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

text:
    Leon ELLIS, McKenzie Tank Lines, Inc., a Florida Corporation, and Carriers Insurance Company, a Foreign Corporation, etc., Appellants, v. GOLCONDA CORPORATION a/k/a Bastian and Blessing, a corporation, Appellee. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. COLEMAN’S MUSIC AND GAMES CO., INC., etc., Appellee. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sallie PETERSON et ux., Appellees. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Sharon Margaret NOTAGE, etc., et al., Appellees. McKENZIE TANK LINES, INC., etc., et al., Appellants, v. Harris R. LAMBE, et ux., Appellees.
    Nos. CC-47 to CC-51.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1977.
    Rehearing Denied Dec. 30, 1977.

      Raymond A. Haas of Haas & Boehm, Daytona Beach, and Sam Spector, Tallahassee, for appellants.
    Gary H. Rushmer of Akerman, Senterfitt & Eidson, Orlando, Thomas R. Hess of Os-sinsky & Krol, and Wesley A. Fink of Fink & Loucks, Daytona Beach, for appellees.
   RAWLS, Acting Chief Judge.

This case involves an explosion of liquid petroleum gas which escaped from a tank truck owned by McKenzie Tank Lines, Inc., in a semi-residential area in Holly Hill, Florida. While transferring the gas from the tank truck to a bulk storage plant, Leon Ellis, a truck driver for McKenzie, lost control of the liquid hose line connecting the two tanks, resulting in the hose whipping about due to the force of the escaping gas and temporarily blinding Ellis. There are two versions as to the next occurrence:

1) Ellis either ran in an effort to procure help from a police officer, or 2) as he ran from the scene he was spotted by a police officer. Apparently, the jury believed the latter version. In any event, Officer Boc-cuzzi talked to Ellis and immediately radioed for fire equipment, gas masks, and requested Florida Power to cut off its electricity. Boccuzzi, possibly with the assistance of Ellis, began evacuating residents of the area. Also, Boccuzzi attempted to stop a Florida East Coast Railway train from entering the area. Meanwhile, the liquid propane gas vapors concentrated and accumulated in the general area encompassing one to two blocks. The Florida East Coast train finally came to a halt after the engine had penetrated the gas cloud. After an exchange of words over the noise of the running locomotive engine, the train proceeded through the gas cloud. Boom!! The gas exploded within a close time frame of the train emerging from the gas cloud. Approximately ten minutes after the gas began escaping, Lorenzo Oliver, service manager for Florida Bottle Gas and a 24-carat hero, walked up to the burning truck and closed the ball valve, thus shutting off the gas resulting in the fire going out. As a result of the gas explosion, the following suits were filed:

Plaintiffs Petersons and Lambes sued McKenzie, Ellis, Carriers Insurance Company, and Florida Bottle Gas, Inc.
Plaintiffs Notage and Coleman’s Music and Games Co., Inc., sued McKenzie, Ellis, Carriers, Florida Bottle Gas and Florida East Coast Railway.
McKenzie, Ellis and Carriers brought a third party complaint against Golconda Corporation seeking contribution and/or indemnification.

In addition to the actions here considered, appellants advise in their brief that some 120 claims, including approximately twelve other lawsuits, are pending as a result of the explosion.

The suits now reviewed were consolidated for trial resulting in jury verdicts against the appellants alone for a total of $121,-459.78 compensatory damages and the additional sum of $70,000.00 for punitive damages. A verdict was rendered against appellants and in favor of Golconda Corporation on appellants’ third party complaint for contribution; the trial court having entered a directed verdict eliminating claims for indemnification filed by Golconda and appellants against one another. Appellants (hereafter referred to as McKenzie) now seek review of the final judgment in favor of Golconda; the punitive damages awarded in all the cases; and certain compensatory damages awarded to Notage. The five cases appealed were consolidated by order of this court.

Golconda

The tank truck involved in this incident was equipped with an internal Rego Flow-matic valve designed, purchased and installed for the purpose of providing an automatic cutoff of liquid propane gas flow in the event of accidental escape of quantities of gas through the line. When a pump is activated, the Rego valve, which operates on a differential pressure principle, allows gas to flow from the tanker to the last outpost on the tanker, a ball valve. The Rego valve had been incorporated in the subject tank truck at the time appellant McKenzie purchased the tanker in 1965. Maintenance records of McKenzie reflected that the Rego valve had been removed at least five times. Other evidence as to the Rego valve reflected that McKenzie’s drivers oftentimes tied the Rego valves open in order to expedite the unloading of gas. This practice would result in overriding the safety function of the Rego valve. There was no direct evidence that Ellis, the driver of the truck, manually overrode the Rego valve in the instant case.

In asserting liability on Golconda’s part, McKenzie sought to proffer tests, designs and comparisons of a second and newer Rego valve which had been manufactured after the date the subject Rego valve was installed. McKenzie sought to introduce the second Rego valve, together with comparative tests, to prove that it was manufactured to correct alleged defects inherent in the valve being utilized. The trial court denied a formal proffer, however, this record discloses an adequate proffer upon which to review the trial court’s denial which was founded upon the lack of relevancy. McKenzie had ownership and control of the valve from 1965 until the date of the accident on January 4, 1974. Changes to the newer Rego valve were designed and incorporated into the manufacture of same in 1968 based upon modern technology that was not available in 1965. Generally, evidence of a change in conditions or proof of repairs made after an injury is never admissible as proof of defendant’s negligence. City of Niceville v. Hardy, 160 So.2d 535 (Fla. 1st DCA 1964); Mahoney v. Roper Wright Manufacturing Company, Inc., 490 F.2d 229 (7th Cir. 1973); and Smyth v. Upjohn Co., 529 F.2d 803 (2nd Cir. 1975). No competent proof was adduced or proffered by McKenzie that the Rego valve was in a defective condition when it purchased the tank truck in the year 1965. To the contrary, the Rego valve was utilized for some nine years, and during this period was oftentimes maintained and repaired by McKenzie. See Second Restatement of Torts, § 402A (1965); Annot., 13 A.L.R.3d 1057 (1967). At minimum, plaintiff, in a product liability case involving long passage of time between manufacture and injury, is required to produce evidence that the product was defective when it left defendant’s hand. Strict liability in tort does not connote liability without fault. That the manufacturer subsequently improved the product it placed in commerce with new materials and technology is not an evidentiary fact ipso facto to infer negligence in the manufacture of the original product. The trial court correctly held that McKenzie’s proffer of tests, designs and comparisons of the second Rego valve was not relevant to the issue and thus not admissible.

As to Golconda, McKenzie next asserts that the trial court erred in failing to give a charge to the jury, as requested, upon Golconda’s failure to properly instruct, train or warn it concerning the usage of the Rego valve. Although McKenzie, by its brief, advises that it presented to the court a form instruction permitting the jury to consider this issue, we do not find such instruction in this voluminous record. Golconda vividly calls such omission to- our attention to which McKenzie responds that the record reflects the following short colloquy with the court wherein McKenzie advised: “We also would like to note for the record the court not instruction [sic] on Golconda’s negligence — failure to warn.” The trial court responded that sufficient instructions had been given. Florida Rule of Civil Procedure 1.470(b) requires that a party’s requests for jury instructions must be in writing and submitted to the court. 32 Fla.Jur., Trial § 145. Further, we have reviewed the instructions given by the trial court, and in our opinion such amply covered McKenzie’s claim against Golconda.

Did the Trial Court Err in Permitting Notage and Coleman to Amend During Trial and Claim Punitive Damages?

Plaintiffs Petersons and Lambes initially prayed for punitive damages. Coleman’s Music and Games Co., Inc., and the Notage cases were consolidated and thus became the first of the “gas explosion cases” to proceed to trial. McKenzie was on notice from the outset that the Peter-sons and Lambes were seeking punitive damages and that it would have to defend these claims. Under these circumstances, pursuant to the provisions of Fla.Rule of Civ.P. 1.190, the trial court permitted Coleman’s and Notage to amend their pleadings praying for punitive damages during the course of the trial. The trial court did not err in permitting the amendments. Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971).

Punitive Damages

Punitive damages are generally defined as damages which are given as an enhancement of compensatory damages because of the wanton, reckless, malicious or oppressive character of the acts complained of. 22 Am.Jur.2d, Damages § 236. The terms “punitive” and “vindictive” damages are used interchangeably. Murphy v. Hobbs, 7 Colo. 541, 5 P. 119 (1884). Exemplary or punitive damages are assessable dependent upon circumstances showing moral turpitude or atrocity in causing an injury that is wanton and malicious or gross and outrageous. Jacksonville Frosted Foods, Inc. v. Haigler, 224 So.2d 437 (Fla. 1st DCA 1969); Cannon v. State, 91 Fla. 214, 107 So. 360 (1926). As a general rule, punitive damages have been awarded where there was an intentional violation of someone’s rights. Buie v. Barnett First Nat. Bank of Jacksonville, 266 So.2d 657 (Fla. 1972) (wrongful repossession of a car); Levine v. Knowles, 197 So.2d 329 (Fla. 3rd DCA 1967) (malicious destruction of a pet dog); and Adams v. Whitfield, 290 So.2d 49 (Fla.1974) (malicious prosecution). Punitive damages have been awarded for those negligent acts exceeding that of gross negligence which are of such a flagrant character, or which show wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which are equivalent to an intentional violation of them. Cannon v. State, supra; Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2nd DCA 1968).

