text:
    Karl A. BECKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1541.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Richard L. Jorandby, Public Defender, West Palm Beach, Craig Barnard and Chan-ning E. Brackey, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal of an Order revoking probation and the subsequent sentence to the term of three years imprisonment to be followed by four years probation. The Order revoking the probation is affirmed on the authority of Russ v. State, 313 So.2d 758 (Fla.1975). The sentence of the Defendant is modified to reduce the probation from four years to two years in accordance with Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976).

AFFIRMED AS MODIFIED.

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


source: Caselaw Access Project

author: CARLTON, CHARLES T., Associate Judge.

license: Public Domain

text:
    David BLACK and Lillian Black, his wife, Appellants, v. PALM BEACH COUNTY, a political subdivision of the State of Florida, and James Edward Moore, Appellees.
    No. 75-1926.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellees.
    Robert V. Romani, of Farish & Farish, West Palm Beach, for appellants.
   CARLTON, CHARLES T., Associate Judge.

Appellants, David Black and Lillian Black, his wife, Plaintiffs in the trial court below appeal a final judgment for Appel-lees, entered by the trial court pursuant to a jury verdict for Appellees, ordering that Appellants recover nothing from Appellees.

On April 18,1974 Appellant, David Black, was driving a motor vehicle and was stopped at a red traffic signal located at an intersection in the City of West Palm Beach, Florida. At that time Appellee, James Edward Moore was an employee of Appellee, Palm Beach County, and was operating a county-owned bus that collided with the rear of Appellants’ automobile.

The evidence presented at trial established that Appellee, James Edward Moore, was approximately 100 feet from Appellant’s auto when he applied his brakes. He stated they failed. There were no skid marks. Appellant, David Black, testified there was no traffic either side of him at that time, and he did not hear a horn or any type of warning signal from Appellee’s bus prior to the collision. Additionally, Appellant, David Black, testified that after the accident he was present when the investigating officer tested the brakes on the bus in question, and they operated properly.

The court granted the Appellee’s, Palm Beach County, motion for a directed verdict on the allegation alleging negligent maintenance and equipping of the bus. The court submitted the case to the jury on negligence in the management, operation and control of the bus. The jury found for the Appellees.

Prior to the trial Appellants propounded the following Request for Admission to Ap-pellees:

“7. At said time and place set forth in Paragraph 6 above the brakes failed on a 1954 General Motors bus being operated by the Defendant, James Edward Moore, and owned by the Defendant, Palm Beach County, causing said bus to collide with Plaintiffs’ automobile.”

Appellees filed no answer to the Request for Admission. Hence, it was deemed admitted under Florida Rule of Civil Procedure 1.370. Appellees took the position that since the Appellees had not answered the Request for Admission they were admitted and were binding on the Appellants as well as the Appellees.

Appellees submitted the content of the above quoted Request for Admission to the Court as part of Appellees requested Florida Standard Jury Instruction 3.1. This requested instruction was granted over Appellant’s objection.

Appellants complain the trial court should not have read the Request for Admission as a jury instruction. Further, the issue of whether or not Appellee’s brakes failed, and if Appellee took evasive action in preventing the collision should be submitted to the jury.

We hold that the submission of Request for Admission by a litigant does not, in and of itself, bind the litigant to the request Champlin v. Oklahoma Furniture Manufacturing Company, 10 Cir., 324 F.2d 74. The Florida discovery rule on Requests for Admission is practically identical as the Federal Rule of Civil Procedure 36. On this point in Wright and Miller, Federal Practice and Procedures, Civil § 2264 it is stated:

“The preceding discussion has been concerned with the extent to which an admission made under Rule 36 binds the parties who made it. The admission does not bind the party who requested it.”

Therefore, the Request for Admission in question should not have been read as part of the jury instructions. The effect of the erroneous Instruction in question was to direct a verdict for Appellees.

During the trial the Appellant, David Black, testified that the investigating officer tested the brakes after the accident and they did, in fact, work. This creates a conflict in the evidence on the issue of whether or not the brakes failed and therefore was the cause of the accident. This issue should have been submitted to the jury. Pensacola Transit Co. v. Denton, Fla.App., 119 So.2d 296.

Further, the bus was over 100 feet from Appellants’ auto when the brakes allegedly failed. No skid marks were found. There was evidence that Appellee, James Edward Moore, took no evasive action and gave no warning of the imminent collision. This issue should have been submitted to the jury.

Therefore, there were two very crucial conflicts of fact in the instant ease that should have been submitted to the Jury: (1) Did the brakes in fact fail? and, if so, (2) Was it the brakes’ failure or the driver’s failure to have his vehicle under control that caused the bus to collide with Appellants auto?

Accordingly, the judgment is reversed and the cause remanded for a new trial.

CROSS, J., and PAUL, MAURICE M., Associate Judge,


author: TOM WADDELL, Jr., Associate Judge.

text:
    Bernie M. SULLIVAN et al., Appellants, v. Leo BLOOM and Frank J. DeCesare, Appellees.
    No. 75-1938.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    John B. Powell, IV, and Louis R. McBane of O’Connell & Cooper, West Palm Beach, for appellants.
    F. Martin Perry of Levy, Plisco, Perry, Reiter & Shapiro, Palm Beach, for appel-lees.
   TOM WADDELL, Jr., Associate Judge.

The trial court entered a Summary Judgment in favor of the Plaintiffs on a promissory note. We reverse.

One of the Plaintiffs, Frank J. DeCesare, (apparently one of the corporation officers, though not so designated), signed a contract as did one of the Defendants, Paulette N. Lee, for the sale of real propérty. The contract provided for a purchase money mortgage secured by the note sued upon. The contract included the following — “Es-culpatory (sic) Clause: The property shall be the sale as set for reclaim for deposit and in no event shall the maker be personally liable for this indebtedness”.

The Defendants contend that through an oversite the “Esculpatory Clause” was deleted from the note. They further contend that all parties to the transaction intended that the makers of the note would not be personally liable, (note — the clause uses the word “maker” not “buyer” or “purchaser”, the words used elsewhere in the contract to designate this party).

The Plaintiffs argue that this clause applied to another promissory note, not involved in this law suit.

The trial judge sitting as the trier of facts in this non jury case may well decide against these Defendants, but when hearing a Motion for Summary Judgment must not weigh the evidence.

Reversed and Remanded.

MAGER, C. J., and CROSS, J., concur.


text:
    Travis F. CAMPBELL and Edith L. Campbell, his wife, Appellants, v. William COWELL et al., Appellees.
    Nos. 75-1953, 75-1954.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Walter M. Meginniss, of Crary, Buchanan & Meginniss, Stuart, for appellants.
    Norman D. Zimmerman, Pompano Beach, for appellee William Cowell.
    Martin H. Cohen of Wood & Cohen, Fort Lauderdale, for appellee Lawrence R. Co-ville.
   TOM WADDELL, Jr., Associate Judge.

This is an appeal from a Summary Judgment entered in favor of two defendants, one a yacht broker and one the yacht seller. We reverse as to the defendant seller and affirm as to the broker.

Plaintiff-purchaser alleges that he contracted for a “new” yacht, with engines still under warranty. The yacht was supposedly built in 1971 and launched in 1972. The engines were supposedly 1971 models. The closing was in July 1973.

In December of 1973, the purchaser began having problems with the engines. When a claim was made under the warranty, the manufacturer denied the claim. Among other things, the purchaser learned one reason for the denial was that there had been a fire aboard the vessel. Damage from the fire had been repaired or concealed, depending upon whose interpretation you accept — the seller’s or the buyer’s.

The yacht was begun in 1966, engines delivered in 1967, launching took place in 1972. One engine had been run 42 hours, the other 152 hours according to the hour-meters.

In addition to a general denial, the seller raised the defenses of laches and “custom and practises of the yacht industry”.

The deposition and affidavits present conflicts but the trial judge in ruling on the Motion for Summary Judgment said, “ - _ - it is my view in reading the file prior to this and the research I did that there were enough red flags here to require Mr. Campbell to make an investigation, and he didn’t do it _ _ _ ”. It appears to us that this constitutes a finding of fact thus an entry of a Summary Judgment was erroneous as to Defendant, Co-well.

There was no evidence to support the claim against the broker Coville.

The cause is reversed and remanded as to Cowell and affirmed as to Coville.

MAGER, C. J., and CROSS, J., concur.


author: SMITH, CULVER, Associate Judge.

text:
    Lawrence H. NASH, Appellant, v. H. Lawrence ASHER, Appellee.
    No. 75-2007.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Perry W. Hodges, Jr., of Law Office of Borden R. Hallowes, Fort Lauderdale, for appellant.
    Philip Freidin of Freidin & Goldfard, Miami, for appellee.
   SMITH, CULVER, Associate Judge.

This is an appeal from a final judgment entered by the trial court dismissing Plaintiffs complaint which alleged professional malpractice. Appellant was Plaintiff below and Appellee was the Defendant. They will be referred to as Plaintiff and Defendant.

The cause of action arose on March 8, 1973 and Plaintiff filed his complaint on August 8, 1975, well within the four year statute of limitations in effect when the action accrued, Section 95.11(4) Florida Statutes 1969, but more than two years after the effective date of the new two year statute, Section 95.11(4)(a) Florida Statutes 1975. The basic issue involved in this appeal is whether the two year statute of limitations should be given retroactive effect and, if so, whether the savings clause provided by Section 95.022 Florida Statutes, 1975 applies to the present case. Section 95.022 Florida Statutes 1975, the “savings clause” reads:

“This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.”

