author: OTT, Judge.

text:
    Charles E. HOLTER, Appellant, v. WLCY T.V., INC., a Florida Corporation, Mike Halloran, an Individual, and Fireman’s Fund Insurance Company, a California Corporation, Appellees.
    No. 76-1490.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1978.
    Rehearing Denied Jan. 2, 1979.
    Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for appellant.
    Chester L. Skipper of Lyle, Skipper, Wood & Anderson, St. Petersburg, for ap-pellees.
   OTT, Judge.

The plaintiff brought a libel action. The lower court denied defendants’ motion for summary judgment. In due course the case came on for trial by jury. At the close of the plaintiff’s case the lower court entered a directed verdict for defendants. We reverse on the ground that the question of actual malice was one for the jury.

In considering the correctness of an order granting a motion for directed verdict the losing party is entitled to every reasonable inference that may be drawn from the evidence. The evidence must be viewed in the light most favorable to the losing party, the usual standard for viewing evidence where a directed verdict is involved. Guam Federation of Teachers, Local 1581, AFT v. Ysrael, 492 F.2d 438, 441 (9th Cir. 1974). The Ysraei court pointed out:

The standard against which the evidence must be examined is that of New York Times and its progeny. But the manner in which the evidence is to be examined . is the same as in all other cases in which it is claimed that a case should not go to the jury. If the evidence, so considered, measures up to the New York Times standard, the case is one for the jury, and it is error to grant a directed verdict, as the trial judge did in this case. [Emphasis in original.] Id.

We, therefore, next turn to the record for the evidence before the lower court. The evidence is best evaluated if laid out separately as to what occurred on each of two successive days.

THE EVENTS OF NOVEMBER 8, 1973

On November 8, 1973 the following story was prepared by Mike Halloran — a reporter-photographer for WLCY T.V. The story was included on the 5:30 p.m. broadcast:

A very hush hush undercover probe by the State Attorney General’s office into the current operation of local government in Reddington [sic] Beach and it’s [sic] sister community Reddington [sic] Shore’s [sic] has uncovered possible serious irregularities with officials who are running those government’s [sic]. According to reliable sources who refused to be identified the mayor of Reddington [sic] Beach, Charles E. Holter, who’s been in office five years, has reportedly resigned effective January first of 1974 under strong suspecision [sic] that he’s been implicated in embasselment [sic] and extortion of monies from private contractor’s [sic] who wanted to build in the area . but this has not been confirmed .
I’ve also been told that one of the three commissioner’s [sic] in Reddington [sic] Beach will also step down pending the outcome of the corruption probe. People who live in Reddington [sic] also disclosed to me that a full team of undercover men are looking in to [sic] the practice’s [sic] of all local government’s [sic] within the beach communities here in Pinellas County because of those extreme irregularities. .

At about 3:00 p.m. on November 8, Mike Halloran received a phone call. The caller refused to identify himself. The caller stated that he was a resident of “one of the beach communities” (in Pinellas County) and suggested that an ongoing investigation was underway in “the beach communities.” The caller then hung up. Halloran thought it was a crank call and that the caller didn’t seem very reliable. He testified that he “didn’t take it very seriously.”

At about 4:15 p.m. Halloran received another anonymous phone call. Halloran testified that this “older, very stable voice led me to believe that he was somebody in government.” He testified that the “voice even sounded like it possibly might be a county commissioner.” When asked at trial whether he had one particular county commissioner in mind, Halloran - declined to state which county commissioner it might have been. He said that it might have been one of two county commissioners. He declined to give any names. He also testified that he did not ask the anonymous caller if he were a county commissioner. Halloran related the essence of the call:

[This] person called me and said, “I have some news to relate to you concerning beach communities” that [an investigation] was taking place. I asked the person to disclose who he was. [The] person said, “I cannot disclose who I am because I am involved in the investigation.” I asked him, “Well, what is the nature of this investigation?” Source said that, “Auditor General’s investigation currently going on here in the beach communities of Redington Shores and Redington Beach.” And he said that, “Some people will have to leave office because of the probe into their activities,” and he related that Mayor Holter, along with another commissioner, would step down, would resign from their office.

Halloran received a third anonymous phone call at about 5:00 o’clock that afternoon. He stated that the gist of the 5:00 o’clock call was about the same as that of the 3:00 o’clock call, i. e., to the general effect that investigators were about in the beach towns. Caller number three simply said that she was a resident of the beach communities and declined to give her name.

The testimony of Halloran as to the order of events from the time he received the 4:15 anonymous phone call up to the time of the 5:30 news broadcast is at best vague and imprecise. Quite obviously, Halloran himself concluded that the story should be verified.

With reference to the verification, he indicated there were three telephone calls made: two by himself and one by a secretary in the news room. Halloran said that he called both the local State Attorney’s office and the Auditor General’s office in Tallahassee. In each instance, according to Halloran, there was no one in a responsible position present and thus he was unable to confirm anything — not even whether an investigation was going on in the beach communities. According to Halloran, the secretary’s call was to the Redington Beach Town Hall and she talked to a “clerk or somebody”. According to Mayor Holter, the secretary’s call was received by a clerk and switched to him personally. The secretary asked Mayor Holter the correct spelling of his name, his marital status, how long he had served in office and whether he was resigning. Holter testified that the secretary gave no explanation as to why she was making her inquiry. This did not disturb him at the time since he had previously received information requests of this nature from newspapers and others. He accordingly answered her questions and included the fact that he had announced to the Red-ington Beach commission his intention to resign at the end of the current year. After these attempts at verification Halloran typed up the story and made a sound-on-film recordation for the 5:30 p.m. news telecast.

With reference to Halloran’s doubts, we would point out that he characterized the 4:15 p. m. source and the information as “fairly reliable.” He testified that he didn’t think the contents of his report were false — at least prior to the 5:30 broadcast.

Prior to the 5:30 broadcast Halloran discussed the story with his two immediate superiors — Keller and Cleaver. Keller pointed out that the anonymous source could be a problem because they were so entirely dependent on this one source. Keller told Halloran that “very much depended upon the reliability of the source.” Keller testified that he was concerned about the reliability of the informant, but that Halloran assured him that he knew the person and that he felt that the information was reliable. Halloran stated that he and Keller justified the inclusion of this information in the 5:30 broadcast on the ground that it was consistent with their impressions, i. e., that the building boom in the beach communities was probably causing widespread corruption. Halloran also spoke with Cleaver (news director and Keller’s and Halloran’s superior) about the story. They conferred just before the 5:30 broadcast. Cleaver asked Halloran whether he had made any calls to verify his information. Halloran said that he had and that the voice of the 4:15 caller “sounds familiar, sounds like maybe somebody on the [county] commission.”

After the 5:30 broadcast the WLCY switchboard received approximately ten calls. Halloran testified that he took five of the calls and that the girl on the switchboard took the others. Halloran testified that the- general thrust of the calls was “positive”, i. e., that they should continue their investigation into corruption in the beach communities. Four of the five callers were anonymous. According to Halloran, he took a fifth call which was identifiable at least to a certain extent. The fifth caller identified herself as an elected official of Redington Shores (not Redington Beach). She mentioned that the citizens of Reding-ton Shores had petitioned the Auditor General to make an investigation. She also stated that she was “surprised to hear Mr. Holter’s (mayor of Redington Beach) name mentioned in the broadcast.”

After receiving these calls, and before departing from the station, Halloran discussed the calls “very briefly” with Cleaver who was in a hurry to make a speaking engagement. Halloran related to Cleaver the general tone of the calls, namely, that WLCY was urged to keep digging into this purported scandal in the beach communities. However, Halloran made no mention of the call from the elected female official of Redington Shores who had expressed surprise over Mayor Holter being mentioned in such a connection.

Mayor Holter first learned of the 5:30 broadcast (he had been out to dinner and did not see the broadcast) when a friend called at about 8:00 p. m.

He immediately called WLCY. The receptionist said that no one would be there until 9:30 and that Holter should call back then. Instead of waiting, Holter called Cleaver’s home. He spoke to Mrs. Cleaver who informed him that Mr. Cleaver was at the speaking engagement. Holter finally reached Cleaver at WLCY at about 9:30 p. m. Cleaver told Holter that he did not know too much about what was going on but that he would have Halloran call Holter as soon as he [Cleaver] could reach Hallo-ran. Cleaver succeeded in reaching Hallo-ran and at about 10:15 Halloran called Hol-ter. According to Holter he told Halloran that none of what Halloran had broadcast was true except that he was resigning. Holter said that he told Halloran that he had his own reasons for resigning. He asked Halloran not to rebroadcast at 11:00 o’clock, but Halloran refused to give this assurance. Holter testified that when he asked Halloran where he obtained his information Halloran replied a “reliable source.” When Holter asked who, Halloran’s answer was “I can’t tell you that.” They made an arrangement to meet the next morning at Redington Beach Town Hall.

Halloran’s version of the call was that the Mayor was “very upset” and talking in an “excitable voice.” According to Halloran, Holter said “It’s a mistake, couldn’t be me, couldn’t be my town, are you sure it’s me.” Halloran said that he did not recall whether the Mayor demanded that the story not be rebroadcast. Rather, Halloran stated that he thought the Mayor merely asked him if the broadcast was going to be repeated at 11:00 p. m. to which Halloran replied that it would be as far as he knew.

Halloran stated that this telephone call was the first instance in which it occurred to him that a “mix-up” could possibly be afoot. He was concerned because Mayor Holter was so upset. He conceded that he felt that there remained a lot of investigative work to be done.

