author: SHORES, Justice.

text:
    LADNER AND COMPANY, INC., et al. v. SOUTHERN GUARANTY INS. CO., a corp., et al.
    SC 2259.
    Supreme Court of Alabama.
    June 3, 1977.

      Robert T. Cunningham, Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
    Bert S. Nettles, Mobile, for appellee, Southern Guaranty Ins. Co., a Corp.
    Peter V. Sintz, Sintz, Pike, Campbell & Duke, Mobile, for Fidelity & Casualty Ins. Co.
   SHORES, Justice.

The original suit, which prompted this declaratory judgment action, was by Wilson and Karen Johnson and. five other property owners who bought their respective properties from Ladner Construction Company, Inc. (Ladner). The plaintiffs in the original action brought suit against Ladner and the City of Mobile claiming $500,000 damages for injuries and damages allegedly suffered by them when their homes, which were constructed and sold to them by Lad-ner, flooded. The complaint alleges that the City of Mobile and Ladner conspired to build houses in an area which they knew to be flood prone and “misled” Johnson and the other plaintiffs into purchasing these homes. The complaint also alleges, in addition to the conspiracy theory, that Ladner “. . . [Kjnowing that said property would flood, did construct residential houses on said property and did sell and convey said property to the Plaintiffs, who were unaware that said real property would flood and cause them damage and injury and by reason thereof, the Plaintiffs claim compensatory and punitive damages in the amount aforesaid ...”

Attached to that complaint is a copy of the City of Mobile’s Flood Control Ordinance, copies of extracts of several meetings of the City Commission relative to its decision to allow Ladner to build a house on one of the lots in question, with the proviso that Ladner provide flood insurance and to hold the City harmless in the matter. The indemnity agreement which Ladner executed contained the following language;

“WHEREAS [Ladner] desire[s] to build or improve said parcel in full knowledge that such building, structure or improvement probably will be inundated at some future time, with resultant damages to the improvements sought to be built
“. . . [I]n full knowledge of probable damage due to occur from said inundation from conditions as they now exist, do hereby release . . . and agree to hold harmless, the City of Mobile . . ”

Pursuant to the agreement with the City, Ladner first obtained insurance from Fidelity and Casualty Company of New York, which policy covered the period from April 1, 1974, to April 1, 1975. Insurance was procured from Southern Guaranty covering the period from April 1, 1975, to April 1, 1976.

When the lawsuit was served on Ladner, it called upon both companies to defend. Both denied coverage and Southern Guaranty initiated this action for declaratory judgment. It also sought an injunction against further proceedings in the damage suit pending a declaration of rights under its policy. The declaratory judgment action named Fidelity and Casualty as a party. The trial court granted the injunction. Thereafter, both companies filed motions for summary judgment, based upon the pleadings, interrogatories and depositions. The trial court then granted the motions for summary judgment, holding that neither Southern Guaranty nor Fidelity and Casualty was obligated to defend Ladner in the damage suit or to pay any judgment rendered therein.

The policy provisions in both of the two policies are identical:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“A. bodily injury or
“B. property damage
“to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

The word “occurrence” is defined in both policies as follows:

“ ‘occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

Both insurance companies insist that the allegations charged in the complaint against Ladner do not constitute an “occurrence” as defined in their policies. They contend that the complaint charges Ladner only with knowingly building and selling homes that would flood, and that does not represent an occurrence as defined in the policy. In fact, they say, as characterized in the complaint, the “knowing” actions charged to Ladner resulted in property damage that clearly must have been “expected.” It is their contention that the allegation “knowing that said property would flood” is a stronger characterization than an allegation “expecting that said property would flood.”

The issue before us, therefore, is whether the qualifying clause in the definition of occurrence, “neither expected nor intended from the standpoint of the insured” operates to excuse the insurer’s duty to defend where the only theories of recovery alleged in the complaint charge the insured with intentional acts.

It is well established that the insurer’s duty to defend is more extensive than its duty to pay. If the allegations of the injured party's complaint show an accident or occurrence which comes within the coverage of the policy, the insurer is obligated to defend regardless of the ultimate liability of the insured. Goldberg v. Lumber Mutual Casualty Ins. Co., 297 N.Y. 148, 77 N.E.2d 131 (1948). It is also generally the rule that the obligation of a liability insurer, under a policy requiring it to defend its insured in an action brought by a third party, is determined by the allegation of the complaint in such action. Bituminous Casualty Corporation v. Bartlett, Minn., 240 N.W.2d 310 (1976); Argonaut Southwest Insurance Co. v. Maupin, Tex., 500 S.W.2d 633 (1973); 50 A.L.R.2d 499.

This court, however, has rejected the argument that the insurer’s obligation to defend must be determined solely from the facts alleged in the complaint in the action against the insured. In Pacific Indemnity Company v. Run-A-Ford Company, 276 Ala. 311, 161 So.2d 789 (1964), Justice Coleman, speaking for the court, held:

“. . . We are of opinion that in deciding whether a complaint alleges such injury, the court is not limited to the bare allegations of the complaint in the action against insured but may also look to facts which may be proved by admissible evidence . . . .” (276 Ala. at 318, 161 So.2d at 795)

The court went on to state that when the allegations of the complaint show that the injury alleged is not within the coverage of the policy, other facts which did exist but were not alleged, could be taken into consideration. The court also noted that the policy in that case did not provide which procedure should be followed; but, under those circumstances, it should be liberally construed in favor of the insured, and that construction permitted the court to look to facts outside the bare allegations of the complaint.

Although that rule has been established in Alabama, there is nothing in the record before us, looking beyond the allegations of the complaint, to indicate that the plaintiffs in the lawsuit against Ladner are asserting any theory of liability other than that Ladner knowingly sold them lots that flooded.

Thus, as presently postured, the claims of the plaintiffs against the insured charge intentional acts of the insured and, therefore, do not charge the insured with acts covered in the policy which limits the insurer’s duty to defend to acts “which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

In Grand River Lime Co. v. Ohio Casualty Insurance Co., 32 Ohio App.2d 178, 289 N.E.2d 360 (1972), a suit was brought against the insured alleging in the second cause of action acts on the part of the insured which “. . . ‘constitute willful and intentional misfeasance and malfeasance on the part of the defendants, and that the defendants have intentionally, willfully and wantonly conducted their manufacturing operations in such a manner as to injure the property rights of others * *’ ” (289 N.E.2d at 363)

There the court said that such allegations asserted knowledge and willful intent of the defendant and held:

“. . . [Tjhat the defense of the second cause of action could not be required under the definition of ‘occurrence’ as contained within the policy. Such allegations would not constitute a claim for damages ‘neither expected nor intended from the standpoint of the insured.’ ” (289 N.E.2d at 363, 364)

The language of the policy involved in Grand River is identical to that contained in the two policies involved here.

We hold, therefore, that as presently postured, the defendant insurance companies are not presently required to defend the lawsuit pending against Ladner. The allegations of their complaint allege only intentional acts by Ladner; and nothing in the record before us indicates that any other theory of liability is asserted. True, Ladner denies knowing that the lots it sold to the plaintiffs would flood, but that is a matter to be determined in the lawsuit. Its denial in no way changes the nature of the claim made by the plaintiffs.

In holding that the insurance companies have no present obligation to defend the suit against their insured, we must also point out, as has been so succinctly stated by Judge Learned Hand in Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 752, 753 (2d Cir. 1949):

“. . . [T]he injured party might conceivably recover on a claim, which, as he had alleged it, was outside the policy; but which, as it turned out, the insurer was bound to pay. Such is the plasticity of modern pleading that no one can be positive that that could not happen. In such a case of course the insurer would not have to defend; yet, even then, as soon as, during the course of the trial, the changed character of the claim appeared, we need not say that the insured might not insist that the insurer take over the defence. . . . ”

Under the present Alabama rules of procedure, it is quite possible that the character of the plaintiffs’ claim against Ladner may change, as Judge Hand noted, even during the course of the trial; and, of course, the plaintiffs’ complaint may be amended even after the evidence is in to conform to that evidence. Because that is so, the insurers should be mindful that:

“It is clear that where a claim potentially may become one which is within the scope of the policy, the insurance company’s refusal to defend at the outset of the controversy is a decision it makes at its own peril. . . . ” Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484, 488 (1959).

In some jurisdictions, it has been held that the failure of an insurer to defend, relying on the allegations of the complaint against its insured, is a step taken at its own peril; and it does so at the risk of becoming liable to the insured for attorneys’ fees and expenses incurred by the insured in his defense in the event it ultimately develops that it has a duty to defend. Bandy v. Avondale Shipyards, Inc., 458 F.2d 900 (5th Cir. 1972).

Fidelity & Casualty Insurance Company, also an appellee, argues that the flooding of the properties apparently occurred during the month of November, 1975 (although the exact date of the loss is unknown), which date is after the expiration date of its policy. The complaint by the property owners was filed on February 26, 1976, and alleges “. . . [T]hat during the last twelve months, when there is substantial rain” the properties flood. It is impossible on the record before us to determine when the damage alleged in the complaint occurred. We cannot, therefore, on this record say that Fidelity is exonerated from liability because the alleged loss occurred after the expiration of its policy period. As noted, its policy covered the period from April 1, 1974, to April 1, 1975. The complaint was filed on February 26, 1976, and alleged damaged occurring during the past twelve months, which would include the period from February 26, 1975, to February 26, 1976, at least part of which falls within Fidelity’s period of coverage.

In granting summary judgments in favor of both insurance companies, the trial court held that neither company was obligated to defend their insureds, and also that neither company was obligated to pay any judgment which may be rendered in the lawsuit pending against Ladner.

