text:
    REFLEX, N.V., a Netherlands Antilles Corporation, Appellant, v. The UMET TRUST, a Real Estate Investment Trust organized under the laws of the State of California, formerly known as Unionamerica, Mortgage & Equity Trust, etc., Appellees.
    Nos. 76-142, 76-748.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Mershon, Sawyer, Johnston, Dunwody & Cole and Timothy J. Norris, Miami, for appellant.
    Meyer, Weiss, Rose, Arkin, Sheppard & Shoekett, Miami Beach, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

These appeals are brought by defendant Reflex, N.V., a Netherlands Antilles corporation, the junior mortgage holder in an action to foreclose the first mortgage. The plaintiff, The UMET Trust, a real estate investment trust, is the owner and holder of the first mortgage. The appeals are from an order denying defendant’s motion to dismiss the complaint and from a summary final judgment foreclosure. This court, by order, expressly declined to stay proceedings in the trial Jourt. Upon motion of the appellee, the appeals were consolidated and the causes are being expedited for a prompt disposition thereof.

An examination of the complaint in the light of the arguments presented fails to show any fatal defect in the complaint. Therefore, the trial court properly denied appellant’s motion.

In its appeal from the judgment of foreclosure, Reflex urges that the pleadings and depositions, together with the affidavits on file, showed a genuine issue as to affirmative defenses raised by Reflex in its answer. See Emile v. First National Bank of Miami, Fla.App.1961, 126 So.2d 305. The affirmative defenses urged (1) that UMET’s conduct after the date of the alleged default amounted to a waiver of estoppel sufficient to render a foreclosure of UMET’s mortgage inequitable, and (2) that UMET’s actions in working with the owner prior to default constituted a joint venture at least in the contemplation of law from the perspective of third parties.

Having reviewed the record in the light of these contentions, we hold that the trial judge correctly determined that there was no genuine issue upon the affirmative defenses presented and that UMET was entitled to a summary final judgment as a matter of law. While it is true that it is necessary for a plaintiff to show that affirmative defenses have no basis in fact in order to be entitled to a summary judgment, this does not mean that by the raising of purely paper issues the defendant can forestall the granting of relief to the plaintiff where the pleadings and evidentia-ry matters before the trial court show that the defenses are without substance in fact or in law. See Harvey Building, Inc. v. Haley, Fla.1965, 175 So.2d 780.

Appellant presente an additional point urging that the triaFcourt proceeded too hastily in entering the summary final judgment prior to the disposition of the interlocutory appeal from the order denying Reflex’s motion to dismiss the complaint. The only parties to the interlocutory appeal were Reflex and UMET. It was error for the court to proceed to adjudicate Reflex’s rights by a final judgment during the pend-ency of Reflex’s appeal. As the cause now stands, this error would be cured by a remand to the trial court with directions to strike the final judgment previously entered and to enter a new final judgment upon the holdings of this court on this appeal. See Stewart v. Golding, Fla.App. 1976, 327 So.2d 879. We conclude that under the facts and circumstances of this case, it would be useless to enter such an order. We, therefore, note the error but hold the same to be harmless in this case.

The remaining points presented by appellant, have been considered, and found to be without merit.

Affirmed.

      . *******
      “To defeat a motion which is supported by evidence which reveals no genuine issue, it is not sufficient for the opposing party merely to assert that an issue does exist. If the moving party presents evidence to support the claimed non-existence of a material issue, he will be entitled to a summary judgment unless the opposing party comes forward with some evidence which will change the result — that is, evidence sufficient to generate an issue on a material fact. Connolly v. Sebeco, Inc., Fla., 89 So.2d 482; Barron & Holtzoff, Federal Practice and Procedure (Wright Edition), Vol. 3, Section 1235.” 175 So.2d at 782-83.
      * * * * * *


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    Marilyn Jo BRODBECK and State Farm Mutual Automobile Insurance Company, Appellants, v. Jesus GONZALEZ and Teresa Gonzalez, Appellees.
    No. 75-1453.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Miami, for appellants.
    Stone, Sostchin & Koss and Alan J. Ho-din, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This appeal arises from a personal injury action brought by plaintiffs-appellees against defendants-appellants. The trial court, upon defendant's motion, entered an involuntary dismissal of plaintiffs’ suit without prejudice against the plaintiffs for failure of plaintiff, Jesus Gonzalez, to comply with the trial court’s order to submit to a medical examination as required under Fla.R.Civ.P. 1.360(a). The court’s order stated that the dismissal was at the cost of the plaintiffs, with costs to be taxed upon motion and notice.

Defendants filed their motion to tax costs setting forth in detail the costs expended by them in this cause. The trial court entered an order denying the motion in its entirety without, including any findings or reciting any reasons therefor.

Defendants present two points on appeal. First, that the trial court should have dismissed the case with prejudice and, second, that the trial court erred in failing to tax costs against the plaintiffs.

We find no merit in defendants’ contention that the dismissal should have been with prejudice. Fla.R.Civ.P. 1.380(b)(2) states that,

“If a party . . . fails to obey an order to provide or permit discovery under . . Rule 1.360, the court in which the action is pending may make any of the following orders: * * * (C) . . dismissing the action or proceeding . . . .”

A dismissal as punishment for the plaintiff’s failure to comply with a court order is in large measure a discretionary matter with the trial judge. Warriner v. Ferraro, 177 So.2d 723 (Fla. 3d DCA 1965). We find no abuse of discretion by the trial judge in this case. See Swindle v. Reid, 242 So.2d 751 (Fla. 4th DCA 1971).

Having determined the nature of the sanction imposed on the plaintiffs, the trial court involuntarily dismissed, without prejudice, plaintiffs' suit under Fla.R.Civ.P. 1.420(b). Section (d) of the same rule provides

“Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action . .

The record reflects that in the motion to tax costs, the defendants included costs expended for the taking of depositions of the plaintiffs and of certain physicians pertaining to the lawsuit. Here the plaintiffs brought the defendants into court and as a result of the plaintiffs’ own actions, an involuntary dismissal was caused to be entered. Defendants allege that they were required to expend costs relative to the suit and in defense thereof. . Under Fla.R.Civ.P. 1.420(d), as well as by order of the trial court, costs were required to be taxed against the plaintiffs. We cannot speculate as to the necessary costs expended in this case. The taxation of costs applicable to a given ease rests largely in the discretion of the trial judge.

Therefore, the cause is reversed and remanded to the trial court for taxation of costs either in whole or in part, or disallowing specific cost items. See Troutman Enterprises, Inc. v. Robertson, 273 So.2d 11 (Fla. 1st DCA 1973).

Reversed and remanded with directions.


author: HENDRY, Judge.

text:
    Jerry L. ALDERSON, Appellant, v. MIAMI BEACH KENNEL CLUB, INC., Appellee.
    No. 75-1235.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Barranco, Darlson & Daniel, Miami, for appellant.
    Sibley, Giblin, Levenson & Ward, Miami, G. Kenneth Kemper, Miami Shores, for ap-pellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals from an adverse final judgment entered by the trial court pursuant to appellee’s , defendant below, motion for a directed verdict made at the close of appellant’s case during a jury trial. Appellant also appeals from an order denying his motion for a new trial.