Prior to the 11:00 p. m. news WLCY did no updating and at the broadcast made no comment concerning the Mayor’s denial or his assertion of the falseness of the piece. WLCY T.V. admitted that there was no technical reason that the 11:00 p. m. broadcast could not have been re-edited as late as 10:15 or 10:30 p. m. Thus, it was a conscious policy decision to go ahead with the rebroadcast without change or qualification.

THE EVENTS OF NOVEMBER 9, 1973

On the next day — Friday, November 9— WLCY radio, both AM and FM, broadcast the story in much the same form as the two television broadcasts of the previous day. There was one broadcast each hour on AM and one on FM. Thus, between the hours of 7:00 a. m. and 3:00 p. m., there were sixteen separate broadcasts containing the story. The radio broadcasts contained references to Holter’s resignation because of alleged criminal activities.

In keeping with his promise during their conversation of the night before, Halloran (and Keller) arrived at the Redington Beach Town Hall at about 9:30 a. m. Present in the Mayor’s office were two Redington Beach commissioners and the Chief of Police. Halloran and Keller (Keller armed with camera, lights and tape equipment) walked into the Mayor’s office with television lights blazing, microphone on and tape recorder rolling and began firing questions at him. According to Mayor Holter, the tenor of the questions was to accuse him of extortion and embezzlement. He described Halloran and Keller as being brash, sarcastic, rude and abusive. Another witness described Halloran’s attitude as one of “gross indifference.”

Mayor Holter testified that Halloran said words to the effect that any time a politician resigns it is obvious he is a crook and that “all politicians are crooked.” Moreover, another witness stated that either Halloran or Keller said that “whenever a politician resigns . . . there is something wrong with the situation” and that “anybody in politics is suspect.” In addition, Halloran testified that Keller made reference to Watergate.

At the outset we must distinguish between the 5:30 p. m. and 11:00 p. m. broadcasts. In its denial of defendants’ motion for summary judgment, the trial judge suggested that if only the 5:30 broadcast were involved he would have little hesitancy in granting summary judgment for the defendants. With reference to the 11:00 broadcast, however, the trial judge felt differently:

A material question is whether Mike Hal-loran acted with respect to the [11:00 p. m. broadcast] with knowledge that a material portion thereof was false or with reckless disregard of whether it was false or not.
The question of whether or not Mike Hal-loran acted in a manner which would give the plaintiff a right to recovery is a question for a jury to determine. .

At the close of plaintiff’s evidence, however, the trial judge entered a directed verdict for defendants.

Our position is that the lower court erred in directing a verdict for defendants because reasonable men could very well conclude that the events transpiring prior to the 11:00 p. m. telecast and the repeated radio broadcasts on the following day constitute reckless disregard of whether or not the story was false (as to Mayor Holter), if not that Halloran actually knew it to be false. While it may be true that the reckless disregard test is too strict to support a conclusion that actual malice existed as of the 5:30 broadcast, we hold with reference to the 11:00 p. m. broadcast that facts exist that would support a conclusion that actual malice existed.

This case. involves the standards or requirements for imposition of liability for libel upon any segment of the mass communications media.

As has occurred in so many areas of the criminal law, this field of civil jurisprudence has now been assumed in large measure, if not totally, by the United States Supreme Court. It is to that Court’s decisions that this court must look for determination of the question presented.

The current constitutional standard governing libel actions was first enunciated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

The New York Times decision has been referred to as “unquestionably the greatest victory won by defendants in the modern history of the law of torts.” W. Prosser, Law of Torts § 118 (4th Ed. 1971). The cases following New York Times afforded the press even greater protection. However, as evidenced by the many concurring and dissenting opinions, there was a great deal of turbulence within the Supreme Court as to the boundaries of the New York Times rule. This turbulence has been especially noticeable with reference to the tortuous evolution of the “public official” and “public figure” doctrines and the rules governing the status of private persons.

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) the Court attempted to define the boundaries.of the “public official” concept. Later courts, however, have generally disregarded this attempt to delimit the reach of the “public official” concept.

One year later, the Court extended the New York Times privilege to “public figures” in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

Then, in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) the Court extended the New York Times rule by applying it to all those involved in matters of public or general concern even if they were neither public officials nor public figures.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), however, the Court renounced the Rosen-bloom extension of the constitutional privilege. The Court held that the New York limes privilege did not apply to purely private individuals even though involved in matters of public or general concern. Nevertheless, the Court stated that even a purely private individual could not recover punitive damages in a defamation action unless he established “a showing of knowledge of falsity or reckless disregard for the truth” under the New York Times standard.

In Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) the United States Supreme Court reaffirmed the Gertz holdings albeit finding the particular plaintiff did not fall within the Gertz definition of a “public figure.”

The New York Times rule is as follows:

The constitutional guarantees require . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” —that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [Emphasis supplied.]

376 U.S. at 279-80, 84 S.Ct. at 726, 11 L.Ed.2d at 706.

The New York Times reckless disregard standard is strict. According to the Court in St. Amant v. Thompson, 390 U.S. 727, 731-32, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262, 267 (1968):

[T]he stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.

As pointed out in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) a standard based upon simple negligence would not be suitable.

In the lower court treatment of the well-known “Pentagon Papers” case, United States v. New York Times Co., 328 F.Supp. 324, 331 (S.D.N.Y.) it was stated:

A cantankerous press, an obstinate press, an ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.

In New York Times the Court pointed out that the first and fourteenth amendments embody our

[PJrofound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701.

There are, however, well defined limits upon the free press. In Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964) the Court pointed out that

[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

As was pointed out by Chief Justice Warren in his concurring opinion in Butts:

Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers.

388 U.S. at 170, 87 S.Ct. at 1999, 18 L.Ed.2d at 1120. In Gertz the Court stated:

The need to avoid self-censorship by the news media is, . not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.

418 U.S. at 341, 94 S.Ct. at 3007, 41 L.Ed.2d at 806.

In Rosenblatt the Court emphasized the importance of reputation and the protection given it by law:

“[Ijmportant social values . . . underlie the law of defamation. Society has a pervasive and strong interest in preventing and redressing attacks upon reputation.”
The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself is left primarily to the individual States . . . . But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.

383 U.S. at 92, 86 S.Ct. at 679, 15 L.Ed.2d at 609 [Stewart, J., Concurring.]

The “harm” that results from the publication of false statements is seldom, if ever, made good by a retraction. As the Court in Rosenbloom pointed out:

Denials, retractions, and corrections are not “hot” news, and rarely receive the prominence of the original story.

403 U.S. at 46, 91 S.Ct. at 1821, 29 L.Ed.2d at 313.

In Gertz the Court pointed out:

Of course, an opportunity for rebuttal seldom suffices to undo harm of a defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie.

418 U.S. at 344, n. 9, 94 S.Ct. at 3009, 41 L.Ed.2d at 808.

With reference to verification, in Hill the Court pointed out the pitfalls of a requirement of absolute verification:

We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impossible burden of verifying to a certainty the facts associated in news articles with a person’s name, picture or portrait, particularly as related to nondefamatory matter.

385 U.S. at 389, 87 S.Ct. at 542-43, 17 L.Ed.2d at 467.

On its denial of the motion for summary judgment, the lower court in the instant case stated that “what efforts [Halloran] made or caused to be made to verify the contents of the ‘reliable source’ information are very nebulous to say the least.” The “nebulous efforts” and the denial by the principal of any wrongdoing are similar to the factual situation in Butts. There, the Court pointed out that “little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account, to be published was absolutely untrue.” 388 U.S. at 169-70, 87 S.Ct. at 1999, 18 L.Ed.2d at 1119 [Emphasis supplied.].

Also on point with the instant case was the situation in Rosenbloom. There, the respondent/radio station made two sets of defamatory broadcasts. The first set of broadcasts referred to petitioner’s arrest for possession of obscene literature and the police confiscation of “obscene books.” The second set of broadcasts characterized petitioner’s business as the “smut literature racket” and those engaged in it as “girlie-book peddlers.” Defendant’s news director testified that their half-hour deadlines required them to rely on “wire-service copy and oral reports from previously reliable sources subject to the general policy that ‘we will contact as many sources as we possibly can on any kind of a story’.” 403 U.S. at 37, 91 S.Ct. at 1816, 29 L.Ed.2d at 308. [Emphasis supplied.] It is important to note that in Rosenbloom the defendant/radio station relied on information supplied it by a high ranking police official. An identified and thought to be reliable police captain who was in command of the Special Investigation Squad of the Philadelphia Police Department was the source of the defamatory information. This is in stark contrast to the instant case in which the source was an anonymous telephone caller obviously not even an identified or known source let alone a “previously reliable source.”

The Rosenbloom Court thought it significant that the radio station had relied on information supplied by a high ranking police official in its finding that there was no evidence in the record to support a conclusion that the radio station “in fact entertained serious doubts as to the truth” of its reports. St. Amant v. Thompson had laid down the requirement that “there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed. at 267. The St. Amant Court stated that “[Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267.

The logic of the Rosenbloom Court is persuasive where the source of information was a high ranking policeman. However, where an anonymous tipster conveys the ¡information, one would be hard put not to 'have serious doubts about the authenticity of the tip. Halloran, at best, felt the information from the anonymous source to be only “fairly reliable” and felt that quite a bit of investigative work remained to be done. Moreover, Halloran had little or no reason to deem the source reliable. He violated the practice in the trade — that anonymous calls are customarily relied upon for direction but not for information. He not only relied upon the source for information, but he even embellished it. Halloran’s explanation that he had told Cleaver prior to the broadcast that “the voice sounds familiar, sounds like maybe somebody on the [county] commission” was characterized by the lower court as follows:

[The] “reliable source” [was] subsequently reflected as being not only unreliable but also unknown.

