text:
    In re Inquiry Concerning a Judge, No. 76-13 (J. Cail LEE).
    No. 49929.
    Supreme Court of Florida.
    Aug. 27, 1976.
    Woodrow M. Melvin, Milton, and John T. Wigginton, Tallahassee, for the State of Fla. Judicial Qualifications Commission, petitioner.
    Richard R. Kirsch of Kirsch & Mills, Fort Lauderdale, for Judge J. Cail Lee.
   PER CURIAM.

We have before us a recommendation of the Judicial Qualifications Commission for a public reprimand of Judge J. Cail Lee of the Seventeenth Judicial Circuit, for conduct unbecoming a member of the judiciary. This recommendation has been filed pursuant to Article Y, Section 12(f), of the Florida Constitution, which provides in relevant part:

“Upon recommendation of two-thirds of the members of the judicial qualifications commission, the supreme court may order that the justice or judge be disciplined by appropriate reprimand . for . . . conduct unbecoming a member of the judiciary . . .

The Commission has found as a fact, by the affirmative vote of not less than nine of its members cast following a public hearing on July 20, 1976, that,

“on or about April 18, 1976, while a member of the Judiciary serving as a Circuit Judge of the Seventeenth Judicial Circuit of Florida, respondent, J. Cail Lee, openly engaged in sexual acts while in an automobile parked in a public parking lot in Fort Lauderdale, Florida.”

The Commission concluded that Judge Lee’s conduct

“has rendered himself an object of disrespect and derision in his role as a judge, has caused public confidence in the Judiciary to become eroded, is guilty of violating Canons 1 and 2 of the Code of Judicial Conduct as adopted by the Supreme Court of Florida on July 25, 1973, and is guilty of conduct unbecoming a member of the Judiciary.”

It is recommended that we administer a public reprimand, and that we return Judge Lee to active duty at the earliest practicable time.

Judge Lee has filed a waiver of his right to appeal from the findings and recommendation of the Commission, and joins in the request of the Commission for a public reprimand and immediate restoration to his duties of judicial office.

The Commission’s finding that Judge Lee engaged in sexual activities with a member of the opposite sex not his wife in a parked automobile is adequately supported by evidence in the record before us. Judge Lee has clearly engaged in conduct unbecoming a member of the judiciary.

The Commission has recommended as the only discipline for Judge Lee that we issue a public reprimand. Although there is no express finding or statement by the Commission as to why this discipline was preferred over others that are available, such as removal from office, we assume from our independent review of the record that the Commission was influenced by:

(1) undisputed testimony and other supportive evidence to the effect that Judge Lee is an able jurist who is well-regarded by the bench and bar in Broward County, and that this extra-judicial incident will not impair his ability to function as a judge in that community; and
(2) Judge Lee’s uncontradicted, sworn statement to the Commission stating that:
“my presence and the time and place of the incident resulted from my having had too much to drink, occurred during an early Sunday morning on a holiday weekend, and did not in any way involve my judicial office. Neither the other party alleged to be involved in this incident nor any member of her family has ever appeared before me, or on behalf of, a party or witness, corporate or individual at any time, ever. Furthermore, during the almost three months since this incident occurred, I have not taken a single drink of any alcoholic beverage of any kind, in any place, in any amount, nor do I intend to do so in the future.”

Under the totality of circumstances in this case, we accept the recommendation of the Commission and hereby reprimand Judge Lee for his conduct in this matter. Further, we admonish Judge Lee to comply with his oath as a member of the judiciary and to abide by the Code of Judicial Conduct, noting that the full record of this inquiry may be introduced into evidence in any subsequent inquiry concerning Judge Lee which may be brought before the Judicial Qualifications Commission. The occasion of any other incidents which might by themselves justify only a reprimand may then be considered in determining whether the accumulated misconduct is sufficient to warrant removal from office. In re Kelly, 238 So.2d 565 (Fla.1970). We reiterate what we said there:

“Because of the nature of the proceeding, the doctrines of res judicata and double jeopardy do not apply. . . . The reprimand does not amount to an acquittal, nor does it have the elements of a final judgment necessary to invoke the principles of res judicata.” Id. at 570.

Judge Lee is immediately reinstated to his duties as a circuit judge of the Seventeenth Judicial Circuit of Florida. This Court, however, under its administrative authority, directs that he shall not exercise jurisdiction in any criminal case without the express approval of the Chief Justice of this Court. It appearing that Judge Lee’s right of rehearing has been waived, this Court dispenses with rehearing.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.

SUNDBERG, J., concurs specially with opinion with which HATCHETT, J., concurs.

SUNDBERG, Justice

(concurring specialty)-

While I obviously concur without reservation in the finding by the Judicial Qualifications Commission that Judge Lee, inter alia, has caused public confidence in the judiciary to become eroded and has been guilty of conduct unbecoming a member of the judiciary, I have the gravest reservations concerning the recommendation of discipline in this cause. Public reprimand seems minimally appropriate for the conduct of which Judge Lee has been found guilty. Public confidence in the judiciary has to have been severely shaken by his acts.

The point at issue before us is not punishment for the offender, however, for surely the notoriety of his acts has left an indelible scar on the life of the man. What is at issue is whether he can continue to function as a useful member of the judiciary. It is the administration of justice with which the Judicial Qualifications Commission and this Court must be concerned in proceedings such as these.

The Commission through its recommendation obviously has concluded that the judge can continue to serve the judicial system, and the Court’s decision has curtailed his activities so that he will not be sitting in judgment of matters involving moral turpitude — at least for the present. Therefore, in order to disagree with the Commission’s recommendation of discipline, one must substitute his judgment for that of those Floridians who heard all the evidence and had the opportunity to observe the demeanor and candor of the witnesses. As one who has long supported and aided the development of the Judicial Qualifications Commission as an integral part of the state’s machinery to promote confidence in the judiciary, and as one who will zealously guard that agency’s ability to perform its special role in our system of government, I am “hard put” to indulge my own sense of propriety and to discard the recommendation of the Commission.

For the foregoing reasons alone, I concur in the discipline recommended by the Commission, subject to the further conditions imposed by my colleagues.

HATCHETT, J., concurs.

      . Canons 1 and 2 of the Code of Judicial Conduct provide, respectively, so far as is relevant here:
      Canon 1:
      “A Judge Should Uphold the Integrity and Independence of the Judiciary
      “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. .
      Canon 2:
      “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All his Activities
      “A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

      . Testimony was received from two former chief judges of the Seventeenth Judicial Circuit and a member of the criminal trial division of the State Attorney’s office. A local bar poll of judges was admitted into evidence, showing a very high ranking for Judge Lee in each of the past two years. The most recent poll was taken after the incident which led to these proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Reynold W. SWANSON and Gloria Diane Swanson, husband and wife, d/b/a Villa Del Sol Mobile Home Park, Appellants, v. Lou Allen BRODHECKER and Blanche Brodhecker, husband and wife, Appellees.
    No. 76-510.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 1976.
    Ray Graham, Sarasota, for appellants.
    Donald B. Hadsoek, Bradenton, for appel-lees.
   PER CURIAM.

On this interlocutory appeal appellants/defendants contend the trial judge erred in denying their motion for a summary final judgment directed against the amended complaint filed by appellees/plain-tiffs.

The plaintiffs’ multi-count complaint is not a model pleading and fails to pinpoint the issues with a desired degree of precision; nevertheless, we cannot say the trial judge erred in failing to grant defendants’ motion for summary judgment. Some matters alleged by the plaintiffs appear to state a cause of action and there are some factual disputes concerning such matters which are apparent from the plaintiffs’ amended complaint, defendants’ answer and the affidavits filed by the parties in support of and in opposition to the motion.

Accordingly, the judgment of the trial court must be and is hereby affirmed.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


text:
    Albert Edward ADKINSON, Appellant, v. ALLSTATE INS. CO., Appellee.
    No. AA-433.
    District Court of Appeal of Florida, First District.
    July 23, 1976.
    Rehearing Denied Sept. 1, 1976.
    Clayton J. M. Adkinson of Thompson & Adkinson, DeFuniak Springs, for appellant.
    John N. Boggs of Barron, Redding, Boggs & Hughes, Panama City, for appel-lee.
   PER CURIAM.

AFFIRMED. Mendlein v. United States Fidelity and Guaranty Co., 277 So.2d 538 (Fla.App.3d, 1973).

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


text:
    Timothy A. LAMPHIER, M.D., Petitioner, v. STATE BOARD OF MEDICAL EXAMINERS OF FLORIDA, Respondent.
    No. BB-142.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Charles Friend, Tallahassee, for petitioner.
    Michael I. Schwartz, Kaplan, Schwartz & Slepin, Miami, for respondent.
   PER CURIAM.

Petition for review by administrative cer-tiorari denied.

RAWLS, Acting C. J., and McCORD and SMITH, JJ'., concur.


text:
    Timothy A. LAMPHIER, M.D., Appellant, v. STATE BOARD OF MEDICAL EXAMINERS OF FLORIDA, Appellee.
    No. CC-158.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Rehearing Denied Sept. 13, 1976.
    Charles Friend, Tallahassee, for appellant.
    Michael I. Schwartz, Kaplan, Schwartz & Slepin, Miami, for appellee.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is dismissed pursuant to Florida Appellate Rule 4.2 c.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    Louise S. LEE, Appellant, v. CITY OF JACKSONVILLE, Florida, a Municipal Corporation, Appellee.
    No. AA-196.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Rehearing Denied Sept. 9, 1976.
    Carlton L. Welch, Jacksonville, for appellant.
    Harry Shorstein, Frederick J. Simpson, William Lee Allen, Jacksonville, and Don A. Romanello, Gainesville, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Willard ASHFORD, Appellant, v. INTERSTATE LIFE AND ACCIDENT INSURANCE CO., a Foreign Corporation, Appellee.
    No. Y-421.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1976.
    Rehearing Denied Sept. 20, 1976.
    R. K. Roberson, DeLand, for appellant.
    R. Michael Kennedy, Daytona Beach, for appellee.
   PER CURIAM.