Counsel have cited many cases to us concerning the retroactive application of statutes of limitation. Those concerned with malpractice were medical malpractice cases under Section 95.11(6) Florida Statutes, 1971. This statute did not have a “savings clause.” Since the briefs herein were filed, this Court decided the case of Harris v. Miles, 330 So.2d 181 (Fla. 4th DCA 1976) which came before the Court on the following certified question:

“Is a plaintiff who brought suit on July 24th, 1974 whose cause of action for medical malpractice arose on or about September 23, 1970 now barred from prosecuting that claim by virtue of that certain amendment to F.S.A. § 95.11(6) changing the period of limitations applicable to such actions to two years?”

This was answered in the affirmative. This court, in an opinion by Judge Downey reviewed previous decisions of the Second District Court of Appeal and adopted the holding in Foley v. Morris, 325 So.2d 37 (Fla.2d DCA 1976) in which that court stated:

“Therefore, we conclude that where the plaintiff has had the benefit of the entire new period of limitations to file suit on a pre-existing cause of action, application of the new statute is prospective in that the statutory change relates only to procedures to occur in the future. No substantive right has been impaired.”

It is noted that the court in Foley stated that the application of the statute was prospective only. This conclusion was approved by this court in Harris v. Miles, supra.

After oral argument was held in the ease now before the court, the Supreme Court of Florida on certiorari granted, quashed the decision of the Second District Court of Appeal in Foley, holding that the legislative intent to provide retroactive effect to Section 95.11(6) Florida Statutes, 1971 was not express, clear or manifest, Foley v. Morris, 339 So.2d 215 (Fla.1976). Inherent in this decision is the finding that the application of the two year statute in Foley was retroactive.

We must now determine the effect of the Supreme Court’s decision in Foley v. Morris on the ease we now have for decision. We believe that it has no bearing.

The decisions discussed in this opinion all involved the application of Section 95.11(6) Florida Statutes, 1971 which applied to medical malpractice. Our problem in the instant case concerns Sections 95.11(4)(a) and 95.022 Florida Statutes, 1975, general malpractice. There was no saving clause in the 1971 statutes. Section 95.022, 1975 is a saving clause. The Supreme Court in its decision in Foley held that the Legislature has authority to adopt a statute of limitations which retroactively shortens a period of limitation, provided a reasonable time is allowed by statute within which to file suit where there is manifest legislative intent to retrospectively shorten the period.

Section 95.022 clearly demonstrates the legislative intent to make 95.11(4)(a) retroactive, since it is a saving clause providing a reasonable time in which suits may be filed. Certainly the Plaintiff had a reasonable time in which to file his action after the passage of the statute. The trial judge correctly entered judgment for the Defendant.

AFFIRMED.

CROSS, J., and MASON, ERNEST, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Michelle Rae PRICE, a minor by and through her father and natural guardian, Ramon Price, etc., Appellants, v. SCHOOL BOARD OF BROWARD COUNTY, Florida, etc., Appellees.
    No. 76-163.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 1, 1977.

      Craig D. Savage, of Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for appellants.
    William S. Gardella, of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellees.
   DOWNEY, Judge.

Because we improvidently denied certio-rari at an earlier stage of this case, we are now forced to reverse a judgment for the appellants and remand the cause for a new trial.

Michelle Rae Price, while a student at a public elementary school in Broward County, was allegedly injured on the school premises as a result of alleged, negligence in the maintenance of said premises. Michelle and her father ultimately sued the Broward County School Board and Unigard Mutual Insurance Company. Upon authority of a portion of Section 230.23(9)(d)(2), Florida Statutes (1973), the School Board and Uni-gard moved to sever the insurance company as a party defendant and to prohibit any mention of the insurance company to the jury. Said motion was granted. Unigard was “severed from the trial of this cause” and any mention of insurance was prohibited.

The plaintiffs then filed a Petition for Writ of Common Law Certiorari in this court, asserting that the trial court’s order was a departure from the essential requirements of law because the statutory section prohibiting reference to the insurance company contained in Section 230.23(9)(d)(2) was unconstitutional. We denied certiorari “without prejudice to petitioners’ right to raise the same issues on appeal from the final judgment in the cause.” Price v. Unigard Mutual Insurance Company, 312 So.2d 482 (Fla.4th D.C.A.1975).

As fate would have it, on remand the case was tried and the jury returned a verdict for the defendant School Board. As one would expect, plaintiffs have filed this appeal from the final judgment, and the sole assignment of error and point on appeal involves the propriety of the order of severance of the insurance company, which plaintiffs sought to have reviewed by the aforementioned Petition for Writ of Certio-rari.

The order severing the insurance company and prohibiting the mention of insurance in the cases was erroneous. The portion of Section 230.23(9)(d)(2) we quoted is unconstitutional as an invasion of the rule making power of the Supreme Court. Article Y, Section 2(a), Constitution of Florida. Cf. School Board of Broward County, Florida v. Surette, 281 So.2d 481 (Fla.1973); Whittemore v. Dade County, 292 So.2d 363 (Fla.1974); Carter v. Sparkman, 335 So.2d 802 (Fla.1976). Thus, from our present vantage point, we conclude that we should have granted the Petition for Writ of Certiorari and quashed the order severing the insurance company. This turn of events is particularly disturbing because it was our view initially on this appeal that the jury having found the School Board not guilty of negligence, the error in severing the insurance company was harmless. We based that initial view on the following pronouncement of the Supreme Court in Beta Eta House Corp., Inc. of Tallahassee v. Gregory, 237 So.2d 163, 165 (Fla.1970):

“The existence or amount of insurance has no bearing on the issues of liability and damages, and such evidence should not be considered by the jury.” (Emphasis added.)

Later, in Godshall v. Unigard Insurance Company, 267 So.2d 383 (Fla.4th D.C.A. 1972), this court specifically held that the severance of an insurance company from the case so as to preclude the jury from knowing insurance was involved was harmless error because the presence or not of insurance by the defendant was not relevant to the issues of liability and damages. Convincing as a reading of that opinion seems, the Supreme Court quashed it in Godshall v. Unigard Insurance Company, 281 So.2d 499 (Fla.1973), stating:

‘The insurance carrier’s position as a real party in interest is a position of continuing interest which includes the trial of the cause which a third party has asserted against its insured. To rule otherwise on a motion for severance would be to defeat the purposes of the rule enunciated in these cases with regard to the real party in interest so as to reflect the presence of financial responsibility which should be left apparent before the jury (without other express mention, of course) and the other basis set forth in those holdings. The routine granting of such motions for severance except for such good cause related to insurance coverage would be a misapprehension of this Court’s holding.’
“The interest which plaintiff has in presenting to the jury the truest possible picture of the existence of financial responsibility is much too important to allow the loss of that interest, through the granting of severance for any reason except those enumerated in Stecher [Stecher v. Pomeroy, 253 So.2d 421 (Fla. 1971) ] and repeated in this Court’s first opinion in this cause, to be dismissed as ‘harmless error.’
“For that reason, we hold that if the trial court grants severance absent a jus-ticiable issue relating to insurance, such as a question of coverage or of the applicability or interpretation of the insurance policy or other such valid dispute on the matter of insurance coverage, such court commits harmful error.” (Footnote omitted.)

The Supreme Court having so ruled, we must now hold that the order severing the insurance company in the case and prohibiting the mention of insurance was not harmless error and that a new trial is required.

Accordingly, the judgment appealed from is reversed, and the cause is remanded with directions to vacate the order of June 6, 1974, and grant plaintiffs a new trial on all issues.

REVERSED AND REMANDED WITH DIRECTIONS.

DAUKSCH, J., and GREEN, OLIVER L., Associate Judge, concur.

      . “ . . . Provided, however, no attempt shall be made in the trial of any action against a school board to suggest the existence of any insurance which covers in whole or in part any judgment or award which may be rendered in favor of the plaintiff.”


author: DOWNEY, Judge. CROSS, Judge,

text:
    Thomas H. COULSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-464.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Thomas H. Coulson pleaded guilty to burglary and was placed on probation for a period of five years. In addition to the standard conditions of probation, the trial court also imposed as conditions that Coulson: “. . . 13) OBTAIN and maintain employment” and “14) DRAW no unemployment compensation during period of probation.” Coulson’s sole point on appeal attacks the latter condition as improper.

It is well settled that the primary purpose of probation is to rehabilitate the individual while he is at liberty under supervision. Bernhardt v. State, 288 So.2d 490 (Fla.1974). In the matter of granting probation and specifying conditions thereof trial courts are necessarily vested with a broad, but not unbridled, discretion. Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976). And the terms and conditions of probation are valid if the activities restricted bear a reasonable relation to the past or future criminality of the probationer, notwithstanding that such activities may be lawful in themselves. See, e.g., Malone v. United States, 502 F.2d 554 (9th Cir. 1974). Because of the broad discretion reposing in the trial judge appellate courts should be wary of interfering with his design of conditions to effectuate a successful probation. However, if a special condition of probation is so punitive as to be unrelated to rehabilitation, it can not be imposed. Kominsky v. State, supra.

We hold that the imposition of the condition prohibiting Coulson from ever drawing unemployment compensation during the five year period of his probation is an abuse of discretion in this case because it is an unnecessary restriction upon the valid exercise of a valuable right. It could well be that Coulson may become unemployed during his probation period without any fault on his part and while he is exercising every effort to obtain new employment. In such a case he would certainly not be in violation of condition 13, above, yet he would be precluded from obtaining a benefit afforded to all other citizens in like circumstances. Of course, if prohibiting the acceptance of unemployment compensation benefits were the only way to insure Coul-son’s continuous effort to be employed, then the condition might be valid, since a limitation on the exercise of one’s constitutional rights can be the valid subject of a condition of probation. In re Mannino, 14 Cal.App.3d 953, 92 Cal.Rptr. 880, 45 A.L.R.3d 996 (1971). However, where a substantial right is to be delimited it would seem reasonable to require that there are no other available alternative means to accomplish the desired end.