During the course of trial, evidence was presented supporting negligent acts of McKenzie in the following respects: 1) The ball valve on this particular tanker had been replaced 10 days prior to the accident, and at this time McKenzie’s terminal manager was well aware that the Rego safety valve was not functioning properly. Nevertheless, the terminal manager kept the tanker in service. 2) By circumstantial evidence, Ellis, the tank truck driver, manually overrode the Rego valve prior to hooking up the tanker lines with the storage tank; and 3) Ellis ran when the large volume of gas escaped without attempting to shut off the ball valve. Obviously, such acts of negligence were sufficient to support the jury’s verdict as to McKenzie’s liability for compensatory damages, and such is not here questioned. But, do such acts constitute a lawful basis for the award of punitive damages? We conclude that they do not. McKenzie defended keeping the tank truck in service with knowledge of the prior trouble with the Rego valve, because: 1) had it taken the tank truck out of service on this date, it occurring in the middle of winter, a lot of people would have been out of gas; 2) the ball valve was functioning properly after being replaced 10 days before the accident and was adequate in and of itself to retain the gas; and 3) the truck had transported many loads of gas during the 10-day period without incident. The evidence in this case does not raise to the level of that wanton, reckless, malicious or oppressive character to support the award of punitive or vindictive damages.

Whether the Trial Court Erred in Denying McKenzie’s Motion for a Directed Verdict as to the Claims of Sharon Notage, Individually and as Administratrix of the Estate of Jean Marie Notage?

Jean Marie Notage and her daughter lived approximately 200 yards from the site of the escaping gas and subsequent explosion. Sharon, the daughter, testified that in the early morning of January 4, 1974, she was awakened by “a whizzing noise”; that her mother went out the back door and, upon her return in about three to five minutes, she was coughing. The two of them exited their apartment into a mass of white fog which smelled like a gas oven, and, upon entering their car, Sharon noticed that her mother was breathing heavily. As they drove away, her mother “kept on coughing”. The record further reflects that Jean Marie Notage’s physical condition worsened; her symptoms being coughing, wheezing, nervousness, elevated blood pressure and general debilitation. On June 17, 1974, Jean Marie Notage died as a result of a peripheral vascular collapse due to a ruptured dissecting aneurism of the thoracic aorta.

McKenzie contends that no causal connection has been established as to Jean Marie’s inhalation of L.P. gas fumes on the morning of January 4, 1974, and her death some five months later. An osteopathic physician and.surgeon testified that Jean Marie, a Christian Scientist who hadn’t “done much doctoring”, first visited his office on September 13, 1973, and, as a result of examination, the doctor diagnosed her condition as a “bronchitis ánd in all probability a pleurisy in the lower right quadrant of the chest”. Mrs. Notage next visited the doctor on December 17, 1973, at which time he noted that she was still coughing. Some four months after the accident, Mrs. No-tage again visited the doctor, and at this time he found that her condition was such that she needed hospitalization, which she declined. The treating physician opined that Mrs. Notage was suffering from bronchial asthma, and that her respiratory problems were causally related to the inhalation of the gas fumes on January 4, 1974. This treating physician was of the view that the inhalation of the gas was a causative effect as to Mrs. Notage’s difficulty in breathing; that the difficulty in breathing, coupled with the emotional stress that goes along with difficulty in breathing, almost invariably raises the blood pressure; by raising the blood pressure there was an additional strain on the circulatory system, and in this manner contributed to the aneurism that caused her death. To some extent, the treating physician’s testimony was supported by other expert physicians. McKenzie contends that the missing link in this chain of events is the failure to prove any degree of toxicity in the gas, and that each of the experts predicated their opinions upon the assumption that the gas was toxic. We might well term the extensive medical testimony as a “battle of the experts”, and although the testimony, as a whole, is rather tenuous in establishing a causative relationship between Mrs. Notage’s death by reason of a ruptured aneurism some five months after being exposed to the gas some three to five minutes, it is not our prerogative to sit in the jury box and substitute our views for that of a jury. There was sufficient evidence upon which the jury could and did render its verdict that the gas incident aggravated Mrs. Notage’s respiratory problems, and thus contributed to her demise.

Whether the Court Erred in Allowing the Jury to Determine the Issue of “Dependency” and to Project Same Over the Possible Life Expectancy of the Deceased, Jean Marie Notage?

At the time of her mother’s death, Sharon Notage was 23 years of age. She testified that she and her mother were very close; that her mother had paid the rent on their apartment; made clothes for her; owned the family car and chauffeured her around because she did not have a driver’s license. It was basically upon these facts that Sharon successfully contended in the trial court that pursuant to the provisions of Section 768.18, Florida Statutes, she was “partly . . . dependent on the decedent for support or services”. Other facts are significant. Sharon had two jobs, worked seven days a week, and gave money to her mother to help pay for food and rent. From the date of the accident until her mother’s death, Sharon looked after her mother, paid all expenses for their apartment, and in her words: “. . .1 started doing everything.” Prior to her mother’s death, Sharon deposited most of the money she earned in a joint savings account which was in the joint names of the two. No suggestion of Sharon suffering any physical or mental infirmity appears in this record. “Dependency” is not as the trial judge defined: “Whether she [Sharon] was dependent is a fact for the jury to say she was being deprived of something.” Hopefully, every child and parent will enjoy a close relationship and contribute “something” to each other. However, once a child reaches the age of majority, a metamorphosis occurs and such child attains the privileges and responsibilities of an adult citizen. This record reflects that if any “dependency” existed between this daughter and mother, the mother was partially dependent upon the daughter.

Whether the Court Erred in Allowing the Jury to Consider an Award to the Plaintiff of Monies for Loss of Net Accumulations of the Estate?

An eminent economist, Professor Ralph Bludgett of the University of Florida, in response to a hypothetical question as to loss of net accumulations to the estate of Mrs. Notage, opined that decedent, had she been an average saver, would have accumulated an estate of present day value of $6,450.00 had she lived out her life expectancy. He arrived at this conclusion by assuming that Mrs. Notage, as an average saver, would have put aside 6V2 percent of personal income per year. The professor, in arriving at this conclusion, did not take into account any past history of Mrs. No-tage as an “average saver”; had not the “remotest idea” of what two women would spend for food; the issue of two women supporting themselves (the hypothetical being that Mrs. Notage paid all bills) on $4,000.00 per year was an issue not considered by him; he did not know the local cost of insuring an automobile; and made no allowance for rent. Sharon testified that decedent saved no money. The record reflects that decedent earned $1,466.00 gross income in 1973 and $3,866.00 gross income in 1974. There just is not any record basis for an award for loss of net accumulations of this prospective estate. A jury verdict must rest on real substance. Cudahy Packing Company v. Ellis, 105 Fla. 186, 140 So. 918 (1932).

Sharon Notage, individually and as administratrix of Mrs. Notage’s estate, cross assigned as error the trial court’s granting of a remittitur as to the jury awards for loss of certain personal property. This remittitur reduced Sharon’s verdict from $1,850.00 to $800.00 and the estate’s verdict from $8,000.00 to $4,000.00. The record supports the order of the trial court in granting the remittitur; however, the trial court did not grant the Notages the option of accepting the remittitur or the alternative of a new trial. A trial court is not permitted to reduce the verdict of a jury by ordering a remittitur without permitting the plaintiffs to have the option of a new trial. Dura Corporation v. Wallace, 297 So.2d 619 (Fla. 4th DCA 1974).

We have carefully considered the other two assignments of error — form of verdict and counsel’s prejudicial remarks — and find them to be without substantial merit.

The judgments are affirmed:

1. As to third party defendant Golconda upon McKenzie’s third party claim.

2. As to the compensatory damages awarded Coleman’s Music and Games Co., Inc.

3. As to the compensatory damages awarded to Sallie Peterson, et ux., and Harris R. Lambe, et ux.

4. As to the Notages:

a. Sharon Notage’s award of $800.00 and the estate’s award of $4,000.00 for loss of personal property without prejudice to their demand for a new trial solely confined to these awards, and upon such timely demand the trial court is directed to grant a new trial.

b. As to compensatory damages to the estate in the sum of $2,057.10 for loss of earnings and medical expenses, and $1,882.50 for funeral expenses.

The judgments appealed are reversed:

1. As to punitive damages awarded to all parties.

2. As to the award of damages to Sharon Notage, as sole survivor of Jean Marie Notage, for loss of support and services ($5,000.00).

3. As to the award of damages ($4,000.00) to Sharon Notage, as administra-trix, for loss of net accumulations to the estate of Jean Marie Notage.

4. As to the award of damages ($10,-000.00) to Sharon Notage, as administratrix and sole survivor, for mental pain and suffering.

IT IS SO ORDERED.

BOYER, J., concurs.

ERVIN, J., concurs in part, dissents in part.

ERVIN, Judge,

concurring and dissenting.