This court, having carefully considered the record and by comparing the findings of fact by the able trial judge as recited in his final judgment following a non-jury trial with the record on appeal, finds that there is sufficient evidence in the record to sustain those findings. The law is so well settled, as to require no citations of authority, that findings of a trial court when based upon competent, substantial evidence come to an appellate court clothed with a presumption of correctness. The final judgment appealed is, therefore,

AFFIRMED.

RAWLS, Acting C. J., and BARKDULL, THOMAS H., Jr., and MELVIN, WOODROW M., Associate Judges, concur.


text:
    Thompson S. BAKER et al., Appellants, v. SAN MARCO TOWERS, INC., a Florida Corporation, Appellee.
    No. BB-434.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1976.
    Thomas M. Baumer and Terrance E. Schmidt, of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    Hugh A. Richeson, Jr., of Bryant, Dickens, Franson & Miller, Jacksonville, for ap-pellee.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is dismissed pursuant to Florida Appellate Rule 4.2c.

RAWLS, Acting C. J., MILLS, J., and MINER, CHARLES E., JR., Associate Judge, concur.


text:
    Robert W. RAGLE and Cheryl Ragle, his wife, Appellants, v. FIREMEN’S FUND INS. CO., Appellee.
    No. AA-111.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    Rehearing Denied Sept. 16, 1976.
    George G. Stelogeannis of Eric E. Wagner, P. A., Ocala, for appellants.
    Andrew W. Pattillo, Jr. of Pattillo, McKay & McKeever, P. A., Ocala, for appel-lee.
   PER CURIAM.

AFFIRMED. Summers v. Jackson, 307 So.2d 235 (Fla.App. 4th, 1975); Lange v. State Farm Mut. Auto. Ins. Co., 300 So.2d 68 (Fla.App. 1st, 1974); Golphin v. The Home Indem. Co., 284 So.2d 442 (Fla.App. 1st, 1973).

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


author: DOWNEY, Judge.

text:
    CAPE PUBLICATIONS, INC. et al., Appellants, v. Donald F. ADAMS, Appellee. CAPE PUBLICATIONS, INC., Appellant, v. Donald F. ADAMS et al., Appellees.
    Nos. 74-1731, 74-1760.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1976.
    Rehearing Denied Oct. 1, 1976.

      S. Lindsey Holland, Jr., of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellants.
    Larry Klein and Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellee-Donald F. Adams.
   DOWNEY, Judge.

Appellee (Donald Adams) sued appellants in one count for libel and several other defendants who are not involved in this appeal (Sardella, Stone, and St. Pierre) in a second count for conspiracy to libel. The trial court granted a directed verdict for all the defendants as to the conspiracy count. The jury returned a verdict on the libel count for $114,000 compensatory damages against all the appellants and $100,000 punitive damages solely against appellant, Cape Publications, Inc.

Appellee was the Building Official of the City of Vero Beach, Florida and Indian River County. Appellant Newcome was a reporter and bureau chief for a Brevard County newspaper named Today, which was owned by the predecessor of appellant Cape Publications, Inc. Appellant Buddy Baker was the managing editor of Today. In the course of his employment Newcome wrote several articles about appellee and the conduct of his office. Baker approved the articles, and Cape Publications’ predecessor published them. Two of the articles forming the primary basis for the alleged libel essentially charge appellee with: a) soliciting a construction supervisor (Bernard) for a $1000 bribe and attempting to make Bernard return to appellee in cash $150 which appellee had paid by check for three mirrors; and b) attempting to persuade the Mayor of Indian River Shores to pay appel-lee $2000 (plus $400 for appellee’s secretary) annually for work for which appellee had already been compensated. The article involving Bernard set forth that both Bernard and appellee denied either of the reported wrongful acts. But it nevertheless stated that Wilcox, Bernard’s supervisor, had told Today that Bernard had in fact reported the two solicitations to Wilcox. The article involving Miller, the Mayor of Indian River Shores, set forth that Miller had stated that appellee had requested the improper payments from him. Miller testified at trial that he had denied the statements attributed to him and had advised Newcome of the true facts by furnishing copies of the town's records or telling New-come where he could obtain them.

Thus, we have a newspaper and its employees charged with libelling a public official. All parties agree that appellee is a public official and that the rule announced in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), regarding the necessary quality of proof applies in this case. Therefore, in order for appellee to recover it was essential that he prove actual malice on the part of appellants with convincing clarity. “Actual malice” in the New York Times sense means that the material was published with knowledge that it was false or with reckless disregard of whether it was false or not. This court in the recent case of Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla.4th DCA 1976), noted that the New York Times case stated:

“ ‘The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.’ (376 U.S. at 279-80, 84 S.Ct. at 726)”

Adverting now to the evidence adduced at trial, which we must view in the light most favorable to the verdict, it is our considered opinion after reviewing the entire record, as we must on appeal in a libel case involving a public official, that the proof of actual malice was more than adequate to meet the burden of convincing clarity.

The evidence, in brief, shows the following things. Newcome, St. Pierre, and Sardella were close friends. St. Pierre, a contractor, and appellee had a running feud stemming from appellee’s having St. Pierre arrested for violating a stop work order on a construction job. Sardella and Newcome knew this. St. Pierre told Newcome that a contractor named Wilcox had told him and Sardella that appellee had solicited a bribe from Wilcox’s supervisor. Newcome talked to Wilcox about this statement and on cross examination Newcome admitted that Wilcox was evasive about the entire matter. Wilcox testified that he had never made such a statement to St. Pierre, Sardella, or Newcome, and that Bernard had never made any such statement to him. New-come then talked to Bernard, who denied that appellee had solicited a bribe or that he had ever told Wilcox of such an event.

Sardella told Newcome that Wilcox had told him that appellee had purchased three mirrors from Wilcox on a construction site with a $150 check and that later appellee approached Wilcox’s supervisor, Bernard, and demanded that the $150 be returned to him in cash. Wilcox denied that Bernard ever told him of this demand and denied he ever made any such statement to Sardella. Newcome contacted Bernard and the latter denied that any such demand had been made or that he had ever so advised Wilcox.

Sardella told Newcome that Miller had stated that appellee asked Miller, the Mayor of Indian River Shores, to personally pay him $2,000 per year and his secretary $400 for work they were doing for Indian River Shores for which work they had already received compensation. Miller denied making any such statement and said he had told Newcome that there had been open discussions between appellee and Miller and the Town Council of Indian River Shores relative to compensation for appellee for the extra work appellee had been doing for the town. Miller either gave Newcome copies of the relevant files or told him where they could be obtained.

Newcome contacted Barclay Henderson, Executive Director of the Florida East Coast Chapter of the General Contractors of America, to see if his organization might take some action against appellee. New-come met with Henderson and gave him information about appellee. Henderson then conducted an investigation and met with various contractors and appellee. Thereafter, Henderson advised Newcome that he found no basis for any action against appellee and advised Newcome not to print any articles on the matter.

Sardella introduced Newcome to another contractor named DiBassie. During a meeting with DiBassie at which Newcome was present, DiBassie did not accuse appel-lee of any wrongdoing. He testified at trial that Newcome and Sardella said they were going to get appellee and that they were going to put him in jail.

The jury could properly conclude that every time Newcome went to the sources of the information concerning alleged wrongdoing (Bernard and Miller, the only persons with personal knowledge of the facts), they told Newcome the statements were untrue. This did not happen with just one of the events but with all three! In addition, Newcome knew his source St. Pierre had a feud going with appellee, so he was on notice as to his questionable credibility. Finally, DiBassie, who, according to Today, accused appellee of improper conduct, denied making any accusation. On the other hand he testified Newcome and Sardella said they were going to get appellee and put him in jail.

In the face of all those red flags flying, Newcome wrote the articles complained of, imputing criminal conduct to appellee. The editorial staff of the newspaper, after giving full consideration to their content and the possible libellous implications 1 arising therefrom, decided to print the articles.

As we view the credible evidence which the jury had before it, there is clear 'and convincing support for a finding that appellants exhibited a reckless disregard of whether the charges were true or false; i. e., that they published the articles with a high degree of awareness of the probable falsity of the statements involved (Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)) and with serious doubt as to the truth of the publication (St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)).

Appellants posed eleven points on appeal. We have given each serious consideration and find that they fail to demonstrate reversible error.

Accordingly, the judgment appealed from in each of these appeals is affirmed.

WALDEN, J., and McCAULEY, JAMES A., Associate Judge, concur.

      . Alioto v. Cowles Communications, Inc., 519 F.2d 777, 780 (9th Cir. 1975), cert. denied 423 U.S. 930, 96 S.Ct. 280, 46 L.Ed.2d 259; Mahnke v. Northwest Publications, Inc., 280 Minn. 328, 160 N.W.2d 1, 3-4 (1968).

      . New York Times Co. v. Sullivan, supra.


author: BOARDMAN, Judge.

text:
    Weil S. KING, Appellant, v. STATE of Florida, Appellee.
    No. 75-968.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1976.
    Rehearing Denied Oct. 1, 1976.