In the present case the trial court imposed a condition that Coulson obtain and maintain employment. If he fails to maintain employment clearly without fault, then he would not be in violation of such condition, and drawing unemployment compensation is not going to affect the bona fides of his unemployment. If Coulson fails to maintain employment through his own fault, he would be in violation of condition 13, and he could not under these circumstances qualify for unemployment compensation. Unquestionably, maintaining employment is an effective tool in rehabilitating a probationer. In this case that can be adequately accomplished by condition 13, above. Condition 14 only serves to penalize Coulson in the event he cannot comply with condition 13 and maintain employment however diligent he might be. In this respect not only does condition 14 appear to be unnecessary, but it could in fact have a very detrimental effect on his rehabilitation.

The state contends that Coulson has not preserved the foregoing point on appeal because he offered no objection to the condition at sentencing, arguing that his silence acted as a waiver of objection. We reject such a position. To begin with, the right to appeal from an order of probation is granted by Section 924.06, Florida Statutes (1975). In addition case law supports Coulson’s right to appeal. In re Mannino, supra; In re Bushman, 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727 (1970).

We conclude that the ends of justice would best be served by affirming the order appealed from in all respects except as to condition 14, relative to drawing unemployment compensation. We, therefore, modify the order under review by deleting therefrom condition 14.

AFFIRMED as modified.

MAGER, C. J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent and would affirm the terms of appellant’s probation as imposed by the trial judge.

The condition of probation imposed upon appellant in the instant case that he shall not collect unemployment compensation while on probation was imposed by the trial judge after having the benefit of the pre-sentence investigation, and knowledge of circumstances upon which he could reasonably determine appellant needed to maintain employment as a rehabilitation measure. This condition does not appear to be so punitive as to be unrelated to rehabilitation. It is possible that once appellant had lost a job, even though it were through no fault of his own, and was receiving unemployment compensation, he would not be as motivated to obtain new employment as he would be without the condition that he not collect unemployment compensation. Denying appellant the aid of unemployment compensation could reasonably provide appellant with an added incentive to seek and maintain employment. Accordingly, the condition imposed by the trial court does not constitute an abuse of discretion, and I would affirm.


author: PER CURIAM.

text:
    Janice Taylor G. DAVISSON, Appellant, v. Donald Robert GREENE, Appellee.
    No. 76-573.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Wallis E. Schulle of Simpson, Brodbeck & Schulle, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Those portions of the order on appeal which modified the appellee’s child support obligations established by prior orders of the court are manifestly erroneous both because they were improperly rendered without notice and because they are substantively incorrect. Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975). Consequently, the order of February 19, 1976 is reversed and the cause remanded with directions to strike paragraphs 1-3 from that order.

REVERSED and REMANDED with directions.

DAUKSCH and LETTS, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    CITY OF CORAL SPRINGS, a Florida Municipal Corporation, Appellant, v. UNITED FEDERAL SAVINGS AND LOAN ASSOCIATION OF BROWARD COUNTY et al., Appellees.
    No. 76-1685.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Paul J. McDonough, Coral Springs, for petitioner.,
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, and William F. Sullivan, Pompano Beach, for respondents.
   PER CURIAM.

Appellant has improvidently filed a Petition for Writ of Certiorari to review an order denying a motion to dismiss in an action formerly cognizable in equity. Review should have been sought by interlocutory appeal and we have so treated the matter.

Upon consideration of the record presented and appellant’s brief, the order appealed from is affirmed.

AFFIRMED.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


text:
    James B. PULLEN, Appellant, v. Dolores L. Millard DENNETT, Appellee.
    No. 76-2021.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 22, 1977.
    Jonathan C. Shamres, of Shamres & Ko-nigsberg, Fort Lauderdale, for appellant.
    Arnold T. Blostein, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed upon authority of North Shore Hospital, Inc, v. Barber, 143 So.2d 849 (Fla. 1962); Palmer Johnson, Inc. v. Buxton, 262 So.2d 892 (Fla.2d DCA 1972).

REVERSED AND REMANDED WITH DIRECTIONS to vacate the default and allow Defendant to answer.

MAGER, C. J., and CROSS and DAUKSCH, JJ., concur.


text:
    Charles Fulmer MOTLEY, Appellant, v. Patricia MOTLEY, Appellee.
    No. 76-2294.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Frank G. Cibula, Jr., of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    Donald J. Sasser, of Johnston, Sasser & Randolph, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Winters v. Parks, 91 So.2d 649 (Fla.1956).

MAGER, C. J., and CROSS and DAUKSCH, JJ., concur.


text:
    In re GUARDIANSHIP OF Terry P. BENTLEY, an infant.
    No. 76-2472.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.

      James W. Nowlin, Jr., Nowlin, Adams, Nowlin & Sumrall, Delray Beach, for appellant-Marion Bentley Wall, as Guardian of the person and property of Terry P. Bentley.
    No appearance for appellees.
   DOWNEY, Judge.

Marion Bentley Wall is the grandmother of six year old Terry P. Bentley. On February 25, 1974, the Circuit Court of the Fifteenth Judicial Circuit appointed Marion as the guardian of Terry’s person and property (Terry’s mother had died and his father’s whereabouts were unknown).

A petition was filed in the Circuit Court of the Fifteenth Judicial Circuit, Juvenile and Family Division, by Ronald Rankin and Julia Rankin, his wife, (one of whom is Terry’s cousin) for custody of Terry looking toward his eventual adoption. The question then arose whether the Rankin custody petition should be heard in the Probate Division in conjunction with the guardianship proceeding or in the Juvenile and Family Division. Pursuant to a motion for a determination of jurisdiction the Judge of the Probate Division entered an order that the Probate Division had no jurisdiction and the issue involved should be determined by the “Civil Division” (meaning the Juvenile and Family Division). That order is the subject of this appeal.

We express some surprise that a matter of this magnitude could not have been resolved without resort to appellate procedures. The question involved is not one of jurisdiction. The Circuit Court has jurisdiction as prescribed by the Constitution and general law. See Article V, Section 5, Florida Constitution, and Section 26.012, Florida Statutes (1975). All of the judges of the Circuit Court are authorized to exercise that Court’s jurisdiction. However, for efficiency in administration, the Circuit Court is frequently divided into divisions, with each division handling certain types of cases. Judges and cases can both be transferred from one division to another by the Chief Judge of the Circuit. Fla.R. Civ.P. 1.020.

The appellant guardian contends on appeal that a decision of the Juvenile and Family Division that custody of Terry should be awarded to the Rankins would conflict with the order of the Probate Division appointing appellant as guardian of Terry’s person. Of course, such a situation is easily obviated by a consolidation of both cases for the purpose of trying the custody issue. Then, if the court determines Terry’s best interest would be served by granting custody to the Rankins, the court can simultaneously discharge Marion as guardian of Terry’s person.

Accordingly, we reverse the order appealed from to the extent that it holds the Probate Division has no jurisdiction to entertain the issue of custody. We remand the cause with directions to have the two pending cases consolidated for trial of the issue of custody and, if necessary, the Chief Judge of the Circuit can designate which division of the court shall try the issue.

REVERSED AND REMANDED with directions.

CROSS and DAUKSCH, JJ., concur.


text:
    Howard MILLER et al., Appellants, v. ASHLAND OIL, INC., et al., Appellees.
    No. 76-61.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 23, 1977.
    Preddy, Haddad, Kutner, Hardy & Josephs, Podhurst, Orseck & Parks, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami John L. Ashworth, Marion, Ohio, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See the companion case of Hales and Sea Trawl, Ltd. v. Ashland Oil, Inc. et al., 342 So.2d 984 (Fla.3d DCA 1977).


author: PEARSON, Judge.

text:
    COMMERCIAL CARRIER CORPORATION and Merchants Mutual Insurance Company, Appellants, v. INDIAN RIVER COUNTY and State of Florida Department of Transportation, Appellees.
    No. 76-326.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 23, 1977.

      Gerald M. Walsh & Associates, Fort Lauderdale, and Richard D. Heller, Miami, for appellants.
    Larry K. White, Tallahassee, Stephens & Schwartz, Richard M. Gale, Miami, Winifred Sheridan Smallwood, Tallahassee, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The appellant Commercial Carrier Corporation and its liability insurer Merchants Mutual Insurance Company were defendants in the trial court to an action for personal injury resulting from the collision between a vehicle operated by Commercial Carrier Corporation and the plaintiff’s. The collision occurred at an unmarked intersection at which there had previously been a stop sign governing the road upon which the Commercial Carrier vehicle was operating. Commercial Carrier and its liability insurer brought a third party complaint naming as defendants Indian River County, a political subdivision of the State of Florida, and the State of Florida, Department of Transportation, alleging as negligence the failure of Indian River County to maintain a stop sign at the intersection, and the failure of the Department of Transportation to paint or place onto the pavement the word “stop” just prior to the entrance to the intersection. Upon the motions of the third party defendants, the third party claim was dismissed. This appeal is from that order. We affirm.

The appellant argues three points. The first concerns the propriety of venue in the Circuit Court of Dade County. This point was not ruled upon by the trial court inasmuch as it dismissed the third party complaint with prejudice. In view of our af-firmance of the trial court’s decision, we need not deal with the venue issue.

