author: PEARSON, Judge.

text:
    WARNING SAFETY LIGHTS, INC., and Ballenger Corporation, Appellants, v. Yalila GALLOR and Manuel Gallor, Appellees.
    No. 76-226.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 8, 1977.

      Virgin, Whittle & Popper, Podhurst, Or-seck & Parks, Miami, for appellants.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

Warning Safety Lights, Inc., and Ballenger Corporation were sued by Yalila Gallor and Manuel Gallor for injuries sustained by Yalila Gallor when she crashed into a median wall on State Road 826 (Palmetto Expressway) while attempting to avoid hitting traffic cones which were in her lane of traffic. The gist of the plaintiffs’ case was that the defendants, who utilized the cones to close off lanes of traffic that were being repaired, were negligent in placing the cones or in failing to weigh down the cones so that they would not be moved by the wind or by passing traffic.

The case was tried before a jury and a verdict in the amount of $125,000.00 was returned for Yalila Gallor and $25,000.00 for her husband, Manuel Gallor. This appeal is from the judgment entered pursuant to the verdict and from the order denying defendants’ motion for a new trial. The defendants have argued five points supported by more than eighty assignments of error. Defendants’ point III urges that the proof was insufficient to establish liability. Point V urges that the amount of the verdict was excessive. The remaining points urge that the defendants are entitled to a new trial because of claimed errors in the conduct of the trial.

The evidence viewed in the light most favorable to the verdict of the jury, as it is required to be viewed on this appeal, see Midstate Hauling Company v. Fowler, 176 So.2d 87 (Fla.1965); and Land v. Patroni, 214 So.2d 94 (Fla.1st DCA 1968), establishes that Mrs. Gallor, who was eight months pregnant, was driving in a lawful manner on the Palmetto Expressway in a northerly direction. There were four northbound lanes but the left lane was closed. Mrs. Gallor was traveling in the left lane closest to the closed lane. She was traveling at approximately 45 to 55 miles per hour when she saw the car in front of her suddenly move to the left. At that point, she saw an orange cone in her lane of traffic and went to the left to avoid it. The car in front of her then suddenly moved to the right and she then saw another cone in her line of travel. She tried to turn to the right to avoid that cone but because of another car in that lane, she was forced to the left and went into the wall. Mrs. Gallor was taken to the hospital and the baby was delivered stillborn two days later.

Mrs. Gallor, who was employed as a bookkeeper at a weekly salary of $150.00, had not returned to work at the time of the trial, eleven months later. She claimed both physical and emotional damage.

Defendants’ negligence was premised upon their duty to perform their work in a reasonably safe manner so that the plaintiff would not be endangered. The defendant Ballenger Corporation was the contractor for the construction. Ballenger Corporation had entered into a subcontract agreement with the defendant, Warning Safety Lights for the placing and maintenance of the work barriers. The liability issue at trial evolved around the defendants’ placement and maintenance of the traffic cones. The prime contract between the State of Florida and Ballenger and the subcontract between Ballenger and Warning Safety Lights imposed a duty, aside from any common law duty, upon the appellants to maintain proper traffic control for the safety of the public during the course of the construction. Specifically, the contracts required that the minimum traffic control safety standards provided by the Florida Safety Manual must be observed. The Florida Manual, which was by stipulation published to the jury, required (1) that where space permits, the warning devices should be placed a minimum of two feet from the edge of the traveled way and (2) that traffic cones must be weighted or fastened down so they will not move or tip from natural wind or the wind created by passing vehicles.

Evidence was presented which, if believed by the jury, was sufficient to establish that upon the day of the accident, at and near the place where the accident occurred, lane closure was accomplished by defendants’ placing single cones, which weighed about ten pounds each, on the skip-line dividing the closed lane from the adjacent lane of moving traffic. The employee who placed the cones testified that on the day in question, after setting up the subject lane closure by placing single cones from 20 to 35 feet apart along the skipline, he rode a loop patrol of the area for the purpose of retrieving and replacing cones which had been blown over or knocked over. He further testified that he saw cones blown over and knocked over.

Defendants’ point directed to the sufficiency of the evidence to prove negligence urges (1) that there was no evidence of how these particular cones were displaced and (2) that there was the intervention of an independent efficient cause in that an automobile may have hit the cones and thus displaced them. We hold that the evidence was sufficient to sustain the jury’s verdict on both particulars. If, as testified, the cones were not placed inside the skip-line as required by the safety manual, it is not fatal to plaintiffs’ case that they may have been misplaced by a passing vehicle. Such a result could have been found foreseeable by the jury and the law does not hold otherwise. See Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla.1st DCA 1972). The question of whether the misplacement of the cones or the failure to weigh them down was the proximate cause of the plaintiff’s injury was properly one for the jury. See Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911, 920 (1938); and Evancho v. Thiel, 297 So.2d 40 (Fla.3d DCA 1974).

The defendants’ remaining points urge a new trial because of claimed erroneous and prejudicial rulings of the trial court. The principal contention is that the trial judge allowed improper hypothetical questions to be propounded to plaintiffs’ witnesses and improperly excluded some of the questions propounded by the defense. The trial was long and exhaustive. It was well-tried by both sides and called for a great many rulings on evidence by the trial judge. It is clear from a reading of the portions of the record referred to in the briefs that no pattern of prejudice to either side appears. The rulings complained of, if error, do not appear to us to have been prejudicial or reversible error. The often repeated principle of appellate review that the appellant is entitled to a fair trial but not a perfect one applies in this case. We will not reverse in those instances where the errors complained of do not result in a miscarriage of justice. See Small v. Colonial Inv. Co., 92 Fla. 503, 109 So. 433 (1926); and Demmy v. Sligh, 189 So.2d 843 (Fla.2d DCA 1966). The trial judge must of necessity be granted a great deal of discretion in ruling upon the qualifications of expert witnesses and the propriety of the questions expounded. See Krohne v. Orlando Farming Corporation, 102 So.2d 399 (Fla.2d DCA 1958); and Home Insurance Company v. Wiggins, 147 So.2d 157 (Fla.lst DCA 1962). In the absence of a clear showing of prejudice to the appellants’ case, these rulings will not produce a reversal. See Green v. Loudermilk, 146 So.2d 601 (Fla.2d DCA 1962); and Reliable Services, Inc. v. Taft, 247 So.2d 97 (Fla.3d DCA 1971).

Defendants’ point claiming reversible error because of comments of plaintiffs’ attorney during the cross-examination of an adverse witness is not supported by the record.

The last point claims a new trial was mandated because the verdicts were excessive. This point does not present error in this case because of the full instruction to the jury on the issue of damages and the holding in Nitram Chemicals, Inc. v. Parker, 200 So.2d 220 (Fla.2d DCA 1967). See also Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

Affirmed.

      .
      “6G-1 Need for Standards. Definite standards for warning devices and lights are most needed in the situation where a dropoff results parallel and adjacent to traffic lanes. This occurs when widening is being done, a new roadway is being constructed in a cut, a storm sewer trunk line is being installed or a bridge is being widened. ******
      “6G-3 Warning Devices. The types of warning devices considered acceptable are Class A through G as shown in figures 7.1 through 7.4. The proper use of these devices is shown in the following charts. Where space permits, the warning devices shall be placed a minimum of two feet from the edge of the traveled way. ******.
      “C-3 A. When cones are used, precautions are necessary to assure they will not be blown over or displaced. This may be particularly critical adjacent to lanes of moving traffic where there may be a wind created by passing vehicles. Some cones are constructed with bases that may be filled with ballast. With others, it may be necessary to provide added weights. These added weights should not be sufficient to present a hazard if the devices are inadvertently struck.”
      Figure 7.2, attached to the Manual, referring to traffic cones provides:
      “1. Cones must be weighted or fastened down so they will not move or tip under wind loads.
      “2. Precise configurations may vary from illustrations except for height.”


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    Teresa GALLAGHER, a minor, by and through her parents and natural guardians, et al., Appellants, v. FEDERAL INSURANCE COMPANY, a Foreign Corporation, et al., Appellees.
    No. 76-819.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 8, 1977.

      Joseph S. Marcus, Homestead, Albert Yurko, Orlando, for appellants.
    Greene & Cooper, Corlett, Merritt, Killian & Sikes and ■ Lawrence B. Craig, Pyszka, Kessler, Adams & Solomon and Charles M. Belous, Walton, Lantaff, Schroeder & Carson and Michael R. Jenks, Miami, for appel-lees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   NATHAN, Judge.

In this action for damages stemming from a 1973 automobile-truck collision, the plaintiffs appeal from a final judgment for the defendants following a jury verdict on special interrogatories.

Pursuant to the defendants’ motion, the trial court ordered a bifurcated trial separating the issues of liability and damages. Counsel for the plaintiffs and the defendants then entered into a stipulation that the issues to be determined at the first trial, the liability trial, were the issues of whether the defendant truck driver was negligent in the operation of the truck, and whether the plaintiff driver was negligent in the operation of her automobile. The stipulation further provided that the issues regarding the ownership of the truck, and the truck driver’s possible status of independent contractor would not be considered at the liability trial; and that “all other issues, claims, defenses and disputes shall be preserved as to both plaintiffs and all defendants.”