Moreover, the fact that Halloran intimated to his superiors that he knew the source is especially significant. Neither Cleaver nor Keller — each of whom were superior to Hal-loran — made any effort to kill the story notwithstanding the fact that Halloran’s reliance upon an anonymous source was in violation of trade practice. The major reason for their lack of action may very well have been due to Halloran’s lack of candor with them.

Finally, Halloran admitted that after Holter called and told Halloran that the broadcast was totally false save the fact of his resignation, that it occurred to Halloran that a “mix-up” could possibly be afoot.

Halloran himself should certainly have had doubts prior to the 11:00 p. m. newscast. Two cases from the District of Columbia are illustrative on the “serious doubts” issue. In Davis v. Schuchat, 166 U.S.App.D.C. 351, 510 F.2d 731 (1975) the court found actual malice to exist in an action for slander. The defendant was an investigative reporter who made false statements about Davis, i. e., he told three people that Davis “had been convicted of a felony in New York.” He made these statements in the ordinary course of his preparations for a news story on Davis pursuant to his admitted technique of “throwing a lot of things out in an interview just to get a response.” The court held that at the very least the record could support a finding that there was reckless disregard and that the defendant/reporter in fact entertained substantial doubts about the truth of his statements. Interestingly, the court noted that the record was “replete with instances of evasiveness and contradiction” in the defendant/reporter’s testimony. In light of this, stated the court, the trial judge would be justified in believing testimony to the effect that the reporter knew that his statements were false. The jury in the instant case could conclude that Hallo-ran’s testimony fit this mold.

In Airlie Foundation, Inc. v. Evening Star Newspaper Co., 337 F.Supp. 421 (D.D.C.1972) the court found actual malice to lie in a libel action. In this case, after publication of an article alleging covert financing of the plaintiff/foundation by government agencies including the CIA, the editor of the defendant/newspaper received a denial of the charges from the director of the CIA. Nevertheless, the newspaper published the second part of the series the next day. The article stated that “the CIA declined to comment on the charges,” a treatment which the court found “portrayed the existing situation in an extremely misleading fashion.” 337 F.Supp. at 426. The court noted that “[the newspaper lent] credence to the Higgs charges at a time when it entertained serious doubts as to validity of those charges.” 337 F.Supp. at 428. The court stated it was cognizant of “the difficult choices which must be made by the publisher of a story which emanates from a source other than his own reporters,” 337 F.Supp. at 429, but that this was no excuse for the libelous publication.

In addition to the “serious doubts” standard, the Court in St. Amant required the defendant to have a high degree of awareness of the probable falsity of the statements at issue. See Garrison v. Louisiana, supra.

In both Gertz and St. Amant the Supreme Court stated that a mere failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, there must be a high degree of awareness of probable falsity.

In Airlie the court held: “while it is well established that a failure to investigate, without more, is insufficient to give rise to liability, once one has undertaken to conduct an investigation he should not be permitted to ignore with impunity the fruits of that investigation.” 337 F.Supp. at 427-28.

That such “fruits” and a high degree of awareness existed in the instant case is supported by the record. Moreover, as pointed out in St. Amant:

The defendant in a defamation action brought by a public official cannot, . automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith wili be unlikely to prove persuhsive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. [Emphasis supplied.]

390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267-68. This recognition by the United States Supreme Court of the danger of anonymous sources is most persuasive.

The decisions in one lower federal court and two state courts are informative with reference to the standards governing the reliability of sources. In Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969) cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970), the defendant published an issue of Fact magazine a few months before the 1964 election. The issue was heralded as “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater.” The court found that among other things the author added innuendos to some quoted statements. The court stated that “[Repetition of another’s words does not release one of responsibility if the repeater knows that the words are false or inherently improbable, or there are obvious reasons to doubt the veracity of the person quoted or the accuracy of his reports.” 414 F.2d at 337. [Emphasis supplied.] In contrast to Ginzburg’s reliance on newspaper articles, books and campaign literature, the reliance in the instant case was upon an anonymous source — surely worse.

In Snowden v. Pearl River Broadcasting Corp., 251 So.2d 405 (La.App.) cert. denied 259 La. 887, 253 So.2d 217 (1971) the court found actual malice. The defendant/radio station had a public interest program which members of the public could call. This was an “open mike” broadcast for which there existed no monitoring equipment or delay devices to edit out offensive comments. An anonymous caller stated that the plaintiffs were in the dope business. The court held that what the station did is the same as “if it received defamatory material from an anonymous source, and broadcast the report without attempting verification.” 251 So.2d at 410. [Emphasis supplied.] The court went on to hold that:

The direct broadcast of . anonymous [the caller chose not to identify himself] defamatory material, without the use of any monitoring or delay device, is no less reprehensible [than using an anonymous source].

251 So.2d at 410.

In Mahnke v. Northwest Publications, Inc., 280 Minn. 328, 160 N.W.2d 1 (1968) the court found actual malice to lie in a libel action. A rewrite man for a newspaper had written a story with only limited verification attempted and even some negative verification present, i. e., a detective had stated that there had been a misunderstanding in the case. The court held:

[The] [defendant, prior to publication of the article, relied on one irate person as a source of information, whereas defendant/New York Times [in New York Times Co. v. Sullivan ] relied on many reliable people, obtained certification that the individuals had consented to the use of their names in the advertisement claimed to be libelous, and made the determination prior to publication that the advertisement did not contain attacks of a personal character.

160 N.W.2d at 14. [Emphasis supplied.]

The lesson of Ginzburg, Snowden and Mahnke is that anonymous or otherwise suspect sources should be verified with care. Otherwise, as noted in St. Amant, recklessness may be found.

Appellees rely upon Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966) cert. denied 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967) for the proposition that the record in the instant case does not support a finding that Halloran published the defamatory material with a high degree of awareness of its probable falsity. With this we disagree. In Keogh the District of Columbia Circuit Court of Appeals reversed the district court which had denied the defendant/newspaper’s motion for summary judgment. The circuit court held that a genuine issue of material fact had not been raised and that, accordingly, summary judgment was proper. The plaintiff (a United States Congressman) argued that the “character and content of the publication itself” was sufficient to show actual malice in light of the newspaper’s failure to check the accuracy of the allegedly defamatory materials (syndicated columns by Drew Pearson) before publication. The court held — and no more — that reckless disregard of the truth could not be premised upon the failure of one of the many newspapers carrying Pearson’s column to independently investigate the facts therein.

In the recent Florida case of Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla. 4th DCA 1976) cert. denied 434 U.S. 943, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977) the jury returned a verdict in the amount of $114,-000 (compensatory) and $100,000 (punitive). The Fourth District Court of Appeal affirmed, holding that the evidence sustained a finding that a newspaper and its employees exhibited reckless disregard of whether charges against a building official were true or false, i. e., that they published the articles with a high degree of awareness of the probable falsity of the statements involved and with serious doubts as to the truth of the publication.

In Cape Publications the plaintiff/Building Official of the City of Vero Beach was the subject of two articles published in Today newspaper. The gist of the articles was to accuse plaintiff of soliciting a bribe and other improper payments. The court noted that prior to publication of the two articles, defendants were aware of a number of facts which strongly suggested plaintiff’s innocence. For example, the person (Bernard) from whom the bribe was allegedly solicited denied that this had happened. In addition, Bernard’s supervisor (Wilcox), who had originally told Today that Bernard had reported the bribe solicitations to him, was evasive about the entire matter. In addition, the mayor of Indian River Shores, who had purportedly been approached by plaintiff for payments for work which had already been completed, denied that this had happened. The mayor gave one of the defendants copies of relevant files (or told him where they could be obtained) bearing upon the open discussions between plaintiff and the Town Council of Indian River Shores relative to compensation for extra work performed by plaintiff for the town. Also, a neutral professional source who had been contacted by one of the defendant/reporters told that reporter that “he found no basis for any action against appellee and advised [the reporter] not to print any articles on the matter.” Finally, it was common knowledge that one of the major sources of information alleging wrongdoing by the plaintiff had a running feud with the plaintiff.

The court held that the two articles were written “[i]n the face of all those red flags flying.”

Cape Publications is significant authority for a reversal in the instant case. The “red flags” and negative verification level in the instant case were just as pronounced.

We think that a jury might reasonably have found, inter alia :

1. That the statement in the broadcast that the

[U]ndercover probe . . has uncovered serious irregularities with officials who are running those governments . . .

was made without even establishing that an investigation was underway.

2. That although the broadcast referred to “reliable sources” there was, in fact, a completely anonymous and unconfirmed tip.

3. That Halloran violated the standards of his own profession by placing such reliance upon an anonymous source.

4. That Halloran knowingly misled his own superiors as to the reliability of the source.

5. That there was, in fact, no information that Holter had “reportedly resigned . under strong [suspicion] that he has been implicated in [embezzlement] and extortion.”

6. That the claim that “[a] full team of undercover men are looking into . . . was a pure fabrication.

7. That Halloran never had any reliable information that corruption was rife in Redington Beach.

8. That Halloran’s efforts at verification were negative.

9. That the call from the elected female official and Holter’s express and emphatic denial strongly indicated the falsity of the charges.

The directed verdict is set aside and the case remanded for new trial.

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

      . Halloran testified that he meant to say “State Attorney” instead of “State Attorney General.'

