author: BARNETTE, Judge.

text:
    Nich and Marie CUCINELLA v. PENINSULAR FIRE INSURANCE COMPANY.
    No. 10488.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 12, 1976.
    Albert H. Hanemann, Jr., New Orleans, Lemle, Kelleher, Kohlmeyer & Matthews, for defendant-appellant.
    Cleveland J. Marcel, Jr., Houma, for plainti f f s-appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

The plaintiffs, appellees, brought this suit for damages resulting from a slip and fall accident in which the plaintiff, Mrs. Marie Cucinella, wife of Nick Cucinella, sustained a fractured hip with serious complications. The action was brought against the home owner’s liability insurer. Judgment was rendered in favor of Mrs. Cuci-nella in the amount of $17,500 and in favor of Mr. Cucinella for reimbursement of surgical and hospital expenses for $8,000. This amount was slightly less than the $8,388.61 proven, but the policy limit was $25,500. The two judgments total that amount. From that judgment, the defendant insurer, has appealed.

The plaintiff, Marie Cucinella, a fifty-four year old person was visiting in the home of her daughter, Mrs. Abel S. Pontiff. There is no dispute that she was an invitee in her daughter’s home and there is no issue over the jurisprudential guidelines applicable to the duty of care owed by the home owner to an invitee. The issue is simply one of fact, whether there was a hidden peril in the alleged slippery condition of the floor and whether Mrs. Pontiff warned her mother thereof. There is also the question whether Mrs. Cucinella’s fall was caused, in fact, by the alleged slippery condition of the floor or if she tripped over her small grandchild.

It would serve no useful purpose to cite authorities for the well established jurisprudential rule of law that the decision of the trial court on issues of fact will be given great weight and will not be overturned except' upon a clear showing of manifest error. We are fully cognizant of the limitation imposed upon the Appellate Courts by this jurisprudence, but it is our opinion that the plaintiffs have failed to establish a factual basis to support the judgment rendered. They have not discharged the burden of proof that Mrs. Cu-cinella’s unfortunate accident was the result of negligence or want of care on the part of the home owners, or in particular, their daughter, Mrs. Pontiff.

The plaintiff, Mrs. Cucinella, was visiting in the home of her daughter, Mrs. Pontiff, on October 3, 1973, where she had visited many times. On this occasion she was washing dishes at the kitchen sink while her daughter sat at a table in the kitchen. Mrs. Pontiff’s two year old child, who was toddling about the kitchen, asked her grandmother for a cookie. Mrs. Cuci-nella found the cookie jar empty and her daughter told her there were cookies in the pantry. She washed the cookie jar and wiped her hands and then turned to go to the pantry for the cookies. Upon turning to leave the sink, Mrs. Cucinella felt the small child immediately behind her and made a movement to avoid falling on the child and in some manner fell, breaking her hip. She gave the following account of her fall in her testimony in the trial court:

“A And I opened the cookie jar, and there weren’t any cookies. And Loretta hollered from somewhere. She said they had cookies in the pantry, and so I picked up the cookie jar, and I washed the cover and then I filled the jar up with water. Why I did that I don’t know. Why do we do things? I don’t know. Anyway, and then I was turned around to go in the pantry to get the cookies, and I tripped on the baby. She was right in back of me, and I tried desperately not to fall on her, and I didn’t fall on her. I do my legs some kind of way, and I fell and next thing I knew I had a broken hip. I don’t remember too much after that.”

The kitchen floor was covered with a type of linoleum called “Congolium” which had been installed in Mrs. Pontiff’s kitchen about three months before the accident. There is no evidence that it was defective, though Mrs. Pontiff testified it was slippery when wet. Because of this condition Mrs. Pontiff usually kept a small rug in front of the kitchen sink, but on the day in question the rug had been removed for cleaning.

The daughter did not examine the floor after the accident and could not testify if it was wet at that time. Mrs. Cucinella was questioned if the floor was slippery and answered:

“A I cannot say for sure. I cannot say that, if it was slippery, or wasn’t slippery. I don’t know how that I did the slip and fall. I wished it had never happened, but it did, and I cannot say that it was or it wasn’t. I’m not sure.
* * * * * *
“A I can’t say.”

She also testified that she had washed dishes in her daughter’s home “many times” and was aware that a small rug was sometimes on the kitchen floor in front of the sink, but could not recall if it was or was not there on the day of the accident.

Mrs. Pontiff testified that on a prior occasion she (Mrs. Pontiff) had slipped on the same type of floor in the bathroom when her child suddenly came up behind her causing her to fall over the tub. On another occasion she said she slipped on a throw rug placed at the entrance to the kitchen from the living room. There is no other evidence in the record to support plaintiff’s contention that the floor was slippery to the point of being a hazard or a concealed danger to anyone using it in a normal manner.

Mrs. Pontiff testified that she gave no warning to her mother of the alleged slippery condition of the floor.

The trial judge concluded that “. . . the condition of the floor was a substantial and important factor, if not the principal cause of this accident.” We cannot concur in this opinion. We find no evidence in the record to support the conclusion that the floor was abnormally slippery, when wet or dry and nothing more than an assumption that it was probably wet from Mrs. Cucinella having splashed dishwater. There is no testimony that it was in fact wet.

The evidence and the testimony of Mrs. Cucinella herself preponderates strongly in support of the conclusion that the cause of her fall was tripping over her grandchild. There is no evidence to support a finding of a defect, or hidden or potential danger in the floor which would impose upon the home owner a duty to warn her guest of such alleged danger. We therefore find manifest error in the conclusion of the trial judge.

The plaintiffs have failed to discharge the burden of proof by a preponderance of the evidence. On the contrary the evidence preponderates against a finding of defect, abnormal condition or potential hazard in the condition of the floor. The cause of Mrs. Cucinella’s fall was the sudden awareness of the small child immediately behind her and her movement to avoid tripping over and falling on the child.

In Barry v. Billac, 250 So.2d 516 (La. App. 4th Cir. 1971) at page 519 the court said:

“ * * * The rule is well rooted that the findings of fact by the trial judge or jury are not to be disturbed or set aside unless manifestly erroneous; however, where the judgment of the trial court is clearly against the weight of the evidence, it is the duty of the appellate tribunal to set it aside. Godfrey v. Baton Rouge Recreation & Parks Com’n, 213 So.2d 109 (La.App. 1st Cir. 1968); writ refused 252 La. 958, 215 So.2d 128; Dixon v. Vicksburg, S. & P. Ry. Co., 139 La. 329, 71 So. 527 (1916); Avis Rent-A-Car System, Inc. v. Berthiaume, 188 So.2d 105 (La.App. 1st Cir. 1966).”

See also Begin v. Talley, 305 So.2d 586 (La.App. 4th Cir. 1975); D’Amico v. Shell Oil Company, 293 So.2d 279 (La.App. 4th Cir. 1974).

In this case we have only the testimony of Mrs. Cucinella and her daughter, Mrs. Pontiff. There is no conflict of testimony and therefore not a situation calling for a test of credibility in which the discretion of the trial judge would be given great weight. It is not the credibility of the witnesses but rather the substance of their testimony which determines if the plaintiffs have discharged the burden of proof by a preponderance of evidence. This distinction was made by the court in Blue Streak Enterprises v. Cherrie, 263 So.2d 734, (La.App. 4th Cir. 1972) wherein the court said at page 737:

“A trial judge is in the best position to determine credibility of witnesses, by observing demeanor, etc., and when two equally opposing witnesses testify contrary to each other on a matter of fact, he may properly believe one and disbelieve the other, and this finding of fact will not be disturbed on appeal. However, the written document in the record before us, supporting the testimony of one witness over the other by its plain terms, makes the question one of. preponderance of the evidence rather than credibility of witnesses. On probative value of testimony, the findings of the trial judge will not be taken as conclusive. Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Roder v. Pelican Rice Co., Ct.App.Orleans, 10 Orleans App. 120 (1913); Blanche v. Goodier, 22 So.2d 82 (La.App.Orl.1945); Godfrey v. Baton Rouge Recreation and Parks Commission, 213 So.2d 109 (La.App. 1st Cir., 1968), writ refused 252 La. 958, 215 So.2d 128. The rule that the judgment of the trial court on questions of fact will not be disturbed unless manifestly erroneous is not applicable here, since the question is one of sufficiency and preponderance of evidence rather than credibility of witnesses.”

See also Hall v. Great Atlantic and Pacific Tea Company, Inc., 297 So.2d 527 (La.App. 4th Cir. 1974), writ refused 300 So.2d 842 (La.1974); Jones v. Bryant, 283 So.2d 307 (La.App. 4th Cir. 1973); Melancon v. I.M.C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir. 1973), writs refused 283 So.2d 769 (La. 1973) and 283 So.2d 771 (La.1973).

The judgment appealed is reversed and set aside and there is judgment in favor of the defendant, appellant, Peninsular Insurance Company and against the plaintiffs, appellees, dismissing their suit at their cost.

Reversed and rendered.


source: Caselaw Access Project

author: BAILES, Judge Pro Tem.

license: Public Domain

text:
    R. D. FORNEA CO., INC. v. Eddie L. FORNEA.
    No. 10459.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 11, 1976.

      Edward F. Griffis and Richard F. Knight, Bogalusa, for appellant.
    Jim W. Richardson, Bogalusa, for ap-pellee.
    Before SARTAIN, J., and BAILES and PICKETT, JJ., Pro Tem.
   BAILES, Judge Pro Tem.