We affirm the trial court’s holding that, as presently postured, neither company is obligated to defend the suit against Ladner. However, it cannot be determined at this stage that neither is obligated to pay any judgment which may be rendered against Ladner. If the plaintiffs change their theory of liability and assert a claim against Ladner which is covered by the policies, it is very possible that these insurance companies may well be obligated to defend Ladner and to pay any judgment which may be rendered against it.

The judgment of the trial court is, therefore, affirmed in part, reversed in part and remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

MADDOX, FAULKNER, ALMON and BEATTY, JJ., concur.

      . The suit named James F. Ladner and various Ladner Companies as defendants; but it is acknowledged that Ladner Construction Company, Inc. is the party actually involved in this case.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Louise Chisholm JONES, as widow of Charlie Jones, Deceased, and United States Fidelity and Guaranty Company v. BAGGETT TRANSPORTATION COMPANY et al.
    SC 2075.
    Supreme Court of Alabama.
    June 10, 1977.
    C. Mike Benson, of Haygood & Benson, Auburn, Edgar M. Elliott, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellants.
    v Joseph C. Carroll and Henry E. Simpson, Birmingham, for appellees.
   JONES, Justice.

This case poses the question whether the trial Judge’s jury instruction as to Georgia statutory law was correct.

The plaintiff, Louise Jones, widow of Charlie Jones, sued the Baggett Transportation Company alleging that, as a result of its truck driver’s negligence, her husband was killed.

Mr. Jones was killed in an accident involving three tractor-trailer rigs. This accident occurred on 1-285, the perimeter interstate which surrounds Atlanta. Two of the rigs were owned by Opelika Welding Company and were driven by Rex Bedell and the deceased. The third rig was owned by Baggett Transportation Company and was driven by Benjamin Lane.

The deceased was following the truck driven by Rex Bedell, his work partner, because Jones was not sure of the exact route he was to travel. The first time the three trucks came in sight of each other was at the junction of 1-85 and 1-285. This was approximately a mile and a half from the accident. The Baggett truck overtook and passed both trucks owned by Opelika Welding — Jones first and then Bedell. Then, the Baggett truck returned to the righthand lane. Prior to the accident, the Baggett truck was in the lead, followed by Bedell and then the deceased. The Baggett truck then attempted to pass a pick-up truck and moved over into the lefthand lane. The defendant’s truck suddenly skidded and then swung around in a half circle headed back in the direction from which it had come. The trailer was across the width of the lane. Bedell’s truck collided with the rear of the Baggett truck and jackknifed to the left down into the median. The truck driven by Jones turned into the median with its brakes applied, turned over on its side, and slid across the median. This median was approximately forty to fifty feet wide and sloped toward the center like a valley. The jury returned a verdict in favor of the defendant.

The only error asserted by Mrs. Jones on appeal is that the following jury charge was erroneous:

“The next issue to be considered by you is the question: Could the Plaintiff’s deceased husband by ordinary care have avoided the consequence to himself caused by the Defendant’s negligence?
“Now, ordinary care in this sense means the care a reasonably careful person would have used under the same or similar circumstances once the Defendant’s negligence became apparent or would have become apparent to a reasonably prudent man.
“On this point, the Court also charges you that the duty to use ordinary care to avoid the consequence of another’s negligence does not arise until such negligence exists, or until circumstances are such that an ordinary prudent person would have reason to apprehend its existence.” (Emphasis added.)

All the parties agree that the genesis of this charge is contained in the Georgia Code Annotated, § 105-603, which states:

“Diligence of plaintiff. — If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.”

Counsel for Mrs. Jones concedes that, generally, this charge would not be erroneous; but, in light of the particular facts of this case, prejudicial error resulted. Appellant contends that “last clear chance” cannot apply until the plaintiff is aware that a negligent act presents a danger to him; that is, in the context of these peculiar facts, the jury should have been instructed that the plaintiff’s intestate’s duty of ordinary care to avoid injury, to himself arose not upon his apprehension of defendant’s negligence, but upon his appreciation that such negligence represented a present danger. Mrs. Jones contends that, pursuant to this charge, the jury should have found that the deceased became aware of Mr. Lane’s negligence when the Baggett truck first overtook and passed the decedent’s truck— some one and one-half miles prior to the accident. The appellant's argument concludes by stating that, under the charge, the jury would have to conclude that the decedent was duty bound to expect the remote contingency of the defendant’s creating an independent peril somewhere down the highway.

Baggett replies that the trial Judge’s charge tracks the language of the statute. With this contention, there can be no argument. The statute states:

“. . . if the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. . ” Georgia Code Annotated, § 105-603.

The trial Judge’s charge stated:

“. . . the duty to use ordinary care . does not arise until such negligence exists . . .”

It is important to note that the Georgia courts refer to the statute as an avoidance doctrine. In Mitchell v. Gay, 111 Ga.App. 867, 143 S.E.2d 568 (1965), the Georgia Court of Appeals, in responding to the plaintiff’s contention that the trial judge’s charge was insufficient, stated:

“The quoted charge is substantially in terms of Code § 105-603. It has been held that a charge on the avoidance doctrine in the language of the Code section is a complete and correct principle of law, though it does not specifically instruct the jury that the plaintiff’s duty to use ordinary care to avoid the consequences of defendant’s negligence does not arise until that negligence is apparent or the circumstances are such that a reasonably prudent person would apprehend defendant’s negligence.” (Emphasis added).

This statute states two different rules, the first of which is the basis of this appeal — the duty of a person to avoid injury in the exercise of ordinary care. The second part of this statute provides the Georgia rule for comparative negligence. These rules are separate and, though both relate to the statutorily required diligence of the plaintiff, in the first rule — failure to avoid the consequences by due care — the plaintiff may be barred from recovery, while in the second rule, the plaintiff is not barred completely if the jury, after comparing the defendant’s negligence with that of the plaintiff’s, finds that the defendant was the more negligent.

As stated previously, plaintiff’s counsel concedes that, in most cases, the trial judge’s charge would have been a correct and proper statement of the law. It is the particular facts of this case, insists the plaintiff, that makes this charge erroneous.

We are not unimpressed with the compelling logic of appellant’s position. Indeed, our own case law development of the “last clear chance” or “subsequent negligence” doctrine speaks not in terms of the plaintiff’s duty arising upon discovery of the defendant’s negligence, but in terms of discovery of the consequences of that negligence in placing the plaintiff in a position of peril. But it is the law of the situs and not the law of the forum that governs this case.

Therefore, we hold that, at worst, this charge was misleading. It tracked the language of the statute and this procedure has been approved by the Georgia appellate courts. Mitchell v. Gay, supra. See also Western & A.R. Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306 (1901). The trial Judge’s charge was not an incorrect statement of the law. Thus, if the plaintiff felt that these charges were misleading, further explanatory charges should have been requested. Horace v. VanBlaricon, 291 Ala. 530, 283 So.2d 421 (1973); Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968).

The decision of the trial Court is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    L. S. PORTER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation.
    SC 2351.
    Supreme Court of Alabama.
    June 17, 1977.

      Alva C. Caine, Birmingham, for appellant.
    Timothy M. Conway, Jr., Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   PER CURIAM.

This appeal challenges the legal accuracy of a portion of the Trial Court’s oral instruction to the jury. The record on appeal was structured in accordance with appellant’s “designations” which omit the transcript of the evidence.

While this Court has reviewed the propriety of a trial court’s jury charge absent a record of the evidence (see H. W. Peerson Drilling Company v. Scoggins, 261 Ala. 284, 74 So.2d 450 (1954)), it has declined to do so in those instances where the validity of the challenged instruction is necessarily dependent upon the evidentiary context in which it arose. Ellard v. J. Blach & Sons, 267 Ala. 638, 103 So.2d 713 (1958).

Although ARAP encourages “designations,” it does not eliminate the necessity of counsel for the appellant to so structure the record on appeal to present the issue for review in a meaningful and substantive posture.

Because the issue for review is not so postured in the record before us, we affirm summarily.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.

      . It should be noted that it does not appear on the face of the opinion in Peerson Drilling that the appeal was on the record proper, or that an objection to the absence of transcript of the evidence was raised by the appellee. Both of these factors are disclosed by the record. Nonetheless, it is apparent that the Court treated the merits of the appeal because the single issue presented (failure to give the defendant’s requested affirmative charge) was adequately postured for review absent a transcript of the evidence.

      . Although the appellant’s failure to comply with Rule 10(b)(2) is not the basis for our holding, a word of caution is in order: If less than all of the proceedings are designated, the appellant “shall serve on the appellee a statement of the issues he intends to present on appeal.” Otherwise, unless this rule is complied with, the appellee is not in a position to intelligently decide whether to accept appellant’s designations.


author: BRADLEY, Judge.

text:
    James E. GRAYSON v. Annie L. ALEXANDER.
    Civ. 1058.
    Court of Civil Appeals of Alabama.
    May 18, 1977.
    Rehearing Denied June 15, 1977.

      Hubbard H. Harvey, Demopolis, for appellant.
    Richard S. Manley, Demopolis, for appel-lee.
   BRADLEY, Judge.

This case originated in the Circuit Court of Marengo County when James E. Grayson filed a complaint alleging he had suffered personal injuries as a result of an automobile collision with Annie L. Alexander. After trial before a jury, the circuit court granted Mr. Grayson’s motion for a directed verdict. The jury returned a verdict in favor of Mr. Grayson for $1,500.00, and a judgment in that amount was rendered. Mr. Grayson then moved for a new trial alleging inadequacy of damages. He appeals from the trial court’s denial of his new trial motion.

The sole issue on appeal is whether the award of $1,500.00 for injuries sustained in an automobile collision is so clearly wrong and unjust as to require a new trial.

There is no appeal from the directed verdict in favor of Mr. Grayson establishing Mrs. Alexander’s liability for the collision. Thus, only those facts pertaining to Mr. Grayson’s injury will be discussed.

