author: SCHWARTZ, Judge.

text:
    VARIETY CHILDREN’S HOSPITAL, INC., Appellant, v. Thomas PERKINS and Sharon Perkins, etc., et al., Appellees.
    Nos. 79-158, 79-627.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Fazio, Dawson, Steinberg & DiSalvo, Nancy Little Hoffman, Fort Lauderdale, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Variety Children’s Hospital appeals from a $1.2 million judgment entered on a general jury verdict against it in a malpractice action. We affirm.

The case was founded upon allegedly negligent post-operative care rendered to the then-four-month-old Anthony Perkins by the hospital’s residents and nurses on the night of July 18-19, 1975. Anthony had been admitted to Variety by a private pediatric and thoracic surgeon, Dr. William Brown, for a tracheotomy to correct a congenital condition in the infant’s windpipe. Dr. Brown performed the operation in an uneventful fashion on the evening of July 18. After examining Anthony in the intensive care unit, where he had been taken after the surgery, and giving instructions as to his treatment, Dr. Brown left the hospital at 11:00 p. m. The child came then within the exclusive care of the nurses and residents employed by the hospital, primarily a Dr. Nanes who was the surgical resident on call that night. Following a series of events concerning Anthony’s condition which it is unnecessary to detail, he became cyanotic and stopped breathing at about 3:55 a. m. During the five-to-seven minute period which elapsed before the hospital personnel were able to restore his breathing and heartbeat, he sustained devastating and irreversible brain damage. The cause of this medical catastrophe was a massive pneumothorax brought about by the gradual accumulation of trapped air beneath the skin, a condition known as subcutaneous emphysema, which entered the body at the site of the tracheotomy and worked itself down until it broke through the surface of the lung. There was ample expert testimony that both the nurses and residents had been negligent in failing to employ adequate medical procedures in the light of the symptoms of subcutaneous emphysema which Anthony had exhibited for almost two hours before the crisis occurred, and in the resuscitation efforts employed after its onset.

In this court, Variety does not claim that the verdicts of $1,000,000 for Anthony, individually, and $200,000 for his parents are excessive. Nor does it contend that the evidence is insufficient to justify the finding, embodied in the general verdict, that its employees were negligent in the plaintiff’s care. Its single point on appeal urges error in the rulings of the trial judge that (a) the hospital was vicariously liable as a matter of law for the conduct of its residents and (b) in therefore denying the defendant’s requested instructions which would have permitted the jury to find that the residents were the “borrowed servants” of Dr. Brown so that he, rather than Variety, was responsible for their negligence. For two separate reasons, we reject this contention.

In the first place, the “two issue” rule of appellate review adopted in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla. 1978), would preclude our even considering the point. At 355 So.2d 1186, the supreme court held:

The question arises where two or more issues are left to the jury, and [either] of which may be determinative of the case, and a general verdict is returned, making it impossible to ascertain the issue(s) upon which the verdict was founded. One line of authority holds that reversal is improper where no error is found as to one of the issues, as the appellant is unable to establish that he has been prejudiced. Berger v. Southern Pacific Co., 144 Cal.App.2d 1, 300 P.2d 170 (Cal. 1st DCA 1956); Altieri v. Peattie Motors, Inc., 121 Conn. 316, 185 A. 75 (1936); Knisely v. Community Traction Co., 125 Ohio St. 131, 180 N.E. 654 (1932); Dwyer v. Christensen, 77 S.D. 381, 92 N.W.2d 199 (1958). This is known in jurisprudence as the “two issue” rule. It is a rule of policy, designed to simplify the work of the trial courts and to limit the scope of proceedings on review. See Harper v. Henry, 110 Ohio App. 233, 169 N.E.2d 20 (Ct.App.1959).
* * * * * *
We believe that the “two issue” rule represents the better view. At first thought, it may seem that injustice might result in some cases from adoption of this rule. It should be remembered, however, that the remedy is always in the hands of counsel. Counsel may simply request a special verdict as to each count in the case. See Harper v. Henry, supra. Then, there will be no question with respect to the jury’s conclusion as to each. If the trial court fails to submit such verdicts to. the jury, counsel may raise an appropriate objection.
Had petitioners in the instant case requested special verdicts and objected to submission of a general verdict form to the jury, it would have been necessary for the district court to determine the sufficiency of the evidence to sustain the false imprisonment count as well as the malicious prosecution count. If there was error as to either count, the district court should then remand the case for a new trial as to both counts. However, petitioners failed to meet these requirements. Where the district court determines under these circumstances that one of the issues submitted to the jury was free from prejudicial error, it will be presumed that all issues were decided in favor of the prevailing party and the judgment will be affirmed. See Larriva v. Widmer, 101. Ariz. 1, 415 P.2d 424 (1966).