I concur in this court’s majority opinion except as to that portion which reverses punitive damages. The tank truck involved was equipped with two valves, one a ball valve on the outside of the truck, which permitted the driver to open and release the gas; the second a Rego valve, a safety valve designed to close whenever gas was escaping into £he atmosphere. Its intended purpose was to stay in a closed position at all times until the power operated pump on the truck was engaged, resulting in the transfer of gas, at which time a differential in pressure caused the safety valve to open and in the event of any difficulties, it was designed to close automatically. Ten days prior to the accident, the company had repaired the ball valve and it was in apparently good working order just before the accident. However, the Rego valve was not operating correctly, a fact which the terminal manager became aware of during repairs to the ball valve. He stated that during the repairs, it was necessary for him to “burn down” all excess gas which was leaking from the Rego valve before he could work on the ball valve. Nevertheless he allowed the truck with the defective safety valve to continue in operation after he had contacted the corporate headquarters in Tallahassee and was told no other tankers were available. He testified the Rego valves never worked anyway so he did not see the need for replacing them. Because the Rego valve impeded the flow of gas from the tanker truck, there was testimony that some of the drivers had tied the safety valve open, although the driver of the tanker specifically denied having done so.

The operations manager for the tank lines testified he warned drivers against doing this. Moreover the manufacturer’s instructions had warned that if the safety valve became defective, it should be immediately repaired or replaced. Nevertheless the terminal manager himself stated he tied Rego valves open with a piece of string. Moreover each truck was equipped with a wrench so that in an emergency the Rego valve could be wrenched open or closed.

There was evidence that notwithstanding the driver’s testimony he had not opened the Rego valve, the leakage of approximately 120 gallons of gas per minute could not have occurred unless the valve had been manually forced open. As a consequence the jury had presented to it two alternative theories on which an award of punitive damages could be based: 1. That despite his employer’s explicit instructions not to open the Rego valve, the employee willfully and obstinately disregarded those instructions in a grossly careless disregard of the safety of others and in fact had opened the valve at some time prior to the accident. 2. That the Rego valve was in a defective condition, which the driver’s employers were aware of at least 10 days prior to the accident, yet willfully disregarded the risks attendant to an inherently dangerous substance and permitted the tanker to resume service despite instructions from the manufacturer that upon notice of such defect the valve be repaired or replaced immediately.

The degree of negligence necessary to support an award of punitive damages is the same as would support a conviction of manslaughter under the culpable negligence statute. Mills v. Cone Brothers Contracting Company, 265 So.2d 739 (Fla. 2nd DCA 1972). Under such test it is necessary for the plaintiff to present proof that the conduct of McKenzie’s employee was such as to evince a reckless disregard of human life or to display that want of care which would raise the presumption of conscious indifference to consequences, or a grossly careless disregard of the safety and welfare of the public, equivalent to an intentional violation of their rights. Mills v. Cone Brothers Contracting Company, supra, at 740. Additionally, if there is any evidence tending to show that punitive damages might be inflicted, even if the court is of the opinion that the preponderance of the evidence is the other way, the court should leave the question to the jury. Doral Country Club, Inc. v. Lindgren Plumbing Co., 175 So.2d 570 (Fla. 3rd DCA 1965).

The fact that punitive damages were assessed against McKenzie Tank Lines, Inc., the corporate employer, matters not. “The general rule, and the weight of authority is that in ordinary cases the allowance of exemplary damages applies equally in a suit against a corporation as in a suit against a natural person.” Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214, 220 (1936). Florida has traditionally followed the rule that a corporation may be held liable for exemplary damages for acts done by employees acting within the scope of their employment as would, if done by an individual himself, render him liable for damages. Winn & Lovett Grocery Co., supra.

If the record only contained evidence of Ellis’ negligence in the transfer of the gas from the tanker to the storage plant, I would agree with the majority the evidence did not rise to the level necessary to support the award of punitive damages. But the record is clear that had the safety valve been in proper working order, the accident could not have occurred. The open Rego valve was thus a concurring cause of the injury. McKenzie is liable for damages which are partly the result of other causes if the other cause alone would not have been sufficient to produce the injury. Hamilton v. Walker Chemical & Exterminating Co., 233 So.2d 440 (Fla. 4th DCA 1970). This additional evidence in my opinion was sufficient for a jury to determine the appropriateness of an award of punitive damages.

      . The bulk storage plant was owned by Florida Bottle Gas, Inc., which was a defendant in the various suits. Approximately one week before trial, Florida Bottle Gas was severed due to the illness of an expert witness.

      . Fla.R.Civ.P. 1.470(b) provides:
      “(b) Instructions to Jury. Not later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests. The court shall then require counsel to appear before it to settle the charges to be given. At such conference all objections shall be made and ruled upon and the court shall inform counsel of such general charges as it will give. No party may assign as error the giving of any charge unless he objects thereto at such time or the failure to give any charge unless he requested the same. The court shall charge the jury after the arguments are completed.”

      . Recently, however, our court seems to have adopted an exception to the majority rule. In Alexander v. Alterman Transport Lines, 350 So.2d 1128 (Fla. 1st DCA 1977), the court held that before a corporate employer could be subjected to punitive damages resulting from the alleged grossly flagrant negligent actions of its employees, acting within the scope of their employment, there must be some knowledge by the employer of the employee’s actions. The opinion appears in conflict with Winn & Lovett Grocery Co. v. Archer, supra, as well as the weight of authority to the contrary. The theory supporting the majority view is
      “. . . that the doctrine of exemplary damages is especially applicable in cases where corporations are sued for the actions of their employees, and that since a corporation can act only through its agents and employees, no reasonable distinction can be made between the guilt of the employee and the guilt of the corporation, the malice of the employee and the malice of the corporation, or the punishment of the employee and the punishment of the corporation, and that if authorization or ratification were required, no recovery for more than compensatory damages could ever be had against the corporation for the acts of its agents or employees.” 22 Am.Jur.2d, Damages, Section 261 (1965).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bruce HENRY, Appellant, v. D. S. M. COMPANY, Appellee.
    No. 76-1824.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    C. Michael Shalloway, Lake Worth, for appellant.
    Valentine Gabaldon, West Palm Beach, for appellee.
   PER CURIAM.

The parties to this case are landlord and tenant. They entered into a written lease which granted to the lessee/appellee an option to renew the lease for an additional three years. The lease did not specify that the option should be exercised in any particular form or by any particular time.

Both of the parties seem to take the position that the case was appropriate for summary judgment; they differ only as to which party was entitled to prevail. We have examined the record and find adequate evidentiary support therein for the trial judge’s conclusion that the renewal of the lease was validly exercised.

Appellant’s total reliance on Section 83.04 Florida Statutes (1975), is not justified in this case. Equitable considerations can vary the application of that statutory section. Ledford v. Skinner, 328 So.2d 219 (Fla. 1st DCA 1976).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY and DAUKSCH, JJ., and BURNSTEIN, Associate Judge, concur.


author: LETTS, Judge.

text:
    Robert SCHWARTZMAN, Appellant, v. MERRITT ISLAND VOLUNTEER FIRE DEPARTMENT, Donald Gilroy and Carl Schneider, Appellees.
    No. 77-455.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 10, 1978.

      S. Lindsey Holland, Jr. of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellant.
    Malcolm R. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso & Mosley, P. A., Cocoa Beach, for appellees.
   LETTS, Judge.

This is an appeal from a declaratory judgment holding that a nonprofit volunteer fire department is not an “agency” and its records are not “public records” within the purview of Chapter 119, Florida Statutes (1975).

We reverse.

The Merritt Island Volunteer Fire Department is a nonprofit corporation composed of public spirited citizens who volunteer, with virtually no recompense, to man the county owned fire fighting equipment on Merritt Island. In addition to performing this most valuable and essential function, thereby saving the county and taxpayers vast sums of money, these citizens also sell Christmas trees, hold chicken frys and cater banquets, donating much of the net income per annum generated therefrom to a large number of charitable projects. Included in such projects we find seven or eight leagues and associations such as lassie leagues, midget football, crippled children- and a host of others.

The appellant is an investigative reporter for the Today newspaper who wishes to engage in a fishing expedition into all of the volunteer fire department’s records because he claims that the department is subject to the Florida Public Records Act, § 119 Florida Statutes (1975), and we are compelled to agree.

Any fire department cannot help but be classified as an agency under the following definition in § 119.011(2):

(2) “Agency” shall mean any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.

Likewise, “public records” in § 119.011(1) include all the following:

(1) “Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings or other material, regardless of physical form or characteristics, made or received, pursuant to law or ordinance or in connection with the transaction of official business by any agency.

The volunteer department argues that its membership files, minutes of its meetings and its charitable activities, for example, are not “official business” and that it is not an “agency” under the Act insofar as those matters are concerned. It also points out that other civic organizations use the fire station premises owned by the county for similar fund raising activities and functions.

We are most sympathetic to these arguments, but we cannot ignore the language of the enacted statute and have no doubt that this volunteer fire department is at the very least “acting on behalf of (a) public agency.” Inevitably, the present Act covers an organization entrusted with the sole stewardship over firefighting and funded in part by public moneys. The whys and wherefores of how membership is obtained with a view to firefighting expertise, the fact that the county pays $850.00 per month toward its support and supplies all the equipment, the placing of county funds in a common bank account along with the fish fry money, and the conduct of all its activities on county owned property (even if the department did raise $65,000 to help construct the building) all establish the public agency nature of the organization.

Perhaps not any one of the above factors set forth in the preceding paragraph would bring the volunteer department within the purview of the public records law, but the totality of them leads irresistibly to the conclusion that this department is subject to the Public Records Act.

Lest we be misunderstood, or misquoted, we would comment that this opinion is limited to the organization and the facts of this case and should not be interpreted to subject all civic and charitable organizations to the Public Records Act.