The accident occurred on October 16, 1975. The only injury sustained by Mr. Grayson as a result of the collision was to his neck. After the accident he was treated by his personal physician, Dr. Earl Perret, Jr., who later referred Mr. Grayson to Dr. William A. Taylor, an orthopedic specialist. Mr. Grayson’s total medical expenses were $290.00.

Dr. Perret, who is a general practitioner, testified that on the day following the accident he examined Mr. Grayson. An X ray of the neck revealed severe muscular spasm causing acute pain in the area and limiting neck movement. Dr. Perret initially prescribed medicine to relax the neck muscles and reduce pain. A week later Mr. Grayson again visited Dr. Perret; this time steroids and muscle relaxers were injected into the neck muscles and Dr. Perret prescribed a cervical collar to be worn as needed. After two other visits Dr. Perret referred Mr. Grayson to Dr. Taylor. However, Mr. Grayson also continued to see Dr. Perret and had not been discharged at the time of trial. Dr. Perret said that Mr. Grayson complained of pain in his neck at each visit. As a result of the injury Mr. Grayson has developed an arthritic condition in his neck.

Dr. Perret said Mr. Grayson’s condition is permanent. It could possibly require surgery in the future; such, surgery, if necessary, would cost approximately $2,000. Dr. Perret estimated that Mr. Grayson suffers a fifteen percent to twenty percent permanent partial disability to his body as a whole.

Dr. Taylor gave a medical description of Mr. Grayson’s neck condition, including some nerve damage and arthritis. He prescribed an anti-inflammatory drug and a cervical traction device to be used for fifteen to twenty minutes twice a day for as long as needed. Dr. Taylor agreed that Mr. Grayson suffers a permanent partial disability but did not relate what percentage the disability has to the body as a whole. He did say that Mr. Grayson’s condition had improved upon subsequent visits.

Mr. Grayson testified that at the time of trial he did not have full circular vision or full circular motion of his neck. He still suffered pain from time to time; although the pain had worsened in the past four months, he had not been back to see Dr. Perret. The injury has impaired his work very little but has caused him to curtail his hobby, which is landscaping.

Mr. Grayson contends that the $1,500.00 for damages awarded by the jury is inadequate compensation for his fifteen percent to twenty percent permanent partial disability. At trial he proved actual damages incurred for medical expenses of $290.00. His doctor said that in the event surgery is required it will cost between $1,500 and $2,000; neither Dr. Perret nor Dr. Taylor indicated future surgery is more than a mere possibility. Thus, discounting the speculative surgery, the jury awarded $1,210.00 above the special damages proved by Mr. Grayson.

Where damages awarded by a jury are challenged on grounds of inadequacy, an appellate court will reverse only where, after a consideration of all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. This standard, first enunciated in Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738 (1890), has been followed in a long line of decisions. This presumption in favor of the correctness of the jury verdict is strengthened when the trial court refuses to grant a new trial. Cf. Prescott v. Martin, Ala., 331 So.2d 240 (1976); Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975).

A measure courts have used in determining whether the amount of damages awarded is so small as to be unjust is whether the verdict gives substantial compensation for substantial injuries. Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 (1963); Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 (1932). Generally, where the amount of damages awarded is not sufficient to compensate proven expenses, the verdict will be overturned. See, e. g., Ala bama Great Southern R. v. Randle, 215 Ala. 535, 112 So. 112 (1927); Lipham v. McElroy, 57 Ala.App. 96, 326 So.2d 290 (1976); Institutional Grocers, Inc. v. Bell, 45 Ala.App. 503, 232 So.2d 683 (1970). Damages are also considered inadequate where there is no compensation for pain and suffering. See Walker v. Henderson, supra; Yarbrough v. Mallory, supra; King v. Sturgis, 45 Ala.App. 553, 233 So.2d 495 (1970). Here there has been compensation both for proven expenses and for pain and suffering.

Nashville, G. & St. L. Ry. v. Crosby, 194 Ala. 338, 351, 70 So. 7, 11 (1915), established the rule that:

“ . . . where the quantum of damages is not susceptible of an exact pecuniary estimate the amount to be allowed rests largely in the discretion of the jury; that trial courts will not set aside a judgment merely because in the opinion of the court it is excessive or inadequate, and, where the trial court has declined to set aside the verdict, the appellate court will not substitute its judgment for that of the trial court and jury, unless the amount is so excessive, or so inadequate, as to indicate prejudice, passion, partiality, or corruption on the part of the jury.”

This court quoted the rule with approval in Summerlin v. Robinson, 42 Ala.App. 116, 119, 154 So.2d 685 (1963). The amount of damages for physical injury, pain and suffering are just the sort of damages incapable of precise quantification and thus left to the jury’s sound discretion. Mack v. Garrison, 51 Ala.App. 453, 286 So.2d 857 (1973).

We cannot say that under the facts of this case the jury abused its discretion; hence the judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


text:
    STATE of Alabama v. INDUSTRIAL UNIFORM SERVICES, INC., a corp.
    Civ. 1055.
    Court of Civil Appeals of Alabama.
    June 15, 1977.

      William J. Baxley, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Acting Counsel, Dept, of Revenue, and Asst. Atty. Gen., State of Ala., John J. Breckenridge, Asst. Counsel, Dept, of Rev., and Asst. Atty. Gen., State of Ala., for appellant, the state.
    J. Donald Reynolds, Montgomery, for ap-pellee.
   PER CURIAM.

The State of Alabama Department of Revenue entered a final tax assessment for sales taxes pursuant to Title 51, Section 629(25), Code of Alabama 1940 (Recomp. 1958), against the taxpayer. The taxpayer appealed to the Circuit Court of Montgomery County which reversed the final assessment, holding that no sales taxes were owed. The State appeals.

Industrial Uniform Services, Inc., the taxpayer, is engaged primarily in the business of renting and cleaning industrial uniforms. The taxpayer provides uniforms to its leasing customers and launders these uniforms when they become soiled. The fee charged the customer covers both the rental and the cleaning of the uniforms. Taxpayer purchases the uniforms used in its leasing business at wholesale and therefore pays no sales tax thereon, but does pay a tax under the Alabama Lease Tax Law, Title 51, Section 629(22), Code of Alabama 1940 (Recomp. 1958) (Supp.1973), each time a uniform is leased.

Prior to the delivery of the leased uniforms, the taxpayer’s customers are required to sign an agreement to replace any leased uniform not returned to the taxpayer. Whenever one of the taxpayer’s lease customers loses, misplaces, or fails for any other reason to return the same number of items leased, the customer is charged for the replacement cost of the items not returned. The replacement cost is based on a depreciated value of the garment at the time it is lost. Monies received from lessees for missing garments are kept in a separate account and the funds are used to replace the items not returned by the customer. The replacement items go back into inventory to be rented again and at that time are again subject to the lease tax. Monies received and put into the replacement fund constitute less than one percent of the taxpayer’s business, and these are the monies which provided the basis for the assessment of the sales tax.

Although taxpayer’s primary business is leasing uniforms, it also sells new uniforms. The taxpayer charges the customer a sales tax and remits the tax collected to the State. A customer may not purchase a uniform it has previously leased at the depreciated value charged for replacement.

Although the taxpayer charges its customers for leased uniforms not returned, it is not always successful in collecting the amount charged. Nor does the taxpayer charge the replacement cost to all its customers in every instance of loss. If a customer later returns a misplaced uniform, taxpayer refunds the money paid to replace the item.

The State of Alabama Department of Revenue determined that the payment of the replacement cost for missing uniforms made by leasing customers to the taxpayer constitutes a sales transaction and entered a final assessment for the sales tax due and owing under Title 51, Section 629(25), supra, in the amount of $2,882.13. Title 51, Section 629(25) provides in pertinent part:

“. . . [PJrovided further, that a sale of tangible personal property previously purchased at wholesale for the purpose of leasing or renting under a transaction subject to the privilege or license tax levied in this article shall be deemed to be a ‘retail sale’ or a ‘sale at retail’ for the purpose of administering [section 786(2) of this title] . . . regardless of whether such sale is to the person who theretofore leased or rented the said tangible property or to some other person;

The Circuit Court of Montgomery County found that taxpayer is engaged in a service business, and that the service of providing and cleaning uniforms predominates the transfer of personal property which results when a customer pays for the missing uniform. Relying on the rule enunciated in Perlmutter v. Beth David Hospital, 308 N.Y. 100, 123 N.E.2d 792, 794 (1954), that:

“. . . [W]hen service predominates, and transfer of personal property is but an incidental feature of the transaction, the transaction is not deemed a sale . . .,”

the trial court concluded the transfer in question is not a sale and set aside the assessment.

The State contends error in the reliance of the trial court upon the rule of Perlmutter v. Beth David Hospital, supra. It insists that the rule of Perlmutter was rejected in our case of State v. Community Blood & Plasma Service, Inc., 48 Ala.App. 658, 267 So.2d 176 (1972).

In response, we first say that it is unnecessary to our decision here to respond to the contention as to the decision in State v. Community Blood & Plasma Service, Inc., supra. That case is not appropriate to the facts of this case, nor is the rule of Perl-mutter. There is nothing resembling the transfer of personal property incidental to the performance of a service in this case as was present in Perlmutter and to an extent in State v. Community Blood & Plasma Service, Inc., supra. Though the trial court erroneously relied upon Perlmutter in reaching its decision, it nevertheless reached the correct decision. The entry of a correct judgment for an erroneous reason is not ground for reversal. Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969).

The contention by the State that the facts establish a sale within the meaning of Sec. 629(25) is also not acceptable. The charging of the value of the lost or destroyed uniforms to the leasing customer is not a sale. It is nothing more than an obligation of payment arising from the contract of lease. It permits the lessor to recover its capital investment upon the loss of the leased property. The money thus recovered is reinvested in additional uniforms to be leased and lease tax is paid thereon as required by Sec. 629(22). There was simply no sale under Title 51, Sec. 629(25).