In this boundary action, the plaintiff seeks to have declared, as its easternmost boundary in Section 22, Township 2 South, Range 14 East, Washington Parish, Louisiana, the middle of Horseshoe Lake. The defendant asserts that the true boundary between these properties is the western edge of the waters of that lake. The case was tried on the merits on November 10, 1965, and an appeal thereafter perfected by both plaintiff and defendant. We reversed, however, and remanded the matter to the trial court for the compliance by the court appointed surveyor with certain technical formalities. See 208 So.2d 371 (La. App. 1st Cir. 1968). On remand, the trial judge to whom the case was docketed, upon receiving the surveyor’s additions to his prior work, affirmed the former judgment of that court by adopting the opinion previously rendered by the district judge who originally heard the case.

The appealed judgment supports the defendant’s contentions and concluded that the correct boundary between these properties is the westerly edge of the waters of Horseshoe Lake. We affirm.

This' protracted litigation involves the ownership of a body of water known as Horseshoe Lake located in Sections 22 and 48 of township 2 South, Range 14 East, Washington Parish, Louisiana.

The plaintiff owns several hundred acres in those sections and in Section 44 and part of its eastern boundary is Horseshoe Lake which was formerly a part of the Pearl River which changed its course to the east at an unspecified time. The defendant’s acreage lies to the east of the plaintiff’s holdings.

The plaintiff’s title is set out in a lengthy property description and provides for an eastern boundary containing numerous calls and distances. Particularly pertinent to these proceedings is the following:

“ * * * 5314 deg. W. 2 chains; N. 36J4 deg. W. 3.50 chains to where same intersects Horseshoe Lake proper; thence by traverse around the south and west side of said Lake * * ' *

The defendant’s property description contains these provisions:

“ * * * Containing 200 acres more or less or all lands contained within the following boundaries, to-wit: Bound north and east by Pearl River and west and south by lands of vendor herein. Conditional lines as follows: Commencing at the mouth of Sandy Slough on Pearl River running southwest to Horseshoe Lake to Horseshoe Drain down said Horseshoe Drain to Pearl River thence up the River to place of starting being same land acquired by vendor from Robert Daniel.”

The plaintiff contends, initially, that, since neither description specifically calls for the ownership of the lake, the common ancestor in title of these parties intended the lake to be a joint boundary and that the owners of each side were to own to the center line. As alternative contentions, it argues, first, that this body of water is, in fact, a nonnavigable stream with title being in the riparian owners to the center line; it also maintains, as a third possibility, that this was, in time past, a navigable body of water with ownership remaining in the State of Louisiana.

The trial court concluded that this body of water was not a stream but was a non-navigable lake and in reviewing the jurisprudence of this state which has dealt with the rights of riparian owners found no precedent in this jurisdiction for declaring that the ownership of property adjacent to a privately owned, non-navigable lake conferred any rights to the bottom of that lake. He further determined that where property is bounded by meandered water, as here, unless a clear intention to the contrary is expressed, the water and not the meander line forms the boundary.

The evidence in the record before us preponderates to the effect that this body of water is a lake. The survey maps and title descriptions all picture and describe it as such, as did the witnesses who testified herein. Although there are some indications that there may be some flow from and into the Pearl River at high water times through connecting sloughs and drains, it is clear that, except for those unusual occasions, it maintains the features commonly associated with a lake as that term has been jurisprudentially explained and defined. State v. Placid Oil Company, 300 So.2d 154 (La.1974).

By the very terms of plaintiff’s title, its eastern boundary in this vicinity calls for certain measurements to “where same intersects Horseshoe Lake proper; thence by traverse around the south and west side of said Lake.” This description, emanating from a common ancestor, does not contemplate ownership of the lake itself.

The Civil Code contains certain provisions specifically dealing with rivers and streams. See Article 509 et seq. However, our jurisprudence has repeatedly recognized that those Civil Code provisions do not apply to lakes. See Esso Standard Oil Co. v. Jones, 233 La. 915, 98 So.2d 236 (1957); Stephens v. Drake, 134 So.2d 674 (La.App. 2nd Cir. 1961).

The ownership of the entirety of a non-navigable lake by an adjacent landowner is not inconsistent with the laws of this state. As we have previously noted herein, a reading of the wording and terminology of the plaintiff’s deed shows that it has no claim to the lake within the four corners of that instrument, as it states only that their property traverses around the south and west side of the lake. The defendant’s description, however, while not drawn in the most clear and specific terms, does not exclude ownership of the entirety of the lake. A comparison of its title with that of plaintiff’s compels the conclusion that the lake is totally within the ownership of, and was conveyed to, the defendant. We find no indication in these acts of conveyance that their ancestor in title intended the lake to be a joint boundary. In McDade v. Caplis, 154 La. 1019, 98 So. 625 (1924), the court had before it a matter similar to the case at bar. In disposing of an argument apparently like that advanced by plaintiff here, the court said:

“ * * * It is also shown that, when Smith acquired from other parties all the land around this lake, the properties were described as fractional quarters and as lying east or west or south of Half Moon Lake. None of his deeds pretended to include the lake. The fact that he owned the land around and adjoining the lake did not confer its ownership upon him any more than if the lake had been high, dry land, title to which was in another.”'

We also conclude that the opinion of the trial court that the proper boundary to be established is the westerly edge of the waters of the lake is not manifestly erroneous. Unless a clear intention to the contrary is expressed in the act of conveyance, the water line will be regarded as the boundary where meandered water is present. State v. Aucoin, 206 La. 787, 20 So.2d 136 (1944). We think that principle to be applicable here, as no contrary intention is expressed in either description.

The record is devoid of any evidence whatsoever as to ownership of this body of water being in the State of Louisiana. To the contrary, all of the evidence submitted by the parties herein supports private ownership, which requires that the appellant’s argument in that regard must be dismissed.

The defendant has filed in this court a peremptory exception of nonjoinder of an indispensable party based on the fact that the named plaintiff has sold its property and there has been no substitution of the present owner as a party plaintiff. By joint motion of all parties this defect now has been cured. The present owner, Ellis Clairain, is substituted as the party plaintiff.

For the foregoing reasons, the judgment appealed is affirmed, at plaintiff-appellant’s cost.

Affirmed.


author: HALL, Judge.

text:
    Jesse L. BURNETT, Jr., Plaintiff-Appellant, v. Mary Elizabeth Franklin BURNETT, Defendant-Appellant.
    No. 12747.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Love, Rigby, Dehan & Love by Truly W. McDaniel, Shreveport, for plaintiff-appellant.
    Eatman & Hunter by Robert E. Eatman, Shreveport, for defendant-appellant.
    Before HALL, DENNIS and BURGESS, JJ.
   HALL, Judge.

The plaintiff-husband filed suit against the defendant-wife for separation from bed and board on the grounds of cruel treatment. The wife reconvened for a separation on the grounds of cruel treatment and abandonment. After trial the district court ruled that neither party had sustained the burden of proof and rejected the demands of both parties. Both parties appealed.

The parties were married in 1950. After more than twenty years of marriage, with their children grown or about grown, their marriage deteriorated drastically during 1974 with the husband moving out in September. One of the husband’s main complaints was that the wife chose to sleep in a separate bedroom and refused to have sexual relations with him. He had numerous other complaints such as his wife accusing him of affairs with other women, not being grateful for a coat his secretary helped pick out, and similar instances. The wife admitted sleeping in a separate bedroom but said this was because her husband had lost interest in her, had lost his sex drive and showed no affection. Her suspicions about other women were based primarily on the fact that her husband did not want to have sex with her. The husband explained his lack of ability to have sexual relations for a time was due to temporary impotency caused by medication he was taking.

The husband testified he finally moved out, that under the circumstances he no longer loved his wife, and he wanted the marriage terminated. The wife testified she wanted her husband back and wanted to resume the marriage relationship.

The trial judge’s comments, which were dictated into the record at the conclusion of the trial and after oral argument, are perceptive, thoughtful, and accurately summarize the evidence. He found the wife had some reason to choose separate bedrooms because of her husband’s loss of sex drive and lack of affection. He found the husband had some reason to leave home because of the situation, but not enough reason to justify a judgment of separation in his favor. He stated he was not going to call it mutual fault although he could. 'The judge commented that most marriages reach a stage where the going gets rough —it has to do with aging, sometimes with drinking, sometimes with medical problems, and if both parties had been more patient their problems probably could have been worked out. The court found no fault on either side and denied both demands.

This court is in agreement with the trial court’s conclusion that the parties each failed to prove cruel treatment on the part of the other of such a nature as to render their living together insupportable as required under LSA-C.C. Art. 138. It is true that “conduct may be the very refinement of cruelty, without either force or blows.” Olberding v. Gohres, 107 La. 715, 31 So. 1028 (1902). Still, the evidence in this case does not establish “unjustifiable conduct on the part of either husband or wife which, so greviously wounds the mental feelings of the other, or such as in any other manner utterly destroys the legitimate ends and objects of matrimony.” Krauss v. Krauss, 163 La. 218, 111 So. 683 (1927). The respective demands for separation grounded on cruel treatment were properly denied.

Contrary to the trial court, however, it is the opinion of this court that the wife is entitled to a separation from bed and board on the grounds of abandonment under LSA-C.C. Art. 143. The husband voluntarily and purposely withdrew from the common dwelling with the intention of terminating the marriage. While he had some reasons for doing so, the reasons did not constitute “a lawful cause.”

The mere fact that there is a lack of affection between the husband and wife does not give one of them cause to abandon the other. Kleinpeter v. McCulloh, 312 So.2d 146 (La.App. 1st Cir. 1975). As was noted in Loftin v. Loftin, 304 So.2d 869 (La.App. 2d Cir. 1974):

“Although the participants in this action developed an atmosphere of friction and unpleasantness between themselves which made living together difficult, this in itself was not sufficient to justify one party leaving the domicile without placing himself in jeopardy of being charged with abandonment.”