Appellant filed a complaint seeking, among other things, damages for the breach of a written contract entered into with appellee. The contract, basically, provided for the booking of appellant’s greyhounds at appellee’s race track for the 1967 through 1970 racing seasons. Appellant, pursuant to the contract, raced his greyhounds at appellee’s race track during the 1967, 1968, and 1969 racing seasons. However, in 1970 appellee refused to permit appellant to compete at the race track. As a result of this refusal, appellant filed his complaint seeking damages for the anticipated purses which he might have earned had he been allowed to race for the 1970 racing season.

During the course of a jury trial and at the close of appellant’s case, appellee moved for a directed verdict, on the grounds that appellant had failed to make it reasonably certain by competent proof the amount of his damages, which was granted by the trial court. Thereafter, the trial court entered a final judgment in favor of appellee and denied appellant’s motion for a new trial. From this final judgment and order, appellant appeals.

Appellant raises the following. three points on appeal: (1) that the directed verdict should not have been granted because there was evidence from which the jury could have lawfully found for him; (2) the uncontroverted proof adduced by him of his earnings between 1965 and 1971 was sufficient to present a jury question on the amount of the damages he suffered; and (3) an affirmance of the directed verdict would authorize the breach of contracts without any fear liability for the breach.

Appellee contends that where, as in the instant case, a plaintiff has failed to make it reasonably certain by competent proof what the amount of his actual loss was, the trial court is justified in directing a verdict for the defendant. Also, appellee contends that the granting of a motion for a directed verdict is a correct legal procedure for the trial court to use where the plaintiff has failed to prove his case in the manner required by law.

In the case of New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1936) the Supreme Court of Florida stated the following rule:

“The general rule is that the anticipated profits of a commercial business are too remote, speculative, and dependent upon changing circumstances to warrant a judgment for their loss. There is an exception to this rule that the loss of profits from the interruption of an established business may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his actual loss was.”

After a careful review of the record in the instant appeal, we have concluded that appellant has failed to meet the requirements of the rule and its exception set forth above. Appellant’s proof of his damages was too speculative to go to the jury; therefore, the trial court properly granted appellee’s motion for a directed verdict. Also, see, e. g., Myrick v. Miller, 256 So.2d 255 (Fla.3d DCA 1971); and Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795 (Fla.3d DCA 1964). Further, we conclude that the other points raised by appellant on appeal are without merit.

Thus, after a consideration of the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment and order appealed are affirmed.

Affirmed.


author: PER CURIAM.

text:
    Antoinette BOHONOWSKY, Appellant, v. STATE of Florida, Appellee. John M. KIBALO, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-590, 75-591.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1976.

      Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard and Richard P. Zaret-sky, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction of conspiracy to commit a felony, to-wit: grand larceny, and remand with instructions to enter a conviction of the lesser charge, conspiracy to commit a misdemean- or, to-wit: petit larceny. Garland v. State, 291 So.2d 678 (4th DCA Fla.1974). The evidence presented at trial clearly proved that the value of the goods taken by appellants was less than $100. Generally, in such cases it has been said that the best evidence of a person’s intent to steal is what he did steal, White v. State, 274 So.2d 6 (4th DCA Fla.1973); Rumph v. State, 248 So.2d 526 (1st DCA Fla.1971). The evidence presented by the state does not exclude the reasonable hypothesis that appellants only intended to steal goods from the store with a value of less that $100.

The other points raised are without merit.

AFFIRMED IN PART and REVERSED IN PART and remanded.

WALDEN, CROSS and DOWNEY, JJ., concur.


text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. ESTERO BAY DEVELOPMENT CORPORATION, Appellee.
    No. 76-692.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    Rehearing Denied Sept. 9, 1976.

      Robert L. Shevin, Atty. Gen., and Larry Levy, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellant.
    Julian Clarkson, Ft. Myers, for appellee.
   PER CURIAM.

Appellant assessed certain documentary stamp taxes against appellee and recorded a tax warrant in order to claim a lien against appellee’s property within the county. Ap-pellee filed a declaratory judgment action to contest the assessment and remove the lien. We reject the appellant’s contention that appellee’s exclusive remedy is under the Administrative Procedure Act. Department of Revenue v. University Square, Inc., Fla.App.1st, 1976, 336 So.2d 371. We do not reach the merits of the complaint.

AFFIRMED.

HOBSON, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Richard KINDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 75-1824.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have considered the briefs and record in this case and find no merit to appellant’s contentions except that as the appellee concedes, the sentence to “hard labor” is sur-plusage and should be stricken. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). In all other respects the judgment and sentence is affirmed.

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


author: PEARSON, JUDGE.

text:
    Eugene AUSTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1717.
    District Court of Appeal of Florida, Third District.
    July 23, 1976.
    Rehearing Denied Sept. 8, 1976.

      Phillip A. Hubbart, Public Defender, and H. T. Smith, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PEARSON, JUDGE.

The defendant was tried upon an information charging him with aggravated assault pursuant to Fla.Stat. § 784.021. He was found guilty by a jury, so adjudicated and sentenced to five years with two and a half years withheld followed by two years probation. The record reveals that the “deadly weapon” used by the defendant was spray from a can containing a chemical substance commonly designated as “mace.” The controlling question is whether, under the circumstances of this case, spray from a can of “mace” will support a finding by a jury that a deadly weapon was used in an assault. We hold that the evidence does not support the charge of aggravated assault and we reverse the judgment and sentence with directions to enter a judgment and sentence for assault pursuant to Fla.Stat. § 784.011.

The defendant has in the past performed services for parents claiming the wrongful detention of children. In the present instance, he was employed by a father who claimed the right of custody of a child alleged to have been unlawfully removed by the mother from the state of Missouri. Defendant located the child in Miami, Florida, and having been refused the aid of law enforcement agencies, he and the father forceably took the child from the. mother. In the process of abduction, the defendant seized the mother, pulled her head back and sprayed chemical “mace” from a can into her mouth. The evidence that “mace” would not, under such circumstances, produce death or serious bodily harm was uncontroverted. The expert produced by the State testified that serious damage was unlikely. His testimony does not lend itself to any reasonable inference that the substance as used can be deadly.

A deadly weapon has generally been defined to be one likely to produce death or great bodily injury. Goswick v. State, Fla.1962, 143 So.2d 817. The question of whether a particular weapon involved is to be classed as “deadly” is a factual question to be resolved by the jury. The jury’s finding must be based upon evidence or reasonable inferences therefrom of the likelihood to produce death or great bodily injury. See State v. Nixon, Fla.App. 1974, 295 So.2d 121. The jury may consider the character of the assault and the way the weapon is used. Cf. Rogan v. State, Fla.App.1967, 203 So.2d 24.