At the conclusion of all of the evidence on liability, the court charged the jury. After deliberating, the jury rendered the following verdict on special interrogatories:

1) Was there negligence on the part of Defendant LUIS ALBERTO RODRIGUEZ which was a legal cause of the accident?
NO_NO_
YES_
If your answer to the above question is “No,” do not answer any further questions, and merely sign and date your verdict.
If your answer to the above question is “Yes,” state the percentage of negligence at-trubutable to Defendant LUIS ALBERTO RODRIGUEZ.
_%
2) Was there negligence on the part of the Plaintiff VENITA W. GALLAGHER which was a legal cause of the accident?
NO_
YES :_
If your answer to the above question is “Yes,” state the percentage of negligence attributable to the Plaintiff VENTIA W. GALLAGHER.
%

The plaintiffs’ first point ■ on appeal is that the court erred in , refusing to give certain instructions to the jury, specifically Standard Jury Instructions 5.1(a) and 5.1(b). Those instructions, which . concern proximate cause and concurrent cause, respect tively, read as follows:

(a) Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.
(b) In order to be regarded as a legal cause of loss, injury or. damage, negligence need not be the only-cause. Negligence may be a legal cause of loss, injury or damage even . though it operates in combination with the act of another cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such loss, injury or damage.

Each party has the right to have the court instruct the jury on the law applicable to the evidence under the issues presented. Williams v. Sauls, 151 Fla. 270, 9 So.2d 369 (1942); Hattaway v. Florida Power & Light Company, 133 So.2d 101 (Fla.2d DCA 1961). Generally, an instruction on legal cause is given in a trial on liability in a negligence action. Where such instruction is not given, the appellate court is faced with the question of whether the failure to give it constitutes reversible error. It is well settled that jury instructions must be examined and considered as a whole together with the evidence, and in this case, the verdict form, in determining whether the jury instructions were proper. Grimm v. Prudence Mutual Casualty Company, 243 So.2d 140 (Fla.1971). Ultimately, such a decision must turn on whether the appellate court finds from the record on appeal that the jury was misled by the failure to give the instruction. As held by the Florida Supreme Court in First National Bank in Orlando v. Roberts, 92 Fla. 18, 109 So. 635, 636 (1926), a verdict will not be set aside merely because the court failed to give instructions which might have been properly given; to warrant reversal of a judgment for an erroneous instruction, the court must be satisfied that the jury was misled; the refusal to give a proper instruction which would have availed the party nothing is harmless error.

Applying the foregoing principles of law to the instant case, we look to the record to determine whether the evidence warranted the giving of an instruction on legal cause, and if so, whether the court’s failure to so instruct constituted reversible error. Unfortunately, the plaintiffs have provided us with only certain portions of the record, to wit; some of the voir dire examination of the jurors, and the instructions to the jury. We have not been favored with a transcript of the testimony or other evidence presented at the liability trial. Thus, while we are of the opinion, as noted above, that the standard instructions on legal cause should generally be given in a liability trial, we are unable to conclude on the incomplete record before us, that the jurors were, in fact, misled, or that the failure to so instruct otherwise resulted in prejudicial error. See Crosby v. Stubblebine, 142 So.2d 358 (Fla.2d DCA 1962), and Castaldo v. Singapore, J. F. Inc., 258 So.2d 499 (Fla.3d DCA 1972).

Moreover, based on the verdict form presented to the jury containing the special interrogatories, recited above, we find that the jury did have the opportunity to determine the negligence, if any, and the percentages of negligence, if any, attributable to each of the drivers.

The remaining points on appeal are without merit and will not be discussed.

Affirmed.


author: PER CURIAM.

text:
    Douglas K. GRIFFIN, Appellant, v. STONEWALL INSURANCE COMPANY, Appellee.
    No. 76-1032.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 8, 1977.

      Horton, Perse & Ginsberg, George Tele-pas, Miami, for appellant.
    Bradford Williams, McKay, Kimbrell, Hamann & Jennings and John W. Wylie, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff Douglas K. Griffin was insured under an automobile liability policy by defendant Stonewall Insurance Company. He appeals a summary final judgment entered for the company upon a holding of the trial judge that the insurance company was entitled to a judgment as a matter of law because the insured had failed to perform a condition precedent to a suit upon the policy. Pursuant to Section 627.736(7)(a), Florida Statutes (1975), the policy includes a provision as follows:

“3.) . . . Such person [claimant] shall submit to mental or physical examinations at the Company’s expense when and as often as the Company may reasonably require and a copy of the medical report shall be forwarded to such person if requested.”

It appears without genuine issue of material fact that the plaintiff, on two separate occasions, refused to be examined by a physician procured by the insurance company. No reason or excuse for such refusal was furnished at the time, nor was any reasonable excuse advanced before the trial court. Subsequently, the plaintiff submitted to the insurance company a list of five doctors stating that he would only consent to be examined by one of those listed. Thereafter, he began the instant action to recover personal injury protection benefits under his policy. After the legislature has delineated public policy, the court has the duty to enforce it. Local No. 234 of United Association of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley and Beckwith, Inc., 66 So.2d 818 (Fla.1953).

The trial judge properly entered summary judgment upon the grounds stated. Cf. Orozco v. State Farm Mutual Automobile Insurance Company, 360 F.Supp. 223 (S.D.Fla.1972), affirmed 480 F.2d 923 (5th Cir. 1973).

Affirmed.


text:
    Arthur Frank MAYO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-484.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant below from a probation revocation order, and the sentence which was then imposed.

In 1972, in a plea bargain, the appellant pled guilty to breaking and entering with intent to commit assault and battery, a lesser offense of that with which he had been charged. Adjudication of guilt was withheld, and the defendant was placed on probation for five years. The order thereon required “restitution of medical expenses” [of the victim], and with reference to that condition stated: “If violate will receive 18 months State Prison”.

In 1974 the appellant was charged with violation of two conditions of probation, one being failure to make such restitution. On June 11,1974 the court entered an order finding such violation had occurred, and instead of sentencing the appellant to a prison term of 18 months as the 1972 order called for, the court did not impose a sentence, and continued the probation, amending the same with respect to the condition as to restitution, as follows: “The defendant is to pay ten dollars ($10.00) a week restitution until such time as the restitution is paid in full, failure to do so will result in a Prison term.” At the hearing held prior to the entry of that order the court had stated that failure to make restitution would result in a sentence of imprisonment for a period of two years. However, the written order did not so state.

A year later, in 1975, an affidavit of violation of probation was filed, charging that such restitution had not been made, and that the appellant had committed three acts of larceny. After hearing thereon the court revoked the probation, and sentenced the appellant to imprisonment for a term of five years.

Appellant contends the sentence should be reduced either to eighteen months or to two years. We cannot agree. The .eighteen month sentence initially provided to be imposed if the probation condition of restitution was violated became inoperative, because the court did not impose any sentence in 1974 when it was established that such violation had occurred. At that time, instead of sentencing the defendant, the court permitted the probation to continue. The subsequent violations were after the order entered in 1974 in which it was provided that failure of the defendant to comply with the restitution condition as there modified “will result in a Prison term”. At the time of that order there was no plea bargaining. To the extent that the order entered by the court in 1974 departed from something the court stated at the hearing, the former, that is the written order, controlled. The sentence ultimately entered upon revocation of probation was one that was proper under the law.

A second contention of error presented by the appellant, with reference to admission of certain evidence at the revocation hearing, has been considered and found to be without merit.

No reversible error having been shown, the judgment and sentence are affirmed.


author: HAVERFIELD, Judge.

text:
    The CITY OF MIAMI, etc., et al., Appellants, v. FRATERNAL ORDER OF POLICE, etc., et al., Appellees.
    No. 76-1788.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    George F. Knox, City Atty., and Eugene M. Steinfeld, Asst. City Atty., Miami, for appellants.
    Weinsoff, Weinsoff & Carney and Hyman Einstein, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HAVERFIELD, Judge.

The City of Miami appeals an order entered pursuant to plaintiffs’ motion for relief under Fla.R.Civ.P. 1.380 requiring the City to produce documents requested by plaintiffs and to pay their reasonable expenses, including attorney’s fees, incurred with respect to this discovery matter.

Plaintiffs Robert M. Edmunds and Ernesto Ruiz were employed as probationary police officers by the City of Miami and were members of the plaintiff Fraternal Order of Police Lodge No. 20. A collective bargaining agreement providing for the establishment of a disciplinary review board for the purpose of conducting hearings prior to a member being dismissed, demoted, fired, suspended or suffering a forfeiture of time had been entered into between the City and the Fraternal Order of Police Lodge No. 20. Edmunds and Ruiz were dismissed while still on a probationary status without a pre-termination hearing before the disciplinary review board, despite their requests for such a hearing. Edmunds, Ruiz and the Fraternal Order of Police then filed a complaint against the City alleging that the City had breached the collective bargaining agreement in failing to afford plaintiffs, “probationary” police officers, the right to review their dismissals by the departmental disciplinary board. In pursuit of pretrial discovery, plaintiffs on April 30,1976 pursuant to Fla.R.Civ.P. 1.350 requested the City to produce the following records and documents:

“1. Copies of the Applications for Employment of ERNESTO RUIZ and ROBERT M. EDMUNDS.
“2. Copies of each and every other form filled out by the Plaintiffs requested voluntarily by the Defendant, CITY OF MIAMI, for paying the job of police officer and/or admission to the Police Academy.
“3. Copies of each and every investigation made of the Applications and supporting documents by the Plaintiffs used to procure the job of police officer.
“4. Copies of each and every document secured by the CITY OF MIAMI and/or Police Department during the investigation of the Applications of the Plaintiffs.
“5. Copies of each and every Memorandum secured by the Police Department for the inter-office, or from sources outside the CITY OF MIAMI, used in connection with the Applications for the job of police officer by the Plaintiff.
“6. Copies of the personnel files of the Plaintiff.
“7. Copies of the internal security file of the CITY OF MIAMI Police Department on the Plaintiffs.
“8. Copies of any documents pertaining into the inquiry of the CITY OF MIAMI for the recommendation to the Plaintiffs to obtain psychiatric or psychological evaluations, and the result thereof, or any medical or psychological reports resulting from such evaluations.”