Reversed with instructions to permit the inspection and copying of all “public records” of the Merritt Island Volunteer Fire Department.

ALDERMAN, C. J., and DOWNEY, J., concur.

      . The quoted statute was amended in 1975 after the holding in State ex rel. Tindel v. Sharp, 300 So.2d 750 (Fla. 1st DCA 1974).

      . The officials of the volunteer department had offered to permit inspection but not copying. Section 119.07(1) Florida Statutes specifically requires that the custodian of the records “shall furnish copies.”


text:
    Winston W. WYNNE, as Director of the Division of Beverage, Department of Business Regulation, State of Florida, et al., Appellants, v. DAV-ED, INC., a Florida Corporation, Appellee.
    No. 77-725.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Charles F. Tunnicliff, Staff Atty., Dept, of Business Regulation, Tallahassee, for appellants.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Johnson v. Town of Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967) (insufficient record).

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


author: DAUKSCH, Judge.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. James G. HOLMES and Emil Frantsi, Appellees.
    No. 77-755.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellant.
    Joel T. Daves, III of Burdick & Daves, West Palm Beach, for appellees.
   DAUKSCH, Judge.

Defendant Nationwide Mutual Fire Insurance Company seeks interlocutory review of an Order granting Plaintiff Holmes’ Motion to Join an Indispensable Party and Orders denying Nationwide’s Motion for Summary Judgment and Motion to Dismiss for lack of jurisdiction over the person. This latter Order would be specifically reviewable by interlocutory appeal, Fla.App.R. 4.2(a), but for the fact that Nationwide’s Motion to Dismiss was predicated upon the erroneous ground of lack of jurisdiction over its person. Nationwide did not raise the defense of insufficiency of service of process so the trial court had jurisdiction over its person once service was perfected. More properly, the Motion should have been grounded on failure to properly join an indispensable party. Although none of the Orders are subject to interlocutory review, in the exercise of our discretion, we treat this appeal as a Petition for Writ of Certio-rari.

In April, 1976, Holmes brought suit against Emil Frantsi and his insurer, Nationwide, for damages resulting from a two car collision in which Mr. Holmes and Mr. Frantsi were the drivers. On July 21,1976, the Defendants filed a Suggestion of Death of Defendant Emil Frantsi. On November 2, 1976, the Defendants moved to dismiss the complaint as to Mr. Frantsi on the ground that Plaintiff failed to move for substitution of another party within the 90-day period required by Fla.R.Civ.P. 1.260(a)(1). The Motion was granted. Defendant Nationwide then moved for summary judgment on the ground that Mr. Frantsi was an indispensable party to the action and Plaintiff could not pursue a direct action against Nationwide once Mr. Frantsi, or his personal representative, was no longer a defendant. The trial court denied Nationwide’s Motion and Plaintiff was permitted to join the personal representative of Mr. Frantsi’s estate as a Defendant. Nationwide then moved to dismiss the action on the erroneous ground of lack of jurisdiction over the person, asserting that the estate could not be liable if the insured, Mr. Frantsi, could not be liable. This Motion was denied.

The issue for our determination is whether it was error to allow Plaintiff to join the personal representative of Mr. Frantsi’s estate in order to preserve a direct action against Nationwide.

Fla.R.Civ.P. 1.260(a)(1) concerns the substitution of proper parties following a suggestion of the death of a party. Once the death is suggested in the manner provided by the rule, a motion for substitution must be made within 90 days or “the action shall be dismissed as to the deceased party.” The rule is mandatory. If a party is unable to procure substitution of the proper party within the 90 days, he may move for an enlargement of the period under Fla.R. Civ.P. 1.090(b). Relief may also be available under Fla.R.Civ.P. 1.540(b) on a showing of excusable neglect. See New Hampshire Ins. Co. v. Kimbrell, 343 So.2d 107 (Fla. 1st DCA 1977); King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975).

There is no indication that Plaintiff moved for an enlargement of the 90-day period or that his failure to move for substitution within the time permitted was the result of excusable neglect. The trial court properly dismissed the Defendant Frantsi at the expiration of the 90 days. It was then too late for Plaintiff to substitute a party in Mr. Frantsi’s place.

Mr. Frantsi was an indispensable party to the action. In his complaint, Plaintiff alleged that Mr. Frantsi negligently operated his automobile resulting in a collision with Plaintiff’s automobile, and that Nationwide had insured Mr. Frantsi against the consequences of his negligence. If a plaintiff is required to prove that the insured was negligent in order to recover from his insurer, the insured is an indispensable party and no action may proceed against the insurer without him, or his properly substituted party. Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972); Russell v. Orange County, 237 So.2d 192 (Fla. 4th DCA 1970).

The Petition for Writ of Certiorari is granted. The Order permitting the joinder of the personal representative is quashed with directions to enter summary judgment in favor of Appellant Nationwide, all without prejudice to Plaintiff’s right to file a motion under Fla.R.Civ.P. 1.540, if appropriate grounds exist.

Order QUASHED with directions.

CROSS and MOORE, JJ., concur.


text:
    Michael KING, Petitioner, v. THOMPSON & McKINNON, AUCHINCLOSS KOHLMEYER, INC., a Delaware Corporation, Respondent.
    No. 77-930.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 9, 1978.
    James J. Belcher, Fort Lauderdale, for petitioner.
    James F. Gilbride of Gilbride & Heller, Miami, for respondent.
   LETTS, Judge.

Petitioner seeks review of an order granting respondent’s motion to compel arbitration and stay proceedings. It is his position that the trial court erred in requiring submission of his cross-claim to arbitration because the respondent waived its rights to compel arbitration by filing an answer to the cross-claim. We agree. Cer-tiorari is granted and the order quashed.

According to the record, petitioner filed a cross-claim against respondent on December 16, 1975. This cross-claim was answered by respondent and a reciprocal cross-claim filed against petitioner on January 12, 1976. Subsequently, petitioner filed a notice to produce documents in the possession of respondent and submitted extensive interrogatories, both of which were objected to by respondent. On October 5, 1976, respondent filed a motion to compel arbitration and stay proceedings which was granted by the trial court.

Repudiation of an arbitration clause by a defendant, in the form of an answer to the complaint without demand for arbitration constitutes an abandonment of the right to arbitration and consent to submission of the controversy to the courts. Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla. 4 DCA 1973); Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973).

In Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3 DCA 1969), the court stated:

Waiver in this connection does not depend on timing of the motion to compel arbitration (where not unreasonably delayed), but rather on the prior taking of an inconsistent position by the party moving therefor. Thus, where a plaintiff, in disregard of his right to arbitration, files suit for determination of the controversy, he will be held to have waived his right to compel arbitration thereof. The same will apply to a defendant who by counterclaim submits the matter, which was to be arbitrated, to the court for determination. Id. at 782.

CERTIORARI GRANTED AND ORDER QUASHED.

ALDERMAN, C. J., and DOWNEY, J., concur.


author: SMITH, Judge;

text:
    Arnold DOBY, Appellant, v. STATE of Florida, Appellee.
    No. FF-461.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.
    Rehearing Denied Jan. 10, 1978.
    Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge;

Appellant Doby, an inmate at Union Correctional Institute, was convicted of possession of marijuana and introduction of contraband into a state correctional facility after prison officers found envelopes of the drug secreted in his wheelchair upon Doby’s return from a furlough. Doby contends the evidence was insufficient to show he knew the marijuana was in his chair. We agree.

When the premises on which contraband is found are not in the defendant’s exclusive control the State must prove the defendant knew of the contraband. Rutskin v. State, 260 So.2d 525 (Fla. 1st DCA 1972); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). Doby’s uncontradicted testimony showed a number of other inmates often had access to the wheelchair out of his presence. The State’s own witnesses established that Doby would not have become aware of the envelopes simply by sitting in the chair. No direct evidence connected Doby to the envelopes. The evidence suggesting Doby knew of the marijuana is entirely circumstantial, and that evidence also reasonably supports an inference that Doby was unaware of it. To support a conviction circumstantial evidence must exclude every reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956). The trial court should have granted Doby’s motion for judgment of acquittal.

REVERSED.

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


text:
    SAINER CONSTRUCTORS, INC. and Fidelity and Deposit Company of Maryland, Appellants, v. GENERAL ELECTRIC COMPANY, Appellee.
    No. 77-467.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Rehearing Denied Dec. 20, 1977.
    Hugh C. Ferrell of Trawick, Griffis & Ferrell, Sarasota, for appellants.
    Albert P. Lima and Edna Wilson of Dixon, Shear, Brown & Stephenson, Tampa, for appellee.
   PER CURIAM.

Affirmed. On the question of attorney’s fees see Section 713.29, Florida Statutes (1975), and the cases of Midway Shopping Mall, Inc. v. Corky Corp., 257 So.2d 905 (Fla. 3d DCA 1972), and Travelers Indemniy Co. v. Howell & King, Inc., 336 So.2d 1 (Fla. 4th DCA 1976).

BOARDMAN, C. J., and SCHEB and RYDER, JJ., concur.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    John LANE, Appellant, v. STATE of Florida, Appellee.
    No. DD-302.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1977.
    Rehearing Denied Jan. 5, 1978.
    Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser and Raymond L. Marky, Asst. At-tys. Gen., Tallahassee, for appellee.
   PER CURIAM.

An appeal from a conviction for second degree murder. There was ample evidence of appellant’s guilt. The arguments detailed in Judge Rawls’ dissent do not in our view require reversal. See Arline v. State, 303 So.2d 37 (Fla. 1st DCA 1974).