This doctrine clearly applies to this case. As has been noted, the hospital’s only appellate issue concerns its liability for the actions of the physicians-residents involved in Anthony’s care. It admits both that the trial court correctly held that it was vicariously responsible, as a matter of law, for the negligence of the nurses in question and that there was evidence of such negligence in the record. The general verdict does not reveal whether the jury found against the defendant because of the actions of the nurses, the residents, or both. Since Variety did not request the submission of special interrogatories which would have shown the basis or bases of the verdict, we are compelled conclusively to presume that the verdict was grounded, at least in part, on the nurses’ negligence, as to which it is conceded there was no error committed below. The appellant thus simply cannot establish prejudice in the challenged rulings concerning its responsibility for the residents, and therefore may not secure a reversal even if those rulings were erroneous.

The hospital has lost nothing, however, by its failure properly to preserve the issue in the trial court. Out of what is probably an overabundance of caution, we have examined the merits of its position and find that the trial judge’s determinations on the point in question were entirely correct. The record contains no evidence whatever upon which the jury could properly find that Variety’s residents, who were employed and paid by the hospital and were under its supervision and control, became “borrowed servants” of Dr. Brown at the time of the commission of their negligent acts. As the appellant acknowledges, a hospital is, as a general rule, liable for the negligence of interns or residents like those involved in this case. City of Miami v. Oates, 152 Fla. 21, 10 So.2d 721 (1942); Parmerter v. Osteopathic General Hospital, 196 So.2d 505 (Fla.3d DCA 1967). Such an employee may, it is true, come under the direction and control of an attending physician so as to shift responsibility for his acts from the hospital to the doctor. The most familiar example of this process occurs in the operating room where each of the attending personnel comes under the authority of the surgeon as the “captain of the ship.” E. g., Hudmon v. Martin, 315 So.2d 516 (Fla.lst DCA 1975); Buzan v. Mercy Hospital, Inc., 203 So.2d 11 (Fla.3d DCA 1967).

But this principle has utterly no application to the case at bar, in which the negligence occurred when the surgery had long since been completed and the surgeon was neither physically present nor any longer directing the activities of the hospital employees. It is a fundamental rule that the respondeat superior doctrine applies only when the alleged master has the ability and authority to direct and control the pertinent acts of the employee, Murphy v. Bowden, 25 Fla. 454, 6 So. 453 (1889); Ber-rier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1939) (lent servant doctrine). Based upon this doctrine, the courts have unanimously held that in a post-surgical situation such as this one, the hospital and not the physician is liable for the acts of its employees. Hohenthal v. Smith, 72 App.D.C. 343, 114 F.2d 494 (D.C.Cir.1940); Adams v. Leidholt, 579 P.2d 618 (Colo.1978); Bernardi v. Community Hospital Association, 166 Colo. 280, 443 P.2d 708 (1968); Davis v. Trobough, 139 Mont. 322, 363 P.2d 727 (1961); Stumper v. Kimel, 108 N.J.Super. 209, 260 A.2d 526 (1970), cert, denied, 55 N.J. 589, 264 A.2d 63 (1970); see also Barrette v. Hight, 353 Mass. 268, 230 N.E.2d 808 (1967). We agree with and follow these decisions. A contrary holding, accepting Variety’s position on the facts of this case, would both expose every admitting physician to liability for the actions of hospital employees merely because he remains generally in charge of the patient’s care; and simultaneously relieve the hospital of responsibility for services which it alone should provide and for which it is paid. Each of these results is entirely undesirable and completely contrary to the decided cases. As Justice Rutledge stated in Hohenthal v. Smith, supra, at 72 App. D.C. 345, 114 F.2d 496:

Part of the service furnished to the patient and charged for by the hospital is the assistance of nurses, interns and attendants in caring for the patient after the operation pursuant to instructions given by the operating surgeon. They perform the duty of their employer (the hospital) to the patient when they carry out the instructions of the doctor.