In Weaver v. State, Fla.App.1969, 220 So.2d 53, the District Court of Appeal, Second District, considered a question in which a determination of the character of mace as a weapon was necessary. A police officer responded to a report of a domestic disturbance at the defendant’s home. After some investigation, the police officer attempted to enter the home apparently to see whether anyone was seriously injured. He was denied admission by the defendant and after he either sprayed or threatened to spray the defendant with chemical mace, the defendant shot him. Thereafter, having been charged with murder, the defendant claimed self-defense. On appeal, one of the points considered was the propriety of a jury instruction concerning justifiable homicide. The defendant claimed that he resisted an attempt to commit a felony upon him. In considering the question of the nature of the weapon used or displayed by the officer, the court said:

* * * * * *
“Nor do we think the use of chemical Mace as testified to herein, changes the law on the point, the gravamen of which is that a threatened misdemeanor will not, of itself, justify killing the offender. It is almost a precept, which gathers force by repetition, that men do not hold their lives at the peril of unreasonable fears or disproportionate resistance to real or imagined threats. At most, the threatened use of Mace as testified to in this case, even if carried out, could amount to no more than assault and battery, another misdemeanor. For these reasons, and for those apparent hereinafter, the appellant was not entitled to the requested charges and they were properly refused.”
******

We think that the reasoning applied by the District Court of Appeal, Second District, impels the reversal of the judgment holding the appellant here guilty of an aggravated assault. Upon the other hand, it is clear that an assault was committed and inasmuch as assault is, under the facts of this case, an included offense, we remand the cause with directions to enter a judgment of guilty of assault and for a sentence thereon.

Reversed and remanded with directions.

      . “784.021 Aggravated assault.
      “(1) An ‘aggravated assault’ is an assault: “(a) With a deadly weapon without intent to kill; or
      “(b) With an intent to commit a felony.”

      . The father did not seek the aid of the courts of this state. See Fox v. Fox, Fla.App. 1965, 179 So.2d 103.


text:
    Sari ABELSON, Individually and Sari Abelson, as a surviving director and trustee for the use and benefit of New Floridian Hotel, Inc., a dissolved Florida Corporation, Appellant, v. Arie Lionel BOSEM, a/k/a Lionel Bosem, et al., Appellees.
    Nos. 75-547, 75-550.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Rehearing Denied Sept. 8, 1976.
    Heller & Kaplan, Miami, for appellant. Sibley, Giblin, Levenson & Ward, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings these consolidated appeals from a final judgment, entered by the trial court after a nonjury trial, dismissing the complaint with prejudice and reserving jurisdiction over appel-lees’, defendants below, counterclaim.

It is well settled that, where a case is tried before a court without the intervention of a jury, the conclusions reached by the trial court on questions of fact or questions relating to the credibility of witnesses have the weight of a jury verdict. Such conclusions come to the appellate court clothed with a presumption of correctness and will not be disturbed on appeal where they are supported by substantial competent evidence. See, e. g., Huwer v. Huwer, Fla.App.1965, 175 So.2d 242; Paul’s Drugs, Inc. v. Southern Bell Tel. & Tel. Co., Fla.App.1965, 175 So.2d 203; Highland Lakes, Inc. v. Art Present Real Estate, Inc., Fla.App.1962, 147 So.2d 348; Lowery v. Rosenberg, Fla.App.1962, 147 So.2d 321; and 2 Fla.Jur., Appeals §§ 314, 316, and 346.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    PASCO COUNTY SCHOOL BOARD, Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. CC-38.
    District Court of Appeal of Florida, First District.
    Aug. 23, 1976.
    John-Edward Alley and Daniel H. Kunk-el, Alley & Alley, Tampa, and Joe A. McClain, McClain, Hobby & Greenfelder, Dade City, for petitioner.
    Jack L. McLean, Jr., and Patricia A. Re-novitch, Tallahassee, for respondent.
    Sidney L. Matthew, Tallahassee, amicus curiae.
   On Motion to Strike Directions to Agency Regarding Record on Appeal

PER CURIAM.

Petitioner, Pasco County School Board (School Board), filed its Directions to Agency Regarding Record on Appeal, which delineates some 29 items it deemed to be proper matters for respondent, Public Employees Relations Commission (PERC) to incorporate in the already voluminous record filed in this cause. Examples of the items designated are:

“1. All magnetic cassette and/or any other tape recordings made by Public Employees Relations Commission (hereinafter ‘PERC’) staff personnel of the ULP hearing before PERC on January 14,1976 from which the transcript designated item No. 4, Volume III of the Record on Appeal filed by PERC on May 11, 1976 was transcribed.
“14. All notes, memoranda, reports, minutes and any other documents or recordings of any deliberative sessions held among any commissioners of PERC relative to the instant consolidated case or any of its subparts.”

PERC now moves to strike the subject directions, primarily, on the grounds that same are not within the purview of Section 120.68(5), Florida Statutes (1975). We agree. The instant motion to strike, except as hereinafter provided, is granted.

It is PERC’s responsibility to prepare a record for judicial review prescribed by Section 120.68(5), F.S. (1975), including, when the proceeding is one which affects a substantial interest of a party, the specific material described in Section 120.57(1)(b)5, F.S. (1975). The great bulk of the material described in the School Board’s directions to PERC was never referred to in the evidence received or proffered at the hearing. Such material is, therefore, not properly to be included in the record for judicial review. In proceedings for administrative determination of the invalidity of a rule by Section 120.56, F.S. (1975), it is, of course, PERC’s responsibility to identify in writing all documents considered by it before its action and used as a basis for its action. Section 120.68(5)(c), F.S. (1975).

PERC shall file in the record for judicial review the omitted transcript and those items specified which fall within the purview of Section 120.68(5), F.S. (1975). PERC’s motion to strike the School Board’s directions is otherwise granted.

It is so ordered.

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


text:
    W. George KENNEDY et al., Appellants, v. GEORGE CULLY REAL ESTATE, INC., a Florida Corporation, Appellee.
    No. 75-1452.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 8, 1976.

      Kelly, Black, Black & Kenny and Brian P. Patchen, Miami, for appellants.
    Horton, Perse & Ginsberg, Robert E. Brandt, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

The defendants appeal from a final judgment entered by the trial court after a retrial of the issue of damages upon remand of this cause. See Kennedy v. George Cully Real Estate, Inc., Fla.App.1974, 296 So.2d 551. Four points are urged. The first two points claim the court failed to follow the directions of this court on remand, and the third and fourth points claim the court improperly assessed the amount of damages under the rules applicable to the cause. This court remanded the case:

“ . . . with directions to hold a new evidentiary hearing on the issue of damages at which time it will be encumbent upon the plaintiff to prove the amount of his damages through competent testimony as to what a broker would receive normally on a sale comparable to the sale involved in the instant case and in addition, what amount of commission the Davis Estate has paid in the past on comparable land sales.”