The City filed objections to this request and the plaintiffs filed a motion to compel the City to comply. After argument of counsel, the trial judge on July 1, 1976 ordered the City to produce the requested documents within 10 days. The City responded with a motion to vacate the July 1 order which apparently was never set for hearing. Subsequently, plaintiffs filed a motion for relief pursuant to Fla.R.Civ.P. 1.380 and after a hearing, the judge entered an order (1) directing the City to produce the documents enumerated in plaintiffs’ April 30 request for production by September 18, 1976, and (2) requiring the City to pay plaintiffs’ reasonable expenses, including attorney’s fees. We reverse.

One of the primary purposes of pretrial discovery is to discover evidence that is pertinent to the triable issues. Jones v. Seaboard Coast Line Railroad Company, 297 So.2d 861 (Fla.2d DCA 1974); Reynolds v. Hofmann, 305 So.2d 294 (Fla.3d DCA 1974).

The issue presented is whether under the terms of the collective bargaining agreement, plaintiffs as probationary police officers are entitled to a hearing before the departmental disciplinary review board before they can be dismissed.

It is readily apparent that the documents requested by the plaintiffs are not pertinent to this issue and the order for their production is not justified. Cf. Cooper v. Fulton, 117 So.2d 33 (Fla.3d DCA 1960); Riddle Airlines, Inc. v. Mann, 123 So.2d 682 (Fla.3d DCA 1960); West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla.1st DCA 1975); Stone v. Travelers Insurance Company, 326 So.2d 241 (Fla.3d DCA 1976). Plaintiffs must prevail on this preliminary issue before they may be permitted to prove that the requested documents are within the proper scope of discovery.

The order requiring production and payment of plaintiffs’ reasonable expenses is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


author: McNULTY, Judge.

text:
    MORRISON MOTOR COMPANY and Middlesex Mutual Fire Insurance Company, Appellants, v. MANHEIM SERVICES CORPORATION, a Foreign Corporation, et al., Appellees.
    Nos. 76-830, 76-831.
    District Court of Appeal of Florida, Second District.
    May 18, 1977.
    Rehearing Denied June 14, 1977.

      Charles P. Schropp, of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellants.
    Thomas J. Ellwanger, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellees.
   McNULTY, Judge.

Third-party plaintiffs/appellants seek indemnification over against appellees for monies paid out by appellants in a wrongful death action brought against appellant Morrison Motor Company as owner of the automobile which struck the decedents who were pedestrians at the time of the tragedy. The trial in the instant case centered around whether the driver of the automobile, one Bath, was an employee of appellee Manheim Services Corporation (d/b/a Lakeland Auto Auction) acting within the scope of his employment or was an independent contractor. Appellants urged he was an employee and that the Auto Auction, under respondeat superior, was liable as an active tortfeasor over to appellants who were passive. An alternative theory advanced below by appellants was that the auto auction had undertaken a nondelega-ble duty which rendered it liable in the premises even if the driver Bath were considered to be an independent contractor.

The trial judge directed a verdict in favor of the auto auction at the close of appellants’ case in chief and this appeal ensued from the resulting judgment in favor of the auto auction. We affirm.

Considering the evidence in the light most favorable to appellants, as we must do in the present posture of the case, the following facts appear. Appellant Morrison Motor Company was in the used ear business. Essentially, it purchased used cars from car rental agencies and, if it could not sell them with reasonable dispatch, would wholesale them through appellee Lakeland Auto Auction. Prior to the accident in this case, a practice had developed in the relationship between the parties hereto by which, when' Morrison Motor Company wished to have certain cars transported to the auction for sale at an early time so as to get “early numbers” (meaning that the cars could be sold early on the day of the auction when prices were higher), an agent of Morrison Motors would call the general manager of the auto auction, Rudy Crowder, a day or so in advance of the auction requesting that'he arrange to have the cars picked up and transported timely to the auction. During this time period, a Carol Buchanan was employed three days a week by the auto auction as a registration clerk whose duties involved writing up bills of sale for the various automobiles handled by the auto auction and numbering the cars for identification at the sale. Additionally, with the acquiescence of Crowder, she would occasionally transport and arrange for others to transport to the auction the cars of three of the best customers or clients of the auction, one of which was Morrison Motor. The evidence is undisputed that on virtually every occasion on which she transported or arranged to transport cars for these clients, she did so on her own time after she had clocked out of her employment with the auto auction (if it were one of her working days) and with the clear understanding with her boss, Rudy Crowder, that she was strictly “on her own” and that the auto auction was undertaking no responsibility. It further appears that each of the aforementioned three clients, including Morrison Motor Company knew and was aware of this arrangement. Indeed, the testimony of J. Forrest Morrison, President of Morrison Motors (whose testimony was introduced by deposition, he having died shortly before trial), revealed that he never paid the auction for such transportation of his cars, that he paid Ms. Buchanan or other drivers directly for driving the cars, that he paid the auto auction otherwise for fees or charges payable for the latter’s services in the sale of his cars, and that he really didn’t know precisely what arrangements or relationship existed between the auto auction and the drivers. He would merely call the auction “for the services they had available” thinking, it appears, it had some arrangement with a car-driving service.

On the day of the accident, November 15, 1971, Morrison had some cars he wanted transported to the auction for sale at the next ensuing auction. Following his usual custom, he called the auto auction and talked to Crowder about arranging for transporting the cars to the auction. Crow-der answered, “I’ll take care of it.” Later on the day, Carol Buchanan, who was then working one of her appointed days at the auction, received a call at the auction from another employee of Morrison Motors, one Domingues, who asked her to pick up a certain number of cars. Since the purpose of the transportation was to “get early numbers,” and since Ms. Buchanan’s duties involved numbering cars for identification at the sale, she then informed Mr. Crowder that she was going to pick up the Morrison cars and got his permission to reserve “early numbers.”

That evening, after Ms. Buchanan had clocked out from her job at the auto auction at 5:00 p. m., and pursuant to her usual custom on these occasions, she contacted some people to ask if they would be interested in earning some extra money by assisting her in transporting the Morrison cars to the auction. One of these people contacted was the driver of the car involved in the fatal accident, Bath, who himself was employed full time by the auto auction as a janitor and who had also clocked out from his duties at the auction. Ms. Buchanan on prior occasions had gotten Bath to assist her to pick up cars, apparently with Rudy Crowder’s knowledge and acquiescence, but on no occasion had he ever picked up cars while on the auto auction time or at the direction or request of Crowder. Obviously, on this occasion, he agreed to accompany Ms. Buchanan in the transportation of Morrison’s cars and the tragic sequence of events began.

We agree with the trial judge that under the foregoing set of facts, neither Ms. Buchanan nor Bath, at the time of the accident, were employees of the auto auction acting within the scope of their employment therefor. An employee’s conduct is within the scope of his employment only if it is of the kind he is employed to perform, it occurs substantially within the time and space limits of the employment and it is activated at least in part by a purpose to serve the master. The convenient test is whether the employee was doing what his employment contemplated. Clearly, here, both Buchanan and Bath were on their own, “moonlighting,” and no version of the foregoing facts would support a finding that they were not.

As to appellants’ alternative theory that the auto auction undertook a non-dele-gable contractual duty to transport Morrison’s cars, they point to Rudy Crowder’s aforequoted response — “I’ll take care of it.” —as evidence of the undertaking and they rely on the ease of Mills v. Krauss for the proposition that given such an undertaking the auto auction cannot avoid liability by delegating its duties to an independent contractor. Their contention falls of its own weight, however, because even if Crowder’s response was sufficient to give rise to a non-delegable contractual duty in this case, the duty assumed was to transport Morrison’s cars, which wasn’t the duty breached. The duty breached here was one owing to the third-party victims, not Morrison; and as to them the general rule of non-liability of an employer for the negligence of an independent contractor applies. Mills v. Krauss, supra, makes this distinction clear and holds precisely that. Appellants’ reliance on Mills, therefore, is misplaced. Stated otherwise, Morrison’s position as against the auction for damages payable to the victims of the accident in this case ought be no better than the victims’.

In view whereof, the order appealed from should be, and it is hereby, affirmed.

BOARDMAN, C. J., and OTT, J., concur.

      . See Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla.4th DCA 1972).

      . Weiss v. Jacobson, 62 So.2d 904 (Fla.1953).

      . 114 So.2d 817 (Fla.2d DCA 1959).


author: OTT, Judge.

text:
    Theodore BERRY et al., Appellants, v. The Honorable C. Archie CLEMENT, as County Judge, Appellee.
    No. 76-1774.
    District Court of Appeal of Florida, Second District.
    May 18, 1977.

      J. E. Satterfield, The Legal Aid Society of Clearwater, Inc., for appellants.
    Alex D. Finch, Clearwater, for appellee.
   OTT, Judge.

Appellants appeal the dismissal of an alternative writ of mandamus issued by the Pinellas County Circuit Court directing the county court to reinstate appellants’ pleadings in a cause before it. Appellants’ pleadings were dismissed for the sole reason that they were not timely filed. We hold that the filing was timely and reverse.

Appellants’ landlord brought summary eviction proceedings against them in county court. Process was served upon appellants on Thursday, August 5, 1976. Appellants filed and served their answer, affirmative defenses and counterclaim on the following Wednesday, August 11, 1976. Six days had elapsed including the intermediate Saturday and Sunday.

Section 51.011, Florida Statutes (1975), which governs summary procedure, requires service of the defendant’s answer within 5 days after service of process.