The other issue argued in brief by State concerns the admission into evidence of the following question:

“MR. REYNOLDS: Well, let me ask one other question. The money that you receive for lost, stolen or misplaced merchandise, that is incidental to the fact that you have been leasing this uniform and paying a lease tax over a period of time.
“MR. BRECKENRIDGE: We would object to that.
“THE COURT: I think that is a fair question. That is where he got the money, as I understand it, for replacement.
“A. Yes.”

The State’s contention is that the question posed to the witness called for a conclusion of law and was thereby invasive of the court’s prerogative. The answer led the court to an erroneous view of the facts which unfairly colored its judgment on the issues and therefore the court’s judgment should be reversed.

We think the trial court viewed the question differently than does the State. The trial court had just heard questions and answers concerning the method used for obtaining the replacement costs from the lessees and for what purpose the monies obtained from that source were to be used. We believe the trial judge was more concerned with the small amount of monies derived from collecting a replacement fee, compared with the overall revenues from the leasing business than it was with whether the uniform replacement cost was incidental to the uniform leasing service rendered by taxpayer. This conclusion is supported by the words of the trial judge: “That is where he got the money, as I understand it, for replacement.” In this context the question is not invasive of the trial court’s domain and would not have caused an erroneous view of the evidence.

Notwithstanding this view of the controversy, we do not believe that the State was prejudiced by the above question and answer. There was evidence, unobjected to, in the record upon which the trial court could have based its finding that the collection of a replacement fee was incidental to the leasing service. In other words, the trial court, in the absence of the objected to evidence, would not have been required to find that the replacement fee was required by the contract as opposed to being an incident to the leasing service because of the absence of evidence to support the “incidental to service” theory. We therefore, conclude that the trial court did not preju-dicially err in allowing into evidence the objected to question and answer.

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

BRADLEY, J., concurs in the result.


author: PAUL, Retired Circuit Judge.

text:
    Tommy R. WELLS v. CENTRAL BANK OF ALABAMA, N.A., and Robertson Chrysler Plymouth, Inc.
    Civ. 1065.
    Court of Civil Appeals of Alabama.
    June 15, 1977.

      James T. Baxter, III, of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    Danny D. Henderson of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellees.
   PAUL, Retired Circuit Judge.

This appeal concerns the propriety of directed verdicts in favor of defendants-ap-pellees on certain counts of plaintiff-appellant’s complaint as amended.

Plaintiff Tommy Wells purchased a 1972 Plymouth Sport Suburban station wagon from defendant Robertson Chrysler Plymouth in Ft. Payne. Robertson assigned its security interest in the automobile to defendant Central Bank of Alabama. Wells defaulted on payments. Central peaceably repossessed the auto and returned it to Robertson. Robertson sold the car at a private sale.

Plaintiff filed a complaint against Robertson and Central on July 14, 1975, and alleged (1) violation of the notice requirements of Tit. 7A, § 9-504, Code of Alabama (1940) (Recomp.1958) which entitled him to damages under § 9-507; (2) conversion; and (3) breach of contract. For the purposes of this appeal it is not necessary to discuss the other theories for recovery.

Robertson answered with a general denial and offered judgment for $558.21. Central answered with a general denial. Robertson moved for a more definite statement of plaintiff’s claims.

Plaintiff amended his complaint by adding counts One(A) through Six(A). These counts were similar to the first six, the only difference being that count One(A) applied to both defendants (the violation of the notice requirement of § 9-504), while counts Two(A) through Six(A) applied only to Robertson. After the amendment Central reasserted its original answer. Robertson amended a cross-claim (not appearing in the record) to a third party complaint seeking recovery from Central for any sums for which it was found liable.

’ The case proceeded to trial before a jury. At the close of plaintiff’s case the court granted directed verdicts in favor of Central on all counts and in favor of Robertson on all counts except One(A). At the close of all the evidence the court granted plaintiff’s motion for a directed verdict against Robertson on the issue of liability. On its own motion the court directed verdict for plaintiff in the amount of $1,154.

Plaintiff’s motions for new trial were denied by the court. Plaintiff appeals.

Plaintiff contends the court erred in directing verdict in favor of Central on counts One, Two, Four and Five and in favor of Robertson on counts Two(A), Four(A) and Five(A).

Where a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opposing party. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). The directed verdict should be refused where the evidence is in conflict as to any material issue or where from the evidence reasonable inferences may be drawn to substantiate the claimed culpability of the defendant. Birmingham Elec. Co. v. McQueen, 253 Ala. 395, 44 So.2d 598 (1950); Baker v. Patterson, 171 Ala. 88, 55 So. 135 (1911). The case must go to the jury if the evidence or the reasonable inferences arising therefrom furnish a mere gleam, glimmer, spark, the least particle, the smallest trace, a scintilla in support of the theory of defendant’s liability. Louis Pizitz Dry Goods Co. v. Harris, 270 Ala. 390, 118 So.2d 727 (1960); Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635 (1935); McGahey v. Albritton, 214 Ala. 279, 107 So. 751 (1926); Rule 50(e), ARCP.

Viewed most favorably to plaintiff the evidence was as follows: On October 28, 1972, plaintiff purchased the station wagon from Robertson. The cash price was $5,468.92. After trade-in and down payment the balance due was $3,200. With credit life and recording fees this came to $3,321.58. The finance charge was $597.38. Plaintiff was to make payments of $108.86 for 36 months. Wells was in default on two payments with a third four days overdue when Jimmy Hyatt, an employee of Central at its Scottsboro branch, peaceably repossessed the car in Chattanooga on June 9, 1975. Wells requested Hyatt to hold the auto 10 days to permit him to redeem it, and Hyatt, for Central, told Wells that it would be held 10 days to allow him to redeem the car by paying the balance in cash. That same day Hyatt took the car to Robertson’s place of business and told Mr. Robertson to hold the car 10 days, that Wells said he would probably be down in the next 2 or 3 days and pick it up. Hyatt testified that Robertson replied to him that if he got a good offer on it he would not hold the car. (After plaintiff had rested his case and the court granted the direct verdict, Robertson in his defense denied this and testified that Hyatt told him Wells was not going to make another payment and they should sell the car if they got a good offer.)

Also, on June 9 a letter, designated a notice of sale, was prepared by Central’s Repossession Supervisor, Billy Edwards, with address of the sender showing “Huntsville, Alabama.” This notice indicated the auto would be sold by Central “after 5:00 P. M. on June 19, 1975, and from day to day thereafter until sold.” The notice further stated, “You may redeem said property at any time before it is sold.” No indication was given in the notice of where the sale would take place. The letter was mailed from Huntsville on June 12 by certified mail with return receipt requested. Wells received the letter on Saturday, June 14.

Central, by letter of June 9 to Robertson, indicated the balance due on the vehicle was $1,304.48. The balance was due July 9 or immediately if the auto were resold before then.

On June 14 Robertson sold the station wagon to Mid Allen for $2,256. Certain repairs had been performed on the car at a cost of $84.58. Preparation and clean-up prior to sale amounted to $100. By a check dated June 14 Robertson paid $1,304.48 to Central.

Wells attempted to contact Central by telephone on June 14 but received no answer. He called again on Monday, June 16 and was told he would be required to pay $1,304.48 to redeem the car. Mrs. Wells also called to find out where to pay the balance due and was informed Robertson had the car. Mr. Wells borrowed the money and with some friends went to Ft. Payne on Tuesday, June 17. Mr. Wells offered the sum to Central Bank in Ft. Payne but Central’s employee refused to accept it. He then went to Robertson’s place of business and made the same offer to Ed Robertson who said he had already sold the car and there was nothing he could do. Wells left without making any further demand and without asking whether any further expenses had been incurred. Robertson did not advise him of any further expense.

Billy .Edwards testified the standard practice was to allow a debtor 10 days to redeem a repossessed vehicle. He further stated that he had told Mr. Wells by telephone that he could redeem by paying at any branch of Central. Central gave Robertson no written instructions to hold the auto until June 19.

During the period that the Wells were without a car, they used a vehicle owned by Mrs. Wells’ father and leased a vehicle in early July for $100.89 when that vehicle was unavailable.

In answer to plaintiff’s interrogatory, Central stated the NADA retail price for an automobile like plaintiff’s was $2,175 in June of 1975.

Robertson in presenting its defense stated by witness Ed Robertson that Central would normally hold the car itself for 10 days and bring it to him only when it was ready to be sold. He testified the normal custom and practice was for Central to bring a release from the debtor waiving the right to redeem but it had not done so this time. When the car was brought to him on June 9, Robertson did not inquire whether the 10-day period had expired. Robertson paid $558.21 into court as the amount realized on the sale to Allen less the balance due Central, repair and clean-up expenses and a 25% sales commission. He stated he had unsuccessfully attempted to get the auto back from Allen.

Plaintiff’s first issue is whether the trial court erred in directing a verdict in favor of Central on Count One, based on breach of a statutory duty. After stating certain un-contradicted facts, plaintiff alleges the following in Count One:

“3. The Defendants, acting individually and in concert, did not proceed in accordance with the provisions of Title 7A, Sections 9-101, et seq., Code of Alabama, 1940 (Recomp.1958), in that they did not, after repossession by the seller of the vehicle from the buyer, sell the vehicle in accordance with the requirements of the applicable law, and in addition thereto, did not give five days notice to the buyer of such sale.
“WHEREFORE, Plaintiff demands judgment against Defendants as provided in Title 7A, Section 9-507, Code of Alabama, 1940 (Recomp.1958), for all damages, both compensatory and punitive, that occurred as a proximate result of the above violation of statutory law, including but not limited to, loss of use, loss of benefit of bargain, attorneys fees, interest, and Court costs.”
Tit. 7A, § 9-504(3) states:
“(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”
Tit. 7A, § 9-506 states:
“Debtor’s right to redeem collateral.— At any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 9-504 or before the obligation has been discharged under section 9-505(2) the debtor or any other secured party may unless otherwise agreed in writing after default redeem the collateral by tendering fulfillment of all obligations secured by the collateral as well as the expenses reasonably incurred by the secured party in retaking, holding and preparing the collateral for disposition, in arranging for the sale, and to the extent provided in the agreement and not prohibited by law, his reasonable attorneys’ fees and legal expenses.”
Tit. 7A, § 9-507(1) states:
“If it is established that the secured party is not proceeding in accordance with the provisions of this Part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this Part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten per cent of the principal amount of the debt or the time price differential plus ten per cent of the cash price.”