      . Inexplicably, Halloran’s impression was that the secretary was not able to reach Mayor Holter. At the time of the trial, the secretary did not remember ever making the call.

      . Halloran admitted at trial that “other than knowing that [Mayor Holter] was resigning” he knew “nothing else other than what the source at 4:15 had told [him].”

      . Halloran stated the basis of his “general impressions” was the constant growth situation in the small beach municipalities coupled with the incumbent difficulties of supervising such growth and the fact that such small municipalities were not so well equipped to handle such sudden growth. Halloran also stated that “news coming out of Washington”, i. e., Watergate, had influenced his general outlook. Hal-loran admitted that he was without any actual information suggesting corruption in the beach communities until he received the anonymous calls. He testified that he “didn’t have anything to substantiate there was any corruption going on.”

      . Cleaver testified that Halloran did not tell him that the source was anonymous.

      . Keller testified that he took three of the calls. Nowhere in Halloran’s testimony is there any mention of this.

      . Keller testified, however, that he received a call from a female who “said she was at that time a commissioner, or had been a commissioner in a beach community . that . there was much problem ... in this beach community, and that there was an ongoing audit. . . Keller believed that this lady gave him her name and that he passed this along to Halloran. The record provides no clue as to whether these constituted two separate calls or were, in fact, one and the same. In his testimony Halloran makes no reference to Keller’s role in receiving any of the calls.

      . Mayor Holter had been mayor of Redington Beach since 1968. He was a retired petroleum engineer who occasionally served as a consultant for a period of two to fifteen weeks for oil refinery construction operations. He received no salary for being mayor, the job being sufficiently casual that in one instance when the sewer pumping station broke down on a weekend he himself went to repair it. In his three campaigns for office, Mayor Holter did no cam-, paigning and received no campaign contributions. Mayor Holter’s reasons for resigning were a combination of health (a bad back) and the fact that his consulting activities kept him away from Redington Beach so much. He testified that he “didn’t feel [he] was giving the town a fair shake by being away.” He had announced his intention to resign on the previous Tuesday night (the 6th of November), the resignation to be effective the first of the next year.

      . After the recordation of Halloran’s story had run, Cleaver (acting as anchorman) did state that Holter would make an on-camera statement the next day.

      . RADIO:

      According to Arbitron (ARB) reports, the following audience listened to WLCY AM and FM on a weekday between October 25, 1973 and November 14, 1973:
      AM: 6-10 a. m. 251,000 persons in any given quarter hour
      AM: 10 a. m.-3p. m. 215 000 persons in any given quarter hour
      FM: 6-10 a. m. 53,000 persons in any given quarter hour
      FM: 10 a. m.-3 p. m. 80,000 persons in any given quarter hour
      With reference to “cume persons” (the estimated number of persons who listened to a station for a minimum of five minutes within a specified day part), the following was estimated:
      AM: 6-10 a. m. 1,842,000 persons
      AM: 10 a. m.-3 p. m. 1,485,000 persons FM: 6-10 a. m. 501,000 persons
      FM: 10 a. m.-3 p. m. 537,000 persons

        TV:

      According to ARB,- the four-week average of Thursdays, including November 8, 1973 shows that 30,000 households (49,000 persons) watched WLCY’s 5:30 broadcast; 28,000 households (44,000 persons) viewed the 11:00 broadcast.
      According to Nielson, 28,000 households (47,-000 persons) watched the 5:30 broadcast; 16,-000 households (24,000 persons) viewed the 11:00 broadcast.

      . After the broadcasts, the radio station referred to the seizure of “reportedly obscene books.” [Emphasis supplied.]

      . Keller testified that stories were frequently killed where an anonymous caller refused to give a name and address.

      . For example, it was pointed out at trial that Halloran — when being deposed — stated that the anonymous source did not actually use the word “embezzlement.” Halloran stated that “he [the source] didn’t come right out and say that.” Halloran related that the source did use the phrase “possibility of extortion.” Halloran maintained that although the source did not specifically name Holter as an embezzler or an extorter, the source merely said that Holter would possibly be involved in the investigation which was looking into embezzlement and extortion. In contrast, Halloran testified at trial that the word “embezzlement” was used.

      . Cf. Menendez v. Key West Newspaper Corp., 293 So.2d 751, 752 (Fla. 3d DCA 1974) (also relied upon by appellees) which cited Keogh for the proposition that “where the issue is recklessness employed in the publication of alleged false and libelous information, that summary judgments should be more liberally granted.” In Menendez, the court affirmed the circuit court’s granting of summary judgment.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. George Frederick SMITH and Frank Melvin Stewart, Appellees.
    Nos. 77-2363, 77-2695.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Rehearing Denied Feb. 14, 1979.

      , G. William Allen, Jr. of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    Ben J. Weaver of Weaver & Weaver, Fort Lauderdale, for appellees.
   DAUKSCH, Judge.

This is an appeal from two post judgment orders granting attorneys fees as costs, in the first instance, and a bond premium for a supersedeas bond appellees had posted, in the second order. As to the order granting the attorneys fees, we must reverse because the judgment which preceded that order did not reserve jurisdiction in the trial court for any future award of past attorney’s fees. Church v. Church, 338 So.2d 544 (Fla.3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). Since the statute which provides attorneys fees in cases such as this requires the award of attorneys fees to be included in the judgment the court had to make the fees a part of the judgment or at least reserve jurisdiction to award the fees upon motion and proof. Section 627.428, Florida Statutes. As has been often stated the statutory award of attorneys fees is in derogation of the common law and such statute must be strictly construed. Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975).

This is not a case similar to Washington v. Rodgers, 201 So.2d 636 (Fla. 4th DCA 1967) where the request for attorney’s fees was made within the time after judgment for the filing of a motion for rehearing. See also McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978).

The award of the bond premium as costs was also error. The bond premium was not incurred in the action in which those costs were awarded. The appellee had first sued the appellant for its alleged failure to defend a lawsuit. As a result of appellants failure to defend appellee, it is alleged appellee was required to post a su-persedeas bond and pay a premium. If all of this is true then the bond premium is an item of damages in the lawsuit of appellee versus appellant, not an incidental cost in that lawsuit.

The order awarding attorneys fees and the order awarding the bond premium as costs are both reversed.

REVERSED.

CROSS and LETTS, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    ALFAR CREAMERY COMPANY and U. S. Fidelity & Guaranty Company, Appellants, v. Warren G. WILLIAMS, Jr., Seaboard Airline Railroad Company, a Foreign Corporation authorized to do business in the State of Florida, and George Wilbur Eaddy, Appellees.
    No. 77-2032.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Rehearing Denied Feb. 9, 1979.
    Walter E. Beisler of Anthony J. Beisler, P.A., Fort Lauderdale, for appellants.
    Arthur E. Barrow of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appel-lees.
   DOWNEY, Chief Judge.

Appellee, Warren G. Williams, Jr., was injured by Seaboard Airline Railroad Company while working in the course and scope of his employment with Alfar Creamery Company. Eventually Williams sued Seaboard and United States Fidelity & Guaranty Company, the workmen’s compensation carrier, filed a notice of claim of lien for payment of workmen’s compensation benefits to Williams and served all parties with copies of the notice. The notice was never recorded.

After extended litigation Williams successfully recovered a judgment against Seaboard. A motion for equitable distribution filed on behalf of United States Fidelity and Guaranty Company was denied by the trial court because the compensation carrier’s notice of lien was not recorded. It is that order we have for review.

Section 440.39(3)(a), Florida Statutes (1977), provides in pertinent part:

“. . Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the Court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law.” (Emphasis supplied.)

The statute in question provides that a compensation carrier (or employer if self insured) is entitled to an equitable distribution of the injured employee’s award if the carrier files a notice of lien in the litigation and records the notice. Here, the parties were all on notice of the compensation payments to the employee so there is no lack of notice. Nonetheless, in Cook Motor Company v. Vaughn, 189 So.2d 536 (Fla. 1st DCA 1966), a case in which the carrier had not filed a notice of payment of compensation in the suit, the court held the carrier was not entitled to the benefits of Section 440.-39(3)(a) even though all parties had knowledge of the existence of the payment of compensation to the employee. Thus, it appears that the fact the interested parties have actual knowledge of the existence of the potential claim does not suffice. This position can be justified because the carrier’s subrogation rights are a creature of statute and in order to be entitled to the benefits of the statute the claimant must conform to the requirements of the statute. As the court stated in Cook, supra :

“. . .In 1951 the legislature amended Section 440.39, Florida Statutes, F.S.A. by granting to the employee an opportunity to control his lawsuit. By that amendment the injured employee was afforded the right to collect workmen’s compensation benefits and at the same time institute suit against a third party tort-feasor. If the injured employee filed suit, the employer or his insurance carrier had the right to file in that suit a notice of payment of compensation benefits, and the same by operation of law constituted a lien upon any judgment recovered to the extent that the court determined to be their pro rata share for the benefits paid. This 1951 amendment, which is retained in the statutes today, gave the injured employee the right to control his own law suit against the third party tort-feasor and provided for limited subrogation on an equitable basis. The compensation insurer has no right of subrogation except as granted by statute, therefore in order for it to avail itself of the benefits conferred by statute, it must comply with the rules, regulations, burdens and conditions provided by law. The conditions prerequisite for subrogation in such cases are those set forth in the first paragraph under subsection 440.39(3) — that is, filing in the suit notice of payment of compensation and serving notice of payment of compensation upon all parties to the suit.” 189 So.2d at 538.