In Alden v. Providence Hospital, 127 U.S. App.D.C. 214, 217, 382 F.2d 163, 166 (D.C. Cir.1967), the same court similarly observed:

. even though a patient has an attending physician selected by him, when that patient goes to a hospital, the service rendered by the hospital ordinarily includes medical care from the doctors and nurses employed by the hospital as well as access to any laboratory facilities maintained by the hospital. While it may be that an attending physician remains in charge of the case, the hospital and its agents remain responsible for those services it performs, or should perform, under the circumstances of the case and according to good medical practice.

We therefore conclude that the trial judge correctly ruled that Variety was liable as a matter of law for the negligence of the residents involved in this case.

Motion to Remand with Directions to Abate

The final judgment in this case was entered on December 18,1978. On January 4, 1979, the minor plaintiff, Anthony Perkins, died. On January 17,1979, after Anthony’s estate had been substituted as a party plaintiff, the trial judge denied Variety’s post-trial motion for judgment in accordance with its motion for a directed verdict in its favor. It filed a notice of appeal the next day, January 18. On February 2,1979, the personal representative of Anthony’s estate filed a separate wrongful death action against Variety under Section 768.21, Fla.Stat. (1977). The complaint alleged that the negligence involved in the instant action had resulted in Anthony’s death and that the present judgment precluded Variety from relitigating the issue of liability in the wrongful death case, leaving only questions of damages to be determined. As a result of these events, Variety moved this court, on March 28, 1979, for a order remanding the cause with directions to the trial court to “abate” the action which had culminated in the judgment it sought to review. The basis of the motion was the contention that Anthony’s death, caused by Variety’s negligence, had terminated the right to recover for his personal injuries by virtue of Section 768.20, Fla.Stat. (1977), which states:

The [wrongful death] action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death. When a personal injury to the decedent results in his death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate . [e. s.]

See Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975). The motion is denied.

The precise issue raised by the motion is whether the cited provision of Sec. 768.20 applies when the injured person dies after a final judgment has been entered in his favor, but before the termination of proceedings for review of that judgment. Our holding that it does not is in accordance with literally every authority on the issue. The applicable doctrine is stated in 1 Am. Jur.2d Abatement, Survival, and Revival, § 60 (1962):

It is well settled in most jurisdictions that an action is not abated by the death of a party after the cause has been merged in a final judgment and while the judgment stands, and this is the rule even though the judgment is based on a cause of action that would not have survived had the party died before judgment.
A final judgment is the end of litigation. That which up to the moment of the entry of judgment for the relief sought was a matter in controversy becomes an absolute debt of one party to the other. The cause of action ceases to exist, being merged in the judgment; and consequently, so long as the judgment remains in force, the rule on survival has no further application. This is true though the proceedings are stayed by appeal and supersedeas, [emphasis supplied]

Accord: e. g., Tunnell v. Edwardsville In-telligencer, Inc., 43 I11.2d 239, 252 N.E.2d 538 (1969), cert, denied, 397 U.S. 1021, 90 S.Ct. 1259, 25 L.Ed.2d 530 (1970); Ahearn v. Goble, 90 Colo. 173, 7 P.2d 409 (1932); Sibe-rell v. St. Louis-San Francisco R. Co., 320 Mo. 916, 9 S.W.2d 912, 918 (1928) (rule “as obvious as it is elementary”); Mayor of City of Anniston v. Hurt, 140 Ala. 394, 37 So. 220 (1904); Eades v. House, 3 Ariz.App. 245, 413 P.2d 576 (1966). With specific relation to the facts before us, the rule that death does not effect an extinguishment of a judgment applies when the party dies while an appeal is pending, Brundrett v. Hargrove, 204 Ark. 258, 161 S.W.2d 762 (1942); Heuchert v. State Industrial Accident Commission, 168 Or. 74, 121 P.2d 453 (1942); while post-trial motions remain un-disposed of, Gambell v. Irvine, 102 S.W.2d 784 (Mo.1937); Sherwin v. Southern Pacific Company, 168 Cal. 722, 145 P. 92 (1914); 1 C.J.S. Abatement and Revival § 126 (1936); and even during the period between the return of a verdict and the entry of a judgment. Garrett v. Byerly, 135 Wash. 351, 284 P. 343 (1930); see Becker v. King, 307 So.2d 855, 858 (Fla.4th DCA 1975). Indeed it would be a strange rule under which a defendant could succeed in relieving itself of a judgment simply by pursuing meritless, even frivolous, attempts to reverse it. See McNitt v. Osborne, 371 So.2d 696, 697 n.l (Fla.3d DCA 1979). As was said, viewing the other side of the coin in Bailey v. Travelers Ins. Co., 383 S.W.2d 562, 564 (Tex. 1964):