After trial on the issue of damages, the court made the following findings of fact:

******
“1. In accordance with custom prevailing in this community a broker would normally receive a commission of ten (10%) per cent of the purchase price on a sale comparable to the sale involved in the instant case. The subject property was sold for a purchase price of $1,350,-000. Thus, under normal circumstances, the brokerage fee in such a case would be $135,000.
“2. In some instances a departure from the norm does occur wherein, after negotiations, a broker accepts a lesser' sum. However, this record supports the conclusion that Defendants by their acts in interfering with Plaintiff’s advantageous business relationship with the Estate of Arthur Vining Davis precluded the possibility of such negotiations taking place, and Plaintiff never agreed to accept a lesser sum.
“3. With specific regard to the commissions paid by the Davis Estate in the past on comparable land sales, it is found that there were no other sales of comparable value. However, the Court finds that in the vast number of cases involving the sale of unimproved property, the Davis Estate in fact paid a commission of ten (10%) per cent of the purchase price.”
* * * * * *

Having examined the record in the light of appellants’ first two points, we hold that the trial court earnestly attempted to follow the directions of this court and that his findings of fact are amply supported by the record. Appellants urge that the trial court proceeded improperly in that it reached a conclusion of law that the defendants were estopped from asserting that negotiations might have taken place if there had been no breach of the contract. We hold that in view of the clear statement contained in the findings of fact that the trial court did not determine this case upon the issue of estoppel and that, therefore, the inclusion of the statement that the principle of estoppel upon the facts reinforced its decision was surplusage and, if incorrect, would be harmless error. Cf. Cohen v. Mohawk, Inc., Fla.1962, 137 S.2d 222, 225.

Turning to appellants’ contention that the trial court did not properly apply the rules of damages, this argument is upon two bases. First, it is urged that since the plaintiff was a cooperating broker, he is limited to recovery of one-half of the commission. Inasmuch as the action brought by the plaintiff was for the interference of the defendants with plaintiff’s advantageous business relationship with the seller of the property, the amount of the damages was properly measured by the lost commission. Cf. Oro Verde Groves, Inc. v. Fuchs, Fla.App.1962, 136 So.2d 12. If there are obligations upon the plaintiff for a payment of a part of the commission, they remain the obligations of the plaintiff and do not diminish the damages recoverable. This record does not reveal the particulars concerning, or the rights of, the claimed participating broker. It should be noted that the defendants did not seek to have the participating broker made a party to this action. See RCP 1.250. They cannot at this late date, after completing trial on the issue of damages, assert the possible claim of a third party.

Lastly, appellants claim that the court improperly allowed interest on the commission found to be due. Appellants point out that the action was in tort and that interest is not ordinarily allowed on an unliquidated tort claim. Zorn v. Britton, 120 Fla. 304, 162 So. 879 (1935). An exception, which is applicable to this case, exists where the recovery, although in tort, is based upon a contract which makes the amount of damages fixed and recoverable as of a specific date of the breach of contract. See Parker v. Brinson Construction Co., Fla.1955, 78 So.2d 873; Srybnik v. Ice Tower, Inc., Fla.App.1966, 183 So.2d 224.

Affirmed.

      . Under the heading Conclusions of Law, the trial court stated:
      * * * * * *
      “2. Although the Court has found the facts to be as indicated above, the Court concludes that Defendants should be estopped by their conduct in any event from asserting that negotiations might have taken place regarding a reduced commission.”
      * * * * * *


text:
    James R. LINDSEY, D.P.M., Appellant, v. Bernice AUSTIN et al., Appellees.
    No. 75-1602.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.

      Adams, George, Lee & Schulte, and David L. Willing, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, and Richard A. Sherman, Underwood, Gillis, Karcher, Rei-nert & Gordon, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   NATHAN, Judge.

This is an appeal by the defendant, Dr. James Lindsey, from an order dismissing with prejudice his third party complaint against third party defendant, Dr. George Blaine, in a medical malpractice action.

Plaintiff, Bernice Austin, filed a complaint alleging medical malpractice by Dr. James Lindsey, stemming from the surgical removal by Dr. Lindsey of a corn on the little toe of plaintiff Austin’s left foot, and the subsequent infection, osteomyelitis and impending gangrene resulting in amputation of the toe. Dr. Lindsey filed a third party complaint against Dr. George Blaine, who treated plaintiff Austin after surgery by Dr. Lindsey, alleging that it was Dr. Blaine’s negligence in administering treatment which resulted in the disease requiring amputation of the toe. Lindsey referred to himself as a “passive tort feasor,” and sought indemnification from the “active tort feasor,” Blaine. On motion of Dr. Blaine, the trial court dismissed the third party complaint with prejudice. We reverse.

Although the amended third party complaint sounds in indemnity, it states that,

“. . . whatever responsibility for damages, if any, may be ultimately determined by a jury, would be limited to the initial surgery and that Third Party Defendant is liable for any damages for osteomyelitis, impending gangrene and loss of BERNICE AUSTIN’S toe caused by Doctor GEORGE BLAINE’S negligence; that the Third Party Plaintiff is only secondarily liable for these aggravated damages and is but a passive tort feasor and as such is entitled to indemnification from the active tort feasor, GEORGE BLAINE, M.D.” (emphasis added)

While the third party complaint specifically seeks indemnification, it alleges, in effect; that defendant Lindsey’s liability, if any, would be limited to the initial surgery, and that the third party defendant Blaine, would be liable for any other damages to the plaintiff. This, then, states a cause of action for contribution, as authorized by Section 768.31, Florida Statutes (1975), the Uniform Contribution Among Tortfeasors Act. See Leesburg Hospital Association, Inc. v. Carter, 321 So.2d 433 (Fla 2d DCA 1975), and Central Truck Lines, Inc. v. White Motor Corporation, 316 So.2d 579 (Fla 3d DCA 1975). Therefore, the third party complaint must be allowed to stand and it is up to the trier of fact to determine the extent of liability, if any, as between the two doctors.

Reversed.


text:
    Leroy SMALL, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-1792.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1976.
    Robert E. Metzker, Miami, for appellant. Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Affirmed. See Shifrin v. State, 210 So.2d 18 (Fla.3d DCA 1968); Duran v. State, 301 So.2d 486 (Fla.3d DCA 1974); Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975) and Wilkinson v. State, 322 So.2d 620 (Fla.3d DCA 1975).


author: GRIMES, Judge.

text:
    The UNIVERSITY OF SOUTH FLORIDA STUDENT GOVERNMENT, an unincorporated association, Appellant, v. Frances V. TRUNDLE, Appellee.
    No. 75-1741.
    District Court of Appeal of Florida, Second District.
    July 23, 1976.
    Rehearing Denied Sept. 3, 1976.
    H. Glenn Waddell of Shackleford, Farri- or, Stallings & Evans, P. A., Tampa, for appellant.
    Arnold D. Levine of Levine, Freedman & Hirsch, P. A., Tampa, for appellee.
   GRIMES, Judge.