      Warren M. Goodrich, Holland & Knight, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Appellant/defendant brings this timely appeal from a judgment of guilty on each of ten counts of bad faith delivery of narcotics by a prescription. He was sentenced to serve five years on each count in the state penitentiary, sentences to run consecutively.

• Appellant was charged by information with violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes. Each count charged a separate delivery of a controlled substance:

that WEIL S. KING, N.D. ... did unlawfully deliver a drug substance controlled by Chapter 893 of the Florida Statutes, to-wit: [sic] METHAQUA-LONE, to MANCHINCO HUDSON, by use of a written order for said drug substance not issued in good faith and in the course of his professional practice. . [emphasis supplied].

Appellant’s sole point on appeal is that an essential element of the offense is that the defendant is a licensed practitioner, which must be alleged and proved. We hold that the information, charging the appellant with violation of Chapter 893, does allege the “essential facts constituting the offense charged.” RCrP 3.140(d)(1). The statute under examination states in part:

A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance .... [Fla.Stat. § 893.05(1)].
******
Except as authorized by this chapter and chapter 500, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.
[Fla.Stat. § 893.13(l)(a)].

The language in the information that the unlawful act was not done in good faith and was done in the course of his professional practice is mere surplusage. The critical language is “unlawfully deliver a drug substance controlled by Chapter 893” which tracks § 893.13 and certainly alleges a violation of the statute. Cf. State v. Vinson, Fla.App.2d, 1974, 298 So.2d 505. It is clear that § 893.05 is an exception to the prohibitions of § 893.13 and does not constitute a separate violation of Chapter 893. Cortina v. State, 135 Fla. 268, 184 So. 838 (1938); 25 Am.Jur.2d, Drugs, Narcotics, and Poisons § 41 (1966, Supp.1976); Cf. Pope v. State, Fla.App.2d, 1972, 268 So.2d 173, cert. den., Fla.1973, 283 So.2d 99. A defense or an exception to an offense need not be negatived in the information charging the offense. Pope v. State, supra; RCrP 3.140(k)(4); 17 Fla.Jur., Indictments and Informations § 60 (1958, Supp.1976).

We note that in this case the heading of the amended information shows that each count is entitled “BAD FAITH DELIVERY OF A NARCOTIC BY A PRESCRIPTION FS 893.05.” We do not believe that this description of the offense would “mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” RCrP 3.140(o). Where the information clearly charges an offense a mere error in the citation of the statute violated does not require reversal unless the error would prejudice the accused. Youngker v. State, Fla.App.4th, 1968, 215 So.2d 318.

The circumstantial and direct evidence adduced at trial proved beyond a reasonable doubt that appellant was guilty of unlawful delivery of narcotics by writing prescriptions in bad faith. The language in the information, which we regard as being surplusage, served to advise the appellant of a defense available to him, of which we cannot conceive that counsel for appellant was not fully cognizant.

AFFIRMED.

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


author: BY THE COURT.

text:
    FOREMOST INSURANCE COMPANY, a corporation, Appellant (Plaintiff), v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a Foreign Corporation, and U. D. Floyd, d/b/a Floyd Insurance Agency, Appellees (Defendants).
    No. BB-303.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    Jack W. Shaw, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    Robert Wilhelm, Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, and Joe C. Miller, Palatha, for appellees.
   BY THE COURT.

Upon considering the briefs, the record and oral arguments, we find no reversible error.

Accordingly, the judgment is affirmed.

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


text:
    TRAVELERS INDEMNITY CO., Petitioner, v. Melvin FIELDS, Respondent.
    No. W-403.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Rehearing Denied Sept. 14, 1976.
    Lawrence 0. Sands and Marvin B. Nodel, of Sands, Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for petitioner.
    Fred C. Isaac, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for respondent.
   PER CURIAM.

Petitioner having failed to demonstrate that it is without a remedy for the alleged error upon appeal from any adverse final judgment, the petition for certiorari is

DENIED.

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


text:
    CITY OF HOLLYWOOD, Florida, a Municipal Corporation, Appellant, v. Julius J. SHEPARD a/k/a J. J. Shepard, Appellee.
    No. 75-874.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 1, 1976.
    J. Bart Budetti, City Atty., Hollywood, and Ronald B. Sladon, P. A., Fort Lauder-dale, for appellant.
    Joseph A. Gassen of Jepeway, Gassen & Jepeway, Miami, for appellee.
   PER CURIAM.

We have studied the briefs and record (including the testimony) in this case and conclude that the trial court erred in finding that the appellant breached the lease contract between the parties. We hold that the parties mutually abandoned the original lease and thereafter attempted to negotiate a new agreement, but their attempt proved fruitless, through the fault of no one.

We feel however that it would be inequitable for appellant to keep the “rent” payments which appellee made to it, totall-ing $21,250.00. That amount plus $6,928.17 interest, should, as the trial court found, be returned to the appellee. We would also have affirmed the allowance of one-half of the permit fee were it not for the case of Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), quashing in part the decision of this court reported at 283 So.2d 867. We read those decisions to hold that under the circumstances found in the case at bar, the building permit fee is not recoverable. Since there was no breach by the appellant, appellee cannot prevail on his cross appeal seeking greater damages.

Accordingly, the judgment appealed from is remanded with directions to enter an amended judgment in favor of appellee in the amount of $28,178.17.

Affirmed as modified.

WALDEN and DOWNEY, JJ., and ANDREWS, JOHN S., Associate Judge, concur.


text:
    Horace BLACKBURN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-408.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Horace Blackburn, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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


text:
    Willie F. GARY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-418.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    James Ron Shelley, Public Defender, David B. Ackerman, Asst. Public Defender, and Richard Lott, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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


text:
    Billy Steven WALL, Appellant, v. STATE of Florida, Appellee.
    No. BB-43.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch and Michael J. Minerva, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz and Richard W. Prospect, Asst. Attys. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

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


author: DAKAN, STEPHEN L., Associate Judge.

text:
    William GREENFIELD, Appellant, v. STATE of Florida, Appellees.
    No. 75-1500.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 1, 1976.

      Larry Klein, West Palm Beach, and Law Offices of C. Michael Shalloway, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAKAN, STEPHEN L., Associate Judge.

Appellant, defendant in the trial court, appeals his judgment and sentence after conviction by a jury for second degree arson. The sole point on appeal is the propriety of certain questions asked during the cross-examination of defendant’s character witnesses.

Defendant called Emanuel Riesenberg and asked if he knew the reputation of the defendant in the community in which he lived for truth and veracity. The witness replied that defendant’s reputation was good and he would believe defendant under oath. During a proffer, out of the presence of the jury, the State asked the witness if he had heard that defendant had been arrested in July of 1972 and in April of 1975 for grand larceny.

In the course of legal argument regarding the propriety of asking this question, it was established that charges arising out of ' the 1972 arrest had been dismissed. Charges resulting from the April 1975 arrest were, however, set for trial. The trial court ruled that no inquiry could be made concerning the 1972 arrest, but the state could ask the witness if he had heard of the April 1975 arrest. The offense for which defendant was being tried occurred in January, 1975, prior to the April arrest. Upon resuming the trial, the state then asked Mr. Riesenberg if he had heard of the April 1975 arrest. Defendant then called three more character witnesses. Each one was questioned as to the reputation of the defendant in his community for truth and veracity. On cross-examination, each witness was asked if he had heard of the April 1975 arrest.

Defendant’s position on appeal is that the trial court erred in permitting the state to ask defendant’s character witnesses if they had heard of the arrest of the defendant, for a different charge, after the date of the offense for which defendant was on trial.

The general case law and text writings on the subject seem to agree that the state has the right to cross-examine a character witness as to his having heard of specific acts of defendant. The purpose of this, examination is to enable the fact finder to judge whether the witness actually knows the reputation of the defendant. This inquiry is not limited to actual convictions but may include arrests and other alleged conduct or misconduct. See, for example, United States v. Canniff, 521 F.2d 565 (C.A.2, 1975); United States v. Prevatt, 526 F.2d 400 (C.A.5, 1976); United States v. Bermudez, 526 F.2d 89 (C.A.2, 1975); Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975); Jiminez v. State, 545 P.2d 1281 (Okl. Cr.App.1976); McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975) and the annotation and cases collected in 47 A.L.R.2d 1258. See also, McCormick, Evidence, Section 191; and Wharton, Criminal Evidence, Section 237.

Florida cases dealing with this subject also seem to follow the general rule. In the early case of Cook v. State, 46 Fla. 20, 35 So. 665 (1903), the Florida Supreme Court held that a character witness may be cross-examined regarding specific facts ip order to test the soundness of the witness’ opinion and to elicit the data upon which it was founded. In Cornelius v. State, 49 So.2d 332 (Fla.1950), the Florida Supreme Court held that a witness who testifies to the general reputation or character of a defendant may be cross-examined as to whether he had heard of specific acts of violence

. . because the true purpose of such cross-examination is to enlighten the jury as to whether the witness actually— as a matter of fact — knows the general reputation of the defendant and to place the jury in a better position to pass upon the credibility of the witness’ testimony.” 49 So.2d at 335.