Accordingly, since the appellant insurance carrier failed to comply with the statute by not recording its claim of lien we find no error demonstrated in the order under review.

AFFIRMED.

DAUKSCH and MOORE, JJ., concur.


author: PER CURIAM. DOWNEY, Chief Judge,

text:
    John Robert TERRY and Helen L. Terry, Appellants, v. BARNETT BANK OF WINTER PARK, N. A., Appellee.
    No. 77-516.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Rehearing Denied Jan. 26, 1979.
    Raymond Dwyer and Steven R. Berger, of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellants.
    J. Thomas Cardwell and Michael P. McMahon, of Akerman, Senterfitt & Eid-son, Orlando, for appellee.
    John W. Hamilton of Ware & Hamilton, St. Petersburg, for amicus curiae, Florida Bankers Assn.
   PER CURIAM.

AFFIRMED.

CROSS and LETTS, JJ., concur.

DOWNEY, C. J., dissents, with opinion.

DOWNEY, Chief Judge,

dissenting:

Appellee, Barnett Bank of Winter Park, sued appellants, Mr. and Mrs. Terry, on ■three promissory notes. Appellants filed numerous affirmative defenses to the complaint and a three count counterclaim, seeking damages against the Bank. The trial court dismissed appellants’ counterclaim for failure to state a cause of action, struck a number of appellants’ affirmative defenses and entered summary judgment for appel-lee. The orders dismissing the counterclaim and striking the affirmative defenses and the granting of summary judgment and final judgment are the judicial acts assigned as error on this appeal. Thus, we are concerned here primarily with the adequacy of pleading issues and not with the merits of this case. Accordingly, a recitation of the facts as they are alleged in the counterclaim is appropriate.

In December 1971 Mr. Terry (hereinafter Terry) presented a written proposal to ap-pellee (The Bank) suggesting that he be allowed to borrow $450,000 at the Bank’s base rate of interest, which then was 5%. The Bank was apprised of the purpose of the loan which was to allow Terry to purchase Barnett Mortgage Trust Bonds at a price which would yield an income of approximately 8% per annum. These bonds were to collateralize the loan. The suggestion was approved and between December 30, 1971, and January 5, 1972, Mr. and Mrs. Terry executed three promissory notes to-talling $445,807.31 and pledged various shares of stock and debentures with The Bank as collateral. A large block of the collateralized stock was subsequently sold and 4000 Barnett Mortgage' Trust Bonds were purchased to replace the stock.

Commencing January 19, 1972, The Bank voluntarily undertook to notify Terry of changes in The Bank’s base lending rate and The Bank continued this practice until May 1973. During that period The Bank notified Terry of eight different interest rate changes. After being notified in May 1973 that the interest rate was increased to 7% Terry received no further interest rate change notices from The Bank. However, sometime after May 1973, as a result of new guidelines on interest rates being issued by the Committee on Interest and Dividends of the Cost of Living Council, unbeknown to the Terrys, The Bank reclassified the Terry Loan by changing the interest rate being charged from the base lending rate charged by The Bank to the “Big Prime” rate which is the rate of interest charged to large borrowers who do business with the banks in the big national money centers. Shortly after this reclassification the Big Prime rate commenced to rise until on August 29, 1973, it reached 9%%.

The Terrys allege that they came to rely upon notification from The Bank of changes in the interest rate. The Terrys’ plan was that, upon notification that the interest rate of The Bank approached the yield the Terrys received from the Barnett Mortgage Trust Bonds, the bonds would have been sold and the debt to The Bank paid with a profit remaining for the Terrys. However, the counterclaim alleged, The Bank ceased notifying the Terrys after May 1973 of changes in the interest rate, reclassified their loan, and as a consequence the Terrys believed their interest was fixed at 7%. As a matter of fact, the interest rate charged the Terrys rose to a point where the difference between the loaned and invested rates no longer provided a reasonable return.

The thrust of Count I of the Terrys’ counterclaim is that The Bank voluntarily assumed a duty by sending the Terrys notice of the interest rate change over a period of some sixteen months and that the Terrys relied upon that course of conduct; The Bank having once assumed performance of that duty was required to use due care and, if The Bank chose to stop so performing, it was required to notify the Terrys. There is no contention that The Bank was required in the first instance to notify the Terrys of these interest rate changes; that course of conduct was voluntarily assumed by The Bank, as appellee describes it, “as a courtesy.”

Appellee counters appellants’ argument by pointing out that The Bank had never agreed to notify the Terrys of rate changes; it had no duty to do so; and if it gratuitously commenced notification it was entitled to abandon the practice whenever it chose to do so.

The authorities seem to hold that one who, with no obligation to do so, voluntarily assumes a duty must perform that duty with reasonable care and he may cease to perform that duty at any time after giving the recipient thereof reasonable notice of his intention to no longer perform the duty.

In Taylor v. Roosevelt Irr. Dist., 72 Ariz. 160, 232 P.2d 107 (1951), an Irrigation District without any duty to do so erected a fence around a canal. The fence kept plaintiff’s cattle out of the canal and, thus, plaintiff came to rely on that protection. The District allowed the fence to be partially destroyed without giving plaintiff any notice thereof. Plaintiffs’ cattle drowned in the canal. In holding that plaintiff’s complaint stated a cause of action, the court said:

“It is the law that if one who is under no duty to another to protect him in person or property voluntarily assumes such a duty, he must perform it in a reasonably careful manner, and while he is not bound to continue that duty permanently he must see that reasonable notice is given if he intends no longer to perform it.” 232 P.2d at 110.

In Raffa v. The Dania Bank, 321 So.2d 83 (Fla. 4th DCA 1975), The Bank repossessed Raffa’s automobile because she was delinquent in her loan payments. Raffa sued The Bank for conversion contending, among other things, that The Bank had improperly repossessed the car without having first given her specific notice of the overdue debt or of their intention to retake the automobile. The rationale of this contention was that The Bank had accepted other late payments without repossessing the automobile, and thus before changing its course of conduct she was entitled to notice. In holding that such circumstances created an issue of fact precluding summary judgment, the court pointed out:

“In Ford Motor Credit Co. v. Waters, Fla.App.1973, 273 So.2d 96, 99-100, the Court, following Commercial Credit Co. v. Willis, 126 Fla. 444, 171 So. 304 (1936), held that past acceptances of late payments without repossession might give rise to a right by the purchaser to rely upon that course of conduct and a concomitant duty by the creditor to notify the buyer prior to his changing the pattern by retaking the property.” 321 So.2d at 85, 86.

Finally, Prosser, Law of Torts, Ch. 10, § 54 (3rd ed. 1964), concludes that one who voluntarily assumes a duty may discontinue his performance upon notice of his intention to do so.

Appellee contends the foregoing authorities are not applicable here but it seems to me that they are helpful. I feel that a cause of action was stated in Count I of the counterclaim based upon the foregoing principle. The motion to dismiss admitted the allegations of the counterclaim and, thus, the motion to dismiss Count I should have been denied. All of appellant’s arguments regarding the other two counts of the counterclaim are without merit.

Turning now to the stricken affirmative defenses, it appears that some of them were improperly stricken.

Defendants’ third affirmative defense in their amended answer filed January 12, 1976, alleges in substance that the plaintiff at all times retained possession of the proceeds of the alleged transaction, and further retained the collateral security “to the value of and exceeding the amount of the alleged indebtedness.” I gather from ap-pellee’s brief that on the facts of the case appellee feels appellants will not be able to prove that defense; but that, of course, is not the test on the motion to strike. As pleaded it appears to state a good defense.

In affirmative defense No. 12 it is alleged that no consideration was ever received by Mrs. Terry — Mr. Terry also alleges the same affirmative defense. Appellee argues that, if her co-maker, Mr. Terry, received consideration then Mrs. Terry is bound. But on motion to strike this pleading where both Mr. and Mrs. Terry allege lack of consideration, it seems to me appellee’s argument is premature and the defense is good.

By affirmative defense No. 13 Mrs. Terry alleges she was simply an accommodation party for The Bank to clear title to the collateral and was not intended to be liable on the instrument. Once again at this stage of the pleadings this defense must stand. Gehrig v. Ray, 332 So.2d 703 (Fla. 1st DCA 1976).

Appellants also complain that the affidavits they filed in opposition to The Bank’s motion for summary judgment show they have another affirmative defense involving a violation of the U.C.C. in that The Bank transferred the collateral in question without notifying the Terrys. This matter has never been presented to the trial court on motion to file further amended affirmative defenses; hence, it is premature for us to pass on this question.

Accordingly, I would reverse the judgment appealed from and remand the cause with directions to reinstate Count I of the appellants’ amended counterclaim and affirmative defenses Nos. 3, 12 and 13.

Under these circumstances the summary judgment should be vacated without prejudice, of course, to further motion for summary judgment after the pleadings have been settled.


text:
    Suetta L. ANDREWS, Petitioner, v. ALLSTATE INSURANCE COMPANY et al., Respondent.
    No. 78-837.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for petitioner.

      Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for respondent Florida Farm Bureau Ins. Co.
   DOWNEY, Chief Judge.

By Petition for Writ of Certiorari we are asked to review an order of the Circuit Court disqualifying the law firm of Montgomery, Lytal, Reiter, Denney & Searcy as counsel for the petitioner from representing petitioner in the litigation.