Robertson had a purchase money security interest in the vehicle. Under a dealer’s agreement it assigned its security interest to Central. Thus Central was the secured party at the time of default, repossession and resale under the terms of the security agreement.

There is nothing to indicate that Central is required to send notice of sale to Robertson. Tit. 7A, § 9-504(3). But in Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538, 3 UCC Rep.Serv. 119 (1966), the court held an auto dealer was entitled to notice as a debtor under § 9-504(3) when the assignee bank repossessed and sold without giving the dealer an opportunity to repurchase. We cannot say as a matter of law that Central did not violate the notification section by failing to inform Robertson of the time of sale. Under the issues presented on this appeal that question appears not to be before us.

Notice given after the time of the sale or when there is no time to redeem the collateral prior to the sale is insufficient. Prairie Vista, Inc. v. Casella, 12 Ill.App.3d 34, 297 N.E.2d 385, 13 UCC Rep.Serv. 157 (1973); Conti Causeway Ford v. Jarossy, 114 N.J.Super. 382, 276 A.2d 402, 8 UCC Rep.Serv. 1348 (1971), aff’d, 118 N.J.Super. 521, 288 A.2d 872 (1972). The notice here, received on the same day as the actual sale, was clearly deficient. The jury could have found from the evidence presented that the sale was thus not made in a commercially reasonable manner and found Central liable.

The jury could also have found that Central violated Tit. 7A, § 9-506 when it refused to permit Wells to redeem the collateral.

The jury further could have found from the evidence that Central adopted the actions of Robertson by accepting the check in payment of the balance due. In a similar situation in Greer v. Carl Johnson Motor Co., 269 Ala. 617, 114 So.2d 907 (1959), the debtor failed to carry his burden of proof that the assignee had adopted the actions of the dealer. However, the facts before the court in Greer are clearly distinguishable from the facts here.under consideration.

Further, the jury could have found a connection between Robertson and Central in their prior course of dealing and their performance in this instance to demonstrate a community of action and interest which would hold both liable.

There is at least a scintilla of evidence to support plaintiffs Count One against Central. By violating one or more of the provisions of Part 5 of Article 9 it is liable for the damages assessed under § 9-507(1).

The cases conflict as to which party has the burden of proving commercial reasonableness when the debtor is seeking damages for failure to proceed pursuant to the Uniform Commercial Code. Most appear to place the burden on the creditor because he has greater access to the facts surrounding the sale, especially where it was without adequate notice to the debtor. Annot., 59 A.L.R.3d 369; Investors Acceptance Co. of Livingston, Inc. v. James Talcott, Inc., 61 Tenn.App. 307, 454 S.W.2d 130, 7 UCC Rep.Serv. 1239 (1969). Contra, Transport Equipment Co. v. Guaranty State Bank, 518 F.2d 377 (10th Cir. 1975); 17 UCC Rep.Serv. 1; Anderson on the Uniform Commercial Code § 9-504:13.1. Commercial reasonableness is a question for the jury. Ennis v. Atlas Finance Co., 120 Ga.App. 849, 172 S.E.2d 482, 7 UCC Rep.Serv. 399 (1969). Under the allegations here in question the burden of proof was on the plaintiff.

We find the trial court erred in taking consideration of the commercial reasonableness of the actions of Central away from the jury.

In his second issue Wells contends error in the granting of a directed verdict on count Two based on conversion in favor of Central. In his fourth issue he contends error in the granting of a directed verdict on count Two(A) based on conversion in favor of Robertson. We shall discuss these issues together.

Conversion consists of the exercise of dominion over property in exclusion of or in defiance of plaintiffs rights. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968); Hamilton v. Hamilton, 255 Ala. 284, 51 So.2d 13 (1951). The plaintiff must have general or special title to the property and possession or the immediate right to possession. Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969); State Farm Mut. Auto. Ins. Co. v. Wagnon, 53 Ala.App. 712, 304 So.2d 216 (1974).

The sale of the auto here is proof of conversion. Kyle v. Gray, 11 Ala. 233 (1847); Richard Kelley Chevrolet, Inc. v. Williams, 343 So.2d 776 (Ala.Civ.App.1977). Some cases have indicated that where the creditor has a right to repossess because of the debtor’s default, the debtor cannot maintain a claim for conversion because he has no legal right to possession. Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593 (1970); William Iselin & Co. v. Burgess & Leigh, Ltd., 52 Misc.2d 821, 276 N.Y.S.2d 659, 3 UCC Rep. Serv. 1168 (1967). But the debtor is not completely divested of all right and interest in the auto by default, neither is the creditor vested with full power to do with the auto as wished. State v. Weber, 76 N.M. 636, 417 P.2d 444, 3 UCC Rep.Serv. 907 (1966); In re Trans National Communications, Inc., 11 UCC Rep.Serv. 238, Bankruptcy No. 71-B-313 (S.D.N.Y.1972); Anderson, § 9-501:7. Here the debtor still had a right to redeem under § 9-506. In fact a tender under the circumstances was a vain and useless thing. Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26, 20 UCC Rep.Serv. 820 (Mo.App.1977).

Defendants were not entitled to dispose of the car without proper notice. The purpose of the notice is to enable the debtor to protect his interest in the property by paying the debt, finding a buyer, being present at the sale to bid on the property or have others do so, in order to keep from sacrificing the collateral at a secret sale at less than its true value. Mallicoat v. Volunteer Finance & Loan Corp., 57 Tenn.App. 106, 415 S.W.2d 347, 3 UCC Rep.Serv. 1035 (1966); Skeels v. Universal C.I.T. Credit Corp., 222 F.Supp. 696, 1 UCC Rep.Serv. 639 (W.D.Pa.1963), modified, 335 F.2d 846, 2 UCC Rep.Serv. 256 (3d Cir. 1964). Plaintiff had a right to redeem. A sale after improper notice would be an improper sale. The improper sale of repossessed property may be conversion. Davidson v. First Bank & Trust Co., 559 P.2d 1228 (Okl.1976), 20 UCC Rep.Serv. 562. Unlawfully failing to permit redemption is also conversion. Owens v. Automobile Recovery Bureau, Inc., supra.

Under the evidence presented there was a scintilla to indicate conversion. The question of conversion should have gone to the jury. We feel the statements we have previously made regarding Central’s participation require that Count Two also be allowed to go to the jury.

It is not inconsistent to pursue the statutory remedy and a conversion claim also (although one is entitled to only one recovery). Charley v. Rico Motor Co., 82 N.M. 290, 480 P.2d 404, 8 UCC Rep.Serv. 683 (1971) (conversion under § 9-505(1) where debtor paid over 60% of purchase price); Crosby v. Basin Motor Co., 83 N.M. 77, 488 P.2d 127, 9 UCC Rep.Serv. 555 (1971). See also Tit. 7A, § 1-106(1).

Plaintiff next contends error in directing verdict on the breach of contract counts — in favor of Central on Counts Four and Five (issue three) and in favor of Robertson on Counts Four(A) and Five(A) (issue five).

The security agreement states:

“Upon repossession the Seller may sell the vehicle in accordance with the requirements of applicable law whereupon the Buyer agrees to pay any deficiency on demand. At least five (5) days notice to Buyer of such sale shall constitute reasonable notice.”

We are of the opinion that Counts Four, Four(A), Five and Five(A) were supported by a scintilla of evidence and that the motions for directed verdicts in favor of each defendant should have been denied. It would appear that each of said four counts is but an alternative averment of failure to comply with the provisions of the Uniform Commercial Code as was alleged in Count One(A).

We find that the trial court erred in granting directed verdicts on Counts One, Two, Four and Five in favor of Central, and on Counts Two(A), Four(A), and Five(A) in favor of Robertson. We reverse and remand for a new trial based on the theories presented in those counts, as well as Count One(A) under which the plaintiff recovered judgment against Robertson. There can be but one recovery. In the event of another trial, if plaintiff fails to elect between inconsistent remedies at some time prior to judgment, each count may be submitted to the jury for determination on the evidence.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. Lillie Mae BRITT, etc., et al., Appellees.
    No. 76-562.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 13, 1977.
    David C. Goodwin and Kenneth L. Rys-kamp, Bolles, Goodwin, Ryskamp & Welch-er, Miami, for appellant.
    Edna L. Caruso, Montgomery, Lytal, Rei-ter, Denney & Searcy, West Palm Beach, for appellees.
   PER CURIAM.

Florida East Coast Railway Company, the defendant below, appeals from a judgment entered against it for the wrongful death of a child struck by a train at a railway crossing.

The Railway first contends that the trial court erred in failing to direct a verdict in its favor. From our review of the voluminous record in this case, it appears that the evidence would support a verdict in favor of the Railway. However this is not the standard by which a motion for directed verdict is judged. Badgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958). In the present case we cannot say that there was no evidence upon which the jury could lawfully find for the plaintiff. Brookbank v. Mathieu, 152 So.2d 526 (Fla.3d DCA 1963). We hold that the trial court correctly denied the Railway’s motion for directed verdict.