The Florida case closest to the issue here is Carnley v. State, 143 Fla. 756, 197 So. 441 (1940). The defendant was charged with stealing hogs. A witness on his behalf testified to the good general reputation of the defendant in the community. During cross-examination, the witness was asked if he had heard or learned that defendant “during this period” had been accused of cow stealing. The court disposed of defendant’s objection to this procedure by stating:

“. . . We fail to comprehend that such inquiry had the legal effect of charging the defendant with another crime, namely, cow stealing, when the point to be developed was Williamson’s knowledge of the defendant’s general reputation in the community in which he lived. We fail to find merit in this assignment.” 197 So. at 442.

Unfortunately, neither the Cook case or the Carnley case, supra, indicate whether the character witness was being questioned about specific acts involving the defendant which happened subsequent to the offense being tried. Defendant maintains that a subsequent arrest cannot be inquired about and relies in part on United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973); Wharton, Criminal Evidence, Section 231 (2nd Ed. 1972); and 5 Wigmore, Evidence, Section 1618. We agree with the general proposition of these authorities that cross-examination of a character witness should be limited to events prior to the offense being tried when defendant’s reputation for peace and good order is in issue. This is because a defendant’s reputation for peace and good order, (United States v. Lewis, supra) or as a peaceful and law abiding citizen (Cornelius v. State, supra) is relevant only as to the date of the offense on trial.

A different situation is presented, however, when the issue of the defendant’s reputation for truth and veracity or testimonial honesty is put in issue. Defendant’s reputation for this particular trait is in issue at the time of the trial (as opposed to the date of the offense). See United States v. Lewis, 157 U.S.App.D.C. 43, 482 F.2d 632 (1973). Since the purpose of cross-examination of a character witness is to establish the basis of his opinion of the defendant’s reputation, it would only seem logical to permit questioning regarding acts involving the defendant up to the time of the trial. In this case, defendant Greenfield placed his reputation for truth and veracity in issue. This is determined as of the date of trial, and we, therefore, find no error in the trial court’s permitting the questions asked of the witnesses.

We also approve the procedure suggested in McCormick, Evidence, Section 191(d), (2nd Ed. 1972), in dealing with the matter. Before permitting the prosecuting counsel to cross-examine the character witness on rumors of misconduct, arrests, charges or convictions, the trial judge should require the prosecutor to give his professional statement to the court, in the absence of the jury, that he has reasonable ground to believe, and does believe, that the misconduct charges arising out of arrests were actually committed by the defendant and that any convictions were actually pronounced. The trial court has wide discretion in determining what examination, if any, will be permitted.

In this case, the trial judge followed this procedure and we, therefore,

AFFIRM.

WALDEN and ALDERMAN, JJ., concur.


text:
    Brooks TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. CC-287.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1976.
    James E. Moore, Jr. of Moore & Anchors, Valparaiso, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having considered the Petition for Writ of Certiorari and the briefs of the parties relative to this Court’s jurisdiction, the Petition for Writ of Certiorari is

DENIED.

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


author: BOARDMAN, Acting Chief Judge.

text:
    GORDON’S TRACTOR SERVICE, INC., a Florida Corporation, et al., Appellants, v. Frances Pepe BILELLO, et al., Appellees.
    No. 75-1268.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 1976.
    Rehearing Denied Oct. 1, 1976.
    Daniel A. Carlton of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellants.
    John M. Hodges of Bernstein, Sherr, Hodges, Lancer & Brand, Sarasota, for ap-pellees Frances Pepe Bilello and Edward Bilello.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellees Harold S. Luther and State Farm Mut. Auto. Ins. Co.
   BOARDMAN, Acting Chief Judge.

Appellants/defendants timely appeal a judgment rendered after a jury verdict in favor of appellees/plaintiffs in a personal injury action arising from a motor vehicle collision.

The accident occurred at the intersection of DeSoto Road and Lockwood Ridge Road in Sarasota, Florida. DeSoto Road runs east and west, and Lockwood Ridge Road runs north and south; both are two-lane, paved streets. The speed limit on Lockwood was 35 miles per hour at the time of the accident. A control signal suspended over the center of the intersection was flashing a red light to east-west traffic and flashing a yellow light to north-south traffic. There was a stop sign for eastbound traffic on DeSoto about 25 to 30 feet west of Lockwood. Vision at the southwest corner of the intersection was obstructed by trees, bushes and poles so that a motorist at the stop sign could see only 50 to 70 feet to the south on Lockwood. A northbound driver could not see a motorist stopped at the sign.

Appellee Frances Pepe Bilello, a student driver, was driving a duaí-control automobile east on DeSoto accompanied by her instructor, appellee Harold S. Luther. She stopped at the stop sign and then moved the automobile forward stopping at the edge of Lockwood. Appellee Frances Pepe Bilello did not see any northbound or southbound traffic on Lockwood, but did testify that her view was impeded. She was crossing the intersection at 5 to 10 miles per hour when she saw appellant Billy Ray Drake’s semitrailer-truck “a split-second” before the collision. Appellant Drake was proceeding north on Lockwood and approached the intersection at 25 to 30 miles per hour. Appellant Drake testified that he first saw the automobile when it was in the intersection about 5 to 10 feet away from his truck. He testified that he swerved to his left attempting to avoid the vehicle. The left front of the truck collided with the right side of the automobile. The point of impact was in the southbound lane one and one half feet west of the center line on Lockwood.

At the request of counsel for appellees, the trial court instructed the jury in the language of the opinion in Via v. Tillinghast, Fla.App.3d 1963, 153 So.2d 59, as follows:

[You are instructed that] although a driver on a through street is entitled to assume that a driver approaching an intersection from a stop street will comply with the requirement to permit traffic to clear before proceeding and will cross only in a manner so as not to interfere with [the] approaching traffic, that does not relieve the driver on the through street from having to yield to a driver who already has [entered] the intersection, even though the latter may have done so wrongfully and negligently.

We hold that it was reversible error to grant this instruction.

Obviously, a driver approaching an intersection from a stop street is entitled to proceed across the intersection after making his stop providing there are no vehicles approaching on the through street close enough to constitute an immediate hazard. Fla.Stat. § 316.123. However, the literal effect of the instruction given was to provide that a driver with the right of way automatically loses it to another who wrongfully enters the intersection immediately ahead of him. The true rule is that even though another has violated his right of way, the favored driver must still take such reasonable steps as are available to him to avoid the collision. Wagner v. Willis, Fla.App.2d 1968, 208 So.2d 673.

REVERSED and REMANDED for a new trial as to liability and damages.

GRIMES and SCHEB, JJ., concur.


author: SCHEB, Judge.

text:
    CHEEZEM DEVELOPMENT CORPORATION, a Florida Corporation, Appellant, v. INTRACOASTAL SALES AND SERVICE, INC., a Florida Corporation, Appellee.
    No. 75-855.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.
    As Corrected On Denial of Rehearing August 25, 1976.
    John T. Allen, Jr., and Albert C. Werly of Fleece, Rhoades & Werly, St. Petersburg, for appellant.
    Carleton L. Weidemeyer of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clearwater, for appellee.
   SCHEB, Judge.

This appeal arises out of a dispute involving a plumbing subcontract between the appellant/defendant Cheezem, a developer, and the appellee/plaintiff Intracoastal, a plumbing contractor. The trial court entered judgment against Cheezem in favor of Intracoastal and also dismissed Cheez-em’s counterclaim against Intracoastal. We conclude the trial court erred and reverse.

During February 1974, Intracoastal, a plumbing subcontractor, entered two separate plumbing contracts with Cheezem. In-tracoastal agreed to “ . . . furnish all labor, tools, equipment, and material for performance of all plumbing and sewer work” for Cheezem’s Covington and Sand Key projects in Pinellas County at contract prices of $35,950.75 and $113,595.00 respectively. Paragraph 10 of said contracts, wherein Intracoastal is referred to as contractor and Cheezem as owner, provides:

Contractor does hereby waive all right of liens or conditional bills of sale and does waive all right to file any notices in relation thereto, and does agree to remove, at his own cost and expense, all such notices or liens or conditional bills of sale or encumbrances which may be placed against said premises or any part thereof as a result of the work contracted to be done and materials agreed to be furnished by the contractor, whether such notice or notices be placed thereon by the contractor or any other person employed or otherwise engaged by the contractor in relation to said work or any materialman furnishing any material to such job, and the contractor does hereby agree to hold the owner harmless on account thereof. This agreement of waiver and indemnity shall remain in full force and effect even should any dispute arise respecting payment and/or should there be any delay on account thereof and/or should there be any default by the owner in relation to any of the agreements herein contained on the owner’s part to be performed and/or in relation to payments required to be made by the owner as set forth in this contract.
Contractor agrees within five (5) days after notice and demand by the owner to cancel and discharge any notices of liens filed for work or labor performed for, or materiáls furnished to, the contractor, and the contractor agrees further to reimburse the owner, for any damage the owner may suffer by reason of the filing of such notices or liens or the failure to obtain cancellation and discharge thereof as herein provided, including all costs and a reasonable attorney’s fee.

During April 1974, Intracoastal filed liens against Cheezem’s Covington and Sand Key projects in Pinellas County. Subsequently, the parties attempted a resolve of their differences which involved certain problems concerning Cheezem’s methods of making progress payments. To this end, they signed an addendum to their contracts revising procedures intending to facilitate payments by Cheezem. The addendum also presumably resolved any dispute as to the prior liens and obligated Intracoastal to satisfy them. Shortly after the addendum was signed some Intracoastal employees appeared at Cheezem’s office to obtain its corporate counter signature on payroll checks as stipulated by the addendum. At that moment, Mr. Cheezem, president of the appellant company, learned that on that very day Intracoastal, for no apparent reason, had filed additional claims of lien for $6,719.75 against Cheezem’s Covington project and $4,956.18 against its Sand Key project. Upon learning this, Mr. Cheezem tore his corporate signature from the payroll checks designated for Intracoastal. Additionally, by written notice furnished to Intracoastal, Cheezem demanded removal of all claims of lien and further informed Intracoastal that its plumbing contracts on both projects were cancelled.