As a result of the death of her husband in an automobile collision, petitioner instituted a wrongful death action against the driver of the other vehicle (a station wagon), the owner thereof, and their respective insurance carriers. In addition, Florida Farm Bureau Mutual Insurance Company, the deceased’s uninsured motorist carrier was made a party defendant. On the eve of trial counsel for Florida Farm Bureau filed a motion, joined in by the owner and driver of the station wagon, to disqualify said law firm as counsel for the plaintiff-petitioner on the grounds that said counsel had previously represented the owner of the trailer and its ■ carrier and in that capacity had interviewed the driver and owner of the station wagon under circumstances in which the driver and owner of said vehicle thought that said law firm represented them. Statements were taken from the driver and owner of the station wagon by Mr. Lytal and a material portion of the vehicle was removed for analysis. The movants alleged it was a breach of ethics for said firm now to appear on behalf of the petitioner as plaintiff in said litigation, a position obviously adverse to the defendants. The petitioner contended that Mr. Lytal never advised the owner and driver of the station wagon that he represented them. Petitioner acknowledged that said firm had represented the owner of the trailer and its carrier, but showed that the firm had been released by them to handle this litigation for petitioner.

The trial court heard the testimony of the parties and their witnesses and entered the order complained of on- March 17, 1978, disqualifying counsel for petitioner in this cause.

The Petition for Writ of Certiorari alleges the trial court departed from the essential requirements of law in ordering her counsel’s disqualification because the prime mover in this effort to disqualify her counsel was Florida Farm Bureau, which has no standing to assert the disqualification. This argument may well have merit, but we can not reach that question because the motion which gave rise to the disqualification was joined in as well by the owner and driver of the station wagon and the order can be upheld based upon their standing and interest.

We reiterate that the order under review is the order of disqualification dated March 17, 1978. It is apparent from the petition, response and appendix filed in this court that a petition for rehearing was filed in the trial court and the court was advised that the owner and driver of the station wagon had withdrawn their joinder in the motion for disqualification. The record indicates that the withdrawal was executed the same day the order under review was entered, but that the court was unaware of the withdrawal when it signed the order under review. The trial court heard argument on the petition for rehearing and we presume it was denied although such an order is not in the record.

The record before the trial court when the order of March 17, 1978, was entered reveals no actual evidence of any impropriety on the part of petitioner’s counsel. However, the professional responsibility of a lawyer goes further; it encompasses even the appearance of professional impropriety. We certainly cannot say that the trial judge departed from the essential requirements of law in granting the motion for disqualification based upon the unusual factual situation presented to him. The record reflects that the two individuals whose statements were taken (the owner and driver of the station wagon) thought Mr. Lytal represented them. Thus, when Lytal showed up representing the petitioner-plaintiff one must admit the appearance of conflict existed. We recognize that it is a matter of no small consequence to require a lawyer to withdraw from a case, but with the climate existing today vis-a-vis the Bar’s image in the public eye, appearances should be more closely guarded than ever.

Accordingly, the Petition for Certiorari is denied.

DAUKSCH and MOORE, JJ., concur.

      . Canon 9 of the Code of Professional Responsibility.


author: PER CURIAM. LETTS, Judge,

text:
    Marie H. WASHBURN, Individually, and as Personal Representative of the Estate of John Washburn, Deceased, Appellant, v. AETNA LIFE INSURANCE COMPANY, Appellee.
    No. 77-1850.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Rehearing Denied Feb. 2, 1979.
    Kevin A. Malone of Law Offices of Krup-nick & Campbell, P.A., Fort Lauderdale, for appellant.
    Eugene L. Heinrich of McCune, Hiassen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED.

ANSTEAD and MOORE, JJ., concur.

LETTS, J., dissents, with opinion.

LETTS, Judge,

dissenting:

I dissent.

This appears to be a case of first impression in Florida.

The facts show that the deceased’s employer entered into a master life insurance contract providing death benefits for all its employees. Thereunder each employee earning over $20,000 a year was entitled to substantially greater benefits. The deceased’s estate claims he was earning over $20,000 while the insurance company contends his total earnings under the contract were less than $20,000.

There are other facets, but my dissent distills to the question of whether overtime pay should be considered in arriving at the (to quote the policy language) “rate of basic earnings.”

My colleagues are of the opinion that the quoted phrase excludes overtime and that the words “rate of basic earnings” in their plain and ordinary meaning cannot include anything other than the originally agreed upon weekly compensation. The principal case relied on for this view is Lake v. Travelers Insurance Co., 31 Mich.App. 688, 188 N.W.2d 80 (1971); however that case was not construing earnings but rather salary or wages. The distinction is important, as will be seen hereafter.

I would agree that nontaxable fringe benefits might not be encompassed by the term “basic earnings.” However, that which an employee is entitled to, as a direct result of services rendered and taxable to him, is surely a part and parcel of his basic earnings and the case of McIntosh v. Aetna Life Insurance Company, 268 A.2d 518 (D.C.Ct.App. 1970) is in complete agreement with my view. On any conceivable form on which a statement of earnings is required, whether it be the IRS 1040 version, or a loan application, any citizen will enter his total gross income based on his W2s. In this case, if the deceased were alive to be asked: “Basically, how much did you earn last year at Pompano Manufacturing Co.?” It is highly unlikely he would answer $19,-000 when his actual total was $20,200. Most wage earners have to work overtime and most of them must be paid for it. Overtime is a basic accompaniment to employment and an economic must, in the scheme of “basic earnings.” Accordingly, to exclude it here is unrealistic.

The appellees argue that while the McIntosh case construes “basic earnings” in the way that I do now, it is to be distinguished from the case at bar which adds the word “RATE of basic earnings.” I cannot find such magic in the addition of the word “rate.” If a layman is seeking a loan and is asked on a bank application form: “What is your rate of basic earnings?” is he going to give a different answer than he would on the same form if the question was instead, “What are your basic earnings?” I think not.

The word “rate” should not be the pivotal one. The one word I would choose is “earnings.” This is a dissent and too long a dissertation is not productive. Suffice it to say, there is unchallenged authority agreeing that the word “earnings” embraces a larger class of credits than the term “wages” or “salary” 14 Words and Phrases p. 41. Likewise, “earnings mean any economic good to which a person becomes entitled for rendering economic service.” Emerick v. Momaco and Sons Motor Sales, Inc., 145 Conn. 101, 139 A.2d 156, 157 (1958), emphasis supplied. See also 87 A.L.R., Annual Earnings, 958 and the case of Pless v. Franks, 202 Tenn. 630, 308 S.W.2d 402 (1957).

The insurance industry prepared this form and if it wishes to avoid paying death benefits on overtime, and ' the like, why doesn’t it call a spade a spade and say so? For example:

rate of basic wage or salary excluding overtime .

If the industry does not choose to say exactly what it means, I am of the opinion that the dictionary’s normal comprehension of earnings (whether the words basic or rate are tagged on or not) should prevail against the draftsmen of any insurance contract. Rambin v. Continental Casualty Company, 186 So.2d 861 (Ct.App. 2nd Cir. La. 1966).

I would reverse.

      . It was also reversed, without opinion by the Michigan Supreme Court, 385 Mich. 761, 188 N.W.2d 578 (1971).

      . Websters Third New International Dictionary, Unabridged (1966) defines earnings as: “something (as wages or dividends) earned as compensation for labor or the use of capital.”


author: BARKDULL, Judge.

text:
    TOUCHE ROSS & COMPANY, Appellant, v. SUN BANK OF RIVERSIDE and Sun Bank of Midtown, Appellees.
    No. 77-2465.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Rehearing Denied Feb. 5, 1979.

      Berkowitz, Lefkovits & Patrick, Birmingham, Ala., Kelly, Black, Black & Earl, Daniels & Hicks and Mark Hicks, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Miami, for appellees.
    Before BARKDULL and - KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Touche Ross & Company, defendant-third party plaintiff in the trial court, appeals an order dismissing its third party complaint against the appellees, based on a theory of contribution. The appellees cross-assign as error the failure of the trial court to dismiss that count in the third party complaint seeking indemnity against them.

Cedars of Lebanon Hospital, the original plaintiff in the trial court [not a party to this appeal], filed an action for damages against Touche Ross based upon an alleged breach of duty in providing accounting services to the hospital. Touche Ross was retained by the hospital as its independent accountants and auditors for the years in question. The latter had the duty of auditing the financial statements of the hospital and advising the hospital of any problems discovered in the course of those audits.

During the period in question, Sanford Bronstein, Chief Executive Officer of Cedars, was engaged in the fraudulent misappropriation of assets belonging to the hospital. Bronstein was later charged and convicted of embezzling in excess of $850,-000.00 from Cedars. Touche Ross was sued by the hospital for failing to discover that Bronstein was engaged in criminal acts to defraud the hospital. Touche Ross, in turn, filed a third party complaint against the appellees, charging them with intentional participation and aid. in the fraudulent scheme of Bronstein. The appellee banks held the principal accounts of the hospital, and it was alleged that Bronstein could not have wrongfully appropriated the monies from those accounts without the cooperation of the banks.

An amended third party complaint by Touche Ross contained two counts against the banks: one for contribution and one for indemnity. The banks moved to dismiss the entire third party complaint. The trial court granted the banks’ motion as to the contribution claim and dismissed that claim with prejudice, and denied the motion to dismiss as to Touche Ross’ indemnity claim. Touche Ross appeals the dismissal of its claim for contribution with prejudice. The banks cross-assign the failure to dismiss the claim for indemnity.