AFFIRMED.

SMITH and ERVIN, JJ., concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

William Ellison was the only eye witness to the shooting who was called to testify by the state. Ellison testified that he and his son had been driving around Jacksonville with the victim, Turner Wimberly. While stopped to purchase an ice cream that afternoon, Wimberly spotted the appellant, Lane, and, expressing his fear of Lane to Ellison, sought to flee. While attempting to escape, Ellison’s car was trapped in an alley by Lane’s vehicle. Ellison saw Lane and another man get out of the car armed with pistols. Both men approached Ellison’s car and Lane fired into Wimberly’s side of the car hitting Wimberly in the chest. Ellison grabbed his own pistol and fired a shot before driving off. Wimberly died of the gunshot wound. Ellison found a pistol under Wimberly’s body on the car seat and threw it from the car with his own. When the police recovered the weapons, they found one expended round in Ellison’s weapon and no expended rounds in Wimberly’s.

Lane was the only witness to testify in his defense. He testified that he had been in a crap game that had been robbed by Wimberly and wanted to question Wimberly about his money. Lane stated that as he approached Ellison’s car, he noticed that both Ellison and Wimberly were armed which caused him to turn and run. One shot was fired at him as he ran, so he secured his pistol from the car and fired three shots at the Ellison car in self defense.

James Harris, the passenger in Lane’s car, was not called to testify by either side.

During final argument, the prosecutor made the following statement:

“I would like to mention to you a few things that I would like for you to keep in mind. Mr. Vickers mentioned that you should pay attention to the credibility of the witnesses, Mr. Ellison and Mr. Lane and the other witnesses that were there. I suggest to you that Mr. Ellison is quite credible, but then I have got [sic] to know him a little better than you have. You must base your decision on what you saw and the way he acted and what he had to say on the stand.”

Appellant’s motion for mistrial was denied.

Still later during the prosecutor’s closing argument, the following transpired:

“The Defendant does not need to prove his innocence, but Mr. Lane is taking the stand in this case, and I suggest to you that in this instance there are other witnesses to what happened and one of them was riding with John Lane, which is James Harris, a man that Mr. Lane told you was a passenger in the car, but Mr. Harris did not testify.
MR. VICKERS [defense counsel]: Your Honor, at this point I would object and ask that that be stricken. He has the same opportunity to subpoena witnesses as I do.
THE COURT: Objection overruled.
MR. WEATHERBY [State]: The passenger in Mr. Lane’s car did not testify, for one reason or another, but there is someone who does know what happened, and for some reason he is not here or was not here yesterday.”

During his rebuttal, defense counsel reminded the jury that it was the state’s burden of proving guilt and stated that it was not Lane’s obligation to call Harris as a witness.

Appellant argues that the trial court erred: 1) in denying appellant’s motion for mistrial based upon the prosecutor’s comments on the credibility of his witness, and

2) in overruling his objection to the prosecutor’s comment as to why he did not call a witness.

In Seguin v. Hauser Motor Co., 350 So.2d 1089, Fourth DCA, opinion filed September 27, 1977, our sister court stated:

“. . . it is also axiomatic that the expression by a lawyer of his personal opinion as to the credibility of a witness is not a proper subject for argument to the trier of fact. Florida Bar Code of Professional Responsibility Canon 7, E.C. 7-24, D.R. 7-106.”

In Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla.1952), the Supreme Court stated:

“When a prosecutor makes a statement which could be construed by the jury as implying that he has additional reasons for knowing that what a witness has said is true and those reasons are not known to the jury, the comment no longer has the appearance of a mere indiscretion on the part of the prosecutor but constitutes reversible error.”

See also United States v. Serrano, 496 F.2d 81 (5th Cir. 1974); United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972); United States v. Brown, 451 F.2d 1231 (5th Cir. 1971); and Gradsky v. United States, 373 F.2d 706 (5th Cir. 1967).

Failure of a defendant to produce a witness in making his defense if the witness is competent and available is properly a subject of comment by the prosecutor. Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975); and Daughtrey v. State, 325 So.2d 456 (Fla. 1st DCA 1976). However, missing in this case, in my opinion, are the key elements of competency and availability. The prosecutor failed to demonstrate that James Harris was either competent or available. The assumption by the prosecutor in his argument that appellant could have produced Harris if he so desired was without any record support.

The cumulative erroneous comments of the prosecutor were prejudicial to the rights of appellant, and thus I would reverse and remand for a new trial.


author: PER CURIAM. RAWLS, Judge

text:
    Harmon V. SHIELDS, Petitioner, v. DIVISION OF RETIREMENT and Retirement Commission of the Department of Administration of the State of Florida, Respondents.
    No. EE-263.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 1, 1978.
    Richard W. Ervin, Joseph C. Jacobs and Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    Stephen S. Mathues and Nancy G. Lin-nan, Tallahassee, for respondents.
   PER CURIAM.

The Retirement Commission’s order is supported by substantial competent evidence. Fla.Admin.Code Rule 22B-1.05 is valid. Dep’t of Admin, v. Brown, 334 So.2d 355 (Fla. 1st DCA 1976), cert. den., 344 So.2d 323 (Fla.1977). The petition for review is DENIED.

McCORD, C. J., and SMITH, J., concur.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

I dissent.

Harmon Shields, Executive Director of the Department of Natural Resources, challenges the Retirement Commission’s order denying his application for inclusion in the “special risk” category.

The legislature, in its wisdom, enacted Section 121.021(15), Florida Statutes, which defines “special risk”, inter alia, as any law enforcement officer whose application is approved by the administrator (Director of the Division of Retirement) and who receives salary payments as a law enforcement officer if the duties are certified as hazardous by his employer. Our representative body that is constitutionally charged with the duty of enacting the law of this state enacted Section 370.021(5), Florida Statutes, providing, in part, that the Executive Director of the Department of Natural Resources (Shields) is a law enforcement officer with “full power to investigate and arrest for any violation of laws of this state”, and further conferring upon him and other law enforcement officers in the department broad powers relating to entering upon land or water and to searching boats, motor vehicles and aircraft. Shields’ employer is the Cabinet and the Governor. The six members of the Cabinet, pursuant to the provisions of Section 121.021(15), Florida Statutes, certified to the administrator that Shields’ duties were hazardous and that he met the requirements for special risk membership. In declining to certify Shields’ duties as hazardous, the Governor explained in a letter to the Retirement Commission that: “After full consideration, I concluded that certification for the special risk class should require that the principal activity of the employee be of a law enforcement nature.”

In a letter denying approval of Shields’ application for special risk membership, the administrator quoted the department’s Rule 22B-1.05C in full. In addition, the administrator quoted at length from the official position description of the duties of Executive Director which detailed highly administrative responsibilities and did not mention any law enforcement duties as a part of Shields’ job description. After analyzing the job description and the provisions of the above cited rule, the administrator paid lip service to the statutory job description of the Executive Director, i. e., law enforcement officer, in observing:

“ . . . my attention has been called to . Section 370.021(5), F.S., to include the position of Executive Director of the Department of Natural Resources as a constituted law enforcement officer of this state. However, it does not appear that this could be considered as your primary duty or responsibility. I have also noted the events involving your participation in law enforcement activities but I am unable to conclude that participation in these events is a requirement of your employment. Even if it is required, it does not appear to be one of your primary duties.”

Obviously, the administrator relied primarily upon the rules adopted by his department — not upon the statutory provisions. The cited statutes specifically state “law enforcement officer” and “hazardous” when certified by the applicant’s employer. What the statutory provisions do not prescribe are “job descriptions”, requirement that the member “regularly bear a firearm”, or that a member’s primary duty is to “arrest law violators”. The promulgation of administrative rules does not, as yet.under our system of government, endow administrative agencies the authority to amend legislative enactments. The test of the special risk statute as applied to these facts is quite simple: 1) Is Shields a law enforcement officer?, 2) Have his duties been certified by his employer as hazardous?, and 3) Did the administrator exercise reasonable discretion in administering the statutory provisions relating to special risk membership? The answers to the first and second queries are obviously affirmative. An examination of the record likewise requires an affirmative answer to the third query.

Rule making power of an administrative agency is limited to making rules necessary to carry out the plain language of a legislative act. It is not the prerogative of an agency to amend a legislative act by the device of promulgating rules. The legislature did not say that in order to be certified by his employer as being engaged in “hazardous duties” that the principal activity, of the law enforcement officer must be of a law enforcement nature, or that he regularly bear a firearm, or that his primary duty requires the apprehension of law violators. Insertion of the “primary duty concept” would have not unduly burdened the language of the act if the legislature had so intended. Thus, the purported attempt to amend the act by the rule cannot stand, and, in my opinion, any provisions of Rule 22B-1.05 that are inconsistent with Section 121.021(15), Florida Statutes, must be held to be invalid.