At issue here is the method of computing the time period allowed for the filing of appellants’ answer. The statute does not prescribe the method. However, Fla.R. Civ.P. 1.090 does; it provides:

In computing any period of. time prescribed by these rules, by order of court or by any applicable statute, [w]hen the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

The Florida Rules of Civil Procedure apply to special statutory proceedings, although the form, content, procedure and time for pleading prescribed in the statutes governing such proceedings are controlling unless the rules specifically provide to the contrary. Fla.R.Civ.P. 1.010. Since Section 51.011, Florida Statutes (1975) does not prescribe the method of computing the five-day time period allowed for the filing of defensive pleadings, Fla.R.Civ.P. 1.090 is applicable and intermediate Saturdays and Sundays must be excluded. Moffett v. MacArthur, 291 So.2d 134 (Fla. 4th DCA 1974).

When the intermediate Saturday and Sunday are excluded from the computation of the time allowed in the case at bar, the elapsed period totals four days. Consequently, appellants’ pleadings were timely filed and should not have been dismissed.

However, mandamus was not the proper remedy here. If the error committed by a court is one made in the course of the exercise of legitimate jurisdiction, then mandamus will not lie to compel correction of the error. State ex rel. Meriden Creamery v. Robles, 111 Fla. 276, 150 So. 247 (1933).

The petition for writ of mandamus, having been filed within thirty days of the county court’s dismissal of appellants’ pleadings, however, the discretionary writ of common law certiorari would have been viable, assuming no other adequate remedy at law was available.

Here, the assailed order was a nonappealable interlocutory order at law and, ordinarily, the defendant/appellant would have been required to obtain a final order and appeal therefrom. This was a summary statutory proceeding, though, and the parties are entitled to a summary disposition. Therefore, it would appear that the circuitous route of compulsory remand for the entry of a final judgment, and then a review by the circuit court in its appellate capacity, would frustrate the summary purpose of the statute. Accordingly, the remedy of appeal would be inadequate and common law certiorari was appropriate. The circuit court should therefore have treated the petition as a petition for common law certiorari and granted it.

The circuit court’s order is hereby quashed and the cause remanded to the circuit court with directions to issue its gracious writ of common law certiorari vacating the county court’s order.

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

      . The Florida Constitution, Article V, Section 2(a) provides that “The supreme court shall adopt ... a requirement that no cause shall be dismissed because an improper remedy has been sought,” and pursuant to that mandate, the Supreme Court has held that a cause which has merit is to be entertained in whatever form is proper. State v. Johnson, 306 So.2d 102 (Fla.1974).


author: HUBBART, Judge.

text:
    Rita GOLDIN, Appellant, v. Richard GOLDIN, Appellee.
    No. 76-479.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      No appearance by counsel for appellant.
    A. Jay Cristol and Michael V. Blumen-thal, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is an action by a wife to hold her former husband in contempt for failure to abide by the terms of a separation and property settlement agreement incorporated in a divorce decree and a cross action by the husband to modify the said agreement due to a change in financial circumstances. The trial court abated the agreement to pay future alimony and ordered the payment of past arrearages of alimony. The wife appeals and the husband cross appeals.

On November 14, 1945, the parties were married. On July 30, 1964, the parties entered into a separation and property settlement agreement in which the husband agreed to pay the wife $100 a week alimony and $50 a week child support for their two minor children. The husband further agreed to keep in full force and effect a life insurance policy on his life with the Lincoln Life Insurance Company and to make the wife the irrevocable beneficiary and owner of the policy. There were many other provisions in the agreement pertaining to the wife and children which are not relevant here. On October 12,1964, a final decree of divorce dissolving the marriage between the parties was entered incorporating the terms of the separation and property settlement agreement and retaining jurisdiction over the subject matter and parties.

At the time of the separation and property settlement agreement it is undisputed that the husband was self-employed in the construction industry earning in excess of $50,000 a year. The wife was a homemaker and mother having no independent source of income.

The husband abided by the terms of the separation and property settlement agreement until January 1975, at which time his construction business began to go into serious decline. By this time his children had reached their majority and his obligations to them under the said agreement had been satisfied. Since he could no longer meet his financial obligations to his wife under the above agreement, he delivered to her the Lincoln Life Insurance policy on his life which belonged to her under the said agreement. She cashed the policy in for $4,835. The husband has made no alimony payments since on or about February 4, 1975.

The husband earned approximately $60,-000 plus fringe benefits in the year 1974. In January 1975, his business stopped operating due to a recession in the construction industry. He wound up his business affairs from January to July 1975 drawing only $600 a month for living expenses during this time. In July 1975, he filed for and was subsequently discharged in bankruptcy. He has been unemployed ever since drawing only unemployment compensation despite diligent efforts to secure other employment.

At the time of the final hearing in this cause, the husband owned no substantial assets. The wife, on the other hand, owned a savings account in the amount of approximately $25,000 and is employed as a secretary earning $175 a week with secure job prospects.

On June 16,1975, the wife filed a petition for a rule to show cause against the husband seeking inter alia past arrearages of alimony. On July 30, 1975, the husband filed a petition for modification of the separation and property settlement agreement as incorporated in the divorce decree. On February 4,1976, these matters came on for a final hearing in the trial court.

The trial court after hearing all the foregoing evidence entered an order abating the separation and property settlement agreement as incorporated in the divorce decree due to the drastic change of circumstances in the financial condition of both parties. The court abated the agreement as of the date of the final hearing in this cause [February 4, 1976]. The court further found that the husband was 52 weeks in arrearag-es in alimony from February 4, 1975 to February 4, 1976. The court, however, ordered the husband to pay the wife only $365 in alimony because it gave him a set-off of $4,835 on the Lincoln Life Insurance policy which was owned and cashed in by the wife as against the $5,200 of alimony due and owing. This appeal follows.

I

The major issue presented for review is whether the trial judge should have terminated, rather than abated the alimony provisions of the separation and property settlement agreement as incorporated in the divorce decree effective as of the date of the filing of the petition for modification due to the drastic change in the financial circumstances of both parties. We conclude that the trial court should have so terminated the aforesaid alimony provisions and reverse.

Section 61.14(1) Florida Statutes (1975), gives a trial court jurisdiction to enter orders as equity requires upon a petition for modification of a separation and property settlement agreement as incorporated in a divorce decree based on a change in financial circumstances on the part of either party to the marriage dissolution. Contrary to the wife’s contention herein, provisions in separation agreements or final decrees fixing alimony may be modified or set aside when any of the grounds specified in the statute are shown to exist. Sedell v. Sedell, 100 So.2d 639 (Fla. 1st DCA 1958). However, if the party receiving alimony under a separation agreement gives up certain special equities in property in consideration for the alimony, only the strongest and most compelling reasons will justify a modification or a setting aside of the alimony provisions of the agreement. Sedell v. Sedell, supra. A complete termination of alimony is both authorized and required under the statute where there has been a sufficiently substantial change in financial circumstances on the part of one or both parties to the marriage dissolution. Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976); Craig v. Craig, 298 So.2d 189 (Fla. 1st DCA 1974); Schlapik v. Schlapik, 329 So.2d 379 (Fla. 3d DCA 1976).

In the instant case, one would be hard pressed to conceive of a more drastic change in financial circumstances on the part of both parties to a marriage dissolution. The trial court so found and we see no reason to set aside that finding. From being a successful building contractor earning in excess of $50,000 a year at the time of the separation agreement and divorce decree, the husband has been plunged into bankruptcy and is living on unemployment compensation with no employment prospects and no substantial assets. The wife, on the other hand, has changed her financial status from complete dependency on her husband to one of substantial self support. She has for some time been employed as a secretary earning $175 a week with secure job prospects and owns approximately $25,000 in savings. Since the wife did not give up any special equities in property in order to obtain the $100 a week alimony provision in the separation' agreement, it is clear that the wife’s alimony is subject to being modified upon a substantial change in financial circumstances. In our view, the change here is so drastic and the need of the husband to rebuild his life so great that the trial court should have terminated, rather than abated the husband’s obligation to pay any alimony in the future. And the termination should have been effective as of the date of the filing of the petition for modification [July 30, 1975]. Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976).

The cash value difference in this case between abating the husband’s obligation to pay future alimony and terminating the obligation altogether is that the wife will not be permitted to come in later and petition the court for modification based on a change of circumstances. We are supported in this view by the fact that if the present financial picture of the parties had existed at the time of the divorce, no alimony award for the wife would have been permissible and consequently no subsequent motion to modify would have been in order. We believe the parties should not now stand on any better footing given the same financial picture. Moreover, we believe that the husband in rebuilding his life from the ashes of financial bankruptcy should know exactly what his financial obligations are in the future without the specter of alimony obligations suddenly materializing later.

We, therefore, hold that the husband’s obligation to pay alimony under the separation and property settlement agreement as incorporated in the divorce decree terminated effective July 30, 1975, the date the petition for modification was filed. This termination is final and is not subject to future modification.

II

The second issue involved in this appeal pertains to the past arrearages of alimony due and owing by the husband prior to the termination of his alimony obligation. The issue more specifically is whether the trial court properly allowed the husband as a set-off for past arrearages of alimony the cash surrender value of the Lincoln Life Insurance policy which the wife cashed in for $4,835. We conclude that the set-off allowed was improper and reverse.

Set-offs against alimony payments are generally regarded with judicial disfavor. Chappell v. Chappell, 253 So.2d 281 (Fla. 4th DCA 1971). The set-off involved in this case is particularly inappropriate because the Lincoln Life Insurance policy herein belonged to the wife under the terms of the separation and property settlement agreement, not the husband. The wife was both the owner and sole beneficiary under the policy. When the husband delivered the policy to her in January 1975, he did not give her anything which was not already hers. This property right of the wife can not, therefore, be used as a credit against the husband’s past arrearages in alimony. See: Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3d DCA 1975); Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959). These arrearages in alimony due and owing amount to $2,500 for the 25 week period of non-payment from February 4,1975 to July 30, 1975.