We affirm upon the authority of VTN Consolidated, Inc. v. Coastal Engineering Associates, Inc., 341 So.2d 226 (Fla. 2d DCA 1976), cert. denied 345 So.2d 428 (Fla.1977), which clearly recognizes the inapplicability of the facts sub judice in the following manner:

* * * * * *
“The doctrine of contribution is one of equality in bearing a common burden. “In Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), the Supreme Court set forth the rationale behind the majority of states receding from the principle of no contribution when it stated, on page 390:
‘The rationale for this change of view is generally explained that principles of justice require that in the case of a common obligation, the discharge of it by one of the obligors without proportionate payment from the others, gives the latter an advantage to which he is not equitably entitled. * * *’
“Further, in order for an additional defendant to be brought in as a party, the claim for contribution must be related to the original cause of action — it must arise out of the same transaction or series of transactions. 18 Am.Jur.2d, Contribution, Sec. 73. It can hardly be said that VTN and COASTAL are liable under the same set of circumstances, let alone a series of circumstances, nor do they share a common burden.”
$5 * * * * * •

Clearly, Touche Ross and the banks are not exposed to Cedars “under the same set of circumstances * * * nor do they share a common burden.” Obviously, the duty and conduct of the banks in their relationship to Cedars is totally separate and apart in time and substance from that owed to Cedars by Touche Ross.

Whereas it may be argued that portions of the dollar damages sustained by Cedars arising out of the alleged conduct of both Touche Ross and the banks overlap, it is clear that such damages were in no way the result and/or outcome of either joint or concurrent actions on the part of the parties hereto. It is readily apparent that Touche Ross contends that the banks are responsible for having permitted the dollar loss through negotiation and honoring of the involved checks, while it patently appears that Touche Ross is exposed to responsibility not as a result of permitting the aforesaid loss and/or even causing the aforesaid loss but in failing to discover the aforesaid loss. There is neither joint nor concurrent tortious action in the conduct giving rise to the alleged damages nor is there a joint or concurrent loss as a result of the alleged conduct.

Therefore, for the reasons above stated, the order under review by the appeal of Touche Ross & Company be and the same is hereby affirmed. The cross-assignment of error be and the same is hereby stricken without prejudice to the appellees to raise said issue in subsequent proceedings to. final judgment.

Affirmed.

      . Cross-assignment of error is not permitted in this instance, this being a common law case. See: McEwen v. Growers Loan & Guaranty Co., 116 Fla. 540, 156 So. 527 (1934); Barry v. Willard, 117 Fla. 236, 157 So. 669 (1934). In response to this court’s request for additional briefs on the question of the jurisdiction of this court to review an order of the trial court dismissing with prejudice one count of a multi-count complaint, all parties to this appeal argue in favor of its being appealable. They take the position that pursuant to Duncan v. Pullum, 198 So.2d 658 (Fla. 2d DCA 1967) and Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974) and their progeny that indemnity and contribution are totally separate and distinct legal doctrines, neither of which is interdependent upon the other and, therefore, ap-pealable. This legal distinction between indemnity and contribution is recognized in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977) and Firestone Tire and Rubber Company v. Thompson Aircraft Tire Corporation, 353 So.2d 137 (Fla. 3d DCA 1978). It appearing that the counts are based on a different factual basis, we have determined to entertain this appeal.

      . Bronstein v. State, 355 So.2d 817 (Fla. 3d DCA 1978).


author: PER CURIAM.

text:
    Bernard Webster SMILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1106.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Rehearing Denied Feb. 5, 1979.
    Pollack, Spain & O’Donnell and John Li-pinski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed upon the rule stated in Skold v. State, 263 So.2d 627 (Fla.3d DCA 1972).


text:
    PALM BEACH HEIGHTS DEVELOPMENT AND SALES CORPORATION, Appellant, v. William HORVATH and Elizabeth Horvath, his wife, Appellees.
    No. 78-1951.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Rehearing Denied Feb. 5, 1979.
    Mann & Dady and Lawrence D. Winson, Miami, for appellant.
    Spear & Hoffman and L. Joseph Hoffman, Coral Gables, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Reflex, N. V. v. UMET Trust, 336 So.2d 473 (Fla.3d DCA 1976).


author: DAUKSCH, Judge. ANSTEAD, Judge,

text:
    STATE of Florida, DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF ANIMAL INDUSTRY, Appellant, v. Marjorie DENMARK, Ansel A. Wittenstein, etc., et al., Appellee.
    No. 77-1721.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 1979.
    Rehearing Denied Feb. 8, 1979.
    Robert A. Chastain, Dept, of Agriculture and Consumer Services, Tallahassee, for appellant.
    Ellis Rubin, Law Offices of Ellis Rubin, Miami, for appellee.
    Dan Chappell, Florida Thoroughbred Breeders’ Ass’n, Miami, amicus curiae.
   DAUKSCH, Judge.

The trial court enjoined the appellant from enforcing certain of its regulations against appellees and their horses. These regulations have to do with the detection, identification and quarantine of horses which show a positive reaction to the Cog-gins Test for Equine Infectious Anemia (EIA). This test is also known as the Agar Gel Immunodiffusion Blood Test (AGID) and its purpose is to determine whether the tested animal has EIA. The trial judge determined from the testimony of expert witnesses that the test does not show the presence of EIA but merely the presence of antibodies in the bloodstream. It is the position of the appellant that the antibodies are only present in those horses which are infected with the deadly EIA virus.

This all began with the enactment of Section 585.671, Florida Statutes, (1975). The statute was from an act of the legislature in 1963.

It is obvious from the preamble to the act the legislature deems EIA, also called Swamp Fever, to be a threat to the horse industry and economy of the State.

It is within the police power of the State to enact laws to prevent the spread of infectious or contagious diseases. Conner v. Carlton, 223 So.2d 324 (Fla.1969), app. dismissed, 396 U.S. 272, 90 S.Ct. 481, 24 L.Ed.2d 417 (1969), reh. denied, 397 U.S. 929, 90 S.Ct. 900, 25 L.Ed.2d 110 (1970); Campoamor v. State Live Stock Sanitary Board, 136 Fla. 451, 182 So. 277 (1938).

The legislature may delegate rule making authority to an administrative board to assure the complete will of the people is carried out. Campoamor v. State Live Stock Sanitary Board, supra.

In fact, it would be an endless, and nigh impossible, task for the legislature itself to see to each and every necessary regulation which is formulated to implement and administer the laws passed. Therein lies the purpose and authority of the legislature and the executive.

The question on appeal is whether the court has the authority in this case to examine the foregoing process of attempting to control swamp fever and determine its validity. That is, was it proper for the trial judge to take evidence in a contested hearing and from that evidence find that the AGID test shows only the presence of antibodies and not the presence of the disease and then declare “the rules and regulations do not have a reasonable basis in fact; thus, said rules are not a reasonable exercise' of administrative discretion.”

Without reciting all of the evidence suffice it to say there was definite conflict among the witnesses as to the interpretation to be given a positive reaction to the AGID test. Some of the evidence supported the trial judge who found the test merely showed the presence of the antibodies in the blood of the tested horse but did not show the presence of the virus. Other evidence showed the antibodies to be specific to EIA and the appellant determined this to conclusively show the presence of the disease. The appellant offered evidence that the United States Department of Agriculture and at least forty other states officially recognize the AGID test as an identifier of EIA. Finally, the appellant offered evidence to show the horse industry, through racing, provides economic benefit to the State and the disease would adversely affect that economic benefit if left uncontrolled.

It is not within the province of the court to interfere with the judgment of the legislature and its properly delegated authority, absent a clear showing that the subject of the statutory enactments was outside the power of the legislature, or that the rules and regulations promulgated under the statutes were arbitrary or unreasonable or not consistent with the mandate of the legislature. Askew v. Cross Key Waterways & Askew v. Postal Colony Co., Inc., (Fla. S.Ct. Cases No. 52,251 and 52,252, Opinion filed November 22, 1978); Conner v. Carlton, supra.

REVERSED.

DOWNEY, C. J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the majority’s conclusion that the regulations enacted by the Department of Agriculture are valid. The trial court found that the regulations:

cannot be supported upon any rational basis of fact and that there is no factual basis for such rule and regulation.

Among the witnesses presented was Dr. Leroy Coggins, who devised the Coggins test for detecting the disease. He specifically testified that the test reveals the presence of the disease. In addition, the trial court, in effect, rewrote the regulations by providing that appellees’ horses would be conclusively presumed to be free of equine infectious anemia if appellees secured a veterinarian’s statement to that effect. The Florida Supreme Court has stated:

An examination of the many authorities of texts on this question reveals a consistent attitude of the courts that judicial intervention with administrative action is justified only in those instances where the invalidity of the administrative act is not subject to reasonable differences of opinion.

Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961).

Under current Florida law I am not even certain that the appellees had the right to proceed in a declaratory judgment proceeding when an administrative remedy was also available. School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977).