Here Bailey was awarded a judgment but payment was withheld pending appeal. It would be a harsh result if Bailey’s heirs were to lose what he would have otherwise been entitled to simply because he died pending an appeal which was ultimately determined not to have been well founded.

The appellant’s argument in support of its motion is based entirely on an interpretation of Sec. 768.20 which is strained to the breaking point and beyond. Citing numerous cases which indicate that an action may be considered to continue, but see State ex rel. Merchants’ Nat. Bank v. Hull, 37 Fla. 579, 20 So. 762 (1896), or to be “pending,” but see Kornblum v. Heflin, 183 So.2d 483 (Fla.2d DCA 1966), cert, denied, 189 So.2d 632 (Fla.1966), while on appeal, it claims that the personal injury action was “pending” within the meaning of the statute when Anthony died, and therefore was “abate[d]” at that time. This contention runs afoul of one of the most basic rules of statutory construction: that words, particularly technical ones, must be interpreted in the specific context in which they are used. See Alsop v. Pierce, 155 Fla. 185, 19 So.2d 799, 803 (1944). Every case upon which Variety relies deals with a legal problem which is totally different from the one before us. The issue in this case concerns only the proper interpretation of Sec. 768.20 which provides that the pending action shall “abate” at death. It is no less than obvious that the statute could not apply in an action where post-judgment motions are “pending.” This is so primarily because it is a legal impossibility — a complete contradiction in terms — for a judgment to “abate.” Judgments may be reversed, set aside, or vacated but they cannot be “abated;” conversely, only actions which are “pending” before being reduced to judgment can be the subject of an abatement. See 1 Fla. Jur.2d Actions §§ 62-87 (1977); cf. Brinker v. Ludlow, 379 So.2d 999 (Fla.3d DCA 1980). Thus, the simple fact that the legislature spoke in the technical terms of the abatement doctrine alone demonstrates the lack of merit in the appellant’s position.

It is a fundamental principle that a subsequent change in circumstances, including the death of a party, does not affect the validity or enforceability of a duly entered final judgment. E. g., State ex rel. Merchants’ Nat. Bank v. Hull, supra; Constance v. Constance, 366 So.2d 804 (Fla.3d DCA 1979). As the cited authorities demonstrate, that principle requires the denial of Variety’s motion to remand.

Affirmed; motion to remand denied.

      . Upon a hearing on the motion held soon after it was filed, the court reserved ruling pending consideration of the appeal. We took this course because it is conceded by the appellees that, if the judgment were reversed on the merits, the action would again be “pending” in the lower court and would, by operation of Sec. 768.20, then be subject to abatement. Our determination that there was no error now requires a ruling on the motion.

      . Of the Florida cases cited to the effect that an appeal is a continuation of the proceedings in the trial court, Smith v. State, 192 So.2d 346 (Fla.2d DCA 1966) and Coleman v. State, 215 So.2d 96 (Fla.4th DCA 1968) deal with a criminal defense lawyer’s duty or authority to file an appeal; State ex rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591 (1898) concerns the issue of whether service of new process was required on an appeal; and Southern Title Research Company v. King, 186 So.2d 539 (Fla.4th DCA 1966) involves the question of whether one who purchased real property before the time for an appeal expired would be considered a “purchaser pendente lite.”
      Several of the cases cited as to the meaning of the word “pending” deal with the question of whether procedural rules or a change in the law would affect a case “pending” on appeal, Rader v. Variety Children’s Hospitai, 323 So.2d 564 (Fla. 1975); Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975); Perzinski v. Chevron Chemical Co., 503 F.2d 654 (7th Cir. 1974); United States v. Claus, 5 F.R.D. 278 (E.D.N.Y.1946); Larson v. Fetherston, 44 Wis.2d 712, 172 N.W.2d 20 (1969). Others concern the issue of whether another action was pending involving the same controversy, Williams v. State Board of Control, 62 Cal.App.3d 960, 133 Cal.Rptr. 539 (1976); Rilcoff v. Superior Court of Los Ange-les County, 50 Cal.App.2d 503, 123 P.2d 540 (1942); In re Custody of Rector, 565 P.2d 950 (Colo.App. 1977). Becker Steel Company of America v. Hicks, 66 F.2d 497 (2d Cir. 1933), cert, denied, 290 U.S. 667, 54 S.Ct. 88, 78 L.Ed.2d 576 (1933) and Jaubert Brothers v. Landry, 15 So.2d 158 (La.App.1943) discuss the problem of whether enforcement proceedings were “pending” after judgment; and MacKen-zie v. A. Engelhard & Sons Company, 266 U.S. 131, 45 S.Ct. 68, 69 L.Ed. 205 (1924) holds that one who purchases real property while an appeal is pending is a “purchaser pendente lite.”