The appellee sustained a back injury while participating in a self-defense class sponsored by Student Government at the University of South Florida. Alleging negligence on the part of her instructor, she brought suit against him, the Board of Regents and “the University of South Florida Student Government, an unincorporated association.” Appellant sought to effect service upon Student Government by serving its president. Student Government filed a motion to quash process and service of process. The motion was denied on the premise that the 20,000 members of Student Government were properly served as a class under RCP 1.220. This is an interlocutory appeal from the order of denial.

Much of the argument before this court has centered upon whether an unincorporated association can be sued and served as a separate entity. Student Government points out that under the common law rule, the only way to obtain jurisdiction over an unincorporated association is to serve each of its members. Johnston v. Albritton, 1931, 101 Fla. 1285, 134 So. 563; Walton-Okaloosa-Santa Rosa Medical Society v. Spires, Fla.App.1st, 1963, 153 So.2d 325. Appellee argues that by virtue of holding itself out to conduct activities such as the self-defense class, the association is es-topped from denying its existence as a legal entity. See Teubert v. Wisconsin Interscholastic Athletic Association, 1959, 8 Wis.2d 373, 99 N.W.2d 100; Clark v. Grand Lodge of Brotherhood of Railroad Trainmen, 1931, 328 Mo. 1084, 43 S.W.2d 404; cf. Mercury Cab Owners’ Association v. Jones, Fla.1955, 79 So.2d 782. We find it unnecessary to resolve this issue because we have concluded that the student government association is simply a part of the University.

Under Chapter 240, Florida Statutes, the Board of Regents is charged with the responsibility of operating the state’s university system. Pursuant to Fla.Stat. § 240.-042(2)(a) (1974), the Board of Regents is empowered to establish rules under which the state’s university system shall be managed. Student Government is authorized under Board of Regent Rule 6C-6.12 with the proviso “that ultimate authority for university affairs rests with the administration of each university.” The president of the university maintains a veto over the budgeted expenditures of Student Government from student activity fees. Fla.Stat. § 240.0951 (1974). While Student Government is granted certain freedoms, the final authority for its activities necessarily rests with the president of the university.

Thus, it appears that the University of South Florida Student Government has no existence separate and apart from the University of South Florida. Jurisdiction over the state or the University cannot be acquired by service of the president of Student Government. Therefore, the motion to quash service should have been granted.

REVERSED.

HOBSON, A. C. J., and SCHEB, J., concur.

      . Tactically, the question of whether Student Government is an instrumentality of the state may be exceedingly important in this case because appellee’s injury occurred at a time when the state maintained sovereign immunity.


author: BROOM, Justice,

text:
    Edward H. LOWE et al. v. CITY OF JACKSON, Mississippi.
    No. 49316.
    Supreme Court of Mississippi.
    July 27, 1976.
    Rehearing Denied Sept. 7, 1976.
    Eaves & Eaves, Jackson, for appellants.
    John E. Stone, L. Arnold Pyle, Watkins, Pyle, Ludlam, Winter & Stennis, J. Kane Ditto, Walker W. Jones, III, Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

Annexation of 52.13 square miles in six areas was desired by the City of Jackson (Jackson herein) which adopted an ordinance on August 27,1974, defining the subject lands. Miss.Code Ann. § 21-1-27 (1972). Jackson then petitioned the Chancery Court of the First Judicial District of Hinds County for a decree under Mississippi Code Annotated § 21-1-29 (1972), ratifying, approving, and confirming the proposed enlargement of its municipal boundaries. * After hearing voluminous and conflicting testimony, the chancellor decreed ratification and confirmation of the ordinance as to about forty square miles. We affirm.

The appellants (objectors) argue: (1) Mississippi Code Annotated § 21-1-27, supra, upon which the decree appealed from is based, violates the “equal protection clause of the 14th Amendment of the Constitution of the United States,” and (2) the chancellor erroneously held that the “annexation was reasonable and was required by public convenience and necessity.”

I.

As to the constitutionality of § 21-1-27, supra, the appellants say that it denies to the qualified electors the right to vote by petition or otherwise, and accordingly denies them the equal protection guaranteed by the United States Constitution. The constitutionality of the section (§ 3374-10 in our 1942 Code) was upheld in Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965), but there the argument was that the property of the objectors would be subject to taxation to pay general obligation bonds issued by Biloxi prior to passage of the annexation ordinance.

When the Mississippi Legislature enacted § 21-1-27 granting unto municipalities the power of annexation, the lawmakers specifically legislated so as to permit such annexation of land without any requirement that the inhabitants of the subject area give prior consent or in any way express their approval. The United States Supreme Court held in Hunter v. City of Pittsburgh, 207 U.S. 161, 177-79, 28 S.Ct. 40, 46—47, 52 L.Ed. 151 (1907), that municipalities, as creatures of the state, may exercise such powers “as may be entrusted to them.” It further held in Hunter that the territorial area of a municipality may be expanded “with or without the consent of the citizens, or even against their protest.” The right or power of a municipality in this state acting under the legislative mandate of § 21—1-27 to extend its boundaries without the consent of those living within the path of the extension was also litigated and upheld in Texas Gas Transmission Corporation v. City of Greenville, 242 So.2d 686, 689 (Miss.1971). See 2 E. McQuillen, The Law of Municipal Corporations, § 7.16 (3d ed. 1966); City of Biloxi, Mississippi v. Cawley, 332 So.2d 749 (Miss.1976); and City of Jackson, Mississippi v. The Town of Flowood, Mississippi, 331 So.2d 909 (Miss.1976).

No showing was made by appellants that Jackson was by means of annexation gerrymandering its voting precincts to discriminate against any particular class of objectors. No evidence indicated that any litigant was the subject or object of discrimination. Appellants assert that the annexation would be unconstitutional because the residents would be subject to the control of municipal officers in whose election they did not vote. However, there is no substance to this assertion. No cited case has ever required an immediate election. Such is not the law and we cannot so hold as long as § 21-1-27 remains in its present form—only the legislature can alter its terms. Interesting is the fact that there was a time when the issue of annexation was one triable by jury, but that requirement was changed by the legislature. Kraetzer Cured Lbr. Co. v. Town of Moorhead, 118 Miss. 736, 80 So. 4 (1918). Many citizens, like the chancellor in City of Biloxi v. Cawley, supra, are convinced “that the people in the territory . . . should have the right to vote on the question of their being taken into the municipality.” However, as noted by him, “such an election” is not provided by present statutes, and the Constitution does not permit courts to judicially legislate and thereby “change the statutes” created by the legislative branch of our government.

Appellants point to the fact that in cases involving areas proposed to be incorporated, qualified voter inhabitants are allowed to “vote by Petition” on the proposed incorporation [Miss.Code Ann. § 21-1-13 (1972)]. Similarly, Mississippi Code Annotated § 21-1-45 (1972) allows voting by petition where citizens voluntarily seek either annexation to or exclusion from an area already incorporated. On this basis appellants say they are denied equal protection of the law because they are not permitted to vote on the annexation proposition initiated by Jackson, an existing incorporated city. There is no merit to such an argument because there is “a fundamental difference of some magnitude” between incorporation of an unincorporated area on the one hand and the extension of corporate boundaries on the other. Hamilton v. Incorporation of Petal, 291 So.2d 190 (Miss.1974). The legislature, aware of the distinction between the two legal processes (incorporation and annexation), saw fit to legislate as reflected in the statutes referred to above, and we are unable to say that enactment of the statutes resulted in any arbitrary ór irrational classification.