Such fault on the part of the wife as was proven in this cause does not amount to “lawful cause” for the husband’s withdrawal from the matrimonial domicile. She is entitled to a separation on the grounds of abandonment.

For the reasons assigned, that part of the judgment of the district court denying the parties’ demands for a separation on the grounds of cruel treatment is affirmed. That part of the judgment denying the wife’s' prayer for a separation on the grounds of abandonment is reversed.

It is ordered, adjudged and decreed, that there be judgment in favor of plaintiff-in-reconvention, Mary Elizabeth Franklin Burnett, and against defendant-in-recon-vention, Jesse L. Burnett, Jr., granting a separation from bed and board between the said parties. All costs, including the cost of appeal, are assessed against the defendant-in-reconvention.

Affirmed in part and reversed in part.

DENNIS, J., concurs.


author: ADKINS, Chief Justice: ENGLAND, Justice

text:
    AB CTC, a Swedish Corporation, Petitioner, v. Victoria MOREJON, Respondent.
    No. 45903.
    Supreme Court of Florida.
    July 24, 1975.
    Rehearing Denied Jan. 27, 1976.

      David Yelen, Yelen & Yelen, Coral Go-bles, for petitioner.
    Norman S. Segall, High, Stack, Davis & Lazenby, Miami, for respondent.
   ADKINS, Chief Justice:

Conflict is the basis for our jurisdiction. Fla.Const., Article V, § 3(b)(3), F.S.A. 1973. In Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965), we held that this Court may review by conflict certiorari a per curiam affirmance without opinion where an examination of the record proper discloses the legal effect of such per cur-iam affirmance is to create conflict with a decision of this Court or another District Court of Appeal. Under the provisions of Fla.Const., Article V, § 3(b)(3), F.S.A., as amended in 1973, a direct conflict with decisions of the same District Court of Appeal vests this Court with jurisdiction.

Where, as here, the per curiam af-firmance without opinion could have been based on more than one statute, the petitioner must show that a conflict would be created between the decision sub judice and a decision of a District Court of Appeal or of the Supreme Court, regardless of which statute may have been the basis for the decision sub judice. Since petitioner has shown that the decision sub judice had to be based on either Fla.Stat. § 48.181 or § 48.182, and such decision if based upon § 48.181 would conflict with Fawcett Publications, Inc. v. Rand, 144 So.2d 512 (Fla. 3d DCA 1962), and if based upon Fla.Stat. § 48.182, would conflict with Gordon v. John Deere Co., 264 So.2d 419 (Fla.1972), we have conflict jurisdiction.

Respondent filed a complaint against petitioner and Bermil Industries for damages as a result of an accident occurring in 1971. The accident, which resulted in serious personal injury to respondent, was alleged to have been caused by the negligent and careless manufacture of a washing machine by petitioner. Service of process on petitioner was attempted by substitute service of process on the Secretary of State.

Petitioner moved to dismiss and to quash based upon lack of jurisdiction over the person. Petitioner’s motion to dismiss was supported by an affidavit of its director, wherein it was declared that petitioner is a Swedish corporation having its offices in Sweden; that petitioner does not conduct business in the United States; that all sales are made in Sweden to its distributor, Bermil Industries, an independent contractor, and sent by petitioner to Bermil Industries F.O.B. Gothenburg, Sweden; that the washing machine in question was sold to Bermil Industries in 1968.

The trial court permitted respondent to incorporate into this record the record of a prior law suit including affidavits, depositions, and trial testimony. The facts therein revealed that petitioner shipped all of its products, including the washing machine in question, to Bermil Industries, the exclusive representative of petitioner in the United States. Furthermore, a service manual printed in Sweden in the English language was delivered by petitioner to Bermil Industries for distribution with the machines in the United States. Bermil Industries sent the washing machine in question to Laundry Equipment Company in Florida. In 1969 the machine was sold in Florida by Laundry Equipment Company to Washwell, Inc., a laundromat. Respondent sustained personal injuries while using the washing machine in the laundromat in April, 1971.

The motion to dismiss for lack of jurisdiction over the petitioner whs denied. An interlocutory appeal was taken and the Third District Court of Appeal by a two to one vote per curiam affirmed without opinion.

In Dinsmore v. Blumenthal, 314 So.2d 561, opinion filed May 21, 1975, this Court adopted the views expressed in Fawcett Publications, Inc. v. Rand, supra, requiring control by the nonresident defendant over brokers, jobbers, wholesalers or distributors, or control over the personal property in the hands of brokers,-jobbers, wholesalers or distributors, before a nonresident .can be held to be doing business in this State through brokers, jobbers, wholesalers or distributors, pursuant to Fla.Stat. § 48.-181(1) or §48.181(3).

One seeking to effect substituted service of process under a long-arm statute has the burden of presenting facts which clearly justify the applicability of the statute. Fawcett Publications, Inc. v. Rand, supra. In the record before this Court, respondent failed to prove that petitioner exercised any control over the brokers, jobbers, wholesalers or distributors, or any control over the washing machine in the hands of the brokers, jobbers, wholesalers or distributors. The decision sub judice conflicts with Fawcett Publications, Inc. v. Rand, supra, and Dinsmore v. Blumenthal, supra.

Whereas a parent company has “control” over a subsidiary, a manufacturer does not necessarily have “control” over a sole distributor. Fla.Stat. § 47.16(2) [now § 48.181(3)] was enacted as a legislative response to Berkman v. Ann Lewis Shops, Inc., 246 F.2d 44 (2d Cir. 1957) affg., 142 F.Supp. 417 (S.D.N.Y.1956), wherein it was held that Fla.Stat. § 47.-16(1) [now § 48.181(1)]'was inadequate to serve as a basis to assert jurisdiction in this State over a parent company whose subsidiary was doing business in this State.

We do not hold that respondent cannot, by appropriate proof, meet its burden of proof to show applicability of Fla. Stat. § 48.181(1) or § 48.181(3). We merely hold that respondent has failed to do so. Upon a proper showing, respondent should be afforded a further opportunity to attempt service.

Having reached the conclusion that petitioner failed to sustain the propriety of substitute service pursuant to § 48.181, we must decide whether petitioner is subject to jurisdiction under § 48.182 which provides :

“48.182 Service on nonresidents committing a wrongful act outside the state which causes injury within the state.— Any nonresident person, firm, or corporation who in person or through an agent commits a wrongful act outside the state which causes injury, loss, or damage to persons or property within this state may be personally served in any action or proceeding against the nonresident arising from any such act in the same manner as a nonresident who in person or through an agent has committed a wrongful act within the state. If a nonresident expects or should reasonably expect the act to have consequences in this state, or any other state or nation and derives substantial revenue from interstate or international commerce he may be served; provided that, if such nonresident is deceased, his executor or administrator shall be subject to personal service in the same manner as a nonresident; provided further that this section shall not apply to a cause of action for defamation of character arising from the act.”

In Gordon v. John Deere Co., supra, this Court held that Fla.Stat. § 48.182, enacted in 1970 and having an effective date of July 1, 1970, could not be applied retroactively to allow service under its provisions as to an alleged wrongful act committed prior to the enactment of the statute.

The issue as to the applicability of Fla. Stat. § 48.182 centers around the date of the wrongful act, to-wit: the negligent manufacture of the washing machine and the breach of implied warranty of merchantability. Petitioner argues that any wrongful act on its part occurred in 1968, the date the washing machine was manufactured. Since the alleged wrongful act occurred two years prior to the effective date of Fla.Stat. § 48.182, petitioner argues the use of Fla.Stat. § 48.182 would be retroactive, and the decision sub judice if based on § 48.182, would conflict with Gordon v. John Deere Co., supra.

Respondent contends that the wrongful act in a breach of warranty case occurs at the time of injury. Since the statute became effective in 1970 and the injury occurred in 1971, respondent argues the statute was not being applied retroactively in violation of this Court’s decision in Gordon v. John Deere Co., supra.

Assuming only for the purpose of this opinion that an implied warranty was associated with the washing machine manufactured by petitioner in Sweden, the question arises when the breach of warranty occurred. On this question, Florida law is controlling.

Fla.Stat. 672.725(2) states that:

“ . . .A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”

Since the breach of warranty occurs when tender of delivery is made, and since the tender of delivery of the washing machine occurred prior to the enactment of the statute and prior to its effective date, the use of § 48.182 to obtain jurisdiction over the petitioner would be retroactive, in violation of this Court’s holding in Gordon v. John Deere Co., supra.

Although we hold that the wrongful act, the breach of warranty, occurred when tender of delivery .was made, we do not recede from our holding in Creviston v. General Motors Corp., 225 So.2d 331 (Fla.1969) that, where warranty attaches to sale of a product, the cause of action does not accrue and the statute of limitations does not commence until the breach of warranty in the form of a defective product is or should be discovered.

Accordingly, the decision sub judice is quashed and this cause is remanded to the District Court of Appeal so that same may be further remanded to the trial court for further proceedings consistent herewith.

It is so ordered.

ROBERTS and BOYD, JJ., and WELLS, Circuit Judge, concur.

ENGLAND, J., dissents with an opinion with which OVERTON, J., concurs.

ENGLAND, Justice

(dissenting).

I dissent from the majority’s jurisdictional determination. In 1965, this Court decided that it would accept for “conflict” jurisdiction those orders of the district courts which are rendered without opinion. Foley v. Weaver Drugs, Inc., 177 So.2d 221 (Fla.1965). Recent requests for the exercise of our jurisdiction in that class of cases, and this case in particular, suggest that we should pause to reflect on the effect of our 1965 decision in light of the experiences gained during the past ten years. There are several features of this case which make it particularly suitable to re-examine the foundations of Foley.