In view of the fact that the husband went into alimony arrearages because of serious business reverses and was earning only $600 .a month from January to July 1975, the trial court on remand has the authority to decline to reduce these arrear-ages to judgment based upon general equitable principles, in which case the husband will be under no obligation to pay them. Gottesman v. Gottesman, 220 So.2d 640 (Fla. 3d DCA 1969). Otherwise, the husband will be obligated to pay the wife $2,500 providing the trial court enters a judgment for the arrearages of alimony due and owing. We leave this matter to the sound discretion of the trial court.

The order appealed from is in part reversed with directions to: (1) terminate the husband’s obligation to pay alimony under the separation and property settlement agreement as incorporated in the divorce decree, such termination to be effective as of the date of the filing of the petition for modification [July 30, 1975], and (2) enter a finding that the husband is in alimony ar-rearages in the amount of $2,500 with no set-off allowed for the wife’s cash-in of the Lincoln Life Insurance policy. The trial court may in its discretion enter judgment on the alimony arrearage or to decline to do so based on general equitable principles. In all other respects the order appealed from is affirmed.

Affirmed in part; reversed in part and remanded.

      . Indeed, if the so-called no-fault divorce statute had been in effect at the time of the divorce, the wife might have been required to pay alimony to the husband. Section 61.08(1), Florida Statutes (1975). See: Pfohl v. Pfohl, 345 So.2d 371 (Fla. 3d DCA 1977).


text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Stuart GOLDMAN, Appellee.
    No. 76-493.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Kates, Ress, Gomez & Rosenberg, North Maimi, for appellant.
    Nachwalter, Christie & Falk and Steven P. Kronenberg, Miami, Sam Spector, Tallahassee, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

The appellee, Goldman, insured an automobile with the appellant, Aetna. During the policy period, he undertook to use his automobile and when he turned on the ignition a bomb exploded, seriously injuring him. The policy contained a provision for arbitration.

On October 27, 1974, Goldman’s car exploded due to a bomb. Goldman was told that a late model brown car was seen leaving near his own car prior to the explosion. Goldman did not know who had placed the bomb, nor was it ever ascertained who the owner and driver was of the late model brown car. Goldman applied for uninsured motorist benefits under his policy with Aet-na and, on February 4,1975, filed a demand for arbitration. After demand for arbitration, but before the scheduled hearing, Aet-na filed its complaint for declaratory relief, contending that Goldman was not entitled to uninsured motorist benefits to which he made a claim. Both parties moved for summary judgment. Goldman filed a motion to dismiss Aetna’s complaint; the trial court granted Goldman’s motion to dismiss, concluding issues involved were to proceed to arbitration. This appeal ensued.

The appellant contends the trial court erred in granting the motion to dismiss the complaint and that issues should be determined by a panel of arbitrators. Appellant contends the trial court should have ruled on the legal issue as to whether uninsured motorist coverage was applicable, because in this case it cannot be reasonably concluded that the injuries of Goldman resulted from the ownership, maintenance or use of an uninsured motorist. The appellant also contends that the trial court erred in failing to grant the motion for summary judgment filed by it, since as a matter of law it could not be concluded that Goldman’s injuries arose out of the ownership, use, or maintenance of either an uninsured or hit-and-run vehicle, as defined under Section 627.727, Florida Statutes (1975), or in the policy between the parties.

We reverse on the error alleged in dismissing the declaratory decree action, with instructions to the trial court to enjoin the arbitration proceedings and to determine the issue of coverage. This court, in Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla.3rd D.C.A. 1964), clearly outlined that in this State [notwithstanding any provisions pertaining to arbitration in an insurance contract] the question of coverage was a judicial matter to be determined in the courts. This case has been followed in Zeagler v. Commercial Union Insurance Company of New York, 166 So.2d 616 (Fla.3rd D.C.A. 1964); Jones v. New Amsterdam Casualty Company, 213 So.2d 502 (Fla.3rd D.C.A. 1968); Perez v. State Automobile Insurance Association, 270 So.2d 377 (Fla.3rd D.C.A. 1972); Government Employees Insurance Company v. Mirth, 333 So.2d 545 (Fla.3rd D.C.A. 1976).

We do not agree with the appellant’s second point; that we should direct the trial judge to grant Aetna’s motion for summary judgment. No ruling having been made by the trial judge, the matter should first be presented to and ruled on by the trial court.

This opinion is not to be construed as finding that there is or is not coverage under the facts alleged, but the matter is returned to the trial court for further proceedings to determine this issue.

Reversed and remanded to the trial court, with directions.

      . “ARBITRATION. If any person making claim hereunder and the Company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because of bodily injury to the Insured, or do not agree as to the amount of payment which may be owing under this Coverage, then, upon written demand of either, the matter or matters upon which such person and the Company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the Company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Coverage.”


text:
    Donald E. COMER and June Comer, his wife, Appellants, v. Cesar RODRIGUEZ et al., Appellees.
    No. 76-954.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rentz, McClellan & Haggard, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and Bradford Swing, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiffs, Donald and June Comer, appeal an adverse final summary judgment in favor of Merlin, Inc. and its liability insurer in this action for damages for injuries sustained as a result of the negligent operation of a vehicle owned by Merlin. The judgment was entered for the reason that the dangerous instrumentality doctrine is not applicable in this case.

Defendant-appellee, Merlin, Inc., contracted with Rowland Truck Equipment, Inc. to fabricate and mount a truck body to a truck chassis. The actual task of mounting the truck body to the chassis was assigned to Donald E. Comer and defendant Cesar Rodriguez, both employees of Rowland. During this procedure, Comer sustained serious injuries when he was struck by the chassis operated by Rodriguez. Comer and his wife filed a complaint against Rodriguez, Merlin and their liability insurers alleging that Rodriguez was driving the chassis with the consent and permission of its owner, Merlin. Following pretrial discovery, Merlin and its liability insurer moved for summary judgment on the ground that the dangerous instrumentality doctrine is not applicable to the instant case and they are not liable. The motion was heard and the trial judge entered summary judgment in favor of Merlin and its insurer. We affirm.

Our Supreme Court in Florida Power and Light Co. v. Price, 170 So.2d 293, 298 (Fla.1964) has laid out the exception to the dangerous instrumentality doctrine as follows:

“We hold that liability flowing from operation of the doctrines of dangerous instrumentalities and inherently dangerous work is subject to the exception that where the defendant owner contracts with an independent contractor for the performance of inherently dangerous work and the latter’s employee is injured by a dangerous instrumentality owned by the defendant which is negligently applied or operated by another employee of the independent contractor but wholly without any negligence on the part of the defendant owner, the latter will not be held liable. The incidence of the independent contractor and injury to his employee in the course of the performance of the inherently dangerous work absent any negligence on the part of the contracting owner absolves the latter from liability.”

The facts of this case fall squarely within this exception. Cf. Fry v. Robinson Printers, Inc., 155 So.2d 645 (Fla. 2d DCA 1963); Petitte v. Welch, 167 So.2d 20 (Fla. 3d DCA 1964), cert. denied, 172 So.2d 598 (Fla.1965); Schaffer v. Government Employees Insurance Co., 280 So.2d 504 (Fla. 2d DCA 1973), cert. denied, 285 So.2d 23 (Fla.1973).

Affirmed.


text:
    D. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-973.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Bennett H. Brummer, Public Defender, and Thomas E. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Ira Loewy, Asst. Atty.- Gen., and Paul Mendelsohn, Legal Intern, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of B. S. v. State, 320 So.2d 459 (Fla.3d DCA 1975).


text:
    Donald GOLDFEDER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1024.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellant seeks reversal of a judgment of conviction based upon a finding by the trial judge, in a. non jury trial, that appellant was guilty of resisting arrest with violence.

The sole question on appeal is whether there was sufficient competent evidence adduced to support the conviction of resisting arrest with violence.

We have carefully considered the point on appeal in the light of the record on appeal and briefs of counsel and have concluded that there was sufficient competent evidence adduced to support the conviction of resisting arrest. Heineman v. State, 327 So.2d 898 (Fla.3d DCA 1976). No harmful error having been shown, the judgment appealed is affirmed.

Affirmed.


text:
    Carlo TROVATO, as next friend and guardian of Vicki Chesterpal, a minor, Appellant, v. Charles GLICK and Pennsylvania National Mutual Casualty Insurance Company, Appellees.
    No. 76-1101.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Schwartz, Klein & Steinhardt, North Mir ami Beach, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and James D. Little, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Tampa Electric Company v. Jones, 138 Fla. 746, 190 So. 26 (1939); Preger v. Gomory, 55 So.2d 541 (Fla.1951); Sims v. Apperson Chemicals, Inc., 185 So.2d 179 (Fla. 1st D.C.A.1966).


text:
    Ramiro GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1105.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Bierman, Sonnett, Beiley, Shohat & Osman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Young v. State, 234 So.2d 341 (Fla.1970); Portee v. State, 253 So.2d 866 (Fla.1971); Moore v. State, 259 So.2d 179 (Fla.3rd D.C.A.1972); Panzavecchia v. State, 311 So.2d 782 (Fla.3rd D.C.A.1975); Tedder v. State, 322 So.2d 908 (Fla.1975); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).


text:
    Walter J. MIGOSKI, Appellant, v. Marie HOLLOWED, as personal representative of the estate of Anna Cerny, Deceased, Appellee.
    No. 76-1317.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      Walter J. Migoski, in pro. per.
    No appearance by counsel for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

The appellant is an attorney who represented Laddie Polivka, a former personal representative in the estate of Anna Cerny, deceased. After the resignation of Laddie Polivka and the appointment of a new personal representative, who secured a different attorney, the trial judge assessed against Walter J. Migoski the sum of $357.63 as a penalty for his failure to file a federal estate tax return. This appeal is from that assessment. No brief has been filed by the appellee.

