, or single proprietor-ships during the previous five years; 2) his income, bank accounts, safety depositories and transfers of property, all within the previous three years, and 3) present ownership of real and personal property and the value thereof.

Donahue concedes that the financial resources of a defendant in a libel suit are an appropriate subject of discovery when punitive damages are properly sought. He also recognizes the broad discretion that inheres in the trial court in determining the perimeters of discovery, and that the exercise of that discretion will not be disturbed absent a clear abuse thereof. But Donahue seems to contend that when a defendant states his net worth under oath, or verifies a statement of his assets and liabilities, the inquiry into his finances must end. He phrases this contention in his brief as follows:

“. . . The Appellant would argue that by providing a financial statement executed under oath he ha,s provided a ‘properly authenticated financial statement’ in accordance with the principles as set forth in Tallahassee Democrat, Inc., supra. It should be presumed that when a citizen of the United States files with a court a sworn statement that he is telling the truth. It should not be a requirement that the Appellant not only provide a sworn financial statement, but, in addition, disclose all of his business activities so that the Appellee can investigate him and determine whether or not he is telling the truth. Such a procedure may be entirely appropriate in a post-judgment discovery proceeding. However, prior to judgment, the liability, if any, of the defendant has not even been established. The burden of proving any liability is, of course, on the Appellee and the Appellant carries with him, therefore, a presumption that he is not guilty of libel. The Appellee is seeking information to verify the Appellant’s statement of financial net worth prior to even establishing liability on the part of the Appellant, and is, therefore, ‘placing the cart before the horse.’ ”

We suggest the foregoing statement misses the mark. However, there seems to be some confusion as to the proper direction and scope of discovery in determining the financial resources of a party in a law suit. Some authorities seem to suggest that a party can simply furnish a sworn statement of his current assets and liabilities to his opponent and thereby cut off any further aggressive inquiry into his true financial capacity to respond. We know from experience that one party frequently minimizes his financial ability to respond when it is an issue in a law suit, while the other party often has a tendency to inflate that same financial ability. Even under oath a party often seems to view another party’s financial resources as great or small in direct proportion to the benefit which will accrue to that party. Thus, it is the height of naiveté to suggest that a sworn statement of one’s net worth must be accepted as the final word on that important subject. The search for forgotten or hidden assets is of the essence of the discovery process. The whereabouts of assets disclosed by a recent income tax return, or shown on a recent financial statement furnished in another situation when the current litigation was not envisioned is very definitely appropriate inquiry as is the bona fides of the recent disposition of assets. These are routine inquiries for every knowledgeable trial lawyer in cases in which the financial resources of a party is a relevant issue. One must be afforded reasonable latitude in double and cross checking a party’s statements about his current net worth. This, of course, can be done by reviewing income tax returns, recent financial statements, and the myriad of other sources of financial information. As Judge Walden put it, speaking for this court in International Union of Operating Engineers v. Lassiter, 295 So.2d 634 (Fla. 4th DCA 1974); rev’d on other grounds 314 So.2d 761 (Fla.1975):

“And now back to the term ‘financial resources’ contained in the instruction. As stated, it is the broader concept and, depending upon the circumstances, there may well be additional proofs which would be helpful to the jury and court, which proofs would not be necessarily included in a defendant’s balance sheet. Thus, the term gives the trial judge a more liberal standard to determine whether a given proffer of evidence is relevant and material. For instance, there could well be, and properly so, proof as to income, cash flow, expenses, anticipated income, anticipated diminutions of income, anticipated casualties and, as in the instant case, proofs as to assessments of the membership possibilities. These items, among other of like moment, would be receivable in addition to net worth figures under the scope of financial resources. All of this material, including the reflection of net worth, goes to make up a defendant’s financial resources which the jury is entitled to consider in assessing punitive damages as commanded in Florida Standard Jury Instruction 6.12.”

Among the various sources available to the discoverer are those which Hebert inquired about: bank accounts, depositories, present and recent ownership of property and its value, and any interests in various business arrangements. Inquiry pertaining to the three previous years is certainly a reasonable period and we cannot say that allowing inquiry for the previous five years as to the business relationships such as sole proprietorships, partnerships and joint ventures is an abuse of discretion. On the other hand, the trial court should always be sensitive to the protection of a party from harassment and from an overly burdensome inquiry.

In view of the foregoing, if the case of Tallahassee Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973), can be read to restrict discovery in cases of this nature to the furnishing of a financial statement sworn to by the party furnishing it, we strongly disagree. Likewise, to the extent that our case of Gamer v. Keen, 347 So.2d 663 (Fla. 4th DCA 1977), conflicts with what is said here, we recede therefrom.

Accordingly, the Petition for Writ of Cer-tiorari is denied.

ANSTEAD and DAUKSCH, JJ., concur.