      . Chapter 63-422
      Senate Bill No. 760
      AN ACT authorizing a program for the control and eradication of infectious anemia and piro-plasmosis of horses in Florida; prescribing the duties of the commissioner of agriculture; providing for the making of rules and regulations and employment of personnel to carry out the purposes of the law; providing for the conduct of research for the purpose of developing and effectuating improved methods of diagnosis, control and eradication; making an appropriation and providing for an effective date.
      WHEREAS, the diseases infectious anemia (swamp fever) and piroplasmosis (tick fever) of horses have been diagnosed in Florida at an alarming rate during the past year; and
      WHEREAS, the detection of equine piroplas-mosis in Dade County, Florida, in September, 1961, represents the first time that this foreign disease has ever been found within the United States; and
      WHEREAS, more than one hundred thirty cases of piroplasmosis, a form of infectious anemia, have been diagnosed in Dade, Bro-ward, Palm Beach, Hillsborough and Orange counties since this date; and
      WHEREAS, infectious anemia and piroplas-mosis of horses are of such nature that horses which do recover remain as carrier animals for an indefinite period, and as such pose a threat to other horses exposed to them; and
      WHEREAS, little information has been developed concerning the diagnosis, cure and prevention of these diseases; and
      WHEREAS, the existence of these diseases poses a threat to Florida’s equine industry, which includes the breeding and racing of thoroughbred and quarter horses within the state, and represents a deterrent to owners of horses outside Florida who wish to race in this state; NOW, THEREFORE,

        Be It Enacted by the Legislature of the State of Florida:

      Section 1. The Commissioner of Agriculture shall formulate a program and promulgate all rules and regulations necessary for the successful implementation and administration of a comprehensive program for the control and eradication of infectious anemia and piroplas-mosis within this state, and for the conduct of research and experimentation incidental thereto.
      Section 2. In the discharge of this duty, the commissioner shall have the power:
      (a) To employ such persons and to make such contracts as are necessary to carry out the purpose of this law.
      (b) To negotiate with officials of institutions of research and to make such contracts as are necessary for the conduct of research for the purpose of developing and effectuating improved methods of diagnosis, control and eradication of infectious anemia and piroplasmosis. Toward this end he may employ such competent guidance as he deems necessary in negotiating said contracts.


author: BOOTH, Judge.

text:
    Karl Barry MASTERS and Aetna Casualty & Surety Company, Appellant, v. Latona LESTER, Appellee.
    No. KK-304.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Rehearing Denied Feb. 14, 1979.

      Robert O. Wilhelm, Jacksonville, for appellant.
    Wayne Hogan, Jacksonville., for appellee.
   BOOTH, Judge.

This cause is before us on interlocutory appeal from the.order of the Circuit Court in Duval County, granting partial summary final judgment in favor of appellee on her claim for uninsured motorist coverage. The sole question presented is whether the trial court correctly rules that amounts of insurance paid to the plaintiff for liability and for personal injury protection would not be set off against the available uninsured motorist coverage.

The facts are that plaintiff Lester was injured while a passenger in her own automobile which was being operated with her consent at the time of the accident by defendant Karl Barry Masters. Plaintiff’s insurer, Aetna Casualty & Surety Company, afforded liability coverage for Masters under the omnibus clause of plaintiff’s policy and paid plaintiff the $10,000 liability limits of that policy. Personal injury protection benefits were also paid plaintiff by her insurer in the amount of $5,000. Plaintiff then claimed uninsured motorist coverage which was determined by the court to be $20,000 in amount.

The trial court held that, assuming plaintiff’s damages equaled or exceeded $35,000, she would be entitled to the entire $20,000 uninsured motorist coverage, unreduced by the $15,000 previously paid under the same policy. We reverse.

The policy in question contains the following provision as to uninsured/underin-sured coverage:

“LIMITS OF LIABILITY:
(b) Any amount payable under the terms of this coverage because of bodily injury sustained in an accident by a person who is an Insured under this Coverage shall be reduced by:
(1) All sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the Liability Coverage . . . ”

We hold that under the above-quoted provision, amounts previously paid under the policy reduce the uninsured/underinsured coverage available under the policy. This is in accord with Florida Statute § 627.727(1), as most recently interpreted by the Supreme Court in Dewberry v. Auto Owners Insurance Company, 363 So.2d 1077, 1978. Rehearing denied November 28, 1978, holding that amounts paid the plaintiff under liability insurance covering the tortfeasor was set off against uninsured motorist coverage available for the same accident. Our decision is also in accord with the recent decision of the Third District Court in Aetna Casualty and Surety Company v. Ilmonen, 360 So.2d 1271 (Fla. 3d DCA 1978), wherein the court held that amounts paid to the plaintiff for liability and personal protection benefits would be set off against the uninsured motorist coverage, holding:

“Our decision entitles appellee to the full amount of coverage that her husband purchased. The purpose of the uninsured/underinsured motorist coverage is to enable an insured to recover under his or her policy of insurance for damages that he or she would have been able to recover against the negligent motorist if that motorist had maintained a policy of liability insurance.”

To like effect are the decisions of this Court in Main Insurance Company v. Wiggins, 349 So.2d 638 (Fla. 1st DCA 1977) and Hunt v. State Farm Mutual Insurance Company, 349 So.2d 642 (Fla. 1st DCA 1977); Evans v. Florida Farm Bureau Casualty Insurance Co., 355 So.2d 149 (Fla. 1st DCA 1978); Fidelity and Casualty Co. v. Moreno, 350 So.2d 38 (Fla. 3d DCA 1977) and Stuyvesant Insurance Co. v. Johnson, 307 So.2d 229 (Fla. 4th DCA 1975), cert. denied 316 So.2d 290 (Fla.1975).

Accordingly, the judgment sought to be reviewed is REVERSED and the cause REMANDED for entry of a judgment consistent herewith.

McCORD, C. J., and MELVIN, J., concur.

      . This part of the decision below is not before us on appeal.


author: MILLS, Judge.

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. STATE of Florida, CAREER SERVICE COMMISSION and Eugene Woodard, Appellees.
    No. KK-239.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Alan E. DeSerio, Frank H. King and H. Reynolds Sampson, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., David K. Miller, Asst. Atty. Gen., Daniel Conley, Miami, for appellees.
   MILLS, Judge.

Case Summary

The Department of Transportation (D.O.T.) appeals from an order of the Career Service Commission (Commission) reversing D.O.T.’s dismissal of its employee, Woodard. Woodard cross appeals on the ground that the Commission abused its discretion by failing to award him' an attorney’s fee. We affirm.

Facts

By letter of 14 March 1977, a maintenance engineer of D.O.T. advised Woodard that he was suspended for five days due to misuse cf state equipment. By letter of 16 March 1977, a district engineer of D.O.T. advised Woodard that he was dismissed for the same reason. Woodard appealed both the suspension and the dismissal to the Commission.

The Commission concluded that Woodard was guilty of the offenses charged by D.O.T. and that D.O.T. had good cause to suspend him but its subsequent dismissal of Woodard for the same offense constituted double jeopardy. The Commission sustained the suspension of Woodard but reversed his dismissal and ordered that he be reinstated with back pay.

Issue

The only issue properly before us is whether the Commission erred in reversing D.O.T.’s dismissal of Woodard after finding him guilty of all charges made by D.O.T.

D.O.T. contends double jeopardy is not applicable to a disciplinary proceeding such as this and the Commission is precluded from modifying D.O.T.’s dismissal.

The Commission and Woodard contend that D.O.T. lacks authority to discipline Woodard twice for a single offense.

We will not address the issue raised by the cross appeal because the record does not reflect that Woodard moved the Commission for an attorney’s fee.

Decision

The authority of D.O.T. to discipline career service employees is limited by Section 110.061(2)(a), Florida Statutes (1977), and Rules 22A-7.10(6)(a) and 22A-10(7)(a), Florida Administrative Code.

Section 110.061(2)(a) provides that the Department of Administration shall establish rules and procedure for the suspension and dismissal of employees in the career service.

Rule 22A-7.10(6)(a) states: "

“A suspension is defined as the action taken by an agency against an employee to temporarily relieve the employee of duties and place the employee on leave without pay.”

Rule 22A-7.10(7)(a) states:

“A dismissal is defined as the action taken by an agency against an employee to separate the employee from the Career Service.”

Although the Commission may have inartfully used the term “double jeopardy”, its reversal was based on sound reasoning. D.O.T. not only lacked authority to discipline Woodard twice for the same offense but its action was fundamentally unfair. The same offense may be a proper ground for either a suspension or a dismissal but the statute and rules contemplate that these are mutually exclusive disciplinary alternatives. Otherwise, an agency could repeatedly punish an employee and the employee would never be secure in his employment. By this, we do not mean that an agency in an appropriate case, with proper notice to an employee, may not temporarily suspend an employee for the purpose of concluding its investigation of misconduct and for the purpose of arriving at just disciplinary action. Nevertheless, having concluded its investigation and reached its decision as to the disciplinary action it will administer to an employee, the disciplinary action administered may not be increased at a later date nor may an agency discipline an employee twice for the same offense.

D.O.T.’s argument that the Commission modified its dismissal of Woodard is without merit. The Commission clearly affirmed D.O.T.’s suspension and just as clearly reversed its dismissal. Woodard served his suspension time and that is not an issue here.

Judgment

The order appealed is affirmed.

BOYER, Acting C. J., and BOOTH, J., concur.


text:
    Daniel SECKINGER, M. D. and U. S. Fire Insurance Company, Appellants, v. Lucien C. PROBY, as personal representative of the Estate of Alvin Augustus Henry, Deceased, et al., Appellees.
    Nos. 77-1107, 77-1108 and 77-1955.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Rehearing Denied Feb. 5, 1979.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410, 415-16 (5th Cir. 1975); Consolidated Systems, Inc. v. Allstate Insurance Co., 411 F.2d 157 (5th Cir. 1969); Atlantic National Insurance Co. v. Erie Insurance Exchange, 211 F.Supp. 878 (S.D.Fla.1962); Continental Casualty Co. v. St. Paul Mercury Fire & Marine Insurance Co., 163 F.Supp. 325 (S.D.1958); 16 Couch on Insurance § 62:79 (2d ed. Anderson 166); Anno. 69 A.L.R.2d 1122 (1960).