II.

Burdened with showing that the annexation was reasonable and required by public convenience and necessity pursuant to Code § 21-1-27, supra, Jackson presented testimony from a large number of witnesses! These witnesses included experts whose testimony related to the following criteria set forth in Texas Gas Transmission Corp. v. City of Greenville, supra, at 689: (1) the city’s need for expansion; (2) whether the area to be annexed is reasonably within the path of such expansion; (3) the potential health hazard from sewage and water disposal; and (4) the city’s financial ability to make improvements and furnish municipal services as promised.

Testimony showed that Jackson had a sewage treatment plant with adequate capacity to take care of the needs of the people in the subject area. Other testimony was that presently in the territory, health problems were posed by the sewage and waste water facilities which could be better controlled if annexation were allowed. Also heard by the chancellor was testimony showing a present need for police service in the area affected which could better be provided by annexation. It was shown that better fire protection and resulting savings in fire insurance premiums could be furnished if the area were annexed. Other evidence demonstrated a need for better street lighting in the area of proposed annexation that could be provided within a reasonable time after annexation.

Additional testimony was to the effect that if the territory were annexed Jackson could provide better recreational facilities and better garbage pickup service to the inhabitants. In summary, there was testimony in support of each of the five pertinent criteria according, to Texas Gas Transmission Corp., supra, and to the effect that Jackson had the financial ability to make the improvements and furnish all municipal services as promised.

To the contrary, appellants presented testimony, including that of experts, tending to indicate that under the applicable criteria annexation was improper. Much of their testimony concerned the fact that a considerable portion of the land sought to be annexed was open or swamp land which Jackson had no reason to annex. As pointed out by us in Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960), where it can be reasonably anticipated that the parcel of land will become a part of the city within a reasonable time, such property may be taken in so as to develop it properly and wisely with reference to the securing of water, the development of streets and the collection and disposal of sewage and waste “rather than to let the area develop in a harum-scarum manner.”

After hearing the conflicting expert opinions and radically divergent testimony, the chancellor (empowered by the legislature to act as he did) accepted that offered on behalf of Jackson. In our judgment, the evidence in behalf of Jackson was substantial and formed a sufficient basis to support the decree, appealed from. Supported by substantial evidence and not manifestly wrong or against the weight of the evidence, the chancellor’s decree must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Arthur Earl KINNEY v. STATE of Mississippi.
    No. 49089.
    Supreme Court of Mississippi.
    Aug. 10, 1976.

      Brown, Alexander & Sanders, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

For the Court:

Aggravated assault upon a law enforcement officer (“Pete” Hines) was the offense for which Kinney (appellant) was convicted in the Circuit Court of Montgomery County. He appeals from a sentence of twenty-five years imprisonment. We affirm.

On September 2, 1974, two City of Wino-na, Mississippi policemen (Hines and Brown) in a patrol car backed out of the Winona police station garage when appellant was observed driving a car in a reckless manner. Brown described appellant’s speed as “excessive.” Hines testified:

I had gone down Front Street a little ways and I saw him as he was fixing to cross the railroad track and, all of a sudden, he started spinning his wheels and crossed the railroad track and made a right turn and started fish-tailing — his car fishtailed and he was driving in a reckless manner.

The patrol car in which the policemen pursued appellant (after observing him driving in a reckless manner) was equipped with shining blue lights and had the proper police insignia. At the end of the pursuit, Hines (dressed in a police uniform), asked appellant for his driver’s license. In response appellant, armed with a gun in each hand, fired two shots into the body of Hines. Then as Hines was crawling, appellant fired several more shots at him. Hines received treatment for his wounds at Baptist Hospital in Jackson. Other evidence will be set forth as the issues are discussed, but it is to be noted that appellant did not testify at the trial on the merits.

I.

Appellant’s contention that he, being under twenty-one years of age, was entitled to have the indictment quashed since our state laws effectively prohibit persons under twenty-one from serving on juries is without merit. Joyce v. State, 327 So.2d 255 (Miss.1976).

II.

Next appellant argues that he was denied due process of law when (at the hearing of appellant’s motion to quash the indictment) the court “refused to allow him to present evidence of a disparity in the number of black persons serving on juries in the county and further refused to allow him to make a proffer of such proof.” Appellant sought to call each member of the Board of Supervisors of Montgomery County, as stated by counsel, “so that the names can be read by the . . . supervisors and the persons listed can be identified by race.” Appellant put on as his witness one supervisor (Wood) whose testimony demonstrated that the supervisors’ districts had recently been revised as to boundary lines and that he could not identify every voter in his district. Supervisor Wood stated that jurors were selected by starting at the top of the voters list and “take the fifth number on down.” His testimony was corroborated by the testimony of the circuit clerk whom appellant presented. Appellant also put on the stand the sheriff, who from a venire facias identified some jurors as white and some as black; others he could not identify.

When the appellant sought to have each supervisor brought in to read the names from the voters list of his district, the trial judge stated into the record that the case had “been set for trial for a week in this term (April 1975) of court and is back at this term as a result of a hung jury in the October Term.” The judge offered appellant’s counsel an opportunity to place any statistical data into the record during the term of court at which the trial occurred in April 1975, but counsel made no attempt to do so according to the record. No explanation of counsel’s failure in this regard appears of record. Obviously several months passed since appellant’s first trial, during which time he had every opportunity to obtain from the public records prior to his next trial names of voters plus any data concerning the racial makeup of the juries. The record does not reflect that appellant made any attempt to interview or interrogate either of the supervisors or anyone else prior to trial or at any other time as to the names or race of the voters or jurors except at the hearing of the motion during the term of court in which appellant was convicted. The record shows that there were approximately 7,700 registered voters in Montgomery County, but the court has not found either in the record or in the briefs any facts as to what percentage of the total population or registered voters was black or white.

We rule that the trial judge was within his sound discretion in not delaying the trial for counsel to put on the stand each supervisor “so that the names can be read” by them. The trial judge’s sound discretion is obvious when, as a supervisor had already stated, he could not possibly know the race of every voter within his district. As regards the term of court (April 1975) at which appellant was convicted as well as for the April and October 1974 terms, the record is clear (as the trial judge found) that the makeup or composition of juries at least for those terms of the court were selected without regard to race, and that the county officials did not systematically exclude blacks from jury service although percentages of the racial makeup of the county’s population and registered voters are not before the court.