Subsequently, Cheezem hired new plumbers to complete both projects. When Intra-coastal sued Cheezem for sums it claimed were still due it, Cheezem counterclaimed for sums it allegedly expended, over and above the contract price, with other plumbing contractors it hired to complete the projects.

At the conclusion of the trial, the trial judge announced his ruling as follows:

“The Court finds that both parties were at fault in the termination of the contract.
“The Plaintiff was in fault — at fault in filing the liens contrary to his agreement.
“The Defendant was in error in his conduct and in arbitrarily refusing to make a payment to laborers as he had agreed to do.
“It is to be noted that Mr. Cheezem’s testimony is candid, that his primary purpose in refusing to sign the checks was perhaps a reasonable irritation in having liens filed when they had agreed not to do so.
“The Court therefore finds that both parties being at fault, . . . and the law abhors a forfeiture — that the Plaintiff is entitled to be reimbursed for the consideration for which it had made to the Defendant’s property upon a quantum meruit basis up until the Twenty-fourth —23rd of May when the new liens were prepared and signed.”

A judgment of $4,451.26, plus interest, was thereupon entered in favor of Intracoastal against Cheezem.

In effect, the trial court determined that while Intracoastal had breached its contract and the addendum by filing the latter liens, that Cheezem had also breached the contract by removing the corporate counter signature from the payroll checks. The court overlooked the fact that the Cheezem “breach” occurred after the breach found by the court to have been committed by Intracoastal. Additionally, the court determined that Cheezem had been enriched to the extent that Intracoastal had supplied labor and materials for which it had not been paid; but, the court afforded no consideration to Cheezem’s contention that it had to expend funds over and above what it would have been obligated to Intracoastal in order to complete the two jobs.

Both subcontracts were part of large condominium projects that Cheezem was developing. Each project involved substantial institutional financing. Mr. Cheezem testified that filing of these liens prevented his corporation from continuing to obtain funds from his lender on these projects. We have no doubt that breach of covenant against filing liens was a substantial breach of the contract entered into by these parties, especially since they were filed after the parties had reached an accommodation on the matter. Mortgage lenders are understandably reluctant to advance funds on a project once liens have been filed against it. As the party who initially committed á substantial breach of the contract, Intra-coastal was not entitled to avail itself of a claimed subsequent breach by Cheezem. Chatios v. Morse Auto Rentals, Inc., Fla.App.3d 1966, 183 So.2d 854; 17 Am.Jur.2d, Contracts, § 365; 17A C.J.S. Contracts § 458. Moreover, even the effect of the breach attributed to Cheezem; i. e., removal of its counter signature from payroll checks for Intracoastal, appears of little concern inasmuch as Intracoastal obtained these payroll funds from the joint bank account established by the parties, notwithstanding the lack of Cheezem’s corporate counter signature on the checks.

We hold the trial court erred in awarding a judgment to Intracoastal since it committed an initial and substantial breach of its contract with Cheezem. Accordingly, we vacate the judgment against Cheezem and remand to the trial court for further proceedings on Cheezem’s counterclaim. After determining the merits of Cheezem’s counterclaim, the court must reconsider the $4,451.26 previously awarded to Intracoastal. If Cheezem establishes that it spent more than the original contract prices to complete the plumbing on its projects, then Intracoastal would have no entitlement for the work it previously completed without payment. This is because all monies in excess of the contract prices necessarily spent in completing the plumbing are chargeable to Intracoastal. Had Intracoastal not done this work, it would have been responsible for monies Cheezem spent in hiring another firm to do it. If, however, it develops that Cheezem completed the plumbing at less than the contract prices, then Intracoastal would be entitled to be paid for work it completed, so long as the total amount spent by Cheezem does not exceed the prices originally stipulated in its contracts with Intracoastal.

Reversed.

McNULTY, C. J., and HOBSON, J., concur.


author: MeCORD, Judge.

text:
    Charles BARNETT, Appellant, v. William R. BARNETT, Trustee, et al., Appellees.
    No. V-134.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1976.
    Rehearing Denied Oct. 4, 1976.

      C. Harris Dittmar, of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellant.
    Mahoney, Hadlow, Chambers & Adams and Jack F. Wayman, Jacksonville, for ap-pellee.
   MeCORD, Judge.

This is an appeal from a final declaratory judgment of the trial court holding that appellant, Charles Barnett, (hereinafter referred to as Charles) “is not the blood issue of William L’Engle Barnett and is not entitled to distribution of any of the income or corpus of the trust estate in question.” The suit for declaratory judgment was brought by appellee-trustee, William R. Barnett, seeking a judicial determination of the parties entitled to receive the income and corpus trust property previously held for the benefit of William L’Engle Barnett, deceased (hereinafter referred to as William). Under the terms of the trust documents, the income and corpus are distributable to the surviving blood issue of William, or to collateral kin of William if no blood issue exists. Charles, who claimed to be the son and blood issue of William, was a defendant in the suit below and the collateral kin of William, who claimed that he had no blood issue, were also defendants and are appel-lees here.

The original trust instrument was executed on June 11,1931, by Bion H. Barnett, father of William, and it provided that the income be paid to his wife Lina during her lifetime and for the period of ten years following her death to their four children: William, Madeline Barnett Camp, Bion H. Barnett, Jr., and Donald M. Barnett. At the end of the ten year period following Lina’s death, the corpus was to be distributed in equal shares to the surviving children or the the surviving “issue (exclusive of adopted children)” of any deceased child or children. Lina died in 1934, and on July 12, 1941, at a time in excess of three years, before the trust was to terminate, Bion H. Barnett, the grantor of the trust, Donald M. Barnett, the then acting trustee, and the remaining three children named as beneficiaries in the original trust agreement executed an indenture extending the term of the trust until the death of the survivor of the original four beneficiaries. This indenture further provided that upon the death of such survivor, the corpus of the trust was to be distributed to the surviving “issue of the blood” of the four original beneficiaries.

Thereafter, William and the other Bar-netts entered into a new agreement executed in 1959 which provided for income payments to William’s wife in the event he predeceased her and for the payment from trust funds of up to $50,000 of William’s estate taxes upon his death. The new agreement retained the provision of the 1941 agreement that the corpus be distributed to the surviving “blood issue” of the four original beneficiaries.

Charles’ mother died in 1967, and William died in 1968. Following William’s death, Charles’ counsel notified the trustee that Charles claimed the benefits under the trust as surviving blood issue of William and the other defendants notified the trustee that they claimed the benefits on the ground that William died without blood issue. Because of the conflicting claims, the trustee withheld making payments to anyone and ultimately filed this action in the court below.

The basic issue before the trial court and here is whether or not Charles was the blood issue of William under a construction of § 731.29(1), Fla.Stat. (1973), which provides as follows:

“Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.”

The chancellor below, in applying the foregoing statute to this proceeding, construed it to mean that the parentage of Charles is the factual issue in the proceeding even though William in writing, signed in the presence of a competent witness, acknowledged himself to be the father of Charles and married Charles’ mother. We do not so construe it. The chancellor prepared and filed a memorandum opinion which is a very thorough analysis of his view of the evidence from which he finds that Charles is not the blood issue of William. It is our view, however, that the operation of the statute forecloses such issue in this proceeding, the issue having been created by the collateral kin of William.

Charles Barnett was born in Paris, France, on May 28, 1913, to Marcelle Per-ron, who was then 19 years old according to the official French record of his birth. On June 12, 1913, he was baptized in the Church of the Parish of St. Sulpice, Arch-bishopry of Paris, and his baptism was noted in the church’s Baptismal Register with the space for his father’s name left blank. In both the official civil and church records, Charles was originally identified as “Charles Perron.”

On August 13, 1918, William L’Engle Barnett and Marcelle appeared before Deputy Mayor Christie of the 17th District of Paris and declared in the presence of witnesses that they “recognize as their son” the child Charles, born to Marcelle on May 28, 1913. An official entry of this act of recognition was made in the birth records of the 17th District of Paris and was signed by William, Marcelle, two witnesses and the Deputy Mayor. Four days later, on August 17, 1918, William and Marcelle appeared again before Deputy Mayor Christie, and he performed their lawful marriage, recording it in the official records. At the time of the marriage, Deputy Mayor Christie delivered to William the “Livret de Famille” the official family booklet required by French law to be retained by the head of each family as the official record of the family members. In that booklet, Deputy Mayor Christie officially recorded the marriage of William and Marcelle on August 17, 1918, and the birth of their child Charles on May 28, 1913, affixing his seal and signature.

On July 1, 1920, William and Marcelle caused Charles’ official birth record to be corrected to change his name from Charles Perron to Charles Barnett. The French official corrected the original birth record by striking through the name “Perron” and writing above it the name “Barnett” and by writing on the original birth record the following:

“Recognized the 13 August 1918, at the courthouse of the 17th district of Paris by William Barnett & Marcelle Amelie Anna Perron”

and

“Legitimized by marriage of William Barnett & of Marcelle Amelie Anna Per-ron, celebrated at the courthouse of the 17th district of Paris, the 17 August 1918.”