      . It should be noted that the only Florida case which directly refers, albeit in another context and in dictum, to the issue, Kornblum v. Heflin, supra, states as follows at 183 So.2d 844;
      Section 733.16(1), Fla.Stats., F.S.A., provides in part that no claim shall be valid or binding upon an estate unless the claim is filed in writing in the office of the probate court within six months after the first publication of notice to creditors. The provision goes on to state:
      * * * * * *
      “ . . .no cause of action, at law or in equity, heretofore or hereafter accruing * * shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner within the said six months as aforesaid; * * (Emphasis added.)
      This section seems to place the burden upon a claimant to file his claim against an estate within the prescribed period in order to preserve its validity. “Pending,” of course, means begun but not yet completed, and a suit is “pending" from its inception until the rendition of a final judgment. Black Law Dictionary (4th ed. 1951). [emphasis supplied]
      There is no doubt that, as used in the Kornblum opinion, the word “rendition” refers to the “entry” of the final judgment, rather than, as Variety argues, the time that the judgment is rendered for appeal purposes when post-trial motions are denied. Dibble v. Dibble, 377 So.2d 1001 (Fla.3d DCA 1979); McNitt v. Osborne, 371 So.2d 696 (Fla.3d DCA 1979); Becker v. King, supra; cf. DeFiiippis v. DeFiiippis, 378 So.2d 325 (Fla.4th DCA 1980). The language in the Kornbium case therefore runs directly contrary to the claim that the action below remained “pending” after judgment was entered on December 18, which is the cornerstone of Variety’s argument.

      . The alternative motion to relinquish jurisdiction to the trial court for the filing of a motion under Fla.R.Civ.P. 1.540 is likewise denied. Constance v. Constance, supra.

      . We express no view whatever as to the effect, if any, of the final judgment which we have affirmed in this case upon the now-pending wrongful death action. Those issues, along with all others which may arise in the course of that case, are ones which must initially be decided by the lower court in the case itself, subject only to later appellate review.


source: Caselaw Access Project

author: LETTS, Judge. PER CURIAM. LETTS, Judge,

license: Public Domain

text:
    John J. WALKER and Helen P. Walker, his wife, Appellants, v. John H. KREMER and Thelma Kremer, Appellees.
    Nos. 78-775, 78-1047.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1980.
    On Rehearing April 16, 1980.
    Robert S. Miller of Grand, Krupnick & Miller, Hallandale, for appellants.
    Frank E. Maloney, Jr. and Foy B. Fleming of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   LETTS, Judge.

This cause is affirmed with the exception that we cannot approve the award of attorneys fees in this mortgage foreclosure case.

The award here was predicated solely upon the individual testimony of the mortgagee’s attorney over the objections of the mortgagor’s counsel. This was improper. See Geraci v. Kozloski, 377 So.2d 811 (Fla. 4th DCA 1979) and Múllante v. Lorenz, 372 So.2d 168 (Fla. 4th DCA 1979).

Accordingly, this cause is reversed as to the award of attorneys fees and remanded to the trial court for reconsideration consistent with the above cited cases.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

ANSTEAD and HURLEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

Appellants have filed a motion for rehearing pursuant to Rule 9.330(a), Fla.R. App.P. We grant in part.