Additionally, appellant did not cause the record to show precisely what he intended to prove by the supervisors. In the dialogue between counsel for appellant, counsel for the state, and the court concerning testimony by the members of the board of supervisors, appellant’s counsel at one place indicated he wanted to get the voters list in evidence and the names “read by the members of the Board of Supervisors and the persons listed can be identified by race.” At another place, counsel merely said “we want the testimony of the Board of Supervisors as to those records.” The correct rule in this regard is that in making proffer of testimony rejected by the trial court, counsel must clearly state what he intended to prove by such testimony. 75 Am.Jur.2d Trial, § 131 (1975). As stated by Ethridge, J., dissenting in Freeman v. State, 204 So.2d 842 (Miss.1967):

Counsel must not leave the offer in an indefinite or doubtful shape. The offer must be so full and specific that its exclusion would be erroneous from any point of view. 53 Am.Jur. Trial § 102 (1945). As a practical matter, therefore, a trial court should not be put in error by ruling on an indefinite and inconclusive offer of proof. (204 So.2d at 848).

Noteworthy here is the fact that the record is devoid of any indication that the trial court refused an opportunity to counsel to state or summarize what he desired to prove by any witness, document, or otherwise. Upon such a posture of the record where no prior effort was made by interviewing the supervisors or anyone else as to the racial composition of the voters list, and without any evidence of percentages of the racial makeup of the county population, we cannot say the trial judge erred.

III.

Appellant argues that he was denied due process of law when the court overruled his motion to suppress evidence and refused to consider the evidence he offered in support thereof. Appellee argues that in the appellant’s attack against the state’s evidence on his motion to suppress, the appellant did not show that either Officer Hines or Officer Brown actually arrested him. Appellee further contends that having failed to prove that they arrested him, appellant did not shift to the state the burden of showing that he was legally arrested. Butler v. State, 212 So.2d 573 (1968). However, regardless of the merits of appellee's argument on that proposition, when the record of trial in chief is carefully examined, it is clear that when Officers Hines and Brown followed the appellant after observing him driving in a reckless manner, Officer Hines was legally authorized to arrest appellant. Having seen appellant commit the misdemeanor of reckless driving, a violation of Mississippi Code Annotated § 63-3-1201 (1972), Policeman Hines had authority to make a warrantless arrest of appellant. Miss.Code Ann. § 99-3-7 (1972).

In this connection, appellant takes the position that the policemen pursued him on account of a report made to them by one Dickson to the effect that earlier in the day at his place of employment, appellant had drawn a pistol on another individual. Appellant requested and was granted an instruction authorizing the jury to acquit him if “the jury believed . . . Officers Hines and Brown were pursuing defendant to arrest him on a charge of assaulting one James Bibbers not occurring in their presence.” The jury found against appellant on the issue of whether the officers pursued him on the basis of the oral report of appellant’s earlier action, or as a result of what they saw him do, and the court is bound by the jury findings upon an issue presented by the instruction requested by appellant. In support of his argument appellant relies on Pollard v. State, 233 So.2d 792 (Miss.1970), but that case is factually distinguishable from the present case and is not controlling. In Pollard, the arresting officer did not see the defendant commit any offense at all before the pursuit, but here the testimony'is clear that the officers observed him driving in a reckless manner at which time it became not only their right but their duty to pursue him in an effort to take him into custody. Officer Hines’ testimony that he observed appellant driving recklessly was corroborated by the testimony of Officer Brown.

At the hearing of his motion to suppress evidence, the appellant offered testimony from a number of witnesses which was rejected by the trial court upon objections by the state. Most of the evidence rejected was based upon hearsay, and in view of the testimony of Officers Hines and Brown, who at the trial in chief made it clear that they pursued the appellant because of what they observed him do in their presence, our judgment is that there was no reversible error committed by the trial court with reference to appellant’s motion to suppress evidence. Even if it were conceded that the court erred in dealing with the motion, we find no reversible error in that aspect of the case because at the trial in chief the evidence which went to the jury was competent and admissible.

IV.

Lastly, appellant argues that the guilty verdict returned against him was against the overwhelming weight of the evidence and resulted from bias and prejudice. There is no merit in this argument because the record clearly shows that all the essential elements of the indictment against appellant were adequately proven by competent evidence. The indictment almost tracks Mississippi Code Annotated § 97-3-7(2) (Supp.1975). Officers Hines and Brown would have been derelict in their duty had they not pursued the appellant. Their identity should have been clear to the appellant because they were in a marked police car with its blue lights on top and shining. Yet, when Hines (dressed in police uniform) finally overtook the appellant and asked for his driver’s license, the appellant shot Hines and continued shooting him after he was knocked down by the first bullet. Though he testified that one Dickson did make an oral complaint to him, Hines was positive in stating that his pursuit of appellant was not based on what was told him by Dickson. The jury heard the case on conflicting evidence and its verdict was amply supported by competent evidence even though there were slight inconsistencies in the testimonies of Hines and Brown. Such inconsistencies are neither unusual nor grounds for the jury to reject all of their testimony.

Having carefully considered the entire record and every legal proposition raised by appellant, we find no reversible error. Refusal of the trial court to allow each member of the board of supervisors to testify cannot be a ground for a new trial absent any indication or statement as to what their testimony would prove. By seeking to have these witnesses testify, appellant was attempting a fishing expedition; this is especially true here where appellant admittedly had made no attempt before trial to question these witnesses as to any aspect of the case. Evidence of the guilt of appellant cannot logically be considered as insufficient to raise a jury issue.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ.,' and SMITH, ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


author: INZER, Presiding Justice,

text:
    Fannie S. SHEPHERD v. Thomas R. SHEPHERD, Deceased, by Harvey Henderson, Executor.
    No. 48734.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Ellen E. Goldman, Ralph Chapman, Marks, for appellant.

      Caldwell & Lewis, Marks, Harvey Henderson, Sumner, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   INZER, Presiding Justice,

for the Court.

This is an appeal by the executrix of the estate of Fannie S. Shepherd from a decree of the Chancery Court of Quitman County adjudicating that the tract of land in question became the property of Thomas R. Shepherd by the terms of a deed conveying the land to the parties. We affirm.

At a time when Fannie and Thomas Shepherd were man and wife, they purchased from Flossie K. Chism a house and lot in the town of Lambert. The deed in part stated: “I, Flossie K. Chism, do hereby and by these presents bargain, sell, convey and warrant unto T. R. Shepherd and Fannie S. Shepherd, his wife, as an estate in entirety, with the right of survivorship, and not as tenants in common, the following described real property. . . . ” In 1966 Fannie Shepherd filed suit against Thomas Shepherd seeking a divorce, alimony and attorney’s fee. The bill of complaint alleged that they owned the house and lot as an estate in entirety but that complainant had paid for the home and her husband should be required to execute to her a quit claim deed to the realty. Thomas Shepherd answered and denied that Fannie was entitled to a divorce, denied that he did not pay a part of the purchase price of the home, and alleged that he sold a house and lot in Memphis and paid on the purchase price of the property in question.