We do not reach the question of whether an estate tax return was required in this case, nor do we determine whether Migoski was negligent in failing to file such a return. It is sufficient to point out that the record reveals an order on petition for instructions which contains a specific provision that the assets, later held to be a portion of the estate for tax purposes, were to be specifically excluded from the probate of the estate. We find no provision of the probate act which allows for a charge against the attorney for a personal representative in circumstances such as above recited. We, therefore, reverse upon authority of Holland v. McGill, 107 Fla. 444, 145 So. 210 (1932).

Reversed and remanded with directions to strike the provision in the order of June 23, 1976, requiring Walter J. Migoski, as attorney, to pay “any penalty and interest charged by the Internal Revenue Service.”

Reversed and remanded.

      . See Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736 (1897). See also In Re Krugle’s Estate, 134 So.2d 860 (Fla.2d DCA 1961).


text:
    VAC DEVELOPMENT CORP., a Florida Corporation, Appellant, v. Cecilio CASTILLO, Appellee.
    No. 76-1345.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      Levey, Cowan & Rubenstein, Miami, for appellant.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellee.
    . Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, VAC Development Corp., seeks reversal of an order on mandate and final judgment (1) awarding defendant Cecilio Castillo $112,411.80 on his counterclaim, and (2) rescinding a mortgage lien based upon the findings that Castillo was equitably es-topped to foreclose the subject mortgage and there are no countermanding equities.

VAC Development Corp. filed a complaint against Cecilio Castillo and others for rescission of a mortgage given by VAC to Castillo. Castillo counterclaimed seeking to foreclose the mortgage. After the conclusion of the trial, the judge cancelled the mortgage and found that VAC owed Castillo $112,411.80 for which he declared Castillo had a lien upon all the assets of VAC. VAC appealed and this court reversed holding as follows [VAC Development Corporation v. Abelleira, 330 So.2d 791, 792 (Fla.3d DCA 1976)]:

“The error in this case consists of a failure to limit the evidence to matters concerning the mortgage which was in issue. See Cortina v. Cortina, Fla. 1957, 98 So.2d 334; Cravero v. Florida State Turnpike Authority, Fla. 1956, 91 So.2d 312; and Rine v. Rine, Fia.App. 1970, 240 So.2d 655. It is clear from the judgment entered that it does not attempt to settle all the equities between the parties but it is unclear whether the $112,411.80 found to be due Castillo from the corporation is only for the indebtedness due on the mortgage. A judgment of foreclosure that is ‘vague and indefinite in its terms’ may require a reversal by the appellate court. See Guaranty Co. v. Luning, 95 Fla. 103, 116 So. 9 (1928). If that amount is due upon the mortgage indebtedness, then the lien of the mortgage covers the property encumbered by the mortgage and not the general assets of the corporation. If that amount is due to Castillo for debts outside of the indebtedness for which the mortgage was executed, then a general accounting for all debts between the parties must be had. A third possibility exists, that is, that the court may find, as it apparently did, that Castillo is equitably estopped to foreclose the mortgage. If that is true, then the lien of the mortgage is discharged and the indebtedness would be subject to judgment and execution unless there are countermanding equities.
“Accordingly, the judgment appealed is reversed and the cause remanded for the determination of the issues set forth.
“Reversed and remanded.” [Emphasis supplied]

Upon the issuance of the mandate by this court, Castillo filed a motion for entry of an order on the mandate wherein he alleged that the third possibility of the three above suggested by this court was the proper and correct one. After a hearing, the trial court entered its order on mandate and final judgment for Castillo in the amount of $112,411.80 and cancelled the judgment lien.

On appeal VAC basically argues that the final judgment is void because the trial court failed to comply with the mandate of this court.

The record reflects the trial judge followed the third suggestion of this court. After having already determined that Castillo was equitably estopped to foreclose the mortgage, the judge then determined that there are no countermanding equities which would prevent a judgment and execution thereon in the amount of $112,411.80. We find the judgment complied with the mandate of this court and VAC has failed to demonstrate reversible error.

Affirmed.


text:
    ROBERT'S DRUGSTORE, INC., Petitioner, v. FLORIDA BOARD OF PHARMACY, an agency of the State of Florida, Respondent.
    No. 76-1928.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      Richard H. M. Swann, Coral Gables, for petitioner.
    Slepin & Schwartz, Tallahassee, for respondent.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an administrative proceeding before the Florida Board of Pharmacy in which a licensed pharmacy and its owners were charged with certain violations of law. The pharmacy was found guilty on one count, was assessed a fine and now seeks review thereof by a petition for a common law writ of certiorari.

The Florida Board of Pharmacy filed.a complaint against Robert’s Drugstore, Inc., a pharmacy licensed under Florida law and doing business in Miami, Florida. In the first count, it was alleged that the permit-tees of Robert’s Drugstore allowed a person unlicensed to practice pharmacy in Florida to dispense a prescription drug. The Florida Board of Pharmacy ultimately found Robert’s Drugstore not guilty on this charge.

In the second count, it was alleged that on a certain date the permittees of Robert’s Drugstore:

“did . . . at a time when a licensed pharmacist was not present and on duty in the prescription department of ROBERT’S DRUGSTORE, INC., 590 West Flagler, Miami, Florida permit the prescription department to remain unlocked and failed to display a sign in a prominent place in the prescription department in such a manner that it can be easily read by patrons of said establishment, which sign shall read: ‘Prescription Department Closed’.”

It was alleged that these acts were prohibited by Rule 21S-1.14 of the Rules of the Florida Board of Pharmacy which provides in relevant part as follows:

“Prescription Department; Padlock; Sign: ‘Prescription Department Closed’. If a community pharmacy is open for business and a Florida registered pharmacist is not present and on duty, the prescription department shall be considered closed; and a sign shall be displayed in a prominent place in the prescription department is such manner that it can be easily read by patrons of said establishment, and each letter on said sign shall be not less than four (4) inches in width and height, in bold print, and such a sign shall read: ‘Prescription Department closed’; provided that at all times when the prescription department is closed, either because of the absence of a Florida registered pharmacist or for any other reason, the said prescription department shall be separated from the remainder of the community pharmacy by partition or other means of enclosure, and said enclosure shall be locked or padlocked so as to prevent the entry into said department by persons not licensed to practice pharmacy in the State of Florida. . . . ” IV Fla.Admin.Code § 21S-1.14 (1974).

The Florida Board of Pharmacy conducted a full hearing on the complaint, took testimony and entered an order finding Robert’s Drugstore, Inc. and its permittees not guilty on count I of the complaint and guilty on count II of the complaint. Robert’s Drugstore, Inc. was ordered to pay a fine of $1,000. Section 465.22(l)(c), 465.-101(3), Florida Statutes (1975)

The permittees of Robert’s Drugstore filed a petition for rehearing or mitigation challenging the finding that the prescription department of the pharmacy herein was unlocked at a time when no licensed pharmacist was present and on duty in the prescription department. No question was raised as to the Board’s finding that the permittees of Robert’s Drugstore had failed to display a prominent sign indicating that the prescription department was closed. The Board re-opened the matter, took extensive testimony and entered an order reaffirming its original order and denying the petition for rehearing. Robert’s Drugstore seeks certiorari review solely as to the order denying the petition for rehearing.

The major question presented for review is whether there is substantial, competent evidence to sustain the Board’s finding on rehearing that Robert’s Drugstore permitted its prescription department to remain unlocked at a time when no licensed pharmacist was on duty in the prescription department. Our review of the record reveals no such evidence.

On the evening of December 23, 1975, Mr. Jerome Stern was a licensed pharmacist and owner and operator of Robert’s Drugstore, Inc., a licensed pharmacy in Miami, Florida. Mr. Stern was on duty that evening when he received a telephone call which required him to temporarily leave the pharmacy to return to his home nearby and attend his ailing wife. He locked the door on the prescription department of the pharmacy prior to leaving, but did not place a sign in a prominent place indicating the prescription department was closed. No licensed pharmacist was left on the premises during his absence. Shortly thereafter, an agent for the Florida Board of Pharmacy saw Mr. Frank Kalazo an employee of Robert’s Drugstore, leaving the prescription department of the pharmacy.

There is absolutely no evidence in this record which establishes that the prescription department was unlocked at any time during Mr. Stern’s absence from the pharmacy. The Board argues that since Mr. Kalazo was seen leaving the prescription department that the department must have been unlocked to allow him to enter. This conclusion does not follow since Mr. Kalazo was working in the prescription department as an assistant prior to Mr. Stern’s departure from the pharmacy. Moreover, it is undisputed that the door to the prescription department automatically locked upon Mr. Kalazo’s departure therefrom. In our view, the Board departed from the essential requirements of the law in denying the petition for rehearing solely as to the finding that the prescription department was unlocked during Mr. Stern’s absence from the pharmacy.

It does not follow, however, that we should upset the Board’s finding in its original order that the permittees of Robert’s Drugstore closed the prescription department on the date in question without displaying a prominent sign indicating that the prescription department was closed. The petition for rehearing never questioned that finding and Robert’s Drugstore has in fact conceded this fact throughout the proceedings herein. This act in itself is a violation of Rule 21S-1.14 of the Rules of the Florida Board of Pharmacy on which a finding of guilt was properly entered. IV Fla.Admin.Code § 21S-1.14 (1974).