“Hazardous”, as contemplated by the legislature, is a question of fact. As clearly and plainly written by the law making body of this sovereign, the initial responsibility of certifying an applicant’s duties as hazardous is placed upon the shoulders of such applicant’s employer. And such assignment of initial responsibility makes good sense, for it is the employer’s duty to be familiar with the working conditions that are encountered by the employee. This record reveals that Shields, pursuant to his statutory classification as a law enforcement officer, devoted from 20 percent to 40 percent of his time in law enforcement related activities. In performing his statutory law enforcement duties, Shields has assisted in enforcement of shrimping laws and, as a result of this activity, received threats upon his life; U.S. Customs furnishes Shields with a nationwide 24-hour WATS line which he utilizes in coordinating narcotics investigations; he has personally boarded vessels with his officers, one of which was confiscated by U.S. Customs as a result of their efforts; he personally maintains contacts with confidential informants in aiding his narcotics division’s efforts to halt the prolific drug traffic that Florida’s extensive coastline is suffering; and enforcement of shell fish laws in the Key West area, in which Shields has actively participated, has resulted in his life being threatened. That Shields, in performing his duties as a law enforcement officer, has been subjected to hazardous duties as contemplated by the legislature is most evident from this record.

In rejecting Shields’ application for special risk membership, the Retirement Commission placed great emphasis on the provisions of Rule 22B-1.05. In so doing, it properly performed its responsibility, for it is not the prerogative of the commission to invalidate administrative rules. However, as already alluded to, it is my view that the above rule is invalid in those areas where it clearly conflicts with Sections 121.021(15) and 370.021(5), Florida Statutes. The commission placed great emphasis upon the administrative language of “position description” and apparently rejected the statutory duties of a law enforcement officer placed upon Shields. After considering the applicable statutes and rules, the commission found that Shields’ “primary duties and responsibilities do not require the apprehension and arrest of law violators or suspected law violators”, and this constitutes the basis for the order entered by the commission. In my opinion, the decision of the commission was not in accordance with existing statutes and the valid portion of the rule, and thus was not based on substantial evidence. The manifest weight of the evidence in this record supports approval of Shields’ application for special risk membership as authorized by the law making body of this state.

I would grant the petition for review and quash the order of the Florida Retirement Commission with directions that Shields’ application for special risk membership be approved.

      . Article III, Florida Constitution, provides in part: “The legislative power of the state shall be vested in a legislature . . .

      . Rule 22B-1.05C, F.A.C., provides:
      “C. The criteria which shall be used by the employer and the administrator in determining that a member shall be classified as a special risk member are:
      1. It must first be determined that the member falls into the category of peace officer, law enforcement officer ... or any other job in the field of law enforcement or fire protection.
      2. Once it is determined that the member falls into one of the categories enumerated in (1), the member’s duties shall be considered hazardous and the member classified as special risk if, in the judgment of the administrator, continued performance of the primary duties and responsibilities of the member beyond the normal retirement age for a special risk member will jeopardize the physical or mental well-being of the member, and at least one of the following statements applies to the member:
      a. The duties and responsibilities of the member require that he regularly bear a firearm or other weapon.
      b. The member in the performance of his primary duties and responsibilities is required to apprehend and arrest law violators or suspected law violators.
      c. The primary duty and responsibility of the member is to maintain physical custody of prisoners within a prison or detention facility or while being transported.
      d. The duties and responsibilities of the member require the fighting of fires, other than controlled fires set out for instructional purposes.”

      . Department of Administration v. Brown, 334 So.2d 355 (Fla. 1st DCA 1976).

      . Lewis v. Florida State Board of Health, 143 So.2d 867 (Fla. 1st DCA 1962).


text:
    SHARON PACKING COMPANY, a corporation, and Hollywood Packing Co., Inc., a corporation t/a Westland Meats, Petitioners, v. HOBART CORPORATION, a corporation, Respondent.
    No. 77-1703.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1977.
    Verne L. Freeland, Miami, for petitioners.
    Frank Sinagra of Friedman & Britton, Miami, for respondent.
   PER CURIAM.

Petition for writ of certiorari denied.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


author: SMITH, Judge.

text:
    REGENCY BAPTIST TEMPLE, etc., Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. DD-277.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1977.

      Frederick B. Tygart, Jacksonville, for appellant.
    S.William Fuller, Jr., Jacksonville, for appellee.
   SMITH, Judge.

Regency appeals from a judgment entered on a directed verdict entered at the close of Regency’s case against its insurer for the difference between benefits paid for partial collápse of Regency’s roof and a greater amount which Regency asserts was its insured loss. Part of the roof collapsed under standing water because the entire roof was installed with trusses upside down. A settlement was made on the basis of replacing the collapsed portion, whereupon, pursuant to municipal ordinance, the city declined to issue a building permit for repair unless the entire roof was replaced.

The trial court properly concluded that, under the policy, the amount payable was “the replacement cost of the property damaged or destroyed at the time of loss without deduction for depreciation,” which amount was paid, and that insurance did not extend to expenditures necessary under the ordinance to rebuild the improperly constructed portion of the roof that did not collapse. The policy explicitly excluded coverage for loss

“Occasioned directly or indirectly by enforcement of any local or state ordinance or law regulating the construction, repair or demolition of buildings or structures.”

The policy exclusion does not conflict with any statute to which our attention has been called. Similar provisions have been upheld in the case of partial loss. 15 G. Couch, Cyclopedia of Insurance Law § 54:166, p. 419 (2d ed. R. Anderson 1966). The rule is otherwise when, in the case of loss by fire or lightning, such a provision conflicts with Florida’s valued policy law, Section 627.702, Florida Statutes (1975). Netherlands Ins. Co. v. Fowler, 181 So.2d 692 (Fla.2d DCA 1966). The present case should also be distinguished from cases in which an ordinance or regulation prevents repair of a damaged building. In those cases courts have declared the building a “constructive total loss” and held the insurer liable for the building’s entire value. E. g., Feinbloom v. Camden Fire Ins. Co., 54 N.J.Super. 541,149 A.2d 616 (1959). Compare Hewins v. London Assur. Corp., 184 Mass. 177, 68 N.E. 62 (1903) in which, as here, an ordinance merely increased the cost of repair.

Regency proceeded to trial on a pleaded theory that seems to have assumed Regency was foreclosed by its acceptance of the benefits tendered but for a mistake of fact for which the law could give a remedy. That theory is .unavailing because Regency’s remedy would be no greater had it never accepted the tendered settlement for replacement of the collapsed portion of the roof. No other error appears.

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


text:
    Debra O’CONNER and Eula Hammond, Appellants, v. SAFECO INS. CO. OF NORTH AMERICA, and Gulf American Fire and Cas. Co., et al., Appellees.
    No. FF-230.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1977.

      William S. Frates, II, West Palm Beach, for appellants.
    Robert 0. Wilhelm of Howell, Howell, Liles & Braddock, and Charles T. Boyd, Jr. of Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellees.
   SMITH, Judge.

Appellant O’Conner, a minor, was injured December 22, 1971, when the automobile she operated on a paved county road in Palatka skidded out of control on wet clay which had washed from an intersecting clay surface road allegedly owned by James and Harlow Middleton. Appellant O’Conner and her mother sued the Middletons and appellees Safeco and Gulf American, whose homeowners policies insured James and Harlow Middleton, respectively, against personal liability as well as against fire and other losses associated with the insureds’ dwellings at Jacksonville and Mt. Dora. The trial court granted the insurers’ motion for summary judgment, holding as a matter of law that insurance was not provided for personal liability on account of bodily injury arising out of the Middletons’ activity in maintaining the clay road at the accident site. The issues before us are whether the clay road was “vacant land” and therefore an insured premise and, if so, whether coverage was nevertheless excluded because the injury arose “out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.” The trial court held insurance was excluded on both counts, and we agree.

The policies are for present purposes the same. In addition to section 1 coverage of the described dwelling, appurtenant structures, unscheduled personal property and additional living expense, the policies by section 2 afforded defense and damage protection against liability for bodily injury. An exclusion provided that the policy does not apply, under personal liability coverage,

d. to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits;
e. to bodily injury or property damage arising out of any premises, other than an insured premises, owned . . . by an insured .

Each policy defines “insured premises” to mean any residence premises named in the policy or acquired during the term, places of temporary residence, family cemetery plots and “vacant land, other than farm land, owned by or rented to any insured; . . ."

The clay surface road served a number of platted and improved lots lying between Cisco Road and Lake Broward. The Middleton brothers acquired the vacant tract of some 15 acres by gift from their father in 1960. They bulldozed some access roads, placed clay repeatedly on the roads, divided the property into 100 lots and sold them in twos and threes to buyers who built small cabins or installed trailer retreats. The Middletons called their project Broward Hills Estates, complied with fictitious name statutory requirements, filed partnership tax returns, maintained a bank account as Broward Hills Investments, and sold out all the lots by 1973, more than a year after appellant O’Conner was injured. The clay surface road was never dedicated to the public. For present purposes we may assume it was owned by the Middletons. They maintained the road and paid for its maintenance, including periodic restorations of the clay surface.

The clay road was not “vacant land” within the meaning of the policies’ coverage for liability arising out of insured premises in addition to specified dwellings. In insurance parlance, notably in construction of fire risk policies, “vacant” is considered the absence of inanimate objects, whereas “unoccupied” refers to the absence of animate objects. Hehemann v. Michigan Millers Mut. Ins. Co., 240 So.2d 851, 854 (Fla. 4th DCA 1970). Those definitions need not necessarily govern this case, but they point to the need to interpret the term “vacant land,” as used in the Safeco and Gulf American policies, with a view to the character of the risks assumed by the insurers. A clay road may be thought of as vacant when no automobile or pedestrian is using it, but that would hardly be a fair characterization of a strip of land created for no purpose other than use by automobiles and pedestrians. The road here in question was not “vacant” in the sense of virginal because it had been improved and maintained, even augmented, to the extent acceptable to the Middletons and their prospects and purchasers. The road was not an independent piece of this earth but was referable to many substantially improved lots whose access depended on it. Without attempting to decide whether the absence of any of these factors would render the road “vacant land,” we sustain the trial court’s view that the road was not “vacant” for purposes of extending Safeco’s and Gulf American’s liability to the consequences of imported clay which washed onto Cisco Road and caused injury to appellant O’Conner.