The “decision” which we are asked to review in this case is nothing more than the word “affirmed” entered by two of three district court judges. The order of the trial court which they affirmed reads, in its decisional portion, as follows :

“Ordered and Adjudged the Defendant’s, AB CTC, Motion to Dismiss and Quash be, and the same is hereby denied, and Defendant, AB CTC, is given ten days from the date of this Order within which to file its answer.”

On their face, these rulings offer no justification for an analysis by this Court of the application or scope of Florida’s two long-arm statutes. On the basis of Foley, however, we are invited to go behind the trial court’s order in order to find something in the “record proper” which not only conflicts with other appellate decisions in Florida, but which also suggests the need for us to exercise our discretionary jurisdiction. The documents that are alleged to be available for our consideration are the original complaint, the defendant’s motion to dismiss with accompanying affidavit, the trial court’s order granting plaintiff the opportunity to incorporate into- the trial court record portions of a trial transcript and other evidence from a different, prior lawsuit, and that other testimony and evidence itself. These last items appear only as appendices to petitioner’s briefs to this Court and to the district court. These are the source documents by which the majority finds “direct conflict” with other appellate decisions.

These source documents, even if acceptable elements of the “record proper” (which they are not), provide, absolutely no basis to find the requisite “direct conflict” with either the Fawcett or Gordon cases on which the majority relies. Gordon merely held that the long-arm statute adopted in 1971 (one of the two statutes involved in this case) could not be used to effect service of process for an injury which occurred prior to its effective date. Fawcett merely held that the other long-arm statute requires control over the property which caused the injury and control over the distributor or broker who sold the property. The district court’s opinion affirming the trial court’s motion in this case, even if fully understood by the trial judge and attorneys in the circuit where the trial court’s order was entered, could not possibly pose such a conflict with Gordon or Fawcett as to require this court’s harmonization or clarification.

A more detailed analysis of the majority opinion reveals additional concerns. The facts brought out in the majority opinion with respect to control (the issue which creates alleged conflict with Fawcett) appear in the transcript testimony from a wholly different lawsuit which was made a part' of the trial court’s record by court order and which is offered to us in the appendix to petitioner’s brief. On the basis of that “record proper”, the majority has found a way to express its opinion on the applicability of one long-arm statute in a case which is not yet even at issue.

There are other reasons present in this case which suggest the need for a complete re-evaluation of Foley. In this case the majority is constrained to find decisional conflict on both of two possible theories which could be embodied in the district court’s decision to affirm without opinion. An analysis of the opinion indicates that it has ruled on each of the following areas of law.

(1) The majority finds as a fact that the plaintiff has not yet properly invoked Section 48.181(3), Florida Statutes, because the element of “control” has not been proved on the record before us. On this point the majority does not change or clarify the law. It merely disagrees with one of two possible grounds on which the trial judge and the district court saw fit to deny a motion to dismiss and require further pleadings. Where is the compelling need for harmonization of the law between the affirmance below and Fawcett? Haven’t we given the parties a third factual evaluation of preliminary pleadings ?

(2) The majority assumes “only for the purpose of this opinion” that the washing machine carried an implied warranty. It then concludes that a breach of that assumed warranty occurs at the time merchandise is tendered. If the assumption is good only for the resolution of this case, and if the result of the assumption is the application of well-established precedent, what law have we clarified or harmonized ?

(3) The majority has held that a breach of warranty occurred on tender of delivery, yet it refuses to recede from a 1969 decision which holds that the cause of action for breach of warranty does not accrue until the breach is or should be discovered. The “harmonization” of law in this portion of the decision is so obscure that I venture to say that it will spawn an entirely new round of litigation requiring clarification of the clarification.

Couple the foregoing with the struggles we have had and the confusion we have generated over the definition of “record proper”, and it becomes apparent that the time for re-evaluation of Foley is at hand. I am ready to do that now.

OVERTON, J., concurs.

      . The Foley decision itself reconsidered and reversed a seven year old precedent on this very issue. Lake v. Lake, 103 So.2d 639 (Fla.1958).

      . Sroczyk v. Fritz, 220 So.2d 908, 911 (Fla.1969).

      . Fla.Const, art. V, § 3(b) (3).

      . See Foley v. Weaver Drugs, Inc., 177 So.2d 221, 230 (Fla.1965).

      . These are the two polestar considerations which justify our exercise of jurisdiction under Foley.

      . The trial court’s order denying a motion to dismiss required respondent to file an answer to the complaint.

      . E. g., Gibson v. Maloney, 231 So.2d 823, 832-33 (Fla.1970) (Thornal, dissenting). Without saying so, the majority has expanded the definition of “record proper” to include affidavits appended to trial motions and trial transcripts from a different proceeding which are exhibits in briefs.


author: ENGLAND, Justice. ADKINS, Chief Justice

text:
    STATE of Florida, Petitioner, v. Gregory Edward WHITE, Respondent.
    No. 46289.
    Supreme Court of Florida.
    Sept. 10, 1975.
    Rehearing Denied Jan. 19, 1976.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for petitioner.
    David Roth and Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for respondent.
   ENGLAND, Justice.

By writ of certiorari, we are asked to review a decision of the First District Court of Appeal, reported at 299 So.2d 143, which alleges conflicts with other district court decisions. We tentatively agreed that there is direct conflict with Battle v. State, 292 So.2d 594 (2d DCA Fla.1974), and with McCullers v. State, 206 So.2d 30 (4th DCA Fla.), cert. denied, 210.So.2d 868 (Fla.1968), and we have taken the case under consideration on the basis of briefs alone. Our full review persuades us that the conflict is direct, and that we have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution.

The simple issue before us is whether the crime of aggravated assault includes as one of its elements the victim’s well-founded fear that violence is imminent. The district court below said that such a fear must be proved, citing language to that effect in Criminal Standard Jury Instruction No. 2.05 as adopted by this Court in 1970. In contrast to this view, the district courts in Battle and McCullers held that criminal assault, unlike the tort of assault, does not require an awareness by the victim of imminent peril.

At the time of trial in this case, the elements of an “assault” were not expressed in any statute. The elements had been stated by this Court, however, in Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945), where assault was defined as a wrongful action creating a fear of imminent bodily harm coupled with an apparent present ability to inflict injury. This definition has been followed by several district courts of this state, and it was repeated with approval by this Court as recently as 1973.

The State argues for a definition of assault which does not include victim awareness, on the ground that “bushwhackers” and “backstabbers” would escape punishment if they were unsuccessful in their attempt to inflict injury. The Legislature did not intend to allow such acts to go unpunished, however. The general “attempt” statute will reach those situations.

The decision of the First District Court of Appeal was correct and it is affirmed.

ROBERTS, BOYD and OVERTON, JJ-, concur.

ADKINS, C. J., dissents.

On consideration of the Petition for Rehearing filed by petitioner,

It is ordered that said petition is denied.

BOYD, OVERTON, ENGLAND and HATCHETT, JJ., concur.

ADKINS, C. J., dissents with opinion.

ROBERTS, J., dissents and concurs with ADKINS, C. J.

ADKINS, Chief Justice

(dissenting):

In my opinion the petition for rehearing should be granted and the decision of the District Court granting a new trial should be quashed.

The undisputed facts in this case are that the defendant Gregory Edward White threw a gallon Coca-Cola jug and struck the victim, a police officer, in the back of the head or neck without the victim’s prior knowledge. In my opinion on these facts the defendant clearly assaulted the victim in an aggravated fashion with a deadly weapon.

The majority effectively attaches an additional element to the crime of aggravated assault; i. e., the requirement of actual knowledge or fear on the part of the victim that he was about to suffer such an assault. This requirement is a holdover from the days of tort actions for battery. In tort law, in order to secure damages for other than physical injury, a plaintiff has to prove that he was actually put in fear that an assault was going to be committed upon him. The criminal law, however, only requires that the nature of the assault must be such as would create a well-founded fear of the aggressor in the mind of the victim. It is not necessary that the victim have actual knowledge of the assault. Neither did the decisions under the English common law give nor did the Legislature of Florida ever intend to give a “bushwacker” or “backstabber” immunity from criminal assault as the majority concludes. Consequently, I would adhere to the decisions in Battle v. State, 292 So.2d 594 (Fla.App.2d 1974); McCullers v. State, 206 So.2d 30 (Fla.App.4th 1968), cert. denied, 210 So.2d 868 (Fla.1968); Nelson v. State, 157 So.2d 96 (Fla.App.3d 1963), cert. denied, 165 So.2d 178 (Fla.1964, and Clark v. State, 318 So.2d 487 (Fla.App.4th 1975), insofar as it 'applies to the crime of assault prior to statutory definition thereof by the Legislature.

As pointed out by the majority the elements of assault were not expressed in any statute at the time of trial in this case. Although not affecting the outcome of this case, the Legislature amended the criminal code effective July 1, 1975, and in so doing defined the crime of assault to include as an element thereof “some act which creates a well-founded fear in such other person that such violence is imminent.” Fla.Stat. § 784.011(1) (Supp.1974). In my opinion the new statutory definition does not change the elements of the crime; i. e., an assault must be of such character or nature that it would create a well-founded fear in the victim that violence to him is imminent, but it remains unnecessary to prove that the victim had actual knowledge or fear of the impending assault. This construction does no violence to the new statute and is in apparent conformity with the intent of the Legislature.

For the reasons stated, I would quash the decision of the District Court.

ROBERTS, J., concurs.