We are unpersuaded by Robert’s Drugstore’s argument that the complaint herein was improper under Fla.R.Crim.P. 3.150(a) because it joined two offenses in a single count. The Florida Rules of Criminal Procedure are inapplicable to administrative proceedings such as an action before the Florida Board of Pharmacy. Fla.R.Crim.P. 3.010. Moreover, it is not improper to join two offenses in a single count in a complaint filed before such Board so long as the pharmacy and its permittees are given fair notice of the charges filed against them. See: Florida Board of Pharmacy v. Levin, 190 So.2d 768 (Fla.1966); Hickey v. Wells, 91 So.2d 206 (Fla.1956). A finding of guilt on one or both of the offenses charged may be properly entered if sufficiently established by the evidence. In the instant case, Robert’s Drugstore was given fair notice of the two violations charged in count II of the complaint and the evidence establishes one of the two violations charged.

We feel constrained to comment on one further point. The Florida Board of Pharmacy has failed to make available to Robert’s Drugstore at cost a transcript of the original proceedings on the complaint in violation of Section 120.57(l)(b)6, Florida Statutes (1975). The court reporter who took these proceedings has refused to transcribe her notes and the Board has taken no action to compel her to do so. Ordinarily, we would be inclined to set aside the original order herein and remand for a new hearing based on this statutory violation. In this case, however, we refrain from doing so because of three factors which we believe make the error harmless: (1) Robert’s Drugstore has not sought certiorari review of the original order herein; (2) Robert’s Drugstore sought and obtained a complete rehearing of the matter and a full transcript thereof was made available to it at cost; (3) Robert’s Drugstore sought cer-tiorari review of the order denying the petition for rehearing and this court has granted the relief sought on the only finding of fact challenged by the petition.

We, accordingly, grant the petition for writ of certiorari. We quash that portion of the order denying the petition for rehearing with respect to the finding that Robert’s Drugstore permitted its prescription department to remain unlocked without a licensed pharmacist on duty. That finding of guilt is unsupported by substantial, competent evidence and is hereby quashed.

We leave undisturbed, however, that portion of the original order finding Robert’s Drugstore guilty of closing the prescription department without displaying a prominent sign indicating that the department was closed. Since this is a rather minor offense compared to leaving the prescription department unlocked without a licensed pharmacist on duty, we reverse the $1,000 fine imposed as excessive and reduce the same to $100. See: Pauline v. Borer, 274 So.2d 1 (Fla.1973); Florida Real Estate Commission v. Rogers, 176 So.2d 65 (Fla.1965).

The petition for writ of certiorari is granted, the order under review is in part quashed as previously stated, and the cause remanded for proceedings consistent with this opinion.


text:
    COUNTRY CLUB OF MIAMI CORPORATION, Appellant, v. CENTRAL BANK OF NORTH DADE, Appellee.
    No. 76-2194.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Guy B. Bailey Jr., and William Berger, Miami, for appellant.
    Pallot, Poppell, Goodman & Slotnick and Neil A. Shanzer, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of American Housing Systems v. Country Club of Miami, 342 So.2d 1026 (Fla.3rd D.C.A. 1977).


text:
    Georgianna THORNE, etc., Appellants, v. Dr. Antonio RAMIREZ et al., Appellees.
    No. 76-2366.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      Charles D. Barnard, Coral Gables, for appellants.
    Wayne, Genden & Bach, Miami, for ap-pellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs’ complaint sought to hold the parents of an emancipated child liable for the child’s intentional tort. There was no allegation that the child was dependent, insane or mentally deficient. The complaint was properly dismissed. As to the fact that a twenty year old child is not a minor see Hanley v. Liberty Mutual Insurance Company, 334 So.2d 11 (Fla.1976). It is well settled that a parent is not liable for the torts of his child simply because of his paternity. Bullock v. Armstrong, 180 So.2d 479 (Fla.2d DCA 1965). See also cases cited at 59 Am.Jur.2d Parent and Child § 130.

Affirmed.


text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. Gerald A. HERMAN et al., Appellees.
    No. 77-371.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Joseph A. Wanick, City Atty., John A. Ritter, Coral Gables, Richard A. Kanner, Miami, for appellant.
    Mahoney, Hadlow & Adams and John K. Aurell, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The City of Miami Beach appeals a permanent injunction enjoining the City from including question # 5 relative to the rent control ordinance on the ballot of the March 8, 1977 special election.

On January 7,1977 the city clerk received petitions calling upon the city council to adopt or submit to the City’s electorate a measure amending and re-enacting rent control ordinance # 74-2018 which expired December 31, 1976 for an additional two years. At a meeting on January 19 the city council passed a resolution to submit the measure to the electorate as an initiative (pursuant to Section 26 of the Charter of the City of Miami Beach) by placing question # 5 on the ballot of an already scheduled special election for March 8 provided that 10% of the voters signed initiative petitions at least 30 days before the election (February 8). This condition was satisfied.

On or about February 15, 1977 plaintiffs filed a complaint seeking to enjoin the City from placing the rent control ordinance (question # 5) on the March 8 ballot on the grounds that (1) Section 26 of the City Charter requires the instant measure to be submitted to the electorate at least 60 days after the filing of the petitions asking for the submission, and (2) the proposed measure was not fully set forth in the petitions as required by Section 26 in that it does not fully set forth the text of ordinance # 74-2018.

After several hearings the trial court granted the permanent injunction based on the following:

* * * * * *
“2. The election procedure which is the subject matter of this litigation is sanctioned by and comes within the initiative provisions of § 26 of the City of Miami Beach Charter.
“3. The Dade County Elections Supervisor certified to the City that petitions containing 6,473 signatures of qualified electors were filed with the City Clerk by January 28,1977. There are 59,561 registered voters on Miami Beach eligible to vote in the March 8, 1977 special election.
“4. The initiative procedure that is to be followed when less than fifteen percent of the qualified voters execute the initiative petitions provides that the initiative election shall not take place until at least sixty days subsequent to the filing of the petition or petitions.
“5. The language of" the initiative petition does not fully set forth in said petition the rent control ordinance sought to be enacted.
“6. The initiative petition is scheduled to be placed on the ballot as part of a special election set for March 8, 1977.-
“CONCLUSIONS OF LAW
“1. Plaintiffs have standing to bring this complaint because they are taxpayers and property owners in the City of Miami Beach seeking to enjoin an election alleged to be proeedurally and substantively illegal.
“2. Inclusion of the rent control question presented by the initiative petition as part of the special election to be held March 8,1977 is illegal because sixty days would not have elapsed since a sufficient number of signatures of qualified electors were filed.
“3. The initiative petitions are themselves invalid because they do not fully set forth the subject matter of the measure as required by § 26 of the City Charter.”

The City appeals therefrom. We affirm.

Section 26 of the City’s Charter clearly provides a minimum 60-day period between certification of the petitions and the date of the election. This requirement was not met and the trial judge was correct in enjoining the City from placing the subject rent control measure on the March 8 ballot. See Tacker v. Board of County Commissioners of Polk County, 127 Fla. 248, 170 So. 458 (1936).

We also agree with the judge’s finding that the petitions are invalid for failure to set forth the rent control ordinance to be enacted as required by Section 26 of the Miami Beach City Charter.

Order granting permanent injunction is affirmed.


text:
    Tobin KOOTA and Marilyn Koota, his wife, Plaintiffs, v. PARKWAY GENERAL HOSPITAL, INC., Radiologic Consultants, P. A., Meltzer & Diana, M. D., P. A., Curtis Meltzer, M. D. and Hartford Accident and Indemnity Company, Defendants.
    No. 77-769.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Friedman & Robbins, for plaintiffs.
    Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for defendants.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is a certified question propounded under Fla.App. Rule 4.6 by a judicial referee of a medical mediation panel.

Tobin Koota and his wife, Marilyn Koota, filed a medical mediation claim against Parkway General Hospital, Inc., Radiologic Consultants, P.A., Meltzer and Diana, M.D., P.A., Curtis Meltzer, M.D. and Hartford Accident and Indemnity Co. pursuant to Section 768.44(1)(a), Florida Statutes (Supp. 1976). The defendants answered the claim and designated their medical specialty. Section 768.44(1)(e), (2)(f), Florida Statutes (Supp.1976).

The parties were unable to stipulate as to the doctor and lawyer members of the three man mediation panel. Consequently, the clerk of the circuit court sent each party a list of the prospective panelists consisting of five doctors and five lawyers from which to choose the doctor and lawyer members of the panel. Section 768.44(2)(g), Florida Statutes (Supp.1976).

The judicial referee of the panel thereupon held a hearing. Plaintiff’s counsel made a motion to voir dire the prospective panelists, which motion was denied by the judicial referee. Thereafter, plaintiffs’ counsel in effect waived his statutory right to participate in selecting the lawyer and doctors members of the panel by refusing to strike any of the prospective panelists from the lists previously supplied as authorized by Section 768.44(2)(g), Florida Statutes (Supp. 1976).

The judicial referee did not thereafter exercise his statutory authority to supervise and direct the proceedings by himself designating the doctor and lawyer members of the panel after allowing the defendants’ counsel his right to strike prospective panelists pursuant to Section 768.44(2)(g), Florida Statutes (Supp.1976). See: State ex rel. Mercy Hospital v. Vann, 342 So.2d 1073 (Fla.3d D.C.A. 1977). Instead, the judicial referee ruled that he lacked authority to compel the plaintiffs’ counsel to alternate with the defendants’ counsel and take affirmative steps toward selecting panel members as outlined in the above statute. Pursuant to Fla.App. Rule 4.6, the judicial referee thereafter certified the following question to this court:

“Under Florida Statute 768.44(2)(g), does the judicial referee have the authority to compel each attorney to take the affirmative steps towards selecting panel members as outlined in said statute?”