Next, the Railway contends that the trial court erred in not granting its motion for new trial or alternatively its motion for entry of a remittitur because of the clear and convincing evidence of negligence on the part of the plaintiff’s decedent. Again although the evidence would support a finding that the deceased child was negligent, we cannot say that the jury could not lawfully have reached a contrary conclusion. We hold that the trial court correctly denied the Railway’s motion for new trial.

The Railway also contends that the trial court erred in failing to submit special jury interrogatories on the question of comparative negligence. It does not appear from the record that the Railway requested submission of special jury interrogatories on the percentage of fault between the Railway and plaintiff’s decedent. In the absence of such a request we cannot say that the trial court abused its discretion. Florida East Coast Ry. Co. v. Lawrence, 328 So.2d 249 (Fla. 4th DCA 1976).

Lastly, the Railway contends that the trial court erred in refusing to permit its counsel to interview the members of the jury after the trial. While it would have been proper for the trial judge to have allowed an interview with the discharged jurors, we cannot say that his denial of the motion under the circumstances of this case constituted reversible error. Etheridge v. Firemen’s Fund Insurance Co., 319 So.2d 643 (Fla. 3d DCA 1975).

AFFIRMED.

DOWNEY and ALDERMAN, JJ„ and PARHAM, HARRY C., Associate Judge, concur.


text:
    Leon BRUTON and Holley C. Taylor, Appellants, v. STATE of Florida, Appellee.
    No. 76-860.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 13, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The issue here is whether the trial court erred in refusing to instruct the jury as to the definition of reasonable doubt contained in the 1970 Florida Standard Jury Instructions. We find no error and affirm.

The trial court gave the jury an instruction on reasonable doubt contained in the Florida Standard Jury Instructions in Criminal Cases, Second Edition (1976). A request to give an instruction on reasonable doubt from the 1970 edition of the standard instructions was refused. We have examined the instructions involved and believe that the 1976 instruction contains a fair, correct, and adequate statement of the law as to reasonable! doubt.

AFFIRMED.

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

      . Instruction No. 2.12(b).

      . Florida Standard Jury Instructions in Criminal Cases, First Edition (1970), Instruction No. 2.11(b).


author: DOWNEY, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Raymond Benton SHELLY and Jean Louise Shelly, his wife, and Willie James, James Hall, Jr., United States Fidelity and Guaranty Company, etc., Appellees.
    No. 76-1011.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 13, 1977.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant/cross appellee.
    Jack H. Cook and Theodore Babbitt of Phillips & Babbitt, West Palm Beach, for appellee/cross appellant.
   DOWNEY, Judge.

Mr. and Mrs. Shelly sued their insurance carrier, Government Employees Insurance Company (hereafter referred to as GEICO), claiming they were injured by an uninsured motorist. During the course of that litigation the Shellys and GEICO reached a settlement wherein GEICO paid each of the Shellys $10,000. As part of the settlement the parties entered into an agreement which shows clearly the parties were compromising and settling disputed issues as to the amount and type of coverage available under the circumstances of the case. Thereafter, the Shellys sued the tortfeasor and in due course settled that case with the tortfeasor and the tortfeasor’s insurance carrier for the policy limits of $20,000, each of the Shellys receiving $10,000. (At the time of the settlement with GEICO, there was a question as to whether the tortfeasor was insured.)

Since GEICO had filed a lien in the suit between the Shellys and the tortfeasor, the Shellys petitioned the court for an equitable distribution of the proceeds received from the tortfeasor. At the hearing on the petition Mrs. Shelly agreed that GEICO was entitled to an equitable distribution as to her, since her recovery from both GEICO and the tortfeasor exceeded her damages. Mrs. Shelly suggested that an equitable distribution to GEICO from Mrs. Shelly was $6250, less attorneys fees. But Mr. Shelly, relying upon Government Employees Insurance Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976), and Central National Insurance Group v. Hotte, 312 So.2d 235 (Fla. 1st DCA 1975), contended that GEICO was entitled to nothing as regards his recovery from the tortfeasor because his damages far exceeded his recovery from GEICO and the tort-feasor. In support of their contentions the Shellys adduced the unrebutted testimony of one of their counsel that the value of Mr. Shelly’s case was at least $50,000 and Mrs. Shelly’s was approximately $13,750. Needless to say, or there would have been no issue, GEICO demanded a return of its entire payment of $10,000 to each of the Shel-lys under the terms of its policy and the agreement of the parties executed as part of the settlement of the prior litigation.

The trial court entered an order that (a) denied GEICO any distribution from Mr. Shelly’s $10,000, and (b) allowed GEICO the full $10,000 from Mrs. Shelly. GEICO has appealed from that order, contending that the $10,000 award was too small. The Shel-lys have cross-appealed, contending that (a) the $10,000 award was too large, and (b) the court should have awarded their lawyers a fee for creating a fund that benefited GEI-CO.

While the factual circumstances surrounding GEICO’s payment to the Shellys under their uninsured motorist coverage is most unusual, we feel that a compromise of disputed issues was reached by the parties and their rights and responsibilities thereafter must be determined as though this were truly an uninsured motorist situation with an eventual recovery against the tort-feasor, similar to the factual circumstances in Government Employees Insurance Co. v. Graff, supra. Therefore, the trial court was correct in holding that GEICO was not entitled to any distribution of Mr. Shelly’s recovery from the tortfeasor, because his damages exceeded his total recovery from the tortfeasor and GEICO.

However, the trial court erred in awarding Mrs. Shelly’s full $10,000 recovery against the tortfeasor to GEICO. The latter was equitably entitled only to a return of that sum by which Mrs. Shelly’s recovery from both GEICO and the tortfeasor exceeded her damages. Based upon the only evidence before the court that sum was $6,250. But Shelly’s lawyers marshalled that fund and made it available for GEICO as a result of their prosecution of the Shellys’ claim against the tortfeasor; so those lawyers were entitled to an attorneys’ fee. Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Government Employees Insurance Co. v. Graff, supra, at 91; 8 Fla.Jur., Costs, § 37. The parties stipulated that if an attorneys’ fee was earned it should be one-third of GEOCO’s recovery, or $2083.

Accordingly, the judgment appealed from is affirmed in part and reversed in part and remanded with directions that the court reduce the amount it awarded GEICO from $10,000 to $4,167 ($6,250 less $2,083, attorneys’ fee).

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

CROSS, J„ and SCHWARTZ, ALAN R., Associate Judge, concur.

      . “IT IS HEREBY STIPULATED AND AGREED by and between the undersigned counsel for the parties hereto in behalf of the parties that:
      “1. The issues raised between the parties in this cause of action have been fully compromised and settled. Pursuant to this agreement the Defendant, GOVERNMENT EMPLOYEES INSURANCE COMPANY, shall pay to the Plaintiff, RAYMOND B. SHELLY, JR., the sum of $10,000 and shall pay to the Plaintiff, JEAN LOUISE SHELLY, the sum of $10,000. These payments are made in full discharge of all benefits which may be recoverable under Part IV of the contract of insurance, a copy of which is Exhibit A to Plaintiffs Complaint. The benefits arise because of an automobile accident which occurred on November 23, ,1972, in which the Plaintiffs were involved with an automobile owned by Willie James and operated by James Hall, Jr. The settlement is made in view of doubt as to (a) ultimate determination of issues arising from the Court’s Order of October 1, 1973, which denied Defendant’s Motion for Leave to Amend its Answer to allege liability insurance coverage on the driver of the adverse vehicle, JAMES HALL, JR., (b) the ultimate determination of issues relating to the limit of uninsured motorist coverage available to the Plaintiffs, and (c) the issues relating to the extent of injury to the Plaintiffs.
      “2. The benefits which have been paid or may be in the future due the Plaintiffs under the personal injury protection amendatory endorsement of the contract of insurance between the parties are not affected by this settlement agreement and shall not reduce the amounts payable to the Plaintiffs under Paragraph 1 of this stipulation.
      “3. Such rights of subrogation as may exist under any portion of the contract of insurance between the parties and particularly those contained in Part IV of the contract of insurance are preserved to the parties in accordance with the terms of the contract of insurance as it may be interpreted by the law of Florida.
      “4. The Court shall enter an order approving this settlement stipulation and dismissing with prejudice this cause of action, the parties to bear their own costs.” (Signatures and date line omitted.)

      . The legal basis for this fee is not to be confused with statutory attorneys fees allowable under Section 627.428, Florida Statutes (1975).


text:
    STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation, Appellant, v. Charles BOYER, Catherine Boyer, Joseph P. Conboy, and Gertrude Conboy, and Sam M. Abitol, Individually, and Manchester Insurance & Indemnity Company, Appellees. STATE FARM FIRE AND CASUALTY COMPANY, a Foreign Corporation, Petitioner, v. Charles BOYER, Catherine Boyer, Joseph P. Conboy and Gertrude Conboy, Sam M. Abitol and Manchester Insurance & Indemnity Co., Respondents.
    Nos. 76-1180 and 76-1250.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 13, 1977.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant/petitioner.
    James B. Denman, III, James V. Dolan & Associates, P. A., Fort Lauderdale, for ap-pellees/respondents.
   PER CURIAM.

This is an appeal by State Farm Fire and Casualty Company from an order of the trial court denying its request to take the depositions of the appellees’ trial attorneys in order to reconstruct a record of the trial. No court reporter was present at trial. We do not believe, under the circumstances of this case, that it was error for the trial court to deny the appellant’s request. However, our affirmance of the trial court’s order is without prejudice to State Farm to make other efforts to construct a record for appeal. See Jackson v. Granger Lumber Co., 275 So.2d 555 (Fla. 1st DCA 1973) and Travelers Insurance Co. v. Agricultural Delivery Service, 262 So.2d 210 (Fla. 2d DCA 1972).

AFFIRMED.