The trial court was also correct in holding as a matter of law that insurance was excluded as “arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.” The Middletons’ clearing, grading, filling and maintenance of the road was a business pursuit. Not every activity undertaken for profit is necessarily a business pursuit, but the Middle-tons’ subdivision and sale of 100 lots, their provision for separate banking and accounting of receipts and disbursements, their characterization of the subdivision as Bro-ward Hills Estates, and their creation and maintenance of the clay road for the satisfaction of their prospects and purchasers indicated a continuous and comprehensive, if somewhat casual, activity for financial gain. See Annot. 48 A.L.R.3d 1096, 1101 '(1973). Maintenance of the road was too closely related to the business pursuit to be characterized as equivalent to one “ordinarily incident to non-business pursuits.” See Peterson v. Highlands Ins. Co., 328 So.2d 49 (Fla. 3d DCA 1976); Davis v. Frederick’s, Inc., 30 Utah 2d 321, 517 P.2d 1014 (1973); Martinelli v. Security Ins. Co. of New Haven, 490 S.W.2d 427 (Mo.App.1972); Burroughs v. Employers Liab. Assur. Corp., 198 So.2d 202 (La.App.1967).

We have considered Travelers Indem. Co. v. Holman, 330 F.2d 142 (5th Cir. 1964), which applied Texas law favorably to the insured in dealing with policy provisions like those in this case. On a closer set of facts, the court of appeals acknowledged “real and pressing questions as to which the answer was not necessarily clear,” and resolved the issues favorably to the insured .because of compelling elements of promissory estoppel. 330 F.2d at 150. On the record before us, though the questions were real and pressing, the answer was clear. The trial court did not err in granting summary judgment.

AFFIRMED.

RAWLS, Acting C. J., and ERVIN, J., concur.


author: OTT, Judge.

text:
    Joseph H. CROSBY, Appellant, v. STATE of Florida, Appellee.
    No. 77-279.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Rehearing Denied Jan. 5, 1978.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow; and Howard L. Dimmig, II, Legal Intern, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant Joseph H. Crosby argues that the state did not produce sufficient evidence in this case to sustain a conviction for burglary tools. We agree.

The state filed an information charging appellant with burglary and possession of burglary tools. At trial, the prosecution presented evidence to the effect that appellant and his co-defendant had stolen a purse from a locked car. When the police captured appellant shortly after the burglary, they found two coathangers in the car in which appellant was riding. The prosecution did not present any evidence to show that these coathangers had been used in the burglary or that they had been altered for such a purpose. The officer who found the coathangers only testified that he had in the past used similar hangers to get into locked cars.

A jury found appellant guilty of burglary and possession of burglary tools. Thereafter appellant filed a motion for a new trial which the trial court denied. We believe that the court erred in this ruling.

A conviction for possession of burglary tools can only be sustained in the case of common household tools where there is evidence that the object was in fact used as a burglary tool. Foster v. State, 286 So.2d 549 (Fla.1973). In the present case, there was absolutely no evidence that the coath-angers were used to break into the car. The officer’s testimony only established that they could have been used for such a purpose and not that they were used for that purpose.

In view of what we have said, we reverse the order of the trial court and remand the case for a new trial on the charge relating to possession of burglary tools. We find that the other points which appellant raises have no merit and therefore we affirm his conviction on the burglary charge.

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


author: PER CURIAM. BOYER, Judge,

text:
    James Dale CRANE, Ward Leslie Symons, Nancy Nix Gray, et al., Appellants, v. Honorable Raymond L. SIMPSON, County Judge, Appellee.
    No. FF-128.
    District Court of Appeal of Florida, First District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    William H. Maness, Jacksonville, for appellants.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed.

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

BOYER, J., dissents.

BOYER, Judge,

dissenting.

As I have theretofore stated I do not agree with the “speedy trial rule”. I think it to be a bad rule and bad law. I recognize the constitutional right to a prompt trial. However, the test should be, in my view, prejudice to the accused and not a fixed quantative time period.

As I stated in State v. Ansley, supra: “The philosophy behind ‘speedy trial’ is to assure that an accused be not required to languish in jail or under threat thereof while on bail, awaiting a delayed trial. The constitutional right to be protected is the right of speedy trial not a speedy discharge without trial. In my view, an accused should not be allowed to escape prosecution, perhaps to the detriment of society, without expressing some desire to ‘get it over with’. However, it is not the prerogative of this court (as it is the Supreme Court) to question the wisdom of the rule. We have but one choice, to follow. I therefore most reluctantly, with full knowledge that justice is not achieved but is thwarted, concur in the opinion authored by my brother Judge Rawls.”

However, notwithstanding my disagreement with the rule itself and my oft-repeated conviction that by quantifying the right to speedy trial into a specific number of days, rather than examining the effect of delay upon the accused, little is achieved other than detriment to society and scorn for the legal system, I am nevertheless convinced that stability of the law and the doctrine of stare decisis are important concepts which require observance.

As was clearly demonstrated during oral argument of this case, the sole issue for consideration is whether a two week Christmas recess observed in the courts of Duval County pursuant to custom and order by the chief judge but not provided for by statute nor rules of civil, criminal, nor appellate procedure, constitutes an “exceptional circumstance” within the meaning of the “speedy trial rule”.

As unpalatable and unreasonable as the rule is (in my view) it seems to me inescapable that by virtue of the rule itself and the prior cases decided by this and other courts the Christmas recess (as distinguished from the Christmas holiday itself) is not an exceptional circumstance. Improvidently, I believe, a very strict interpretation has been placed upon the rule.

In Allen v. State, as an example, the Supreme Court of Florida has held that a delay by the grand jury in returning an indictment against a defendant was not an exceptional circumstance contemplated by the rule. Several cases have held that a crowded court docket is insufficient to toll the speedy trial time because such a delay is not “caused by defendant”. Even closer on point is this court’s opinion in State v. Jones. The facts of that case reveal that the last day of the defendant’s speedy trial time, October 27, was a federal holiday (Veterans’ Day). The trial court had extended the trial until the following day. Affirming the defendant’s discharge under the rule this court held that since October 27 was not a legal holiday in Florida the state was not entitled to an extension of the trial until the next day. In coming to that conclusion this court cited Farrell v. Bendix Corp., wherein our sister court, faced with the question of whether December 26 was a legal holiday under the appellate rules, quoted the following passage from Florida Jurisprudence:

“Statutory or legal holidays are not regarded by the courts as non judicial days unless the courts are constrained to regard them as such by the terms of the necessary effects of statutes. A legal holiday has only the sanctity attached to it by statute.”

With the foregoing precedents in mind and in conformity with the doctrine of stare decisis, albeit reluctantly, I can arrive at no conclusion other than that the Christmas recess observed in Duval County (except Christmas day itself) is not an exceptional circumstance authorizing an extension of a defendant’s speedy trial time.

Without any reference whatsoever to the rule, but with due respect to the doctrine of stare decisis, I would accordingly reverse.

      . State v. Ansley, 349 So.2d 837 (Fla. 1st DCA 1977).

      . Fla.R.Crim.P. 3.191.

      . See Dickey v. State, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) and State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977).

      . State v. Griffin, supra.

      . For an excellent discussion of the rule see “Florida’s Speedy Trial Rule — Certainty or Confusion?”, by Kirk N. Kirkconnell and Chandler R. Muller, The Florida Bar Journal, Vol. 51, No. 9, Nov. 1977, page 619, et seq.

      . The constitutionality of the observance of Christmas is not raised as an issue in this case.

      . 275 So.2d 238 (Fla. 1973).

      . Leon v. Baker, 238 So.2d 281 (Fla.1970); Leonard v. McIntosh, 237 So.2d 809 (Fla. 4th DCA 1970); Clark v. Edwards, 234 So.2d 399 (Fla. 4th DCA 1970), cert. den. 239 So.2d 246 (Fla.1970).

      . 332 So.2d 699 (Fla. 1st DCA 1976).

      . 232 So.2d 419 (Fla. 4th DCA 1970).

      . 30 Fla.Jur., Sundays and Holidays, § 38.


author: RAWLS, Acting Chief Judge.

text:
    John H. SEA and Clay Mort, etc., et al., Appellants, v. ACOUSTI ENGINEERING COMPANY OF FLORIDA, Appellee.
    No. DD-74.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    Rehearing Denied Jan. 6, 1978.
    Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for appellants.
    Al Millar, Jr., of Millar & Lally, Jacksonville, for appellee.
   RAWLS, Acting Chief Judge.

This appeal arises out of a contractual dispute between an association of labor unions and a contractor as to the payment by the contractor of fringe benefits. Appellants, trustees of certain trust funds, filed their complaint. Appellant Sea is one of the trustees and the business representative of the Carpenters District Council of Jacksonville, and appellee Acousti is a construction company.