Appellant’s second point urges that the effect of Section 768.28, Florida Statutes (1975) is a total waiver of sovereign immunity by the State, its agencies and subdivisions in tort actions and that, therefore, the order of dismissal could not properly be grounded upon sovereign immunity. We find it unnecessary to discuss this issue inasmuch as we hold that the facts stated in the complaint did not show negligence on the part of either Indian River County or the Department of Transportation.

Appellant’s third point urges that Indian River County and the Department of Transportation are liable for contribution or for indemnity pursuant to Section 768.31, Florida Statutes (1975). Here again, we need not discuss that issue because the proper ground for the dismissal of the third party complaint was that it failed to state a cause of action. The allegations of the third party complaint concerning the liability of Indian River County are as follows:

“3. That on February 7, 1975 at the intersection alleged INDIAN RIVER COUNTY had the duty to maintain a stop sign controlling the traffic upon which the tractor trailer operated by COMMERCIAL CARRIER CORPORATION was proceeding. The road for which the sign is to govern traffic is North Winter Beach Road westbound traffic. That before and at the time of the accident alleged by Plaintiff occurred, the said stop sign was absent or taken down, but in any case not present to govern the westbound traffic on North Winter Beach Road and its intersection with State Road S505 A, and that the said stop sign had been down for sufficient length of time for the employees and/or agents of the County known as INDIAN RIVER COUNTY to have had reasonable notice of the absence of the sign and sufficient time to reerect another stop sign or create adequate warnings in order that westbound traffic on North Winter Beach Road would be advised that they would be entering a very hazardous and dangerous intersection without the protection of traffic control devices. ' INDIAN RIVER COUNTY failed to maintain the safety traffic control signs for the operation of motor vehicles on North Winter Beach Road westbound at its intersection with State Road S505 A in INDIAN RIVER COUNTY, Florida.”

The allegation concerning the negligence of the Department of Transportation is as follows:

“4. That the STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION on February 7, 1975 and for some time before the same owed a duty to the public operating motor vehicles westbound on North Winter Beach Road with its intersection with State Road S505 A to paint or place into the pavement the word “STOP” just prior to the entrance of the intersection westbound on North Winter Beach Road. That the STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION failed to imprint, write in or in some way place the word “STOP” on the surface of North Winter Beach Road westbound at its intersection with State Road S505 A.”

The cases hold that it is not actionable negligence against an individual that a governmental authority has failed to maintain a traffic control device at a given time and place. See Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975); and City of Tampa v. Davis, 226 So.2d 450 (Fla.2d DCA 1969). See also Holton v. City of Bartow, 68 So.2d 385 (Fla.1953); Raven v. Coates, 125 So.2d 770 (Fla.3d DCA 1961); and Mathews v. City of Tampa, 227 So.2d 211 (Fla.2d DCA 1969).

Affirmed.

      . The order appealed from does not set forth the grounds upon which it was granted. However, the motions contain the ground of failure to state a cause of action.


text:
    DADE COUNTY and Eugene Simms, Appellants, v. Ray RADERMAN, as Administratrix of the Estate of Harry Raderman, Appellee.
    No. 76-1570.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 23, 1977.

      Stuart L. Simon, County Atty. and James G. Roth, Asst. County Atty., for appellants.
    Ira J. Kurzban, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by Dade County and Eugene Simms, the director of its Traffic and Transportation Division, two of the defendants below, from an order denying their motion to vacate a default entered by the court clerk for failure to file a responsive pleading within the time required, after service of summons upon them. Said defendants filed a motion to dismiss on the date upon which the default was entered.

On September 11, 1975, the appellee filed a complaint against Dade County, Simms, Continental Insurance Company and the City of Homestead, Florida. Appellants were not served with process until after the plaintiff filed an amended complaint, nine months later.

The amended complaint alleged the plaintiff’s decedent met his death by drowning when a vehicle he was driving left a road and entered a canal adjacent to the road, and that his death was proximately caused by negligence of the defendant county and city in failing to have installed barriers or guard railings there and by failing to have placed signs warning of the known danger there to persons using the road. It was alleged the county had waived its immunity by obtaining a policy of insurance from the defendant Continental Insurance Company to indemnify the county for damages which might be recovered against it in such an action.

The defendants Dade County and Simms were served with process on June 17, 1976. On July 12, plaintiff moved for default. On July 16 a clerk’s order of default was entered, being the same date upon which the said defendants filed their motion to dismiss the amended complaint. Included in the grounds stated in the motion to dismiss were that the court lacked jurisdiction of the subject matter, and that the action was barred by sovereign immunity of the county. Attached to the motion to dismiss was a letter from a representative of the alleged insurance carrier, to the effect that such company had not issued such a policy to the county. Whether the county had become thus insured elsewhere was not alleged or shown.

Effective in this case was Section 455.06 Florida Statutes (1975), by virtue of which the county’s sovereign immunity from suit based on such allegations would be removed when its governing body obtained and held insurance to cover liability for damages for the event involved. Kaulakis v. Boyd, 138 So.2d 505, (Fla.1962).

On consideration of the record, briefs and argument, we find merit in the contention of the appellants that their motion to vacate the default should have been granted. In this case, where the plaintiff is seeking to recover damages from a public body, payable out of public funds, on the pleadings the court was made aware of uncertainty as to whether the county’s immunity had been waived, and therefore that there was a question as to whether there was jurisdiction of the subject matter, we hold it was error to deny the motion to vacate the default. In our opinion in this negligence action against the county, the interests of justice would be served best by having an adversary hearing on the question of the existence or nonexistence of immunity of the county, and for trial of the cause on the merits with respect to said defendants if jurisdiction thereby is established.

The order appealed from is reversed, and the cause remanded for further proceedings.


text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Marion MURPHY et al., Appellees.
    Nos. 76-1752 to 76-1755.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 16, 1977.
    Bolles, Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellant.
    Goldstein & Goldstein, Edward A. Moss, Miami, Gerald M. Walsh, Fort Lauderdale, Knight, Peters, Hoeveler, Pickle, Niemoel-ler & Flynn, Sam Daniels, Miami, for appel-lee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

By these consolidated appeals, Maryland Casualty Company, defendant-third party plaintiff, seeks review of an adverse summary final judgment and an order denying motion for rehearing. The summary final judgment held as a matter of law that Maryland Casualty has coverage on the property on which the plaintiffs, Marion Murphy was injured. Murphy cross-appeals and contends that the trial court erred in granting Maryland Casualty’s motion for a stay of trial court proceedings pending the outcome of this appeal. One of the primary issues before the trial court was whether there had been an effective assignment of an insurance policy where the policy omits any provision as to assignability.

On May 9, 1975, plaintiff Murphy, appel-lee and cross-appellant herein, fell and was injured in the parking garage of an office building which was sold by Leon and Ruth Feldman to Stuart Z. Perlman two days before. The Feldmans and Perlman are defendants in the trial court, and appellees herein. The building was insured by a policy issued by defendant Maryland Casualty, appellant and cross-appellee, through its agent, third party defendant, Harry Hurst and Associates, Inc., appellee. Maryland Casualty appeals the order of summary judgment holding that the policy covered the accident. Maryland Casualty also appeals from the trial court’s order denying its motion for rehearing. The trial court granted Maryland Casualty’s motion for a stay pending appeal.

The record reflects that the property was sold by the Feldmans to Perlman on May 7, 1975. At the closing, the parties pro-rated the insurance in that the sellers were paid by the purchaser for the unearned portion of the premium. Two days later, Murphy was injured in the parking garage of the building.

In 1974, Maryland Casualty issued a policy to the Feldmans covering the building and providing for third party liability coverage. The policy was obtained through Maryland’s agent, Hurst. The agent’s copy of the policy issued by Maryland and furnished by Hurst, was attached to Maryland Casualty’s motion for summary judgment. The copy did not contain any provision relating to assignment. At the summary judgment hearing, the trial court entered summary judgment in favor of Perlman, and held that the policy covered the accident. Following summary judgment, and having allegedly discovered at its home office the original policy which contained a prohibition against assignment without the consent of the company, Maryland Casualty filed a motion for rehearing. The trial court denied the motion and these appeals ensued.

Maryland Casualty contends that the trial court erred in holding that the insurance policy was effectively assigned from the Feldmans to Perlman; that at the summary judgment hearing, the parties and the court were using the wrong insurance policy and that the original policy containing a prohibition against assignment without consent was discovered several days later. We do not find that reversal is warranted on these points.

Agent Hurst’s copy of the policy which was attached to Maryland Casualty’s motion for summary judgment against Perl-man contained no provision prohibiting assignment without the insurer’s consent. Neither do any of the other copies of the policy filed of record except Maryland’s alleged original. At the hearing on motions for summary judgment, Maryland Casualty’s counsel admitted that the policy contained no such clause.

Pursuant to Section 627.422, Florida Statutes (1975), an insurer has the option of requiring or not requiring its consent to an assignment. The statute provides in pertinent part that,

“A policy may be assignable, or not assignable, as provided by its terms.”

In our opinion, this requires that a “no assignment” clause be included in the policy in order to preclude assignments. Where a policy is silent on the matter of assignment, then the silence creates an ambiguity. Generally, in contracts of insurance, ambiguities are to be construed against the insurer and in favor of the insured. See Stuyvesant Insurance Company v. Butler, 314 So.2d 567, 570 (Fla.1975), and cases cited therein. Therefore, the trial court did not err in finding that there is coverage, and granting summary judgment in favor of Perlman.