CROSS, ALDERMAN and ANSTEAD, JJ., concur.


text:
    Witold S. RATUSZNY, Appellant, v. Lucia RUSSO, Appellee.
    No. 76-1429.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 13, 1977.

      Henry Karwowski, Miami, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Gammon v. Cobb, Fla. 1976, 335 So.2d 261.

CROSS, DAUKSCH and LETTS, JJ., concur.


author: ALDERMAN, Judge.

text:
    PALM BEACH COUNTY, a political subdivision of the State of Florida, Petitioner, v. William Lamar ROSE, Judge, Circuit Court, Fifteenth Judicial Circuit, Respondent.
    No. 76-1498.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Rehearing Denied July 15, 1977.
    R. William Rutter, Jr., County Atty., Charles P. Vitunac, Asst. County Atty., West Palm Beach, for petitioner.
    David H. Bludworth, State’s Atty., and Stephen R. Koons and John Scarola, Asst. State’s Attys., West Palm Beach, for respondent.
   ALDERMAN, Judge.

Palm Beach County by petition for writ of certiorari seeks review of an order of the Honorable William Lamar Rose, Judge of the Circuit Court of the Fifteenth Judicial Circuit. We grant certiorari, quash the order, and hold that Judge Rose departed from the essential requirements of the law when he directed Palm Beach County to pay fees and mileage to witnesses in a criminal case in excess of the per diem and mileage authorized by Section 90.14, Florida Statutes (1975).

The facts are as follows: An indigent defendant in a criminal. case obtained a change of venue from Palm Beach County to Duval County. As a result, the witnesses must travel to Jacksonville and will incur expenses for travel, lodging and meals in excess of the amounts allowed to them by Section 90.14. A number of the witnesses are alleged to be indigent. Judge Rose ordered Palm Beach County to pay to the witnesses 10 cents per mile for transportation plus an allowance of $9.25 per day for lodging and meals. This order was based on the State’s allegation that these payments were necessary to guarantee a fair and impartial trial to the defendant.

The applicable statutes are as follows:

Section 914.03, Florida Statutes (1975):

A witness summoned by a grand jury or in a criminal case shall remain in attendance until excused by the court. A witness who departs without permission of the court shall be in criminal contempt of court. A witness shall attend each succeeding term of court until the case is terminated.

Section 914.11, Florida Statutes (1975):

If a court decides, on the basis of an affidavit, that a defendant in a preliminary hearing or trial is indigent and unable to pay the cost of procuring the attendance of witnesses and that certain witnesses are necessary to the defense, the court shall order the witnesses subpoenaed, and the costs shall be paid by the county.

Section 90.14, Florida Statutes (1975):

Witnesses in all cases, civil and criminal, in all courts, now or hereafter created, and witnesses summoned before any arbitrator or master in chancery shall receive for each day’s actual attendance $5 and also 6 cents per mile for actual distance traveled to and from the courts.

At common law no witness fees were paid, therefore the right of a witness to compensation is purely statutory. 81 Am.Jur.2d, Witnesses, § 23. There appears to be no statutory authority for the Circuit Court to order Palm Beach County to pay a witness an amount in excess of the mileage and per diem provided by Section 90.14.

The bare allegation that additional compensation for the witnesses is necessary to guarantee a fair and impartial trial does not open the door to the public treasury of Palm Beach County. A witness cannot refuse to appear under a subpoena upon the ground that he cannot afford to testify. Almost no one can afford to be a witness at the allowed rate of $5.00 a day and 6 cents a mile. Even at $9.25 a day and 10 cents a mile, most citizens would suffer financially. However, the duty of a citizen to respond to a subpoena is not contingent upon his receiving adequate compensation. The circuit court has the power to deal with any witness who fails to honor its subpoena. Section 914.03, Florida Statutes. It can use this power to enforce the attendance of subpoenaed witnesses and thereby guarantee to the defendant and the State the right to have compulsory process for the attendance of witnesses.

We conclude that the order of the Circuit Court must be quashed because it requires an unauthorized and improper payment from the public treasury of Palm Beach County. Compare, Dade County v. Carr, 231 So.2d 844 (Fla. 3d DCA 1970); see also, Florida Attorney General’s Opinion, 056-313. The Circuit Court exceeded its authority when it ordered Palm Beach County to pay subpoenaed witnesses in a criminal case more than the statute allowed.

The petition for writ of certiorari is granted and the order of the Circuit Court is quashed.

ANSTEAD and LETTS, JJ., concur.


author: McNULTY, Judge.

text:
    R. R. WALDEN, as Property Appraiser of Hillsborough County, Florida, Appellant, v. A. L. TUTEN and Minnie Tuten, his wife, Appellees.
    No. 76-736.
    District Court of Appeal of Florida, Second District.
    June 8, 1977.
    Rehearing Denied July 15, 1977.
    Brooks P. Hoyt of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    John W. Puffer, III, of Shackleford, Far-rior, Stallings & Evans, P. A., Tampa, and Clarence A. Boswell, Sr., of Boswell & Conner, Bartow, for appellees.
   McNULTY, Judge.

This case involves the denial by appellant, as Property Appraiser of Hillsborough County, of a “green belt” assessment for the year 1974 of certain lands occupied by the appellees Tutens as lessees and used by them allegedly as a cattle ranch. The Tu-tens prevailed in a declaratory decree action in which the court determined that they were entitled to the “green belt” assessment sought and this appeal ensued. We reverse.

The undisputed operative facts are that since 1951 the Tutens had owned and occupied the land in question herein, a tract of approximately 1000 acres. The land had been continuously used by them as a cattle ranch and had been assessed as agricultural land during their ownership.

In January 1973, however, they sold a majority of the tract to the Barnett Bank of Naples as trustee for a group of investors comprising a Florida Land Trust. They retained approximately 100 acres for their current residence; but effective upon the date of the sale, they became lessees of the entire tract sold. The annual rental fee under the lease was a sum “equal to the amount of the taxes levied for that year” ($1,300 for 1973 — thus the Tutens’ interest in the “green belt” assessment) and the term of the lease has been extended from an original two-year term to 1983, with the provision nevertheless that it may be terminated by either party upon six-months notice. Additionally, the lease provided that it would terminate if the Tutens ceased to use the premises as a cattle ranch.

As of January 1, 1974, the relevant date for the taxable year in question in this case, the Tutens were in fact using the property as a “cattle ranch” operation. But we shall discuss this matter more fully hereinafter.

Most significantly, it is also uncontrovert-ed that the purchase price of the land ($1,000,250) was much more than three times the agricultural assessment previously placed on it. Accordingly, in reliance on Section 193.461(4)(c), Florida Statutes (1973), the appellant Property Appraiser denied the Tutens’ application for an agricultural assessment for the year 1974. That section provides as follows:,

“(c) Sale of land for a purchase price which is three or more times the agricultural assessment placed on the land shall create a presumption that such land is not used primarily for bona fide agricultural purposes. Upon a showing of special circumstances by the landowner demonstrating that the land is to be continued in bona fide agriculture, this presumption may be rebutted.” (Emphasis added.)

Most importantly, however, “bona fide agricultural purposes” as used therein is defined by a preceding subsection of Section 193.461, supra, i. e., subsection (3)(b), as “good faith commercial agricultural use of the land.”

Additionally, this latter subsection (3)(b) further provides:

“. . .In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration:
(1) The length of time the land has been so utilized;
(2) Whether the use has been continuous;
(3) The purchase price paid;
(4) Size, as it relates to specific agricultural use;
(5) Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices;
(6) Whether such land is under lease and, if so, the effective length, terms and conditions of the lease; and
(7) Such other factors as may from time to time become applicable.

Obviously, given the presumption which undisputedly arises because of the high purchase price of the land, the question herein is whether the Tutens rebutted the presumption. Cognizant of Straughn v. K & K Land Management, Inc., in which our Supreme Court determined that the afore-quoted seven criteria outlined in Section 193.461(3)(b), supra, were relevant on the question of whether the presumption is rebutted, the trial court herein found:

“(1) The land was used by the Tutens for over twenty years as owners, in the same way that they as lessees were using it January 1, 1974;
(2) The use has been continuous;
(3) The tract is certainly of a size to make it acceptable for this use;
(4) The land has continued to be cared for by the lessees in an acceptable manner;
(5) The land was under lease as of January 1,1974, for a two year period, terminating at the end of 1974, a lease which could be terminated by the lessor only if the lessees discontinued the use of the land for cattle operation.”

He concluded therefrom that the presumption was rebutted.

We have no quarrel, really, with the conclusions of the trial judge insofar as they relate to an agricultural use of the property. In fact, prior to 1972 a bona fide agricultural use was indeed all that was required for entitlement to a “green belt” assessment. But the aforequoted subsection (3)(b) of Section 193.461 was added to the statute by amendment in 1972 and, as quoted, now requires a “good faith commercial agricultural use” of the land in question. Where we think the trial judge went astray, therefore, was in his failure to determine whether the continuous agricultural use he found was a good faith commercial agricultural use as distinguished from a mere agricultural use; and, in truth, Straughn, supra, strongly suggests,this distinction, though the point was not squarely before the court, when it commented:

“. . . The rational presumption imposed by the legislature is that land purchased for three or more times its assessed agricultural value is not intended to be put to ‘good faith commercial agricultural use’ per Section 193.461(3)(b), Florida Statutes, supra. Property not put to such use is not entitled to the legislatively-created exception to taxation at full value represented by the agricultural use tax status.” (Emphasis added.)

It seems to us that the aforesaid 1972 amendment to the statute points up what must have been the primary legislative purpose of the “green belt” law, viz., to encourage continued agricultural use by assisting a farmer-owner to make a reasonable profit from such use, vis-a-vis, a like profit should it be put to a nonagrieultural use. In Straughn, supra, our Supreme Court had this to say about that:

“. . . The reduced taxation for farmland is based on a legislative determination that agriculture cannot reasonably be expected to withstand the tax burden of the highest and best use to which such land might be put. The agricultural assessed value is the amount that could be invested with a reasonable expectation of an annual return to the owner similar to what he would gain from other commercial enterprises with similar risks, liquidity, degree and level of management, etc.”