On May 26, 1966, Fannie Shepherd was granted a divorce but was denied alimony or attorney’s fee. The decree specifically provided that no property rights were divested out of the defendant Thomas Shepherd. The decree further provided that all property rights in regard to the realty were taken under advisement for rendition of a decree in vacation at a time and place agreeable to the parties and the court. The decree specifically stated that the only issue held in abeyance was whether the grantees in the deed conveying the home as a matter of law, after the divorce became final, became tenants in common or remained joint tenants as an estate in the entirety. The decree then provided that Fannie was to have the exclusive use of the property described in the deed until her death or remarriage.

After rendition of this decree no further action was taken relative to the property and Fannie remained in possession of the property until her death. After her death in 1974, Thomas Shepherd filed a motion in the divorce case for a final hearing for determination of the estate of the parties, alleging that he was the sole owner of the property under the terms of the deed. The executrix of Fannie’s estate was made a party to the proceedings. The exécutrix answered and alleged that the divorce terminated the estate in the entirety and the parties became tenants in common each owning a one-half interest in the property. The answer was made a cross bill praying that the court hold that the title to the property was vested one-half to Thomas Shepherd and one-half to the devisees named in the Last Will and Testament of Fannie Shepherd. The devisees under the will entered their appearance and joined in the prayer of the executrix.

After a hearing the chancellor held that the parties after the divorce continued to hold the property as joint tenants as an estate in the entirety with the right of survivorship and upon the death of Fannie Shepherd, Thomas Shepherd became the sole owner of the land.

After an appeal was perfected to this Court, Thomas Shepherd died and the cause has been revived in the name of Harvey Henderson, executor of his estate.

The only issue presented by this appeal is whether an estaté in entirety with the right of survivorship is terminated and becomes an estate in common when the parties are divorced. Appellant’s principal contention is that when the Shepherds were divorced they could no longer hold title to the property as tenants by entirety and thereafter held the property as tenants in common. Section 89-1-7, Mississippi Code 1972 Annotated, provides as follows:

All conveyances or devises of land made to two or more persons, including conveyances or devises to husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of sur-vivorship. But an estate in joint tenancy or entirety with right of survivorship may be created by such conveyance from the owner or owners to himself, themselves, or others, or to himself, themselves and others.
This section shall not apply to mortgages or devises or to conveyances made in trust.

Appellants argue that the above section does not abrogate the common law relative to the tenancy by the entirety, and under the common law, tenancy by entirety may exist only between husband and wife. Thus, it is argued that the divorce terminated the tenancy by entirety and the parties owned the land as tenants in common. We find no merit in this contention. In Miller v. Miller, 298 So.2d 704 (Miss.1974), the deed to the property in question conveyed to husband and wife the property as joint tenants with the right of survivorship. The parties were divorced and some time later decided to sell the property. The dispute arose as to how the proceeds should be divided. In deciding this question we pointed out that in Mississippi it is well settled that the dissolution of the marriage by divorce does not of itself affect title of the respective parties to the real estate owned by them. In deciding the question involved in the ease, we stated:

A legally enforceable agreement to the contrary not having been established, the grantor’s conveyance vested in each of the parties, as grantees, an equal estate in joint tenancy. Further, while the conveyance to husband and wife perhaps more accurately might be said to have created in them an estate by the entirety, dissolution of the marriage did not have the effect of altering the character, extent or attributes of the estate conveyed, and upon divorce, it remained one in equal joint tenancy, with the right of survivorship, under the express terms of the instrument which created it.

(298 So.2d at 706).

In the case before us the conveyance was to husband and wife as an estate in entirety with the right of survivorship. An estate in entirety is a joint tenancy with the right of survivorship plus the marital relation. If it can be said that after the dissolution of the marriage the parties could no longer be tenants by the entirety, they certainly remained joint tenants with the right of survivorship. The dissolution of the marital relation under the statute as now written did not destroy the joint tenancy with the right of survivorship. The parties continued to own the property as joint tenants with the right of survivorship until the death of Fannie Shepherd.

Appellant also argues that the parties intended that the estate by entirety be terminated. While it is true that a joint tenancy may be terminated by contract or agreement of the joint tenants as between themselves or may be deemed to have been terminated by implication when the parties enter into a valid contract containing provisions inconsistent with the continuance of the joint tenancy; however, there is no evidence in this case to support the claim the parties intended for the estate in entirety to be dissolved.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.


author: PATTERSON, Presiding Justice,

text:
    Ben THAMES, v. STATE of Mississippi.
    No. 49005.
    Supreme Court of Mississippi.
    Aug. 10, 1976.
    Bullard, Andrews, Campbell & Gee, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice,

for the Court.

Ben Thames was convicted in the Circuit Court of Warren County for the murder of Willie Thomas and was sentenced to life in the state penitentiary. He presently challenges the order of the trial court overruling his motion to suppress evidence.

The record discloses abundant evidence supporting the appellant’s conviction of murder by stabbing Willie Thomas to death. In our opinion, no purpose would be served by relating the details of the event.

The sole issue before this Court is whether the motion to suppress the statements made by the appellant to the arresting officer should have been sustained. Thames contends they were made by him without his receiving the benefit of a proper Miranda warning.

Thames does not dispute that Ed Reed, the arresting officer, made an effort to warn him of his constitutional rights as expressed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends that Reed did not advise him of all the critical requirements-of that decision because “Reed overlooked telling him that he did not have to answer any question” and since this was so, he unwittingly answered questions propounded by Reed to his prejudice. The statement made by Thames which Reed related in his testimony -was “He said, ‘I went over there to kill both of them,’ and I said, ‘Well, you didn’t kill but one of them, you killed Willie.’ And he said ‘Well I intended to kill that S.O.B. and I’m glad I killed him, and if I had it to do over I’d do it again.’ That’s the ■ exact words he said to me.”

Reed testified on the motion to suppress that “he told him he didn’t have to say anything.” This was emphasized on cross-examination of Reed by defense counsel when the following question was asked and answered:

Q. And what Rights did you give him?
A. I told him that he had the right to remain silent, that he didn’t have to say anything, that anything he said would be used against him in the Court of Law. *

Arthur Wylie, who heard Thames’ statements or confession, testified that Reed gave the “rights” before asking any question. When asked by defense counsel on cross-examination, “What rights did he give him?” Wylie responded: “I didn’t catch all of it. But I know he said something about you have the right to remain silent, or something like that. I didn’t catch all of it.” June Allen testified to hearing similar statements in the police car after Reed had repeated the Miranda warning including the right to remain silent.

Thames testified he was not advised of his right to remain silent. This created a conflict on the motion to suppress which was decided against the appellant.

While it is true that the Miranda decision places a heavy burden upon the state to substantiate the adequacy of the warning, there nevertheless remains, in our opinion, clear and substantial proof to affirm the trial court’s overruling the motion to suppress. Clemons v. State, 316 So.2d 252 (Miss.1975).

Our study of the record reveals ample evidence to support the appellant’s conviction and since we discern no error therein, the cause will be affirmed.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.