We also find that the trial court properly denied Maryland Casualty’s motion for rehearing of the order granting summary judgment. First, as a motion for rehearing ordinarily brings the same facts and arguments before the court, no error is shown since the summary judgment was properly entered as a matter of law. However, attached to the motion for rehearing was the alleged original insurance policy together with affidavits of two Maryland Casualty employees. Even if we treat the motion for rehearing as a motion for relief based on newly discovered evidence under Rule 1.540, Fla.R.Civ.P., denial of the motion was still proper. No abuse of the trial court’s discretion is shown where the court had before it the two policies, and where there are blatant discrepancies between them. In addition, the record does not contain any admissible evidence that the insured received a copy of the policy which Maryland claims to be the original.

The law looks with disfavor on a party’s attempt to change his testimony to avoid summary judgment. As stated in Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla.2d DCA 1970),

“. . .A party opposing a motion for summary judgment will not be permitted to alter the position of his previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. . . (citation omitted)

The granting of a rehearing to consider additional testimony is a matter within the discretion of the trial court. We find that the trial court did not abuse its discretion in refusing to allow Maryland Casualty to submit the contents of the alleged original policy on rehearing. See Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969).

Plaintiff Murphy has failed to demonstrate error on her cross-appeal from the order granting Maryland Casualty’s motion for a stay of trial court proceedings pending appeal.

Affirmed.

DREW, E. HARRIS (Ret.), Associate Judge, agrees to judgment only.


author: SCHEB, Judge.

text:
    Ingrid CARDOZO and Joseph Cardozo, her husband, Plaintiffs, v. Norma TRUE a/k/a Norma A. True and Ellie’s Book and Stationery, Inc., Defendants.
    No. 76-1623.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1977.
    Rehearing Denied March 24, 1977.

      John Patterson of Livingston & Patterson, and James W. Cullis of Icard, Merrill, Cullis, Timm & Furen, Sarasota, for plaintiffs.
    Andrew D. Owens, Jr. of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for defendant Elbe’s Book and Stationery, Inc.
   SCHEB, Judge.

The Circuit Court for Sarasota County certified the following questions to this court pursuant to Fla.App. Rule 4.6(a):

I. IS A RETAIL BOOK DEALER LIABLE UNDER SECTION 672.314, FLORIDA STATUTES, TO A PURCHASER OF A COOKBOOK FOR HER INJURIES AND DAMAGES CAUSED BY IMPROPER INSTRUCTIONS OR LACK OF ADEQUATE WARNINGS AS TO POISONOUS INGREDIENTS USED IN A RECIPE?
II. IS A RETAIL BOOK DEALER LIABLE UNDER THE COMMON LAW OF IMPLIED WARRANTIES TO A PURCHASER OF A COOKBOOK FOR HER INJURIES FOR LACK OF ADEQUATE WARNINGS AS TO POISONOUS INGREDIENTS USED IN A RECIPE?

The plaintiffs’ amended complaint set forth the essential facts which the trial court has summarized as follows:

“Norma True authored a book entitled ‘Trade Winds Cookery’, an anthology of recipes selected and prepared by her using tropical fruits and vegetables. It was published by a Virginia corporation, which sold the book to Elbe’s Book and Stationery, Inc. Elbe’s was and is a retail book dealer located in Sarasota, Florida.
On September 15, 1971, Ingrid Cardozo purchased a copy of ‘Trade Winds Cookery’ from Elbe’s. Four days later, Mrs. Cardozo was using the book and following a recipe in it for the preparation and cooking of the Dasheen plant, commonly known as ‘elephant’s ears’. While preparing the roots for cooking, she ate a small slice and immediately experienced a burning of the bps, mouth, throat and tongue, coughing and gasping, and intense stomach cramps. This persisted over several days, despite medical care.
Defendant True did not answer plaintiff’s complaint, and is not involved in this certificate. As to defendant Elbe’s Mrs. Cardozo and her husband alleged that the book did not have adequate instructions; that it failed to warn that uncooked Dasheen roots are poisonous; and that the ingredients contained in the recipes for Dasheen plant dishes were inadequately tested to insure their safety for human consumption. It was further alleged that Ellie’s impliedly warranted that the book was reasonably fit for its intended use, and that it was not, due to inadequate instructions and warning. Finally, it was alleged that Mrs. Cardozo’s injuries and Mr. Cardozo’s derivative claim were proximately caused by the breach of this warranty.”

It appears to us that our answer will be dispositive of the case as to the claim against Ellie’s. See Fla.App. Rule 4.6(a). Of course, our answers do not bear on the plaintiffs’ action against the defendant, True.

Plaintiffs argue that the first question is controlled by the Uniform Commercial Code (U.C.C.), Section 672.314, Florida Statutes; that the second question is answered by the common law of implied warranties. Section 672.314, Florida Statutes provides:

(1) Unless excluded or modified (§ 672.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as:
(a) Pass without objection in the trade under the contract description; and
(b) In the case of fungible goods, are of fair average quality within the description; and
(c) Are fit for the ordinary purposes for which such goods are used; and
(d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
(e) Are adequately contained, packaged, and labeled as the agreement may require; and
(f) Conform to the promises or affirmations of fact made on the container or label if any.
(3) Unless excluded or modified (§ 672.316) other implied warranties may arise from course of dealing or usage of trade.

Plaintiffs see the quoted statute as one of general applicability to all retail dealers in consumer goods. They point out that this section of the U.C.C. creates a statutory implied warranty of merchantability imposed by law on the merchant who regularly sells goods and that defendant Ellie’s falls in that category in respect to the sale of books. And, while plaintiffs find no decisional law to directly support their contention that Ellie’s is liable, the applicability of the statute, they maintain, is obvious from its plain meaning.

Defendant, while recognizing that Ellie’s may be subject to the doctrine of implied warranty now imposed by the U.C.C., claims such warranty is limited to the physical characteristics of the books they sell and cannot be construed to include the thought processes conveyed by the author and produced in writing by the publishers of that book. They urge the practical impossibility of book sellers testing every recipe in the books they sell. Moreover, they contend that if such a burden were to be imposed upon the book seller, then the merchant would have to be an expert or retain an expert in every field embraced by the numerous publications they offer. Ultimately, they argue, this would mean the stores which now disseminate information would be forced to close with the resultant infringement on freedom of speech and expression.

The definition of “goods” under the U.C.C. is sufficiently broad to include books. Section 672.105, Florida Statutes. Cf. Lake Wales Publishing Co. v. Florida Visitor, 335 So.2d 335 (Fla.App.2d DCA 1976), holding printed pamphlets as goods under U.C.C. Clearly, the defendant Ellie’s qualifies as a merchant with respect to books. Section 672.314(1), Florida Statutes.

Thus, we approach the novel question of not whether Ellie’s impliedly warranted the recipe book it sold to Mrs. Cardozo, but rather, the scope of that warranty. From reading Section 672.314(2), the requirement of merchantability most relevant here is (c), which requires goods to be “fit for the ordinary purposes for which such goods are used.”

As we have observed, books are goods. As such Elbe’s is held to have impliedly warranted the tangible, physical properties; i. e., printing and binding of books. But, at this point it becomes necessary to distinguish between the tangible properties of these goods and the thoughts and ideas conveyed thereby. The principle involved is not directly controlled by any precedent of the decisional law, either under the doctrine of implied warranty under common law or as codified under the U.C.C. It is unthinkable that standards imposed on the quality of goods sold by a merchant would require that merchant, who is a book seller, to evaluate the thought processes of the many authors and publishers of the hundreds and often thousands of books which the merchant offers for sale. One can readily imagine the extent of potential litigation. Is the newsdealer, or for that matter the neighborhood news carrier, liable if the local paper’s recipes call for inedible ingredients? We think not.

While not directly in point, it is interesting to note that even publishers have not been held liable where injuries have occurred through use of products advertised in their magazines. Thus, in Yuhas v. Mudge, 129 N.J.Super. 207, 322 A.2d 824 (1974), the court said that Popular Mechanics Corp. could not be held liable to a plaintiff injured by fireworks resulting from an allegedly defective product advertised in the corporation’s magazine. The court pointed out that the magazine had neither endorsed the product or secured any direct pecuniary benefit from the sale of the fireworks. To impose that legal duty upon the publisher, the court said, would have a staggering adverse effect upon the commercial world and our economic system. More closely in point is pre-U.C.C. case, iliac Kown v. Ill. Publishing & Printing Co., 289 Ill.App. 59, 6 N.E.2d 526 (1937), where the court refused to hold a newspaper liable for injuries to one of its readers allegedly resulting from the reader’s use of a dandruff remedy recommended as one given to the writer of the article by a reputable physician. The principles of law and considerations of public policy which support denial of liability of a publisher in these instances more urgently mandates denial of liability of a newsdealer.

Closely analogous is the principle that distributors of newspapers and periodicals cannot be even held legally responsible for defamatory material contained therein where the dealer did not know and reasonably could not have known that the publication contained defamatory material. See 50 Am.Jur.2d, Libel and Slander, Section 342. Thus in Sexton v. American News Co., 133 P.Supp. 591 (N.D.Fla.1955), the court stated that since:

“ . . .no duty rested definitely on defendant to familiarize itself with the contents of the publication in question and thereby learn of the allegedly libelous matter about the plaintiff, there remains nothing for the court to do in this case but grant defendant’s motion for summary judgment.”

The Supreme Court of Florida has held that even a newspaper publisher is not liable for the mere reproduction of outside press dispatches from generally recognized sources of daily news. Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933).

Thus liability without fault, which may be present in an action for breach of implied warranty, has long been held inappropriate in an action against one passing on printed words without an opportunity to investigate them. The principle against imposing liability without fault on a publisher in a defamation action has recently been given constitutional status. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).