      . 784.04, Fla.Stat. (1973), defined aggravated assault as assault with the additional element of a deadly weapon. Section 784.02, Fla.Stat. (1973), did not define any of the elements of the crime of “assault”. The Legislature has redefined the crime of assault, effective July 1, 1975, as follows: “An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled witli an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Section 784.011(1), Fla.Stat. (Supp.1974).

      . See e. g., Munday v. State, 254 So.2d 33 (3d DCA Fla.1971); Bass v. State, 232 So.2d 25 (1st DCA 1970), and Albright v. State, 214 So.2d 887 (2d DCA Fla.1968).

      . State v. Wilson, 276 So.2d 45 (Fla.1973).

      . The crimes of battery and aggravated battery cover those situations where actual injury is inflicted.

      . Section 777.04, Fla.Stat. (Supp.1974). The penalties for attempted assault and assault itself are identical. Sections 777.04(4) (e) and 784.011(2), Fla.Stat. (Supp.1974).

      . We disapprove the conflicting Battle and McCullers decisions on this point, as well as the conflicting decision in Nelson v. State, 157 So.2d 96 (3d DCA Fla.1963), cert. denied, 165 So.2d 178 (Fla.1964).


text:
    Je’Nelle HENDRICKSON and Peggy Jo May, Petitioners, v. Cassie JOHNS and Billy Laverne Johns, Respondents.
    No. 47055.
    Supreme Court of Florida.
    Nov. 7, 1975.
    Rehearing Denied Jan. 23, 1976.
   Certiorari denied. 308 So.2d 215.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.

BOYD and HATCHETT, JJ., dissent.


text:
    Lorraine FOERCH, Petitioner, v. ATLANTIC MUTUAL FIRE INSURANCE COMPANY, etc., et al., Respondents.
    No. 46729.
    Supreme Court of Florida.
    Nov. 10, 1975.
    Rehearing Denied Jan. 23, 1976.
   Certorari dismissed. 303 So.2d 345.

ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    E. ROLLE et al., Petitioners, v. William D. JUDGE and Allie Mae Johnson, Respondents.
    No. 47378.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Rehearing Denied Jan. 21, 1976.
   Certiorari denied. 310 So.2d 42.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    BOSTON CORPORATION, etc., Petitioner, Cross-Respondent, v. Harry ROSENBERG et ux., et al., Respondents, Cross-Petitioners.
    No. 47307.
    Supreme Court of Florida.
    Dec. 3, 1975.
    Rehearing Denied Jan. 22, 1976.
   Certiorari denied. 310 So.2d 40.

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


author: PER CURIAM.

text:
    HEINECKE INSTRUMENTS CO., a Florida Corporation and Robert F. Bell, Appellants, v. Harold S. WEBBER, Appellee.
    No. 75-1398.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Robert R. White, Miami, for appellants.
    Podhurst, Orseck & Parks, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Belcher v. Schilling, Fla.App.1975, 309 So.2d 32.


author: McNULTY, Chief Judge.

text:
    Eileen Deady CARACRISTI, Appellant, v. Virginius Z. CARACRISTI, Appellee.
    No. 75-284.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1976.
    Michael R. N. McDonnell, of Brown, Smith, Young & Pelham, Tallahassee, for appellant.
    Charles R. Holley, Naples, for appellee.
   McNULTY, Chief Judge.

Appellant Eileen Caracristi, ex-wife of appellee Virginius Z. Caracristi, brings this interlocutory appeal from an order striking her motion filed pursuant to Rule 1.540, R.C.P., for relief from a final judgment which denied her periodic alimony. We reverse.

On March 11, 1974, a final judgment was entered dissolving the marriage of the parties, dividing the jointly held assets, awarding appellant the marital home as lump sum alimony, but denying her periodic alimony. Following the filing of an unsuccessful appeal to this court, appellant filed the aforementioned Rule 1.540 motion. This motion alleged that appellee-husband had falsely testified at the final hearing misrepresenting his true income and ability to pay alimony and that evidence thereof was newly discovered as to appellant. Appellee responded with a motion to strike. On. January 31, 1975, the lower court granted appellee’s motion to strike without an evidentiary hearing expressly for the reason that, in the final judgment, the court (another judge) specifically found that the wife was “not entitled to an award of rehabilitative or permanent alimony and that [she] is able to take care of herself on the income she now enjoys.’’ The court reasoned that the husband’s ability to pay alimony is therefore irrelevant, there being no need; and thus, even assuming the truth of the allegations in appellant’s motion, it would not have resulted in a different determination of alimony. We disagree.

In the first instance, it is rudimentary that in a marriage dissolution proceeding the entitlement of a wife to alimony is dependent on three criteria: (1) The wife’s needs; (2) her standard of living during marriage, and (3) the husband’s ability to pay. In the ordinary case, as here, particularly where the marital history of the parties demonstrates that the wife’s needs and the parties’ standard of living are primarily dependent upon the financial contributions of the husband, all these criteria are interrelated and interdependent. Certainly, for example, with respect to a standard of living, a true picture of the husband’s enchanced ability would tend to corroborate a higher standard contended for by the wife. It follows that a clear picture of her needs with respect to that standard would to a considerable degree in turn be likewise corroborated by that ability. Each of the three factors, therefore, must be considered, analyzed and weighed against the others before the court may properly make an alimony award or properly deny it, as the case may be.

Considered in this light, then, the truth if it were known initially in this case could surely have resulted in a different conclusion concerning the wife’s entitlement to alimony. In our view, it was error to strike from the motion for relief the allegations of untruth.

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

BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . See Caracristi v. Caracristi (Fla.App.2d, 1974) 298 So.2d 596.

      . See Firestone v. Firestone (Fla.1972), 263 So.2d 223; Baker v. Baker (Fla.App.3d, 1974, 291 So.2d 33; Dash v. Dash (Fla. App.3d, 1973) 284 So.2d 407.


text:
    SCOTT-VIA REALTY CORP., a New York Corporation, Appellant, v. Jerome LINET, as Trustee, et al., Appellees.
    No. 75-1299.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Maurice M. Diliberto, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte, Greene, Layne & Immer, Miami, Haiman Long Clein, North Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See 27 Fla.Jur. Receivers § 21 (19S9).


text:
    Coy SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1361.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Coy Smith, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Carlos MORFI, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1332.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Carlos Morfi, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Ronald BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1328.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Ronald Brown, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.'
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender- to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    W. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-213.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Carl B. Schwait, Legal Intern, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See State v. Graham, Fla. 1970, 238 So.2d 618; Interest of B. S. v. State, Fla.App.1975, 320 So.2d 459.


text:
    FLORIDA AIRCRAFT FEDERAL CREDIT UNION, Petitioner, v. Ronald E. MOORE, Respondent.
    No. 75-1230.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Guy C. Hill, West Palm Beach, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby denied.

WALDEN, C. J., and MAGER and DOWNEY, JJ., concur.


text:
    ELECTRO MECHANICAL PRODUCTS, INC., a Florida Corporation, et al., Appellants, v. James S. BORONA, Appellee.
    No. 75-1230.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Chonin & Levey and Stephen T. Maher, Miami, for appellants.
    Preddy, Haddad, Kutner, Hardy & Josephs and Lewis N. Jack, Jr., Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

We are presented with an appeal from an order appointing a receiver. It appears from the pleadings that certain property of a corporation was appropriated by the plaintiff upon the theory that possession of the property was necessary to protect his rights as a corporation stockholder. The trial court apparently felt that there was some danger in allowing the corporation to hold the property without restriction pending the litigation; therefore, upon the motion of the plaintiff, he appointed a receiver to hold the property. There is no showing in the record that the property is susceptible to deterioration; nor does it appear that a receiver is necessary for the preservation of the property. Under these circumstances, the trial court should not have appointed a receiver because the purposes sought to be accomplished could have been achieved in other ways. The appointment of a receiver is a drastic matter in that it constitutes a taking of property and, therefore, should not be used by the courts except in cases of necessity. See Recarey v. Rader, Fla.App.1975, 320 So.2d 28.

We think that it is important to point out that the Recarey v. Rader case had not yet been released and was, therefore, unavailable at the time the trial court made its decision in this case. Accordingly, the order appointing a receiver is reversed.

Reversed.


author: NATHAN, Judge.

text:
    CITY OF HIALEAH and Chester Webb, Appellants, v. Brenda CARROLL, Appellee.
    No. 75-1113.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for appellants.
    Alden Sanford Tarte, Miami, for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   NATHAN, Judge.

This is an interlocutory appeal by the City of Hialeah and Chester Webb, defendants in the trial court, from an order denying a motion to set aside a default in an action based on a complaint filed by Brenda Carroll, the plaintiff, for compensatory and punitive damages for false arrest and assault.

On March 18, 1974, the City of Hialeah was served with process by serving the city judge and Officer Webb was served by serving the city clerk. No other pleadings or papers were filed until February 13, 1975, when the plaintiff filed a demand for default together with a non-military affidavit. A default was entered by the clerk of the court. Subsequent to entry of the default, the defendants filed an answer asserting meritorious defenses and a motion to vacate the default alleging insufficient and improper service of process on both defendants, excusable neglect in that the attorneys for the plaintiff and the defendants had discussed settlement and an extension of time for filing defensive pleadings. A hearing was held on the motion, the trial judge refused to vacate the default and this interlocutory appeal ensued.

As points on appeal, the defendants contend that the trial court grossly abused its discretion in failing to vacate the default because (1) the service of process was defective and (2) the facts established excusable neglect.