We think, therefore, that profit motive is a relevant consideration in determining whether a given agricultural use is in fact a bona fide “commercial” agricultural use. Such a motive would certainly be one of the “other factors as may ... become applicable” within the contemplation of subsection (7) of the aforequoted factors listed under subsection (3)(b) of Section 193.461, supra. In fact, it would appear that absent a profit motive from the agricultural use, the above-mentioned statutory presumption of non bona fide agricultural use would be fortified rather than rebutted.

Here, there is no contention, nor can there be, that the trustee-owner of the land (or the beneficiaries of the trust) is profiting by the agricultural use. One-ninth of 1% annual return (i. e., rental equal to $1,300 in yearly taxes) on a $1,000,250 investment is hardly evidence of a profit motive. So the critical fact is whether the Tutens, the actual agricultural users, are materially profiting from such use. In other words, were the Tutens in the year in question carrying on a good faith “commercial” agricultural operation?

Neither the trial court nor the parties below sufficiently zeroed in on this question, although there is some evidence that perhaps the Tutens are not actually bona fide agriculturally using the land in question but, rather, are using it merely as an insignificant adjunct of another cattle ranch operated by them in another county. Moreover, it’s apparent from the record and the judgment that the trial court determined the cause simply on good faith agricultural use — not on good faith commercial use — and no specific operative findings were made as to the latter. At this juncture, therefore, the presumption stands un-rebutted and should ordinarily prevail as a matter of law. In the interest of fairness, however, and because the trial court did not have the benefit of a prior decision in the premises, we think the matter ought to be retried on the commercial use aspect of the case which all parties apparently overlooked.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

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

      . Apparently, the mechanics of the lease-back arrangement are that the Barnett Bank of Naples, holding the legal title as trustee, executed a lease to the beneficiary group of investors (incorporated under the name Investors Research and Development Corporation) who, in turn, assigned the lease back to the Tutens.

      . 326 So.2d 421 (Fla.1976).

      . See, e. g., Hausman v. Rudkin, 268 So.2d 407 (Fla. 4th DCA 1972); Smith v. Ring, 250 So.2d 913 (Fla. 1st DCA 1971).

      . See Chapter 72-181, Laws of Florida.

      . Note 2, supra, at p. 424.

      . Id.

      . In fact, a profit would unquestionably jeopardize the land trust’s status with Internal Revenue Service as a passive land trust.


author: MILLS, Judge.

text:
    William K. BARRETT, as personal representative of the Estate of Crystal Lynn Barrett, a minor, Deceased, Petitioner (Plaintiff), v. Dottie Delores GILL and State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Respondents (Defendants).
    No. EE-187.
    District Court of Appeal of Florida, First District.
    June 10, 1977.
    Rehearing Denied July 12, 1977.
    Larry Klein, Cone, Owen, Wagner, Nu-gent, Johnson & McKeown, West Palm Beach, for petitioner.
    John E. Mathews, Jr. and James E. Cobb, Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for respondents.
   MILLS, Judge.

Mr. Barrett seeks review of an order severing State Farm, Ms. Gill's insurance company, as a party defendant to his suit for the wrongful death of his daughter arising out of an automobile accident occurring on 2 May 1976.

Mr. Barrett contends the trial court erroneously based its order of severance on Section 627.7262(1), Florida Statutes (1976). State Farm contends the order was based on public policy expressed in Section 627.-7262(1).

Section 627.7262(1) provides in pertinent part:

“No motor vehicle liability insurer shall be joined as a party defendant in an action to determine the insured’s liability.

Chapter 76-266, § 16, Laws of Florida, states:

“This act shall take effect October 1, 1976, and shall apply to all claims arising out of accidents occurring on or after said date.”

Section 627.7262(1) is not applicable to this case. The accident giving rise to this action occurred on 2 May 1976 and the action was filed on 27 September 1976. The statute did not become effective until 1 October 1976 and then applied only to claims arising out of accidents occurring on or after11 October 1976.

Prior to 1 October 1976 public policy permitted the joinder of an insurer as a party defendant in motor vehicle liability insurance coverage cases. Our Supreme Court stated in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969):

“We conclude a direct cause of action now inures to a third party beneficiary against an insurer in motor vehicle liability insurance coverage cases as a product of the prevailing public policy of Florida.”

Subsequently, our Supreme Court stated in Stecher v. Pomeroy, 253 So.2d 421 (Fla.1971):

“. . . [W]e hereby reaffirm, that absent a justiciable issue relating to insurance, such as a question of coverage or of the applicability or interpretation of the insurance policy or other such valid dispute on the matter of insurance coverage, there is no valid reason for a severance and it should not be- granted.”

Also see Godshall v. Unigard Insurance Company, 255 So.2d 680 (Fla.1971).

The trial court departed from the essential requirements of law in severing State Farm. We, therefore, grant certiorari and quash the order severing State Farm. This case is remanded for further appropriate action.

BOYER, C. J., and ERVIN, J., concur.


text:
    Blas Jesus CORBO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1715.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 8, 1977.

      Nathan Kurtz, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant Bias Jesus Corbo filed this appeal from conviction on a charge of conspiracy to commit certain felonies, and from the sentence of imprisonment for a term of five years which was imposed thereon. On consideration of the several contentions submitted by the appellant, in the light of the record, briefs, and arguments, we hold not reversible error has been shown.

By information the appellant with two others was charged, in one count, with conspiracy to commit several crimes, and in other counts was charged with commission of such crimes with which the conspiracy was concerned, as overt acts. On a jury trial the appellant was found not guilty of the charged overt acts, and was found guilty of the conspiracy charge. He was so adjudged, and was sentenced to the term above stated.

We hold to be without merit the appellant’s argument for reversal based on the contention that the verdict was a compromise verdict which was contrary to the facts. The apparent inconsistency of the verdict by which the appellant was convicted of the alleged conspiracy but found not guilty of the overt acts charged, is not ground for reversal. See Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932).

Appellant challenges legality of the five-year sentence, contending the sentence should not have been for more than the maximum which could be imposed upon conviction of conspiracy to commit the lowest of the several offenses specified. The appellant was found guilty of a count which charged conspiracy to commit several felonies. They were the placing or discharging, or the attempt at discharging, of a destructive device, a first degree felony; arson in the second degree, a second degree felony; unlawful possession of explosives, a second degree felony; and unlawful transportation of explosives, a third degree felony. Conviction of conspiracy to commit a first degree felony, authorizes a sentence of imprisonment for a term not to exceed fifteen years (Sections 777.04(4)(b) and 775.-082(3)(c), Florida Statutes (1975). Here, where the sentence imposed was five years, it appears from the record the court fixed that sentence under the impression it was the maximum which could be imposed for conviction of conspiracy to commit the higher of said listed crimes. The State contends it was proper and permissible for the court to impose such sentence. The appellant contends that in such circumstances the sentence to be imposed by the court was that which was prescribed for conspiracy to commit the least of said offenses, which would have been for a term not to exceed one year.

We hold the sentence imposed in this case was valid under authority of State v. Trafficante, 136 So.2d 264 (Fla. 2d DCA 1962). There, where a count charged conspiracy to commit two offenses, for which the prescribed penalties were different (bribery, and operation of a lottery), it was held the count was not duplicitous, because, quoting from Mr. Justice Holmes, “The conspiracy is the crime, and that is one, however diverse its objects”, citing Brown v. State, 130 Fla. 479, 178 So. 153, 156 (1938). In Trafficante, the court said,

“ * * * We are of the view that the fifth count charges a single statutory transgression, one conspiracy to violate two sections of the criminal laws of Florida there being in actuality no distinct and separate offenses. * * * As there is only one conspiracy charged, only one sentence can be imposed. Indeed, had the state separated the charge into two counts, alleging in one a conspiracy to violate the lottery laws and in another a conspiracy to bribe, a conviction upon both counts could not have resulted in separate punishments for separate convictions. Under such a situation, the court could impose only a sentence on the count which charges the higher grade or degree of the offense.”

While the above quoted language from Trafficante is not entirely clear on the point, we interpret it to be an expression of the view of the court that on conviction of a charge of conspiracy to commit two or more offenses for which different penalties are provided, only one sentence is to be imposed, and that should be based on the penalty prescribed for conviction of conspiracy to commit the higher of the crimes so stated. Accordingly, we hold that the sentence imposed in the instant case was valid.

Regarding the appellant’s contention of having been denied appropriate discovery, no argument was made thereon in appellant’s brief, which only stated the proposition that the court had denied a motion to discharge filed by defendant’s attorney “since said attorney was denied certain discovery and specifically set forth in its motion the reasons for the request of discharge”. The State points to such absence of argument of the point in appellant’s brief, citing cases holding points assigned as error and not argued are deemed abandoned, and calls attention to the absence of an assignment of error directed to the point. We hold the contention of the appellant with reference to such point is made without merit.

Denial of defendant’s motion for discharge because of publicity in the matter was not error. That point or contention was not supported by an assignment of error directed to that judicial act. In fact the record does not show a specific ruling of the court on such motion, nor does the record disclose any hearing proceedings thereon. A motion which the defendant had filed for change of venue on such ground was denied by the court. The appellant’s argument that the lack of knowledge of the jurors as to publicity the case had received, as revealed on voir dire, was such as to strain belief, is not in accord with the record, and is not basis for reversal.

A fifth point in the appellant’s brief was a statement that the appellant adopts arguments set forth in the brief filed by a codefendant on a separate appeal. Such matter is not before the court, or a part of the record on this appeal.

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