On September 10,1921, William and Mar-celle caused the Baptismal Register of the Church of the Parish of St. Sulpice to be rectified to show “William Barnett” as the father of Charles and to change the name in the record from “Charles Perron” to “Charles Barnett.” The change was made by striking through the name “Perron” and writing above it the name “Barnett” and by noting on the original record that it has been “rectified at the archbishopry on the 10 Sept. 1921.” Also on September 10, 1921, William and Marcelle obtained a certificate from the Secretary of the Archbish-opry certifying the baptism on June 12, 1913, of Charles, born May 28, 1913, the son of William and Marcelle.

On October 2, 1922, William and Marcelle placed Charles in the College Chaptal in Paris, where he received his formal education at their expense until November 7, 1928. During part of that time, William and Marcelle lived in Paris, and Charles lived with them.

On June 5, 1926, William was issued an identity card by the Paris police which showed him to be an American citizen with a Paris residence, and listed Marcelle as his spouse and Charles, born 1913 in Paris, as his child. A similar identity card was issued at the same time to Marcelle.

On November 7, 1928, Charles left France, traveling with William and Mar-celle, and arrived in the United States on November 13, 1928. The three then drove from New York to William’s home in Tangerine, Florida. Upon his arrival in Florida, Charles was registered in the Mt. Dora High School as the son of William L’Engle Harnett of Tangerine from which he graduated in the spring of 1930. In September, 1930, William took Charles to Gainesville and enrolled him in the University of Florida paying his tuition and living expenses. Between November, 1928, and September, 1930, Charles lived with William and Marcelle in the family home in Tangerine.

On August 25,1933, William and Marcelle swore before a notary public that a petition prepared for filing with the French government was true in stating that Charles had been “acknowledged by the said William L’Engle Barnett as his son.” This was for the purpose of obtaining Charles’ release of allegiance to the French government preparatory to establishing his United States citizenship. On July 16, 1934, William and Marcelle executed a sworn affidavit for filing with the governments of the United States and France referring to Charles Barnett as “their son” and stating that Charles Barnett had been “acknowledged by the said William L’Engle Barnett as his son.” On February 9, 1935, William signed his name in the blank for “father” on Charles’ passport application and swore, before a Deputy United States District Court Clerk, in an affidavit of birth to be submitted with Charles’ application for passport, that Charles “is my son.”

It is thus clear from the foregoing that William acknowledged in writing before witnesses both before and after his marriage to Marcelle that Charles was his son, and he was raised and cared for as his son. This satisfies all of the foregoing statutory requisites for legitimatizing Charles and establishing William as his father. Charles cannot be- the legitimate son of William without also being the blood issue of William.

The chancellor below, in construing the statute, ruled that a child was not rendered legitimate for all purposes by the signed acknowledgment of the person who in writing acknowledges himself to be the father of the child and also marries the mother; that because the statute refers to subsequent intermarriage of the parents, such means the child’s natural parents, thereby leaving open for adjudication at some future time the question of legitimacy. This construction in our view nullifies the obvious intent of the statute which was to lay at rest the question of legitimacy when the reputed father acknowledges the child before a witness and marries the mother. We do not believe it was the legislative intent to leave this question dangling for future litigation many years later (usually at the death of the father) when the problem of proof, though it could be difficult enough at the time of acknowledgment and marriage, would be far more difficult in later years. In this connection,. § 742.-091, Fla.Stat. (1973), a part of the bastardy statute, should be considered in pari mate-ria with § 731.29(1), supra. § 742.091 states as follows:

“If the mother of any bastard child and the reputed father shall at any time after its birth intermarry, the child shall in all respects be deemed and held legitimate, and upon the payment of all costs and attorney fees as determined by the court, the cause shall be dismissed and the bond provided for in § 742.021 shall be void

It is significant that the foregoing statute provides that if the mother and the reputed father should' at any time after its birth intermarry, the child shall be deemed and held legitimate. Obviously, the legislature meant the “reputed father” and the mother in relation to both statutes and did not intend by use of the word “parents” in one to open the question of parentage to later attack by collateral kin.

We have considered the opinion of the District Court of Appeal, Fourth District, in Taylor v. Taylor, 279 So.2d 364 (Fla.4th DCA 1973). The majority opinion there attaches the same significance to the word “parents” in the statute as did the chancellor below. The factual situation in Taylor was totally different from that in the case sub judice, it being a divorce case in which the child was conceived before marriage and was born in wedlock. The husband contended (successfully) that he was not the father. In our view, it was unnecessary for the court to construe the aforesaid statute in the manner in which it did in order that the husband be allowed to contest the fatherhood of the child as we will subsequently point out. We disagree with the Fourth District Court’s construction of the statute.

Appellees also rely upon In re McCollum’s Estate, 88 So.2d 537 (Fla.1956), in support of their contention that the fact of paternity must be proved. In the Supreme Court’s opinion in McCollum, it referred to In Re Horne’s Estate, 149 Fla. 710, 7 So.2d 13 (1942), and Wall v. Altobello, 49 So.2d 532 (Fla.1950), and stated:

“As shown in those cases, the claimant under the statute is required to prove three things: (1) the fact of paternity, and (2) the fact of written acknowledgment of paternity, and (3) the presence of a competent witness, all equally essential to the establishment of a claim thereunder. ...”

We have examined McCollum, Horne and Wall and find that in each instance only the first part of the statute (§ 731.29(1), Florida Statutes 1973) was involved and was construed. In each instance there was no marriage between the child’s mother and the reputed father. Thus, only the first portion of said statute was applicable. It states as follows:

“Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. . .

The three foregoing cases each dealt with an alleged illegitimate child who sought to inherit from his alleged father’s estate. Such child had not been made legitimate by the marriage of its mother to the reputed father and the reputed father’s acknowledgment in the presence of a witness. Being an illegitimate child, it was necessary that the child prove its legitimacy as well as the acknowledgment. When, however, as in the case sub judice, the reputed father marries the mother, the second part of the statute comes into play. It states as follows:

“However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.” (Emphasis supplied)

It is clear that upon acknowledgment and marriage the child becomes a legitimate child of the marriage and stands on the same footing as a child born in wedlock. If the child is legitimate, he necessarily is the blood issue of the marriage.

Had William not considered Charles to be his natural son, he could have adopted him through an adoption proceeding, but instead he chose to acknowledge him as his son numerous times in writing, before witnesses, and in affidavits. He has now died without having himself raised this issue for adjudication in any legal proceeding.

In discussing the somewhat parallel situation as to the presumption of parentage of a child born in wedlock, the Supreme Court in Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944), stated:

“The appellant husband claims he is not the father of the child. Where a child is born in wedlock the law extends the right to the reputed father to contest the parentage but the mother has no such right. She being restricted, to question the identity of the child only. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177. Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized. At common law the presumption was at one time virtually conclusive. Law of Illegitimacy by Hooper, p. 202; Anon v. Anon (1856), 22 Beav. 481, 23 Beav. 273. The rule was relaxed later in England and the latter case was overruled in 1903 in The Poulett Peerage A.D. 395. See also Hargrave v. Hargrave, 9 Beav. 552, 50 English Reprint 458. The rule is well established in this country that the husband may make the attack but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony. Marriage, Divorce, Separation and Domestic Relations by Schouler (6d) Vol. 1, p. 760, Lay v. Fuller, 178 Ala. 375, 59 So. 609; 7 C.J. 953, 10 C.J.S. Bastards, § 3, page 18, § 15, page 76. The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to clearly remove the presumption of legitimacy. The evidence must more than cast a strong suspicion or grave doubt on the paternity of the child. 7 Am.Jur.Par. 43, p. 655; Powell v. State ex rel. Fowler, 84 Ohio St. 165, 95 N.E. 660, 36 L.R.A.,N.S., 255.”

It is our view that compliance by a husband with all of the terms of § 731.29(1), supra, raises the presumption of parenthood of the child in question to the status of a child born in wedlock. The husband of the marriage who attempts to disavow the child has an extremely strong presumption to overcome. As stated above in Eldridge, it is one of the strongest rebuttable presumptions known to the law. The right to challenge the child in a legal proceeding is a right of the reputed father. It does not extend to the mother and, by the same token, would not extend to the father’s collateral kin after his death. We have not discussed the evidence upon which the chancellor below relied in his ruling that Charles is not the blood issue of William as it is irrelevant to the ruling here made.

Reversed and remanded.

BOYER, C. J., and RAWLS, J., concur.


text:
    Kurt A. NEW, Appellant (Plaintiff), v. Howard FRANK and Thomas J. Perego, Appellees (Defendants).
    No. BB-453.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    Rehearing Denied Oct. 4, 1976.
    James N. Davis and H. Charles Woerner, Jr., of Foxman, Woerner & Davis, South Daytona, for appellant.
    Peter L. Niles, Daytona Beach, for appel-lee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, the interlocutory appeal is dismissed.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


author: SMITH, Judge.

text:
    DUVAL COUNTY SCHOOL BOARD, a body corporate and politic, Appellant, v. John ARMSTRONG, Appellee.
    No. CC-164.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1976.
    Rehearing Denied Oct. 4, 1976.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen, and Wesley L. Smith, Asst. Gen. Counsel, Jacksonville, for appellant.
    William H. Maness, and Donald G. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellee.
   SMITH, Judge.