We find that the service of process on both defendants was defective. The return attached to the summons addressed to the City of Hialeah, reflects that the summons was served on the City by serving the city judge in the absence of the mayor, recorder, alderman, or other equivalent officer. The controlling statute is § 48.11!, Fla.Stat., which provides:

“48.111 Service on public agencies and officers.—
(1)Process against any municipal corporation, agency, board of commission, department or subdivision of the state or any county which has a governing board, council or commission or which is a body corporate shall be served:
(a) On the president, mayor, chairman or other head thereof; and in his absence ;
(b) On the vice-president, vice-mayor or vice-chairman, or in the absence of all of. the above;
(c) On any member of the governing board, council or commission.
(2) Process against any public agency, board, commission or department not a body corporate or having a governing board or commission shall be served on the public officer being sued or the chief executive officer of the agency, board, commission or department.
(3) As an alternative to all of the foregoing, process may be served on the person designated pursuant to § 120.071.
(4) In any suit in which the department of revenue or its successor is a party, process against the department shall be served on the executive director of the department. This procedure is to be in lieu of any other provision of general law, and shall designate said department to be the only state agency or department to be so served.”

It is clear from the language of § 48.111, supra, that the persons mentioned in the return and the person actually served, the city judge, are not the proper recipients of service of process. Although service on those officials would have been proper under § 47.20, Fla.Stat. which was in effect until 1967, the requirements of § 48.111 are not met by asserting the absence of the mayor, recorder, alderman, or other equivalent officer and serving the city judge.

The service of process on Chester Webb in his official capacity was also deficient in that the return of service of process reflects service made on the city clerk without asserting the absence of any of the officials specified in § 48.111, Fla. Stat., supra.

Due to the insufficient service of process on both defendants, it is our opinion that the trial court erred in denying the motion to set aside the default. We, therefore, reverse and remand to the trial court with directions to vacate the default against the defendants. The issue of excusable neglect is moot.

Reversed and remanded with directions.

      . § 47.20, Fla.Stat., 1965, provided:
      “47.20 Service of process; municipal corporations.—Process against a municipal corporation may be served:
      (1) Upon the mayor or chief magistrate; or in his absence:
      (2) Upon the recorder; or, in the absence of all of above:
      (3)Upon any alderman or equivalent officer. Service upon any officer or a municipal corporation shall be good only when made while he is in the limits of such corporation.”


text:
    Joe Nathan CLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1516.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Joe Nathan Clowers, in pro. per.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The defendant filed a motion for relief pursuant to CrPR 3.850. The trial judge denied the motion without evidentiary hearing. We have examined each allegation discussed in defendant’s brief on appeal and find that each allegation has been considered on a prior petition (see Clowers v. State, Fla.App. 1972, 261 So.2d 870) or is clearly a matter properly cognizable only on an appeal from the final judgment.

Affirmed.


text:
    Elwood W. KRESAL, Appellant, v. Helene Riley KRESAL, Appellee.
    No. 74-995.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    William M. Cobb, Law Offices of Sullivan & Cobb, Vero Beach, for appellant.
    J. Michael Brennan, Smith & Brennan, Fort Pierce, for appellee.
   PER CURIAM.

In this dissolution of marriage case, the facts are omitted from the court’s opinion because we feel that it has no precedential value. We simply conclude that the court abused its discretion in awarding to appel-lee-wife, as permanent alimony, the exclusive possession of the marital home which the parties had theretofore owned as tenants of an estate by the entirety. The final judgment is therefore modified by eliminating the wife’s right to the exclusive possession of said property, and as thus modified, the judgment is affirmed.

Appellee-wife was also awarded rehabilitative alimony. We recognize that in all probability the trial court’s determination as to the amount and duration thereof was affected by the provision for the wife’s exclusive possession of the jointly-owned marital domicile. Upon remand the trial court is authorized, upon appropriate application and hearing, to revise the award of rehabilitative alimony either as to amount or duration or both if, in the trial court’s sound judicial discretion, such would be just and proper in view of the modification of the judgment effected by this court.

Affirmed, as modified.

WALDEN, C. J., OWEN, J., and MOR-IARITY, W. HERBERT, Associate Judge, concur.


text:
    Arthur H. SCHWAB, Appellant, v. Elsie SCHWAB, Appellee.
    No. 75-690.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Arthur H. Schwab, in pro. per.
    S. Robert Zimmerman, Pompano Beach, for appellee.
   PER CURIAM.

Affirmed. Kleinfeld v. State, 270 So.2d 22 (Fla.App.3rd, 1972); Zarate v. Culbreath, 150 Fla. 543, 8 So.2d 1 (1942).

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


author: DOWNEY, Judge.

text:
    James Byron MACK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1556.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and J. Robert Olian, Asst. Atty. Gen., South Miami, for appellee.
   DOWNEY, Judge.

Appellant and a co-defendant were charged in Count I with breaking and entering a vehicle, and in Count II with possession of burglarious tools. The trial court granted a motion for judgment of acquittal at the close of the state’s case as to Count II and reserved ruling on the motion as to Count I. Appellant was convicted of the. charge in Count I.

We have reviewed the evidence presented by the state and find it insufficient to create a prima facie case of breaking and entering a vehicle against appellant. The case presented by the state is circumstantial and is not wholly inconsistent with a reasonable hypothesis of innocence. Lockett v. State, Fla.App. 1972, 262 So.2d 253.

Thus, appellant’s motion for judgment of acquittal should have been granted as to all counts.

Accordingly, the judgment and sentence appealed from are reversed and the cause is remanded with directions to discharge appellant.

Reversed and remanded.

CROSS and MAGER, JJ., concur.


text:
    Irving YELEN et al., Appellants, v. CITY OF MIRAMAR, Florida, a Municipal Corporation, and John Depp as Building Official, Appellees.
    No. 75-521.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    David Yelen of Yelen & Yelen, P.A., Coral Gables, for appellants.
    Jerome F. Pollock, Hollywood, for appel-lees.
   PER CURIAM.

We are constrained to affirm the final judgment of the trial court denying plaintiff’s second amended petition for writ of mandamus for the reason that the right which the petitioner seeks to have enforced, i. e. to receive a building permit, and the legal duty to be performed by the respondent city, i. e. issuance of such permit, cannot be ascertained to the necessary completeness and certainty required by law without a consideration of the language of the municipal ordinance upon which petitioner relies, which ordinance was never put into evidence. 21 Fla.Jur., Mandamus, § 24, et seq.; Haverty v. State, Fla.App. 1972, 258 So.2d 18; Town of Medley v. Captan, Fla.App.1966, 191 So.2d 449. Absent an examination of the ordinance we are unable to discern any error in the trial court’s consideration of the minutes of the appellee city for the purpose of ascertaining the appellee’s intent. Whether these minutes, which were offered into evidence by the appellant, are at variance with or are intended to resolve an ambiguity in the ordinance cannot be determined without a review and examination of such ordinance. Having otherwise found the denial of the writ did not constitute an abuse of discretion, the final judgment is affirmed.

Affirmed.

CROSS, MAGER, and DOWNEY, JJ., concur.


author: PER CURIAM. DOWNEY, Judge

text:
    Viola K. BARRY, Appellant, v. Garl W. BARRY, Appellee.
    No. 75-364.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Thomas E. Hunt, Mueller & Hunt, Fort Lauderdale, for appellant.
    Mark S. Roth, Miami Beach, for appel-lee.
   PER CURIAM.

Appellant seeks review of an order denying a motion to vacate and set aside final judgment of dissolution of marriage for failure to give notice of final hearing.

Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we are of the opinion there was a gross abuse of discretion by the trial court in declining to vacate and set aside final judgment of dissolution of marriage under Rule 1.540, Fla.RCP, as it is clear that appellant did not receive notice of the final hearing.

Accordingly, the final judgment of dissolution of marriage is vacated and set aside, and the cause remanded for further proceedings.

Reversed and remanded.

CROSS and OWEN, JJ., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge

(specially concurring).

I concur in everything said in the majority opinion, but in addition on remand I would direct that appellee amend his counter petition if he claims a special equity in the jointly held property of the parties. As the pleadings are now cast there is no pleading basis for an adjudication of a special equity in said property.


author: BOYER, Chief Judge.

text:
    Joanne C. TAYLOR, etc., Appellant, v. SAFECO INSURANCE COMPANY, an Insurance Corporation, and Earl Taylor, Appellees.
    No. W-108.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1976.
    David R. Lewis of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    William M. Howell of Howell, Kirby, Montgomery, D’Aiuto & Dean and John J. Sulik, Jacksonville, for appellees.
   BOYER, Chief Judge.

We here review a summary judgment entered in favor of appellee, Safeco Insurance Company, one of the defendants in the trial court.

Appellant (plaintiff in the trial court) brought a wrongful death action in her capacity as personal representative of the decedent who was killed in an automobile accident in Jacksonville while riding as a passenger in a vehicle owned by the decedent’s employer (Henry) and driven with the decedent’s permission by decedent’s brother. The second amended complaint alleged negligence against the owner, a third party (Karasik), the driver, and ap-pellee as the insurer of the Henry-owned vehicle. A summary judgment was entered in favor of the third party and the owner of the vehicle. That summary judgment is not here contested. Appellee thereafter moved for summary judgment in its behalf, contending that its insurance contract extended coverage to the owner and the owner’s permittee (the decedent) but not to the permittee of the permittee (the driver of the vehicle, one Earl Taylor).

The basic issue to be ultimately resolved in this case is whether the policy of liability insurance issued by appellee, insuring the vehicle owner as “named insured” affords coverage to a driver who had no permission from the owner to drive the insured vehicle but who did have permission of the owner’s permittee.