The common theme running through these decisions is that ideas hold a privileged position in our society. They are not equivalent to commercial products. Those who are in the business of distributing the ideas of other people perform a unique and essential function. To hold those who perform this essential function liable, regardless of fault, when an injury results would severely restrict the flow of the ideas they distribute. We think that holding Elbe’s liable under the doctrine of implied warranty would, based upon the facts as certified to us, have the effect of imposing a liability without fault not intended by the Uniform Commercial Code.

The reasoning applicable to our response to the first question must also conclude the answer to the second. The U.C.C. in codifying the law of sales did nothing to restrict the common law doctrine of implied warranty under Florida law. To the contrary, the code raised the dignity of the doctrine to statute and made it a certainty that warranties would be implied in accordance with the statutory design where the seller is a merchant with respect to goods of that particular kind being sold.

We make no statements concerning the liability of an author or publisher under the facts as certified to us. Nor do we pass upon the question of whether Elbe’s could be held liable if it actually knew the book it sold contained recipes with poisonous ingredients. Rather, we hold that absent allegations that a book seller knew that there was reason to warn the public as to contents of a book, the implied warranty in respect to sale of books by a merchant who regularly sells them is limited to a warranty of the physical properties of such books and does not extend to the material communicated by the book’s author or publisher.

Accordingly, we answer each of the questions certified in the negative and remand this cause for further proceedings consistent with this opinion.

BOARDMAN, C. J., and HOBSON, J., concur.


author: McCORD, Judge. BOYER, Chief Judge,

text:
    Larry W. WATKINS, Appellant, v. STATE of Florida, Appellee.
    No. BB-75.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1977.
    Rehearing Denied March 23, 1977.

      J. Lawrence Smith, Green Cove Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Wallace E. Allbritton, Asst. Attys. Gen., for appellee.
   McCORD, Judge.

This is an appeal from appellant’s conviction after jury trial of robbery. Appellant raises two points on appeal (a third point was abandoned at oral argument) as follows: (1) the trial court committed reversible error by permitting the prosecuting attorney, over objection, to question defendant as to various previous arrests and criminal charges; (2) the trial court committed reversible error by excluding from evidence testimony as to statements made by appellant and his co-defendant after the alleged crime, which statements related to their knowledge, intent and state of mind at the time of the alleged crime.

The events which culminated in the arrest of appellant and his co-defendant, one Covert, began in a Jacksonville Beach bar. There appellant and Covert approached two plain clothes police officers, Barnhill and Maxwell, and offered to sell them drugs. Appellant and Covert testified that they knew the two were police officers and they decided to arrange a fake drug transaction with them “for the purpose of pulling a prank on them to embarrass them.” Their conversation with the officers resulted in the officers going to Covert’s apartment to buy drugs from appellant and Covert. At the apartment, when the officers arrived and were admitted, Covert went to his bedroom to get the “drugs” and returned with a rifle. He and appellant then ordered the officers to lie down on the floor. At this point, the testimony becomes conflicting. The officers’ version is that they were told to put their money on the coffee table, which they did. Covert testified that Maxwell pulled a wad of money from his pocket and threw it on the coffee table, but appellant testified that he never saw any money. Both appellant and Covert testified that they did not demand any money. The officers testified that Covert demanded Maxwell’s wallet, and about this time Barnhill pulled his gun and shot Covert four times while Covert still had the rifle pointed at Maxwell.

Later, at the police station, appellant was questioned by Lt. Russell, and he told Russell that he and Covert had arranged the fake drug transaction intending to play a joke on the officers, and the joke had gone too far. Later the same morning, appellant made similar statements to Detective Roach; and on the same morning at the Beaches Hospital, Covert made a similar statement to Dr. William J. Lee who was treating him for the gunshot wounds. The record shows that there was no opportunity after the incident for appellant and Covert to have gotten together to frame a story, but there is nothing to indicate that they did not have ample opportunity to frame one prior to the incident. At the trial, appellant proffered his own testimony of his statement to Russell and Roach and proffered testimony of Dr. Lee that Covert had made a similar statement to him. The court sustained the state’s objections to the statements, and this is the basis of appellant’s Point II on this appeal.

During the trial, the state, on cross-examination of appellant, was allowed, over objection of appellant, to elicit testimony from him of two prior arrests for driving while intoxicated. On one of these arrests, adjudication of guilt was withheld, and he was placed on probation. The other was pending. This is the basis for appellant’s Point I on this appeal.

As to Point I, the state contends that the evidence elicited from appellant on cross-examination as to his arrest for driving while intoxicated was admissible because appellant had put his character in issue through the testimony of two witnesses who testified as to his reputation for truth, veracity and integrity. One of these witnesses, appellant’s supervisor, was asked on direct if he knew what appellant’s general reputation was for honesty, integrity, truth and veracity, to which the witness replied, “Yes, sir.” He was then asked what that reputation was, to which he replied, “To my knowledge, its very good.” He was then asked the further question by appellant’s attorney, “Have you ever heard anyone at his place of employment or in any of the discussions that you have had there regarding him say anything negative about his reputation for truth and veracity, honesty and integrity?” To which the witness replied, “I have heard nothing negative about Mr. Watkins.” On cross-examination he was asked, “When asked about his general reputation there at your place of employment, — you say you have no knowledge that he has a bad reputation, is that right?” To which the witness answered, “Yes, sir.” He was then asked the question, “Has anybody ever discussed with you or in your presence the fact that he has a good reputation?” To which the witness answered, “There would be no reason to do this.” The witness was subsequently asked by the state, “Mr. Collins, You have testified that you never heard anything good about the defendant’s reputation, and further that anything bad would have been brought to your attention; is that correct?” To which he answered, “Yes, sir.” He was then asked by the state, “Mr. Collins, has anything bad been brought to your attention?” To which he answered, “Yes, sir.” Then followed the following questions and answers:

“Q What is that, Mr. Collins?
A Mr. Watkins did tell me when he explained the circumstances regarding this trial that he had been accused of a charge of shoplifting, I believe.
Q It was more than an accusation, was it not, Mr. Collins?
A I didn’t go into any detail with him at that time, sir.”

The state’s question, to which the witness replied that appellant had told him he had been accused of shoplifting, was proper cross-examination in relation to the witness’ testimony on direct that he had heard nothing negative about appellant. It revealed that the witness had heard something of a derogatory nature, that went into the formulation of his opinion as to appellant’s general reputation for honesty, integrity, truth and veracity. Such was a legitimate test of his opinion. See Fine v. State, 70 Fla. 412, 70 So. 379 (1915); Cook v. State, 46 Fla. 20, 35 So. 665 (1903); and Greenfield v. State, 336 So.2d 1205 (Fla. 4 DCA 1976).

When appellant took the stand, his attorney asked him if he had ever been convicted of a crime, to which he replied that he had been convicted of shoplifting; that he had pled guilty; that it involved a pair of sandals that were taken from a department store, and he paid a $75 fine. On cross-examination by the state, we come to the testimony elicited from appellant that appellant contends was error. After questioning appellant about his conviction for shoplifting, the assistant state attorney asked the following questions to which appellant gave the following answers:

“Q And, Mr. Watkins, did you also during your candid and forthright conversation with Mr. Collins tell him about your other experiences with the law?
A Yes, sir.
Q The other trouble that you have had? A That’s correct.
Q You did.
What does that consist of, sir?
What is that other trouble?
A It consists of a conviction of DWI with adjudication withheld and a pending DWI.
Q All right, sir.
And you did tell Mr. Collins about that in your conversation?
A Yes, sir, I have.
Q Are you sure about it?
A (No Response)
Q Are you sure of that?
A Yes, sir.
Q Did you hear Mr. Collins refer to that this morning in his testimony?
A I don’t recall it, no, sir.

Had the state, on cross-examination of appellant’s character witness, specifically asked if he had heard of appellant having been arrested for driving while intoxicated and had the witness answered no, the above quoted testimony would have been admissible if relevant. But it was not admissible, first because it was not relevant. An arrest or conviction for driving while intoxicated is not relevant to one’s reputation for honesty, integrity, truth and veracity. Second, even if the testimony were relevant, a prop-. er foundation had not been laid for the impeachment of appellant’s character witness by such testimony. While its admission was error, however, we find it to have been harmless error.

As to Point II, appellant was allowed to testify as to his state of mind and intent but was not allowed to corroborate this by testifying that he had told the officers of his intent when questioned at the police station. The statements of appellant to the two officers at the police station were not a part of the res gestae, were self-serving, and therefore inadmissible. The proffered testimony of the doctor as to Covert’s statement to him was inadmissible because Covert’s statement to him was not a part of the res gestae and was hearsay. Had these statements been offered by appellant in rebuttal of state evidence of a recent fabrication by appellant, and if it could be shown that they had been made prior to such recent fabrication, they would be admissible, but these circumstances are not present here.

Affirmed.

MILLS, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

concurring specially-

I concur in affirmance. However as to appellant’s first point, the majority has held the quoted testimony inadmissible but harmless error. I am of the view that under the facts of this case, as recited in the foregoing opinion, the testimony was admissible and therefore not error, harmless or otherwise.