The Duval County School Board, in accordance with the Duval County Teacher Tenure Act, instituted proceedings to discharge appellee Armstrong, a teacher in the Duval County school system, on nine written specifications of immoral conduct, unreasonable absence from his duties and refusal or inexcusable failure to discharge those duties. The Board gave Armstrong notice that the Board would conduct a hearing on a date thirteen days later. Before the scheduled hearing, indeed, before requesting any relief of the Board, Armstrong filed this action in the circuit court, setting up his property interest in continued employment and alleging that the Board has consistently denied to similarly situated teachers due process rights without which Armstrong cannot properly defend himself. As a predicate for declaratory relief under § 86.021, F.S.1975, Armstrong alleged his doubt concerning

“. . . whether he must submit to and participate in the noticed hearing without being afforded his pre-hearing due process rights or whether he has no such rights . . . .”

Considering only the complaint verified by Armstrong’s attorney, and without evidence, the trial court entered an order temporarily enjoining the scheduled hearing, but permitted Armstrong’s reassignment from a classroom situation. The court also denied the Board’s motion to dismiss the complaint. The Board presents this interlocutory appeal from that order. Rule 4.2, F.A.R.

This is not a case in which the Board’s constituency or jurisdiction to proceed is called in question, nor is it one in which there is doubt concerning application of statutory standards and proscriptions to the person affected. The case is therefore unlike Watson v. Centro Espanol De Tampa, 158 Fla. 796, 30 So.2d 288 (1947), relied on by Armstrong in defense of the circuit court order. The court appears to have enjoined the administrative process, without considering the merits, in order to preserve conditions as they are until the court has deliberated upon and declared the existence or nonexistence of the asserted rights which are described, some concretely, others abstractly, in the complaint. In this we believe the circuit court erred.

Armstrong unquestionably would be deprived of due process of law if he should be forced abruptly into a hearing without adequate opportunity to inspect the documentary evidence, interview witnesses or otherwise adequately prepare. In particular circumstances fairness will require that the Board recognize other procedural rights which the Teacher Tenure Act does not specifically accord teachers. But it is inappropriate for the circuit court, by means of declaratory decree and preliminary injunction, to intervene in the administrative process either to declare abstractly the rules that must in all events govern or to monitor the Board as the administrative process goes forward. The courts should not assume that administrative agencies will arbitrarily deny procedural remedies which are appropriate to the particular ease. If, as Armstrong complains, the Board has consistently denied teachers appropriate procedural remedies during and in advance of discharge hearings, the teachers’ remedy was to seek certiorari review in the circuit court pursuant to §§ 6 and 7 of the Act. Any necessity that the Board honor such rights as Armstrong demands and any prejudice that results from its failure to do so must be determined in the concrete circumstances of the case after the Board has acted. Neither injunction nor declaratory relief is appropriate for that purpose. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); Williams v. Howard, 329 So.2d 277 (Fla.1976); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla.App. 2d, 1965).

The order for injunction is reversed and the case is remanded with directions that the complaint be dismissed.

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

      . Ch. 21197, § 5, Fla.Laws 1941, as amended.

      . Armstrong alleges that his due process rights include but are “not limited to”:
      “(a) Notice-pleadings, including an opportunity to answer, deny or explain the written charges.
      (b) That the teacher be furnished the names and addresses, of witnesses against him or her.
      (c) Reasonable opportunity to interview and/or take depositions of those witnesses so furnished, or others.
      (d) Right to demand, obtain and review relevant documentary evidence.
      (e) Right to appear and present preliminary Motions attacking the sufficiency of the charges, impartiality of the tribunal and/or other ‘pre-trial’ Motions at least once before the hearing set for the taking of testimony.
      (f) That the hearing be conducted at ‘reasonable hours’ during a usual ‘working day’ but not later than 10:00 o’clock P.M. except by unanimous consent of all affected parties and Board members.
      (g) The right to insist that the Defendant Board use an impartial legal advisor either to prosecute the case or advise the Board and not use attorneys from the General Counsel’s Office to do both.
      (h) Or, in the alternative, that the Board use the services of an impartial ‘hearing examiner’ with legal expertise to take testimony.
      (i) And, that the requirement of a ‘ten day notice’ be construed to commence after a reasonable time has been afforded for meaningful preparation for an evidentiary hearing.”


author: RUDNICK, VAUGHN J., Associate Judge. WALDEN, Judge

text:
    GOODYEAR TIRE AND RUBBER COMPANY and Travelers Insurance Company, Appellants, v. HUGHES SUPPLY, INC., and Hartford Accident and Indemnity Company, Appellees.
    No. 75-336.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1976.
    Rehearing Denied Sept. 30, 1976.

      Janice Halker, of Gurney, Gurney & Handley, P.A., Orlando, for appellants.
    Elmo R. Hoffman, of Hoffman, Hendry, Parker & Smith, Orlando, for appellees.
   RUDNICK, VAUGHN J., Associate Judge.

Goodyear Tire and Rubber Company and its insurance carrier, defendants in a personal injury action, appeal from a final judgment pursuant to a jury verdict. We affirm.

The cause of action arises from the sale and installation by the Appellant, Goodyear Tire and Rubber Company to the Appellee, Hughes Supply, Inc. on June 5, 1972 of a “Goodyear Super High Miler” tire which was the appropriate tire for the truck upon which it was being installed and had been represented by the tire company’s personnel that the tire could be expected to get 80,000 to 120,000 miles. The subject tire was installed by the Goodyear Tire and Rubber Company’s employees on the left front wheel of the tractor-trailer rig and on July 8, 1972, after having been driven 9,500 miles, it blew out while being driven by the Appellee, Joseph Hale. Driver Hale had fifteen years experience as a tractor driver and had made inspection of the tires about ten miles prior to the accident. A tire specialist at the Hughes Supply, Inc. checked the tire with an air gauge when Mr. Hale began his journey on July 5, 1972 and Mr. Hale regularly checked the tires on the vehicle by a visual inspection; actually getting down and looking at the treads and looking at the walls and checking the tires with a tire billy approximately every 125 to 200 miles, together with the valve stems immediately prior to the blow out. The inspections revealed no signs of any under inflation, nor had he struck any objects. There were no signs of any cuts or nails in the subject tire.

After the accident a Hughes Supply, Inc. employee went to the scene of the accident and personally examined the tire in question, found no nail holes, no punctures of any kind and Appellees’ expert witness testified on microscopic examination he could find no nail holes or punctures, nor was there any evidence the tire had been worn in such a manner evidencing it was being used in an under inflated condition. In his opinion the tire blew out because of a separation of the cords within the tire from the matrix in the immediate vicinity where the rupture occurred and the separation was the result of a defect in the manufacture of the tire in question.

The witnesses for the Appellants relating to the condition of the tire and the cause of its catastrophic deflation was quite to the contrary, in that Appellants’ field engineer reported the edges of the tread of the tire were well rounded, the cord ends were hard from excessive heat; there was a nail hole in the third groove from the serial side and the tire was damaged to its present condition from operation at extreme low air pressure — the nail hole causing the under inflation.

The Appellants’ expert testified the tire did not blow because of the defective cord, but rather the under inflated condition resulting from the nail hole and if an inherent defect existed in the tire, the failure would have occurred in no more than 100 miles.

The Appellants have raised three points on this appeal urging the lower court erred: (1)The giving of Appellees’ requested jury instruction No. 14; said instruction being taken verbatim from the Florida Standard Jury Instruction 4.6 except for the substitution of the names of the parties involved in the law suit, (2) Allowing Appellees’ expert to testify as an expert, and (3) Denying Appellants’ motion for a directed verdict.

The Court finds no merit in the last assignment of error denying Appellants’ motion for directed verdict.

The qualifications of the Appellees’ expert witness included professional engineering degrees, both bachelor’s and master’s; a professorship of mechanical engineering and metallurgy for over 29 years; teaching courses in chemical engineering and in materials, selection of materials for manufacturing processes, and determination of whether materials were suitable for the use for which they were to be used; a consulting engineer for more than 1 year; membership in the American Society of Testing Materials; familiarity with the trade publication known as “Tire Rim Association Yearbook”; experience in the area of failure analysis for airplane crashes which included the study of tire failures; the study of over 1600 reports of tire tests designed to determine tire road ability, friction coefficient; experience in the determination of accident reconstruction due to tire failure; investigation of accidents involving tire failures; knowledge of how tires are made; visual observation of how nylon cord is manufactured and tested and generally taught about the materials that are included within a tire.

The trial court did not err in allowing the Appellees’ expert to testify as such. See Davis v. State, 44 Fla. 32, 32 So. 822 (1902); Krohne v. Orlando Farming Corporation, 102 So.2d 399 (2nd D.C.A. 1958); Fred Howland, Inc. v. Morris, 143 Fla. 189, 196 So. 472 (1940).

The Supreme Court of Florida in the case of Orme v. Burr traces the history of the doctrine of Ires ipsa loquitur and adopted the following view:

“. . . res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff.” 157 Fla. 378, 25 So.2d 870 (1946)

It has been held that the doctrine may be relied upon when the following conditions are met:

“(1) The instrumentality involved was within the exclusive control of the defendant at the time of the injury, both as to operation and inspection; (2) the injury was not the result of any voluntary action or contribution on the part of the plaintiff; and, (3) the accident would not have occurred had the defendant used due care.” Holman v. Ford Motor Company, 239 So.2d 40 (1st D.C.A. 1970); see also Commercial Union Insurance Company v. Street, 327 So.2d 113 (2nd D.C.A. 1976).

In Florida the doctrine of res ipsa loquitur is but a rule of evidence which establishes a permissible inference which may, but need not, be drawn by the jury in its determination of whether the defendant was at fault for the damage complained of. Holman v. Ford Motor Company, supra; Yarbrough v. Ball U-Drive System, 48 So.2d 82 (Fla.1950).