In the policy, Robert Lee Henry, Jr. is designated as the named insured. The' insurer agrees “to pay on behalf of. the insured all sums which the insured shall become legally obligated to pay as damages because of * * * bodily injury, sickness or disease, including death resulting therefrom * * * sustained by any person * * * arising out of the ownership, maintenance or use of the owned automobile * * * ”. The persons insured are defined to be:

“(1) the named insured and any resident of the same household,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and
(3) any other person or organization but only with respect to his or its liability because of acts or omissions of an insured under (a)(1) or (2) above”

In an affidavit filed in support of appel-lee’s motion for summary judgment, Mr. ■Henry alleges that his permittee and employee, the decedent, was permitted to use the subject vehicle for a limited use only, to drive to and from work. He further alleged that “this was all the van was to be used for”. He alleges that upon discovering that Taylor had permitted his wife to use the vehicle Taylor was reprimanded and reinstructed that the vehicle “was to be used only for his, William Taylor’s, transportation to and from work.” The plaintiff filed a counter affidavit denying that there was any restriction on the use of the vehicle, specifically alleging that Mr. Henry was aware that she drove the vehicle and that he permitted her and her deceased husband “to take it home for our own personal use on the weekend” during which the fatal accident occurred.

The answer filed by appellee in the trial court alleges specific acts of negligence on the part of the decedent (the owner’s, per-mittee) as well as the driver (the permit-tee’s permittee). Those allegations have not been resolved. Assuming them to be true, and assuming that there was no restriction placed upon the use or operation of the vehicle by the owner (as plaintiff’s affidavit alleges) then clearly the owner, his permittee, and the permittee’s permittee were “persons insured” within the provision of the policy above quoted. Upon that assumed factual basis entry of summary judgment for appellee would be clearly erroneous. On the other hand, if the summary judgment was entered on the theory that liability may not be imposed upon an owner and his insurance carrier when the owner’s permittee, contrary to instructions and limitations placed upon use or operation of the vehicle by the owner, permits it to be operated by another, such would be contrary to the assertions of the plaintiff in her affidavit. It is axiomatic that conflicting material evidence may not be resolved by summary judgment.

We therefore do not here reach the issue as urged by appellee, viz: whether use and operation of a vehicle by a second permit-tee, contrary to instructions and restrictions placed upon the use of the vehicle by the owner, named insured, absolves the owner’s liability insurance carrier from liability. Clearly, as above stated, if there was no restriction on the use of the vehicle by the owner’s permittee, under the facts recited herein, coverage would be afforded by the policy. Whether or not there was any such restrictions 'in this case is a disputed issue which may not be resolved by summary judgment. It follows therefore that under either situation entry of the summary judgment here appealed was improper.

Reversed.

McCORD and MILLS, JJ., concur.

      . The parties have made no issue of the established fact that it was the owner’s bailee or permittee who was injured (killed) rather than a stranger or member of the general public. Please see Toner v. G & C Ford Company, Fla.App.1st 1971, 249 So.2d 703 and Ray v. Earl, Fla.App.2nd 1973, 277 So.2d 73.

      . Neither of the parties have raised, argued nor briefed the proposition of whether, since the dangerous instrumentality doctrine places vicarious liability upon an owner, a permittee or a permittee of a permittee may be held liable notwithstanding that an unappealed summary judgment has been entered absolving the owner of liability. Since the point has not been raised, we do not address it.

      . It is perhaps pertinent to note that appellee in its brief asserts that “The true point is: Does the owner’s policy of automobile liability insurance cover the negligence of a second permittee where the first permittee has possession of the vehicle for a limited purpose and the second permittee was not using the automobile within the permission of the named insured and his actual operation was. not within the scope of any permission granted by the named insured?”

        .Connell v. Sledge, Fla.App.1st 1975, 306 So.2d 194 and Graff v. McNeil, Fla.App.1st 1975, 322 So.2d 40.


text:
    Joe Willie LEE, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-386.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
    Richard W. Ervin, III, Public Defender, and Joe Willie Lee, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and record, the judgment and sentence are affirmed.

BOYER, C. J., and MILLS' and Mc-CORD, JJ., concur.


author: SMITH, Judge. MILLS, Judge (dissenting) :

text:
    Joseph SOMMESE, Appellant, v. Maxine SOMMESE, Appellee.
    No. Y-46.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.

      Selig I. Goldin, of Goldin & Turner, Gainesville, for appellant.
    William N. DeCarlis and Charles Valentine Bates, Gainesville, for appellee.
   SMITH, Judge.

The appellant husband in this marriage dissolution proceeding complains of the circuit court’s award of permanent alimony of the wife in the amount of $600 per month.

The trial judge predicated the alimony award on findings that the wife has present and prospective needs for such support, that the husband is able to meet those needs and that “the wife is 52 years of age, in good health, but untrained for any gainful occupation.” These findings are supported by substantial evidence.

The wife, who in the distant past has been employed, considers herself now essentially unemployable. She stated, in so many words, that she did not wish to work, had not looked for work and felt no obligation to work. Implicit in the chancellor’s award of permanent alimony is a decision, indeed perhaps a policy, that a wife of twenty-five years who devoted herself principally to making a home for a family including five children has no obligation on dissolution of the marriage to train herself for employment when her husband is able to support her from his annual gross income exceeding $50,000, to the extent ordered.

We recognize the merit in appellant’s argument that the chancellor might well have awarded rehabilitative alimony and retained jurisdiction to award permanent alimony, so to determine whether Ms. Sommese’s economic dependence can and should be mitigated by training. In a proper case such a procedure would doubtless serve the long term interests of both spouses. Roberts v. Roberts, 283 So.2d 396 (Fla.App. 1st, 1973); Lash v. Lash, 307 So.2d 241 (Fla.App. 2d, 1975). But here we must and do affirm the chancellor’s order; recognizing that the manner in which he exercises discretion in resolving these delicate matters must be accorded the utmost respect on appeal. Long v. Long, 304 So.2d 483 (Fla.App. 1st, 1974).

Ms. Sommese’s petition for the allowance of a fee for services of her attorney in this Court is granted, the amount to be determined by the trial judge.

Affirmed.

RAWLS, Acting C. J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissenting) :

I dissent. I would reverse the award of permanent alimony and remand for the trial court to set rehabilitative alimony. I would deny appellee’s petition for attorney’s fee.


text:
    Charles Bryant BLACKSHEAR, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-333.
    District Court of Appeal of Florida, First District.
    Jan. 8, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, and Charles Bryant Blackshear, in pro. per., for appellant.

      Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Upon considering the briefs and record, the judgment and sentence are affirmed.

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


author: McCORD, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Harold T. MEEHAN and Dora E. Meehan, his wife, Appellees.
    No. X-189.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 26, 1976.
    H. Franklin Perritt, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for ap-pellees.
   McCORD, Judge.

This is an appeal from a final judgment ruling that appellees are entitled to an additional $20,000 under their automobile insurance policy issued by appellant. Appellant had paid $10,000 under this policy and $10,000 under an additional policy. We reverse.

On October 16, 1972, appellee Dora Mee-han was injured in an automobile accident through the negligence of an uninsured motorist. At the time the Meehans had four automobiles insured by appellant under two policies, each of which .carried $10,000-$20,000 uninsured motorist coverage. The policy covering the vehicle in which Dora was injured (hereinafter referred to as the first policy) also covered two additional vehicles. The fourth vehicle was covered by the second policy. Dora’s damages from the injury exceeded $40,000.

Shortly after the accident, appellee .Harold Meehan met with an independent adjuster who represented appellant and presented to him an “extension certificate” showing coverage of his automobile which was involved in the accident. On November 29, 1972, appellant paid property damage benefits and $5,000 personal injury protection. Thereafter, on October 26, 1973, Dora submitted an uninsured motorist claim. On November 13, 1973, appellant paid Dora $10,000 pursuant to the claim and she and her husband executed a release and trust agreement which by its terms was only applicable to appellant’s liability under the first policy. At that time, neither appellees nor the adjuster knew about the second policy and the adjuster represented to appellees that $10,000 was all that was payable. Appellees contend, and the trial judge ruled that the release should be set aside because it was entered into under a mutual mistake of fact (the existence of the second policy); appellees now contend that they would not have executed the release had they known the fourth vehicle was covered by a second policy. While the fact of the existence of a second policy covering a fourth automobile constituted a mutual mistake of fact between appellees and the adjuster at the time of the $10,000 settlement under the first policy, such mistake is not material to the disposition of this case.

Under the law as it existed on the date the release was executed, Dora was only-entitled to $10,000 uninsured motorist benefits under each of the two policies or a total of $20,000. She was not entitled to $10,000 benefits for each of the four insured vehicles. See Morrison Assurance Co., Inc. v. Polak, Fla., 230 So.2d 6 (1969). One month following the execution of the release the Supreme Court in Tucker v. Government Employees Insurance Co., Fla., 288 So.2d 238 (1973), reconstrued the applicable law and ruled that when one policy with an uninsured motorist endorsement is issued covering several vehicles the insured is entitled to aggregate or “stack” the amount of coverage provided for each vehicle. Under this ruling had the settlement under the first policy not previously been made, Dora would now be entitled to receive $30,000 benefits under it rather than the $10,000 she received. Seeking the benefit of this new ruling appellees filed this suit. It was then discovered that there was a second policy and upon such discovery, appellant promptly paid the $10,000 uninsured motorist benefits to which Dora had been entitled under the second policy pursuant to the Supreme Court’s ruling in Morrison. In addition, appellant paid an attorney’s fee to appellees’ attorney since it had failed to remit for such coverage until after suit was filed. Relying upon the settlement and release under the first policy, appellant resisted the suit for the additional $20,000 claimed under that policy.