Acousti and the union operated under a collective bargaining agreement that terminated on May 1, 1974. A new agreement was negotiated between an association of general contractors of which Acousti was a member and the union, which provided that the employer would make certain payments to trust funds designated as an apprenticeship fund, a health and welfare fund, and a pension and a vacation fund; such being customarily referred to as “fringe benefits”. This “new agreement” was reached during the latter part of April, 1974. However, Acousti did not formally sign the written agreement until September 13, 1974, although during the period intervening from May 1, 1974, Acousti made substantial payments to the trust funds in accordance with the provisions of the written agreement that it had not executed.

The trial court held that Acousti’s payments for fringe benefits violated the provisions of 29 U.S.C. § 186(c)(5)(B) and (7) (Taft Hartley Act of 1947) and assessed damages against the union trust fund in the sum of $28,356.48; hence this appeal.'

After extensive investigations, Congress discovered abuses which seemed to be inherent in funds created and maintained by contributions exacted from employers, but which were administered by union officials without any obligation to account to the contributors or to union membership. Thus, an essential provision of the Taft Hartley Act of 1947 prohibited the contribution by an employer to any union except in narrow circumstances. The narrow exception with which we are here concerned is found in the following provision, viz:

“ . . . (c) The provisions of this section shall not be applicable ... (5) with respect to money . . . paid to a trust fund . . . Provided . (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer. . .."

The trial court held that the above cited provisions rendered the fringe benefit payments to have been illegal.

Acousti argues in its brief that Moglia v. Geoghegan and Bricklayers, Etc., U. 15, Fla. v. Stuart Plaster. Co., Inc., mandate an affirmance. We do not agree. Moglia involved a claim to a pension fund which the employer had made contributions. However, an important fact is that the nonunion employer in Moglia had never entered into a collective bargaining agreement with the union. Likewise, Bricklayers is not applicable. In Bricklayers, the collective bargaining agreement was in numerous respects in clear violation of the Taft Hartley Act and, as a result of such violations, the trust funds had been flagrantly mismanaged. The facts in Bricklayers amply demonstrate the foresight of Senator Taft’s explanation that “the purpose of the provision is that the welfare fund shall be a perfectly definite fund, that its purposes shall be that each employee can know what he is entitled to, can go to court and enforce his rights in the fund, and that it shall not be, therefore, in the sole discretion of the union or the union leaders and usable for any purpose which they may think is to the advantage of the union or the employee.”

Unlike the facts in Moglia, Acousti had a valid labor agreement with the union prior to May 1, 1974. Ninety days prior to the expiration of this agreement, negotiations were begun between the association of contractors and the union. A representative of Acousti participated in these negotiations, resulting in the formulation of a written contract which was ratified by the union a few days prior to May 1, 1974. Acousti employed the union members after May 1, 1974; paid them wages and some fringe benefits pursuant to the written contract; and on September 13, 1974, signed the written contract. That the subject written instrument is in compliance with the Labor Management Relations Act has not been questioned. Applying these facts to the legislative purposes of the subject statute, we conclude that Acousti, by its acts, ratified the subject contract as of May 1,1974. The Taft Hartley Act was enacted as a shield for all parties; not as a sword for Acousti’s use.

By cross-assignment, Acousti challenges the trial court’s construction of the following contractual provision, viz:

“Contractors signatory to this Contract agree to pay into the Carpenters District Council of Jacksonville and Vicinity Health & Welfare Fund based on every hour worked for the Contractors by members of the C.D.C., apprentice hours included, straight time only, according to the schedule under Article XXVI, WAGES.”

requiring the employer to pay fringe benefits at the straight time rate for every hour worked, including overtime. Acousti contends that the plain meaning of this paragraph requires it to make payments on every hour worked — straight time only, i.e., a maximum of 40 hours per week. In support of its construction of the disputed paragraph, Acousti produced Dr. Marly J. Lyde, Professor of English and Chairman of the Division of Humanities, Jacksonville University, who, after diagramming the sentence, opined that “straight time only” modified and qualified the phrase “every hour worked”. We agree. The trial court erred in its construction of the disputed paragraph.

The judgment appealed is reversed and remanded with directions that a final judgment be entered in accordance with this opinion.

SMITH and ERVIN, JJ., concur.

      . Labor Management Relations Act of 1947, Pub. L. No. 101, § 302, 61 Stat. 136 (1947).

      . Moglia v. Geoghegan, 403 F.2d 110 (2nd Cir. 1968), cert. den. 394 U.S. 919, 89 S.Ct. 1193, 22 L.Ed.2d 453 (1969).

      . Bricklayers, Etc., U. 15, Fla, v. Stuart Plaster. Co., Inc., 512 F.2d 1017 (5th Cir. 1975).

      . Id. quoting 93 Cong. Rec. 4876 (1947).


text:
    ACCREDITED BOND AGENCIES, INC., a corporation, and Accredited Surety and Casualty Company, Inc., a corporation, Appellants, v. GULF INSURANCE COMPANY, a corporation, Appellee.
    No. DD-332.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    Rehearing Denied Jan. 6, 1978.
    James L. Harrison of Harrison & Snyder, Jacksonville, for appellants.

      Charles T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   RAWLS, Acting Chief Judge.

The sole issue in this appeal is whether or not Gulf Insurance Company (Gulf) had a duty to defend an action sounding in tort instituted by the Smiths against Accredited Bond Agencies, Inc., (Accredited) and Herman Lee Duggs (Duggs).

Identification of the parties involved is necessary. Accredited issues bail bonds and in this endeavor utilizes local “agents”. Duggs operated a local bail bonding agency in Jacksonville, Florida, and issued a bond, underwritten by Accredited, on behalf of one of the Smiths. Personal liability coverage was purchased by Accredited from Gulf; the policy specifying two locations iñ Orlando, Florida. The Smith suit against Accredited and Duggs alleged negligence on Accredited’s part in employing and in continuing the employment of Duggs, and that Duggs, acting as Accredited’s agent, committed an unwarranted and aggravated assault and battery upon one of the minor Smiths after wrongful entry into the Smith residence. It is the latter allegation that Accredited contends required Gulf to defend the Smith suit. Doubting its obligation to defend, Gulf initiated the instant declaratory action, alleging that no insurance coverage existed for the following reasons: 1) Accredited never contracted for nor paid any premium for coverage to Duggs nor for any damages that might be assessed against them arising out of any activities of Duggs; 2) the persons insured did not include Duggs nor any activities of Duggs that might occasion damages being assessed against Accredited; 3) the allegations contained in the complaint against Accredited and Duggs fell within the exclusions contained in the policy; and 4) Duggs was an independent contractor and thus Accredited was not responsible for the activities of Duggs.

In this non-jury trial, Gulf presented evidence reflecting that, pursuant to the provisions of the policy, it had no duty to defend the Smith suit against Accredited and Duggs. This evidence included Duggs’ statement which reflected that he operated a bail bonding agency under the name of “Duggs’ Bonding Agency”; that he was unincorporated, operated his business from his own office in Jacksonville, and was neither an officer, director nor stockholder of Accredited; and that his sole connection with Accredited was based upon its underwriting the bonds that he wrote.

In its final declaratory judgment, the trial court held that Duggs was an independent contractor, not an employee of Accredited, and that, therefore, the Gulf insurance policy issued to Accredited did not provide coverage for the facts set forth in the Smith complaint and Gulf was under no obligation to defend Accredited.

Count I of the Smiths’ amended complaint alleged an employment relationship between Duggs and Accredited while alleging, further, that Duggs had accosted one of the Smith minors in the doorway to the Smith home by thrusting a pistol against his stomach in a threatening and menacing manner. It appears clear that the acts and conduct complained of within the Smith complaint fall within the coverage provided under the Personal Injury Liability Endorsement. If proven, the alleged acts constituted an offense consistent with the coverage provided under “I — Group C”.

The general rule is that a liability insurance carrier must defend its insured if the initial pleadings fairly bring the case within the scope of coverage, even though ultimately it is determined that there is no liability. Tennessee Corporation v. Lamb Brothers Const. Co., 265 So.2d 533 (Fla. 2nd DCA 1972). The insurer’s duty to defend its insured is governed solely by the allegations of the complaint against the insured and not by ultimate determination of liability. Bennett v. Fidelity & Casualty Company of New York, 132 So.2d 788 (Fla. 1st DC A 1961); St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DC A 1973); and Garden Sanctuary, Inc. v. Insurance Co. of No. Amer., 292 So.2d 75 (Fla. 2nd DCA 1974).

In the instant case, the Gulf policy contained a clause stating:

“. . . the Company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent . ..”

The personal injury liability insurance endorsement to the policy afforded coverage, inter alia, resulting from the “Wrongful Entry or Eviction or other Invasion of Private Occupancy”.

It is our view that, pursuant to the subject policy of insurance as compared to the allegations of the complaint, Accredited was clearly entitled to a defense by Gulf in the Smith proceeding. We are not at this stage concerned with the question of liability on Gulfs part. The sole question is restricted to Gulf’s duty to defend its insured.

REVERSED.

SMITH and ERVIN, JJ., concur.

      . Accredited uses 130 to 140 such “agents” throughout Florida.

      . The policy provided coverage for:
      “A. False Arrest, Detention or Imprisonment, or Malicious Prosecution . . ..
      B. Libel, Slander, Defamation or Violation of Right of Privacy

      C. Wrongful Entry or Eviction or other Invasion of Right of Private Occupancy . . .