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    Lino GUTIERREZ, M.D., Appellant, v. MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., d/b/a Mount Sinai Medical Center of Greater Miami and Harry Kraff, M.D., Appellees.
    No. 76-216.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Grover, Ciment, Weinstein & Stauber and Craig G. Goodman, Miami Beach, for appellant.
    Milton Kelner, Adams, George, Lee & Schulte and David L. Willing, Miami, for appellees.
    Before HENDRY, G. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Holl v. Talcott, 191 So.2d 40 (Fla.1966), and Keller v. Penovich, 262 So.2d 243 (Fla. 4th DCA 1972). Compare Edwards v. Doherty, 74 So.2d 686 (Fla.1954), and Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla. 2d DCA 1963).


text:
    MILAR GALLERIES, INC., Appellant, v. Sonia MILLER, Appellee.
    No. 76-280.
    District Court of Appeal of Florida, Third District
    March 1, 1977.
    Rehearing Denied March 23, 1977.
    Nat Gursten, North Miami, for appellant.
    Franklin D. Kreutzer and Michael A. Reichman, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed on the authority of the rule stated in Huntley v. Baya, 136 So.2d 248 (Fla.3d DCA 1962).


text:
    E.H.G. ENTERPRISES, INC., Appellant, v. I. Joel AMSTELL and Amstell, Inc., a/k/a Amstell Associates, Inc., Appellees.
    No. 76-363.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      Charles Gener, Miami, for appellant.
    Robert A. Shupack and Lee B. Gartner, North Miami Beach, William Lobel, Coral Gables, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant, E.H.G. Enterprises, Inc., appeals an order denying its motion to vacate final summary judgment.

Plaintiff-appellee I. Joel Amstell filed an amended complaint for breach of contract, quantum meruit, violation of the Bulk Sales Act and fraudulent conveyance against defendants: E.H.G. Enterprises of Florida, Inc., E.H.G. Financial Corporation, E.H.G. Enterprises, Inc., a Puerto Rico corporation, American Design and Development Corporation of Miami and Continental Mortgage Investors, a Massachusetts business trust. Appellee served appellant E.H.G. Enterprises, Inc., a foreign corporation, by serving the Secretary of State pursuant to Sections 48.181 and 48.161, Florida Statutes (1973). Appellant answered the complaint and raised as affirmative defenses lack of jurisdiction over the appellant, insufficiency of process and insufficiency of service of process. Appellant also raised additional affirmative defenses going to the merits. Subsequently plaintiff, after hearing, was granted summary judgment on June 5,1975 as to E.H.G. Financial Corporation, E.H.G. Enterprises of Florida, Inc. and appellant E.H.G. Enterprises, Inc. On November 21, 1975 appellant filed a motion to vacate the summary judgment on the grounds the judgment against it was void because appellant was not amenable to substituted service of process for lack of proof it was doing business in Florida; and even if appellant was subject to substituted service, appellee did not comply with the requisites of the statute and, therefore, the service was void. The trial judge, after hearing, entered an order denying the motion to vacate. We affirm.

In entering the summary final judgment against appellant, the trial judge determined that appellant’s affirmative defenses with respect to jurisdiction lacked merit. At this point the proper appellate procedure would have been to file a petition for rehearing within 10 days pursuant to Fla.R. Civ.P. 1.530 or perfect an appeal to this court. See State ex rel. Eli Lilly and Company v. Shields, 83 So.2d 271 (Fla.1955). Having failed to do either of the above, we find the trial judge was eminently correct in denying appellant’s motion to vacate filed some five months after the entry of the summary judgment. See Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970).

Affirmed.

      . Both totally owned subsidiaries of appellant E.H.G. Enterprises, Inc.


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    MOUNT SINAI HOSPITAL OF GREATER MIAMI, INC., Appellant, v. Dr. Rene M. MORA, Appellee.
    Nos. 76-364, 76-365.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Talburt, Kubicki & Bradley and Brett D. Anderson, Jeanne Hayward, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Thomas & Pearl, Miami, for ap-pellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On June 3, 1975, Anna Cabal filed an action against Mount Sinai Hospital of Greater Miami, Inc., herein referred to as Mt. Sinai.

On November 21, 1975, Mt. Sinai filed an answer, and separately filed a third party complaint against Dr. Rene M. Mora. In its answer, the defendant hospital denied negligence and pleaded contributory negligence and assumption of risk, and averred that the injurious result alleged by the plaintiff was caused by the negligence of Dr. Mora, his employees and servants.

In the third party complaint filed against Dr. Mora it was alleged that the plaintiff was treated in the hospital by Dr. Mora; that the acts of negligence alleged in the complaint were those of Dr. Mora; and Mt. Sinai prayed that if judgment should be entered against it in the case, judgment be entered on its third party complaint against Dr. Mora for contribution or indemnity.

A motion was filed by Dr. Mora to dismiss Mt. Sinai’s third party complaint against him, on the ground that Mt. Sinai had not exhausted its administrative remedy by submitting its claim against Dr. Mora to mediation, pursuant to Section 768.133 Florida Statutes, which now appears as Section 768.44 Florida Statutes, 1976 Supp. A second ground stated in the motion to dismiss was that the court was without jurisdiction to entertain the third party complaint, because it represented a malpractice claim filed in court after July 1,1975, without prior mediation as provided for by the statute. The motion was granted. Mt. Sinai filed an appeal (No. 76-364) and filed an interlocutory appeal (No. 76-365). Those were consolidated and progressed as a plenary appeal.

Section 768.44 Florida Statutes, 1976 Supp., in subsection(l)(a), provides as follows:

“Any person or his representative claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization against whom he believes there is a reasonable basis for a claim shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.”

The above-quoted statutory provision for a person having a medical malpractice claim to submit such claim to a medical liability mediation panel, before an action may be filed thereon, is not applicable to a case instituted before July 1, 1975, by reason of subsection (10) of said Section 768.44, which reads as follows:

“The provisions of subsections (1) through (9) shall not be applicable to any case in which formal suit has been instituted prior to the effective date of those subsections, which shall be July 1, 1975.”

In seeking reversal, the appellant relies on the above-quoted subsection (10) of Section 768.44, contending its third party complaint against Dr. Mora was procedurally authorized, and thus was a part of the “case” which was exempted from the provisions relating to prior resort to a mediation panel. The appellee contends the third party complaint against Dr. Mora filed after July 1,1975, was not entitled to be proceeded in as a part of the exempted case without prior submission thereof to a mediation panel.

In evaluating those opposite contentions of the parties, we have been shown no Florida decisions dealing directly with the situation presented here. On consideration thereof, we hold it was error to dismiss the defendant’s third party complaint against Dr. Mora for contribution or indemnity.

The filing of the third party complaint by the defendant was procedurally authorized by Fla.R.Civ.P. 1.180. The proceedings thereon, including such judgment as might be rendered on the third party complaint following a judgment in favor of the plaintiff against the defendant Mt. Sinai, would be integral parts of the entire (exempted) case.

In First National Bank of Miami v. Bebinger, 99 Fla. 1290, 128 So. 862, 863 (1930), it was said: “The words ‘case’ or ‘cause,’ when used as legal terms, are generally understood as meaning a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected or wrongs are prevented or redressed”. In that case the Supreme Court held that supplementary proceedings taken in a cause for enforcement of a judgment which had been entered therein were part of the case or action in which the judgment was rendered. In Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 108 (2 Cir. 1953) cited by appellant, the court said: “ * * * the word ‘action’ as used in the Rules [of Civil Practice] denotes the entire controvesy”. See State Department v. Crill, 99 Fla. 1012, 128 So. 412, 415 (1930); State v. Furen, 118 So.2d 6, 9 (Fla. 1960).

This case does not present an instance of where a plaintiff after filing a medical malpractice case against one of two joint tort-feasors prior to July 1,1975, after that date, without prior submission to a mediation board, by an amendment of the complaint joins and asserts a medical malpractice claim against the other joint tortfeasor.

The instant case represents an authorized third party complaint by which the defendant seeks contribution (in event of an adverse judgment against it) as provided for under Section 768.31 Florida Statutes, 1976 Supp., and alternatively seeks indemnification against the third party defendant if the facts should so warrant. As to contribution, although subsection (4)(c) of Section 768.31 permits contribution to be sought by separate action, within a stated time after judgment rendered against the party seeking contribution, that would not prevent or preclude the defendant Mt. Sinai from seeking contribution or indemnity by the authorized procedure of filing a third party complaint therefor in the (exempted) case, during the pendency of the case, although final disposition of the claim for contribution or indemnity necessarily would come after judgment in favor of the plaintiff against the defendant, if obtained. See Chappell v. Scarborough, 224 So.2d 791, 796 (Fla.1st DCA 1969); Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d DCA 1969); Jerome Nagelbush, Inc. v. Frank J. Rooney, Inc., 342 So.2d 121 (Fla.3d DCA 1977).

In this case we are not called upon to decide, and we express no opinion on the effect of the use of such third party procedure for that purpose without prior submission to a mediation panel, in a medical malpractice case filed after July 1, 1975. We hold the procedure was appropriate here as an integral part of the case which was filed on a date that exempted the case from the provisions of Section 768.44 Florida Statutes, 1976 Supp.

Accordingly the order appealed from is reversed and the cause remanded for further proceedings not inconsistent herewith.


text:
    Michael C. BARNES, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 76-374.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied March 23, 1977.

      Pelzner & Schwedock and Joseph J. Fink-elstein, Miami, for appellant.
    Joel R. Teague, Robyn Greene, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By this appeal the defendant in an action for declaratory judgment, brought against him by the appellee, Travelers Insurance Company, presents for review an adverse judgment which declared defendant was not entitled to the benefit of the uninsured motorist coverage of a policy issued by said insurance company to the defendant’s employer, and which enjoined the proceedings initiated by defendant for arbitration of claim thereunder.

The appellant was injured in a collision of a vehicle he was driving with a vehicle driven by a hit-and-run driver. The vehicle driven by appellant was owned by his employer, Visual Graphics Inc. When injured, the appellant was acting in the course of his employment, and was entitled to coverages provided for in the liability insurance policy issued to Visual Graphics Inc. by the appel-lee.