The mutual mistake of fact related only to the existence of the second policy and all liability under it has now been satisfied. The mistake had no relation to the first policy under which the additional $20,000 is here claimed. It did not in any way affect appellees’ continued liability under the second policy. Dora received pursuant to the first policy the full amount to which she was entitled under the then established law as enunciated by the Supreme Court in Morrison.

Reversed and remanded.

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


author: SMITH, Judge.

text:
    DEPARTMENT OF REVENUE et al., Appellants, v. KELLY BOAT SERVICE, INC., et al., Appellees.
    No. Y-315.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Rehearing Denied Jan. 28, 1976.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, III, Asst. Atty. Gen., for appellants.
    David W. Palmer and David W. Palmer, II, Crestview, for appellees.
   SMITH, Judge.

The Department of Revenue appeals from a summary final judgment of the circuit court declaring, as authorized by Chapter 86, F.S.1973, the liability of ap-pellee Kelly Boat Service, Inc., for payment of the admissions tax imposed by § 212.04, F.S.1973. The court held that Kelly, whose boats take on passengers at Destín for fishing in the Gulf of Mexico beyond the territorial limits of Florida, is taxable at the statutory rate on the admission fare charged at the dock, but that the State is foreclosed from assessing Kelly for taxes that should have been paid between August 1970 and the first day of August, 1973, the month in which the Department demanded the production of Kelly’s record for audit. Sec. 212.14(6), F.S. 1973. By cross-appeal, Kelly urges that its activities are not subject to the tax. Straughn v. Kelly Boat Service, Inc., 210 So.2d 266 (Fla.App.1st, 1968). Kelly and other cross-appellants complain also of the trial court’s refusal to grant their complaint class action status.

The trial court was correct in its reading of our decisión in Department of Revenue v. Pelican Ship Corp., 257 So.2d 56 (Fla.App.1st, 1972), cert. den. 262 So.2d 682 (Fla.1972), cert. dism. 287 So.2d 93 (Fla.1974), and in holding that Kelly’s commercial activities, as evidenced by the record, render it liable to assessment for the admissions tax. The court was incorrect, however, in foreclosing the Department of Revenue from making the assessment for the full three-year period authorized by § 212.14(6), F.S.1973. The State is not foreclosed, by reason of our 1968 decision in Straughn v. Kelly Boat Service, Inc., or otherwise, to assert that on the facts shown by this record Kelly should satisfy its full tax liability incurred within three years prior to August 1, 1973. North American Co. v. Green, 120 So.2d 603 (Fla.1960); Jackson Grain Co. v. Lee, 139 Fla. 93, 190 So. 464 (1939), 150 Fla. 232, 7 So.2d 143 (1942).

We have also considered but cannot sustain appellees’ other points on the cross-appeal.

Affirmed in part, reversed in part.

BOYER, C. J., and SACK, MARTIN F., Associate Judge, concur.


text:
    Wesley Jennings MILLS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. Y-431, Y-432.
    District Court of Appeal of Florida, First District.
    Jan. 6, 1976.
    Peter Enwall, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

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

Accordingly, the judgments and sentences are affirmed.

. BOYER, C. J., MILLS, J., and SACK, MARTIN, Associate Judge, concur.


author: McCORD, Judge. BOYER, Chief Judge

text:
    Eston BULLARD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. V-159.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1975.
    Rehearing Denied Jan. 27, 1976.

      H. Randolph Fallin of Millar, Fallin & Lally, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This is an appeal from appellant’s conviction of assault with intent to commit murder in the first degree and aggravated assault and the imposition of sentence thereon. Two points have been raised by appellant on this appeal:

I. Whether the trial court erred in denying appellant’s request for a mistrial, his request to poll jurors, and his request to interview jurors, all based on possible exposure of jurors to prejudicial publicity.
2. Whether appellant was denied a fair trial due to improper comment by the prosecutor in closing argument.

The trial by jury began on January 29, 1974, arid lasted three days. The jury was not sequestered. News coverage of the trial was given by the Jacksonville Journal and the Florida Times Union. On January 31, appellant filed a written motion for. mistrial citing and attaching certain news articles appearing in the two newspapers. Appellant contends here that two of the news articles were prejudicial to him in that one published in the evening edition of the Jacksonville Journal on January 30 characterized appellant as a “Westside police character” and a second article published in the morning Florida Times Union on January 31 contained the following paragraph:

“Well-known in police records and ex-convict, Bullard has an arrest record dating back to 1960. However, juries found him innocent at his previous two trials.”

With this motion for mistrial, appellant moved the court to poll the jury to determine whether or not members of the jury had been exposed to the articles. The court denied the motions stating that he had instructed the jury 15 times since the trial started not to read the newspapers. The court stated further:

“I’m not going to poll the jury. Every time we try a case we have — of any consequence, we have newspaper articles that go along in the daily paper. That’s why I admonished them not to read the paper.”

On the day following the trial, appellant’s counsel gave notice to the court and to the prosecution pursuant to Canon EC 7-29 of the Code of Professional Responsibility that he intended to interview the jurors to determine whether they were exposed to the news articles. The state then filed and served on appellant’s counsel a motion to prohibit the unsupervised interview of the jurors and served upon him an order from the trial judge prohibiting any party or person from interviewing the jurors unless in the presence of the court. Thereafter, counsel for appellant filed a motion in the trial court to interview the jurors. The court then sought proposed questions for the jurors from both parties but thereafter denied appellant’s motion.

Canon EC 7-29 of the Code of Professional Responsibility for Lawyers provides in pertinent part as follows:

“Both before and during the trial, a lawyer should avoid conversing or otherwise communicating with a juror on any subject, whether pertaining to the case or not. Subject to any limitations imposed by law it is a lawyer’s right, after the jury has been discharged, to interview the jurors solely to determine whether their verdict is subject to any legal challenge provided he has reason to believe that ground for such challenge may exist, and further provided that prior to any such interview made by him or under his direction, he shall file in the cause, and deliver a copy to the trial judge and opposing counsel, a notice of intention to interview such juror or jurors setting forth in such notice the name of each such juror. The scope of the interview should be restricted and caution should be used to avoid embarrassment to any juror and to avoid influencing his action in any subsequent jury service.” (Emphasis supplied)

We call particular attention to the words we have underlined in the above quotation from the Canon. Appellant’s attorney had no authority to interview the jurors unless there was reason to believe that their verdict was subject to a legal challenge. Here, the only basis set forth by appellant’s attorney for reason to believe that one or more of the jurors had violated their oath and disregarded the instructions of the court was that the two newspapers had wide circulation in the area and further that a conversation he had with the husband of one of the jurors after the jury had retired revealed that the husband had read one of the articles but his wife, the juror, had not. Such does not constitute a reasonable basis for belief that the verdict of the jury may be subject to a legal challenge. The trial court did not abuse its discretion in denying the motions.

As to appellant’s second point, the only alleged improper and prejudicial comment made by the prosecutor during his closing argument to the jury to which appellant objected at the trial was the following:

“If you turn this defendant loose, if you find him not guilty, you will be letting a man loose, or anyone loose when all of his friends and hoods come in here and make a mockery of our whole system of justice. How can anyone ever be convicted if he brings in all these convicted friends and thieves in here to testify and lie for him every time he’s ever charged ?”

The court sustained appellant’s objection to the statement and instructed the jury to disregard it and not consider it in arriving at their verdict. The record shows that a number of appellant’s witnesses were convicts, though it does not show what crime or crimes they had committed. The prosecutor’s statement was unquestionably improper and it was so recognized by the trial court. In view of the entire record in the case and the fact that the jury was instructed by the trial judge to disregard the statement, we do not consider it so prejudicial as to require reversal. We have considered the other comments of the prosecutor in his final argument complained of here but to which no objection was made at the trial and do not find them to constitute fundamental error which would require reversal. See McPhee v. State, Fla.App., 254 So.2d 406 (1971).

Affirmed.

RAWLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I would remand the case for the purpose of allowing the jury to be polled to determine whether any juror was exposed during the progress of the trial to any media coverage. Over the centuries we have developed a very elaborate body of jurisprudence relative to admission and rejection of evidence. Unless evidence meets the standards established by that body of jurisprudence a jury may not be informed thereof. During the trial of every case, including the case sub judice, every effort was directed toward prohibiting inadmissible evidence from being injected during the trial. The trial lasted three days. During that time news reports regarding the case and its progress were reported. Those reports contained information which clearly was not admissible evidence and which would have been immediately rejected had it been proffered. Nevertheless, the members of the unsequesterd jury could well have been, though innocently, exposed to that information. To have granted the defendant’s motion to poll the jury during the progress of the trial would have required only a few minutes of the court’s time. Certainly the State’s case would not have been prejudiced by the poll, unless it should have revealed that one or more of the jurors had in fact been exposed to the • media releases, which was certainly information to which the. defense was entitled. After the trial, as recited in the majority opinion, the attorney for the defendant sought to interview the jurors for the sole purpose of determining whether or not they were in fact exposed to the suspected news articles. Such was his right as declared in Canon EC 7-29. I am of the view that the facts known and recited by the defendant’s attorney were such as to give him “reason to believe that ground for such challenge may exist. * * * ” Prior to the recent adoption of the above mentioned Canon it was customary for attorneys to interview jurors after their discharge to determine whether or not their verdict was subject to any legal challenge. The Canon was not adopted for the purpose of thwarting justice nor covering up grounds for legal challenges of jury verdicts. The sole purpose of the Canon is to prohibit attorneys from harassing or embarrassing jurors and from influencing his or her action in any subsequent jury service.

I would remand the case with directions that the appellant’s counsel be permitted to interview the jurors in accordance with Canon EC 7-29. Should such interview reveal grounds for a challenge to the verdict such grounds should be considered and ruled upon by the trial judge.

In all other respects I concur with the majority.