The threshold issue which we are confronted with prior to considering this question is whether the judicial referee of a medical mediation panel may properly certify a question of law to a district court of appeal. We hold that the judicial referee has no such authority and decline to answer the certified question.

Fla.App. Rule 4.6(a) provides as follows: “When it shall appear to a judge of the lower court that there is involved in any cause pending before him questions or propositions of law that are determinative of the cause and are without controlling precedent in this state and that instruction from the Court will facilitate the proper disposition of the cause, said judge, on his own motion or on motion of either party, may certify said question or proposition of law to the Court for instruction.” [Emphasis added].

In our view, a judicial referee of a medical mediation panel under Section 768.-44, Florida Statutes (Supp.1976) is not a “judge of a lower court” within the meaning of Fla.App. Rule 4.6(a). Although a circuit judge may properly sit on a medical mediation panel, he is not sitting in his capacity as a circuit judge. See: Carter v. Sparkman, 335 So.2d 802 (Fla.1976). Moreover, a medical mediation panel is not a court. It is a quasi-judicial body with limited statutory authority. And there is no provision in the law for a quasi-judicial body or administrative board to certify a question of law to a district court of appeal.

We, accordingly, decline to answer the question certified and remand the cause to the judicial referee to proceed in accordance with his general statutory authority to supervise and direct the mediation proceedings.


author: SMITH, Judge.

text:
    William S. SMITH, Appellant, v. ANHEUSER-BUSCH BREWING CO., INC., Appellee. James M. FOWLER, Appellant, v. ANHEUSER-BUSCH BREWING CO., INC., Appellee.
    Nos. BB-251, BB-276.
    District Court of Appeal of Florida, First District.
    May 25, 1977.

      Deitra R. Micks, of Jackson & Micks, Jacksonville, for appellant Smith; and Gary E. Eckstine, Jacksonville, for appellant Fowler.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   SMITH, Judge.

Appellants in these consolidated cases appeal from a Duval County circuit court judgment entered on a directed verdict dismissing their claims against Anheuser-Busch for slander. Appellants’ claims arose from statements by the brewery’s industrial relations manager and brewmaster when terminating appellants’ employ and explaining their termination to others.

Appellants alleged those managers falsely published defamatory statements to the effect that appellants conspired to steal or stole a quantity of beer from the brewery. The evidence did not support the allegation. The words addressed by one of the managers simultaneously and privately to appellants was not a publication, defamatory or otherwise, concerning either. That communication was a demand for explanation concerning appellants’ alleged joint actions. See Campbell v. Jacksonville Kennel Club, Inc., 66 So.2d 495 (Fla.1953); Silveira v. Aircraft Casting, Inc., 291 So.2d 19 (Fla. 3d DCA 1974). We need not determine whether words spoken to appellants by a manager in the presence of an assistant brewmaster constituted a publication to the assistant or whether that communication was privileged. See Drennen v. Westinghouse Elec. Corp., 328 So.2d 52 (Fla. 1st DCA 1976). The words were not defamatory: “Mr. Stoud said to me [appellant Smith] that the guard has implicated me as far as stealing beer, and he has to terminate me for these charges of stealing beer unless I can prove that I didn’t steal the beer.”

The explanation spoken by a manager to nonemployees who inquired and sought to intervene at the instance of appellant Smith was not a publication, or was privileged. Maine v. Allstate Ins. Co., 240 So.2d 857 (Fla. 4th DCA 1970). The manager’s profession of belief that appellants did not steal beer, expressed when responding to a nonemployee’s inquiry, was a personal amelioration of the brewery’s discharge of appellants for “involvement” in beer theft, not a personal or corporate confession of bad faith destroying the speaker’s privilege to respond to the inquiry induced by appellant Smith. We have studied the briefs and canvassed the record. We have found no error.

AFFIRMED.

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


author: MILLS, Judge.

text:
    CROSS STATE DEVELOPMENT COMPANY, a Florida Corporation, Campbell International Corporation, a Florida Corporation, and Lake Margaret Estates, Inc., a Florida Corporation, Appellants, v. INDEPCO CONSTRUCTION COMPANY, INC., a Florida Corporation, Appellee.
    No. BB-463.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Jackson Bryan, Bryan & Dunning, Palat-ka, Joel D. Eaton, Podhurst, Orseck & Parks, Miami, for appellants.
    Peter T. Miller and Joe C. Miller, II, Miller, Perry & Miller, Palatka, for appel-lee.
   MILLS, Judge.

INTRODUCTION

Appellants, defendants below, appeal from a final judgment entered in favor of appellee, plaintiff below, following a nonju-ry trial in a mechanic’s lien foreclosure action.

ISSUE

Whether, under the facts of this case, plaintiff’s claim of lien was filed within 90 days from the date of the final furnishing of labor or services.

STATUTE INVOLVED

Section 713.08(5), Florida Statutes (1971), provides in pertinent part:

“The claim of lien may be recorded at any time during the progress of the work or thereafter but not later than ninety days after the final furnishing of the labor or services or materials by the lien-

FACTS

Plaintiff filed its claim of lien on 9 February 1973. The claim recited that plaintiff last furnished labor or services on the job on 11 November 1972. The initial complaint alleged that the plaintiff furnished the last of improvements on 7 November. This complaint was dismissed and plaintiff filed an amended complaint alleging that the last of improvements was furnished on 11 November. At the conclusion of the plaintiff’s case in chief, the plaintiff was permitted to amend its complaint to show the final day of work to be 4 November. Thereafter, the plaintiff was again permitted to amend its complaint to show the final date of work to be 11 November.

The evidence adduced at trial was that the final day of work was 4 November or 9 November. Evidence was adduced that a piece of machinery owned by plaintiff was at the job site on 12 November, although it had not been used on the job.

DECISION

The judgment entered in favor of the plaintiff must be reversed because the testimony at trial shows that the final furnishing of labor or services occurred on 4 or 9 November; therefore, the claim of lien, which was filed on 9 February, was not filed within the 90-day period of time mandated by Section 713.08(5). Plaintiff’s contention that its claim of lien was timely filed because it left a piece of its road building machinery at the job site until 12 November is without merit. The storage of the piece of machinery at the job site after plaintiff concluded its work on 4 or 9 November is not the furnishing of labor or services within the intendment of Section 713.08(5).

The final judgment in this case is reversed and this case is remanded to the trial court for the entry of a final judgment in favor of the defendants.

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


author: McCORD, Judge.

text:
    Rose BONOMO, Petitioner, v. DIVISION OF EMPLOYMENT SECURITY of the State of Florida DEPARTMENT OF COMMERCE and Sears, Roebuck and Company, Respondents.
    No. CC-181.
    District Court of Appeal of Florida, First District.
    May 25, 1977.

      Mary B. Steddom, O’Neill & Steddom, Ocala, for petitioner.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Jr., Tallahassee, for respondents.
   McCORD, Judge.

This is a petition for writ of certiorari to the Division of Employment Security, Department of Commerce to review an order of the Industrial Relations Commission holding petitioner disqualified from receiving unemployment compensation benefits. Respondent has not favored us with a brief but has waived filing a brief.

Petitioner contends that the decision of the appeals referee finding that she was discharged for misconduct connected with her work and the final order of the Industrial Relations Commission concluding that petitioner had voluntarily left her employment without good cause attributable to her employer are not supported by competent, substantial evidence. We agree. Petitioner was employed by Sears, Roebuck and Company as a parttime sales person from September, 1974, until May 26, 1975, working an average of 20 hours per week. On May 26, 1975, she met with Tom Fagg, personnel manager, and requested a reduction in working hours due to her husband’s illness. It appears that she only intended a temporary reduction in working hours but Fagg testified that he assumed it was to be a permanent reduction in working hours. She testified that he encouraged her to take care of her husband and told her to call the personnel office and find out what days she would be working. He testified that if employees wanted time off for personal reasons, they would bend over backwards to give it; that he wasn’t sure whether petitioner was to contact the personnel office or the personnel office was to contact her as to a reduction in her working time. Petitioner’s testimony is unrefuted that on May 28 she called Mrs. Rose in personnel and asked her if she had anything for her that week, and Mrs. Rose said no; that on May 20 she spoke to Mrs. Rose and asked her if there was any schedule for the following week and Mrs. Rose said, “No, nothing yet,” and that petitioner said, “Now Mrs. Rose, aré you laying me off because I need the work. I can’t stay without work. And she told me it was definitely not a lay-off, and she would call me with enough time to come into work. They left me hanging there for three weeks, and then on July 1st — it was July 1st, I got the notification of termination.” Petitioner testified that she would have come back to work on the original schedule rather than be terminated, but she was terminated without being given that chance. Fagg testified that petitioner’s work was satisfactory and that she would be eligible for re-hire.

It appears from the evidence that petitioner, from her conversation with Fagg, was left with the impression that the personnel office could work out a reduction in her hours of work and that she should keep in touch with the personnel office in that regard. She did so but nothing was forthcoming. She was terminated at a time when the personnel office had led her to believe that they were attempting to work out a reduction in her schedule. Under these circumstances, Mr. Fagg or the personnel office should have notified her that they had been unable to work out a reduction in her schedule and that she must either resume her old schedule or be discharged. But, as aforesaid, she was summarily discharged without being given such an alternative. Her discharge was certainly not for misconduct connected with her work as found by the referee and the evidence does not support the finding of the Industrial Relations Commission that she “voluntarily left her employment without good cause attributable to her employer.”

Certiorari is granted and the aforesaid findings of the referee and of the Industrial Relations Commission are quashed with directions that appellant be paid unemployment compensation benefits for such period and in such amounts as she is entitled to receive for discharge from her employment, which discharge did not result from voluntarily leaving her employment without good cause attributable to her employer.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.