In the policy, an uninsured automobile as defined included a hit-and-run automobile, subject to certain conditions. One of them was that “the insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles”.

In its action the insurer sought a declaration of non-coverage for the failure to give such notice, and thereupon to restrain the proposed arbitration proceeding. The defendant answered, averring the insurer knew or should have known of the accident, and that the insurer could not show prejudice such as to preclude recovery under the uninsured motorist coverage.

Trial of the action before the court resulted in judgment declaring the insurer was entitled to disclaim coverage, and enjoining the arbitration.

The record on appeal does not contain a transcript of the testimony and the proceedings at the trial. The pleadings and certain affidavits of record show the defendant did not report the accident as and within the time required. After the accident occurred, the defendant returned to his employment sometime later on that date. He did not inform his employer of the accident until the morning of the second day after that upon which the accident took place. The employer did not, on behalf of the appellant, or otherwise, make a report thereof to an official as so required, for several days thereafter. The judgment affirming non-coverage on those facts is affirmed on the authority of McKay v. Highlands Insurance Co., 287 So.2d 393.(Fla. 3d DCA 1974). The presumption of prejudice to the insurer, from the noncompliance with the said prompt notice requirement, was not shown to have been rebutted or overcome. The judgment of the trial court so implies, and in the absence of a record showing the evidence at trial, we find no basis in law to disturb the judgment. See Laster v. United States Fidelity and Guaranty Co., 293 So.2d 83 (Fla. 3d DCA 1974).

Affirmed.


text:
    William MEJIAH et al., Appellants, v. Olivio RODRIGUEZ and Integon Indemnity Corporation, Appellees.
    Nos. 76-379, 76-380, 76-501 and 76-502.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

These appeals are from a summary final judgment and an order denying motion to vacate summary judgment. They have been consolidated for all appellate purposes. Plaintiffs brought suit against the defendants alleging injuries resulting from an automobile accident. Permanent injury sufficient to meet the threshold requirements under Florida’s no fault act was alleged by the plaintiffs and denied by the defendants. The deposition of the treating physician was taken. The physician testified that the plaintiffs had not reached maximum medical improvement and, at the time of the deposition, he had not determined the existence of permanent injury. Defendants moved for summary judgment based upon the pleadings and the deposition of the treating physician. Summary final judgment for the defendants was entered. Thereafter, a motion for order vacating summary judgment was filed upon the ground that the treating physician was prepared to testify that the injury was permanent.

The plaintiff may prevail at trial on the basis of a mere preponderance of evidence. However, the party moving for summary judgment must show conclusively that no material issue remains for trial. Visingardi v. Tirone, 193 So.2d 601 (Fla.1966). The burden of a party moving for summary judgment is greater, not less, than that of the plaintiff at trial. The burden of the movant in a motion for summary judgment is not simply to show that the facts support his own theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail. Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA 1976). The moving party, upon a motion for summary judgment, has the burden of conclusively showing the absence of genuine issues of material fact. If the existence of such issues or the possibility of their existence is reflected in the record, or the record even raises the slightest doubt in this respect, the summary judgment must be reversed. Furlong v. First National Bank of Hialeah, 329 So.2d 406 (Fla.3d DCA 1976); Williams v. Florida Realty & Management Co., 272 So.2d 176 (Fla.3d DCA 1973).

The pleadings and the deposition in the instant case did not meet the standard necessary to establish defendants’ right to summary judgment. Therefore, the summary judgment is reversed. Inasmuch as we find that the summary judgment was improperly entered, we need not discuss the issues raised upon plaintiffs’ motion for order vacating summary judgment.

Reversed and remanded.


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    Dr. George J. TURKE, Jr., et al., Appellants, v. LIME REALTY CORPORATION, a Florida Corporation, Appellee.
    No. 76-420.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Walter C. Lehmann, Robyn Greene, Miami, for appellants.
    Mahoney, Hadlow & Adams and Paul C. Huck, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The defendants appeal from a final judgment based on a jury verdict in an action for breach of contract to manage a lime grove. The single question presented on appeal is whether the plaintiff’s evidence of loss caused by the improper management was too speculative to warrant recovery. Our review of the record convinces us that the proof was adequate under the rule stated in Hodges v. Fries, 34 Fla. 63, 15 So. 682 (1894); and Conner v. Atlas Aircraft Corporation, 310 So.2d 352, 354 (Fla.3d DCA 1975).

Affirmed.


text:
    Charles MOORE, et al., Appellants, v. WILSON P. ABRAHAM CONSTRUCTION CORPORATION and Wilson P. Abraham, Appellees.
    No. 76-459.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    George B. Weires, Miami, for appellants.

      Sheldon R. Rosenthal, Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Capers v. Lee, 91 So.2d 337 (Fla.1956).


text:
    Jean A. INMAN, Appellant, v. The CLUB ON SAILBOAT KEY, INC., a Florida Corporation, and Sailboat Key, Inc., a Florida Corporation, Appellees.
    No. 76-518.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Peeples, Earl & Blank and Richard M. Goldstein, Miami, for appellant.
    Ralph S. Sterling, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Jean Inman, appeals a final summary judgment in favor of Sailboat Key, Inc., and an order denying her motion for rehearing and leave to file an amended complaint in an action to recover the balance of sale commissions.

Appellant filed a two-count complaint against The Club On Sailboat Key, Inc., and Sailboat Key, Inc. In count I she alleged that she had entered into an employment contract with the defendants whereby she acted as a salesperson for condominiums to be constructed and known as The Club On Sailboat Key; that through her efforts in excess of two million dollars worth of units were contracted for; as a result of her efforts, she was entitled to $21,495 in commissions and a balance of $8,799 was due and owing. In count II she alleged that she had entered into an agreement with defendant The Club On Sailboat Key, Inc. to purchase one of the units using $4,500 of her earned commissions to be placed in escrow as a down payment; defendant did not place the $4,500 in escrow and she demanded return of her deposit. Attached to the complaint was a copy of her employment contract and the deposit receipt agreement. A default judgment was entered against The Club On Sailboat Key for failure to comply with the rules of discovery. Thereafter, Inman filed a motion for entry of final judgment and attached an affidavit stating that she was employed by The Club On Sailboat Key, Inc. and the corporation owed her $8,799 in commissions. A final judgment in that amount was entered against The Club. Thereupon, Sailboat Key, Inc. moved for a final summary judgment on the ground Inman was es-topped from pursuing her claim against it by virtue of the above final judgment. After hearing, the trial judge entered final summary judgment for Sailboat Key, Inc. Inman then filed a motion for rehearing and for leave to file an amended complaint to incorporate allegations to pierce the corporate veil of both defendants, and to add the sole stockholder of both corporations as a party-defendant. The motion was denied and Inman perfected this appeal from the summary judgment and order of denial.

With respect to the entry of summary judgment for Sailboat Key, Inc., the record reflects that Inman’s employment contract was with The Club On Sailboat Key, Inc.; and in her affidavit in support of final judgment, Inman herself states that she was employed by The Club and that her contract was with this defendant. We, therefore, find no error in the entry of summary judgment for Sailboat Key, Inc. A party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla.2d DCA 1970).

Appellant was attempting to raise new issues for the first time in her motion for rehearing and for leave to amend; and summary judgment already having been entered, the trial judge did not abuse his discretion in denying the proposed amendment at this stage of the proceedings. See Cohen v. Landow, 242 So.2d 801 (Fla.3d DCA 1971).

Affirmed.


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    Herbert WELCH, Appellant, v. The STATE of Florida, Appellee.
    No. 76-773.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Herbert Welch appeals his conviction for breaking and entering with intent to commit petit larceny and petit larceny, and argues that the trial court unduly restricted defense counsel’s right of cross-examination of the State’s sole witness in violation of the Sixth Amendment to the Constitution of the United States.

At trial the sole prosecution witness, Linda Stanley, testified that on the evening of the incident she awakened at 11:00 P.M. and observed the defendant, Herbert Welch, walking out of her house with her television set. On cross-examination she testified that Welch had been in her house on many prior occasions. Defense counsel then sought to impeach Linda by asking whether her husband had told her that he was “gonna get” Herbert. Linda responded in the negative. At this point defense counsel sought to question Linda about a rule to show cause which had been issued against her and whether her court appearance was voluntary. The prosecution objected to these questions and the objections were sustained. At a side bar conference, defense counsel proffered to the trial court that the rule to show cause was issued against Linda because she did not want to testify in court as her husband had put her up to testifying the way she did on direct examination. However, no evidence to support this theory was proffered and the trial court refused to allow this line of questioning. Thus, Welch contends his right to cross-examination was unduly restricted.

The extent to which cross-examination should be permitted to show a witness’ bias, interest, motives or animus rests largely within the sound discretion of the trial judge and his rulings will not be disturbed in the absence of a showing of a clear abuse of that discretion. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940); Matera v. State, 218 So.2d 180 (Fla.3d DCA 1969); Maycock v. State, 284 So.2d 411 (Fla.3d DCA 1973).

Linda had already been questioned by defense counsel as to whether her husband had told her he was going to seek revenge against the defendant and she denied he told her this. Further, defense counsel admitted to the judge he had no evidence to support his theory that Linda’s husband had put her up to testifying as she did on direct examination. Defense counsel failed to establish that continued cross-examination with respect to the rule to show cause would bring out new facts to discredit Linda; therefore, the restriction of such testimony which, in effect, would only be redundant, did not constitute an abuse of discretion. See Slaughter v. State, 301 So.2d 762 at 767 (Fla.1974).

Affirmed.