The Appellants herein take the position that as the tire in question had left the custody of the Appellants for a period of thirty days and had been driven for 9,500 miles, under such circumstance the doctrine of res ipsa loquitur is totally inapplicable.

The Appellees take the position that they submitted to the trial court and jury sufficient evidence to show due care was used in the handling and use of the tire in question after possession and control of it left the manufacturer and the law does not require an injured person eliminate each and every remote possibility of injury to the tire up to the time of its explosion.

We agree with the position of the Appel-lees. See Groves v. Florida Coca-Cola Bottling Company, 40 So.2d 128 (Fla.1949); Yarbrough v. Ball U-Drive System, supra, and Holman v. Ford Motor Company, supra.

To summarize, in Florida, res ipsa loquitur is a rule of evidence and applies only in those factual situations wherein the evidence reflects the occasion would not have occurred in the absence of negligence and there is some evidence warranting a reasonable inference the defendant is responsible therefor and all other elements of the rule, considering its exceptions, are met.

Applying the rules of law set forth to the factual situation with which the trial court was confronted, we find no error in the court’s giving the Florida Standard Jury Instruction on res ipsa loquitur.

AFFIRMED.

MAGER, C. J., concurs.

WALDEN, J., dissents, with opinion.

WALDEN, Judge

(dissenting):

It was error to give the jury an instruction on res ipsa loquitur under the facts and circumstances of this case. I would reverse and remand for a new trial with instructions to eliminate res ipsa loquitur.

The truck tire had been in plaintiff’s exclusive use and possession more than a month. It had been driven 9,520 miles. At the time of the blowout the truck was traveling at a speed of 55-60 m. p. h. with a gross weight of 71,400 pounds.

The tire was not within the exclusive control of defendant at the time of the blowout. It cannot be said that the blowout was not the result, in whole or part, of plaintiff’s action. It cannot be said that the accident would not have occurred had defendant used due care.

Under the rationale employed by the majority res ipsa loquitur would be equally applicable had the tire been in plaintiff’s possession for ten years after traveling 79,-500 miles. Under the majority analysis, res ipsa loquitur would be available in every products liability case, regardless of possession and the other classical criteria, so long as plaintiff testified or produced evidence that plaintiff was not negligent in the use of the product.

Finally, the doctrine of res ipsa loquitur does not support an inference of negligence where it can be reasonably inferred that the injury was attributable to another, or where there is evidence showing that the defendant was not negligent. 23 Fla.Jur., Negligence, § 119.

I do, therefore, respectfully dissent.


text:
    Randolph C. TUCKER, Jr., Appellant, v. Willard AYRES et al., Appellees.
    No. Z-421.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 4, 1976.

      Selig I. Goldin, Goldin, Turner & Cates, Gainesville, for appellant.
    Andrew W. Pattillo, Jr., Pattillo, McKay & McKeever, P.A., Ocala, for appellees.
   SMITH, Judge.

Appellant Tucker filed this suit for a partnership accounting, then unilaterally dismissed it by serving a notice of dismissal without prejudice. Rule 1.420(a)(1), R.C.P. In taxing the defendant partners’ costs pursuant to motion filed by appellees after the dismissal, the trial court awarded $1,250 in attorneys fees. Rule 1.420(d). On Tucker’s appeal, that award is defended as an appropriate allowance incident to the disposition of a suit for partnership accounting. The principle allowing such awards is akin to that applicable when a claimant and his attorney have brought a fund into court for distribution. A. J. Richey Corp. v. Garvey, 132 Fla. 602, 182 So. 216 (1938); Cooper v. Fulton, 158 So.2d 759 (Fla.App.3d, 1963), cert. discharged, 165 So.2d 161 (Fla.1964). Here, however, the litigation was aborted and no fund was created. Even if an award of attorneys fees were appropriate for a prevailing party defendant in an action such as this, the appellees did not prevail by the voluntary dismissal of Tucker’s suit without prejudice.

The judgment awarding attorneys’ fees is REVERSED, appellees’ motion for an allowance of fees on appeal is DENIED, and the case is REMANDED for entry of a judgment awarding appellees’ costs at trial and appellant’s costs on appeal.

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


text:
    Margaret CAMPBELL, Appellant, v. D. C. HIATT HEAVY CONSTRUCTION COMPANY, etc., and Pennsylvania National Mutual Casualty Company, Appellees.
    No. AA-493.
    District Court of Appeal of Florida, First District.
    Aug. 31, 1976.
    Rehearing Denied Oct. 4, 1976.
    Chalmers H. Barnes, Jacksonville, for appellant.
    Herbert P. Fanning, Mathews, Osborne, Ehrlich, MeNatt, Gobelman & Cobb, Jacksonville, for appellee.
   PER CURIAM.

Affirmed.

McCORD, Acting C. J., SMITH, J. and AGNER, JOHN ROYCE, Associate Judge, concur.


text:
    Boyce GILLETTE, d/b/a Mac’s Auto Parts, Appellant, v. Walter STAPLETON, Appellee.
    No. 75-157.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 1976.
    John R. Parkhill, Tampa, for appellant.
    Simson Unterberger, Tampa, for appel-lee.
   BOARDMAN, Judge.

Appellant/defendant brings this timely appeal from a judgment awarding appel-lee/plaintiff $8,808 compensatory damages and $2,000 punitive damages.

The appellant alleges that in July, 1972, he orally agreed with appellee to repair appellee’s damaged automobile for $1,170. Appellant did not repair the vehicle and refused to return it to appellee upon his demand made about July or August, 1973. During the time the automobile was on the appellant’s premises it had deteriorated from neglect and exposure to the elements so that at the time of trial its value was between $50 and $100. The case was submitted to the jury on two causes of action— breach of contract and conversion. The jury was instructed that if it found that appellee had converted the vehicle, an element of the damages was the “reasonable value of a comparable replacement unit” from the time of the demand to the date of trial. The amount of the jury verdict indicates that the award was based in large measure upon appellee’s testimony that average rental costs for a similar automobile were $14 per day.

The Supreme Court of Florida has specifically stated that damages for conversion are limited to the reasonable value of the property when converted and are not to be based on the replacement value. Lilly v. Bronson, 1937, 129 Fla. 675, 177 So. 218. Thus, compensatory damages are not properly assessed according to the value of a replacement unit. It was improper and incorrect for the trial court to give such an instruction. It is well settled in Florida and other jurisdictions that the measure of damages in an action for conversion is the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict. See Pettigrew v. W & H Development Co., Fla.App.2d, 1960, 122 So.2d 813; 18 Am.Jur.2d, Conversion § 82 (1965, Supp.1976); 7 Fla.Jur., Conversion § 23 (1958, Supp.1976). See also Sun First National Bank of Melbourne v. Batchelor, Fla.App.4th, 1975, 308 So.2d 649, rev’d on other grounds, Fla.1975, 321 So.2d 73. The conversion in this case occurred at the time the appellee refused to return the appellant’s property when he was requested to do so. Star Fruit Co. v. Eagle Lake Growers, Inc., 1948, 160 Fla. 130, 33 So.2d 858; Murrell v. Trio Towing Service, Inc., Fla.App.3d, 1974, 294 So.2d 331. Therefore, the proper measure of compensatory damages is the fair market value of the damaged automobile as of July or August, 1973.

Although we do not decide whether sufficient evidence was adduced to support an award of punitive damages, the judgment on the issue of punitive damages must be reversed and remanded for a new trial. The general rule is that better practice and procedure requires that “if punitive damages are to be awarded it must be by the same jury that awards the compensatory damages.” Touchette v. Bould, Fla.App.4th 1975, 324 So.2d 707; DuPuis v. 79th Street Hotel, Inc., Fla.App.3d, 1970, 231 So.2d 532, cert. den. Fla.1970, 238 3o.2d 105; see Baynard v. Liberman, Fla.App.2d, 1962, 139 So.2d 485.

REVERSED and REMANDED for further proceedings on the issue of damages consistent with this opinion.

McNULTY, C. J., and SCHEB, J., concur.

      . The plaintiff’s counsel stated during trial that the suit was on two causes of action: negligence of a bailment and conversion. He specifically stated that he was not suing on the contract. The trial judge, contrary to plaintiffs counsel’s requested jury instructions, did not instruct the jury on negligence, but did instruct on breach of contract. The trial judge did instruct as to the proper measure of damages for negligence of a bailment. The jury returned a general verdict not specifying which cause of action the damage awards were predicated upon. The jury could not, as a matter of law, award damages on a cause of action not pleaded or proved or on a cause of action upon which it had not been instructed. The amount of the verdict indicates that the jury awarded damages on the conversion theory and we restrict ourselves to discussion of that issue,


text:
    George M. RUSNAK, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1145, 75-1146.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 1976.

      Jack 0. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant pled guilty to robbery as charged in count one of an information, and use of a firearm in commission of a felony as charged in count two of the information. He entered a plea of nolo contendere to assault to commit murder in the first degree as charged in a separate information.. Appellant was sentenced to life imprisonment for the robbery, five years for the use of the firearm, and ten years for the assault.

The firearm charged in count two was the one, used by appellant in the commission of the robbery charged in count one of the information, and therefore the two violations were a part of the same criminal act. On authority of Cone v. State, Fla.1973, 285 So.2d 12, the sentence imposed under count two for the use of the firearm is hereby vacated. Otherwise, the judgments and sentences are affirmed.

McNULTY, C. J., and HOBSON and GRIMES, JJ., concur.