At oral argument counsel for appellees indicated that in the event this court concluded that the trial court’s award of attorneys fees should be reversed, appellees would waive any claim to such fees. This court did so conclude, but because of some uncertainty as to the waiver we remanded the issue for reconsideration by the trial court. However, after oral arguments ap-pellees filed a written waiver as to the attorneys fees issue which first came to the court’s attention when appellants moved for rehearing. In accordance with the waiver there is no necessity that this issue be remanded for reconsideration by the trial court and consequently we recede from that portion of our initial opinion which reversed the trial court on the issue of attorneys fees and remanded for further consideration. The issue of attorneys fees being waived, this cause is hereby remanded to the trial court with directions that the provision for attorneys fees be stricken and the judgment as amended is affirmed.

ANSTEAD and HURLEY, JJ., concur.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially:

I reluctantly concur. There can be no doubt that appellees’ counsel is entitled to attorneys fees and that he waived them solely to insure the affirmance of his clients’ cause. This being so, it is unfortunate that such magnanimity would result in his undoing, since we were for affirmance in any event. However, the written waiver after oral argument would appear to preclude any further action on this matter.


author: DANAHY, Judge. GRIMES, Chief Judge,

text:
    Doris Tilyou SOLOMON, Appellant, v. Donald L. McLUCAS et ux., Appellees.
    No. 79-769.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Rehearing Denied April 17, 1980.

      Manuel W. James, Key West, and Ronald A. Dion, Law Office of Alvin Entin, North Miami Beach, for appellant.
    Fletcher Brown, Arcadia, and Daniel A. Carlton of Dickenson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for ap-pellees.
   DANAHY, Judge.

Appellant, the natural mother of six year old Jennifer Renee, brings this appeal from a final judgment granting appellees’ petition to adopt Jennifer. Jennifer’s natural father gave his written consent to the adoption, but appellant did not. Appellant’s consent was required unless the trial judge excused her consent on one of the grounds specified in Section 63.072, Florida Statutes (1977). The trial judge impliedly did so by expressly finding that appellant had abandoned Jennifer. We hold that the evidence in this case was not sufficient to justify that finding, and we reverse.

Appellant was sixteen years old when Jennifer was born and her marriage to Jennifer’s father disintegrated shortly thereafter. The parents separated permanently by mutual agreement in July of 1975, when Jennifer was just 8 months old. Appellees, who are appellant’s maternal uncle and his wife, took appellant and Jennifer into their home in Arcadia and it was at this time that appellant first left Jennifer in their care. Jennifer remained in appellees’ home for several months, with appellant present intermittently. During this time appellees provided the physical care and attention needed by the baby, with somewhat haphazard contributions by appellant, who obviously had a typical seventeen-year-old’s preference for activities with young people her own age.

Appellant did, however, exhibit an awareness of her adult responsibilities. She testified that when she left Jennifer with appel-lees this first time, she went to Clewiston to get a job and that when she got a job, she came back and got Jennifer. Appellees testified that Jennifer was with them for a period of approximately 4 months, from July to October of 1975, and that appellant also lived with them for approximately five weeks during this time.

In any event, in October of 1975, appellant picked up Jennifer and the two of them traveled to Delaware in the company of John Allen Walterson, a man with whom appellant was then living. Apparently at the behest of other family members who were worried about the situation, appellees went to Delaware in February of 1976 and brought appellant, Walterson, and Jennifer back with them to Arcadia.

It was at this point that appellant last left Jennifer in the custody of appellees, where Jennifer has since remained. Appellant testified that she did so because Wal-terson was “weird”, hostile, and abusive, and because appellant was financially unable to support Jennifer at that time. Appellant said she never intended to give permanent custody to appellees, that this started out as a family arrangement for the welfare of Jennifer, and appellant always considered it to be temporary. Appellant was 18 years old and Jennifer 26 months old at the time.

Appellees filed their petition to adopt Jennifer on October 27, 1977. Both the trial judge and appellees, in discussing whether there was an abandonment in this case, refer to a time span from February of 1976 to the date of the final hearing, which did not take place until February 9, 1979. However, it is undisputed that appellant promptly filed an answer to the petition for adoption and has vigorously contested Jennifer’s adoption by appellees. Therefore, failures on appellant’s part to support, contact, or see Jennifer after the filing of the petition for adoption are, in our view, immaterial. The pertinent time span in this case is from February 1976, to October 27, 1977, a period of approximately 19 months. Our sole inquiry on this appeal is whether the evidence in this case met the standard of proof necessary to show an abandonment of Jennifer by appellant during this period of time which would permit Jennifer’s adoption by appellees without appellant’s consent.

Before reviewing the evidence pertinent to that inquiry, we find it necessary to discuss those factors which are not relevant in determining whether a noncon-senting parent’s rights should be terminated in an adoption proceeding. Section 63.-142 permits the entry of a judgment of adoption when the trial judge determines that all necessary consents have been obtained and that the adoption is in the best interests of the person to be adopted. The final judgment in this case contains several recitations of fact which are relevant only to the second determination, but the trial judge merged his findings and conclusions in such a way that he appears to have considered the best interests of Jennifer in deciding whether appellant’s consent to the adoption was necessary. That factor does not enter into such a decision.

The final judgment recites that Jennifer had previously been declared a dependent child in a separate proceeding under Chapter 39 and was placed with appellees pursuant to orders entered in that proceeding on February 24, 1976, and March 1, 1977; that since February of 1976, Jennifer has been solely in the custody of appellees and has developed a parent-child relationship with them which is the only parental relationship Jennifer knows; and that disrupting this developed relationship with appel-lees would be a serious problem for Jennifer. The final judgment further states that appellees established by clear and convincing evidence that the adoption would be in the manifest best interests of Jennifer; that appellees are sincerely interested in Jennifer’s welfare; and that appellees would provide a wholesome home atmosphere and environment. Finally, the final judgment states that the Department of Health and Rehabilitative Services filed a written recommendation that permanent custody of Jennifer be granted to appellees.

These findings and conclusions do not provide a legally sufficient basis for terminating the rights of a natural parent by granting a petition for adoption without that parent’s consent. Matter of Adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977). Despite what this court and other Florida courts may have said in the past indicating that an adoption may be granted over the objection of a natural parent if it would serve the best interests of the child, since the passage of Section 63.072, Florida Statutes (1977), effective October 1, 1973, the grounds upon which adoption may be granted in the absence of the written consent of a natural parent whose consent is required are only those specified in that section. The best interests of the child is not one of them. Nelson v. Herndon, 371 So.2d 140 (Fla. 1st DCA 1979).

We are aware of the concerns expressed by Judge Mills in his specially concurring opinion in Nelson v. Herndon, supra, and recognize that, on the face of the matter, it would appear that the legislature was remiss in not considering the best interests of the child as the sole determinative basis for an adoption. But it must be remembered that Chapter 63 relates only to adoption, not custody. Permitting the adoption of a child terminates the rights of a natural parent, and should not be ordered without parental consent where that consent is otherwise required except upon a showing that the natural parent has engaged in conduct which justifies the termination of that parent’s rights with respect to the child. The legislature has specified in Section 63.072(1) that such conduct must amount to a desertion without affording means of identification or an abandonment. We point out, however, that the denial of a petition for adoption on the ground that abandonment has not been shown does not determine the matter of custody. Custody traditionally has been taken from natural parents and placed in others whenever the parents’ neglect or abuse makes that action necessary for the best interests of the child. Section 39.01(9) and Sections 39.40, et seq., Florida Statutes (Supp.1978). But grounds which may legally justify depriving a natural parent of custody do not necessarily constitute grounds for severing the parental relationship permanently by allowing adoption of the child by others. Wiggins v. Rolls, 100 So.2d 414 (Fla.1958).

The pivotal question in this case, then, is whether the evidence met the standard of proof required to establish an abandonment of Jennifer by appellant. In this respect, the trial judge concluded that appellant’s conduct evidenced an intent or settled purpose to leave Jennifer permanently or at best indefinitely in appellees’ care and to forgo all parental responsibilities, and that her actions demonstrated a shirking of the responsibilities cast by law and an abandonment.

We have no quarrel with the trial judge’s expression of what constitutes an abandonment for purposes of Section 63.072(1). This court has stated the rule to be that abandonment in the field of jurisprudence dealing with adoption consists of conduct which manifests a settled purpose to permanently forgo all parental rights and the shirking of the responsibilities cast by law and nature so as to relinquish all parental claims to the child. In re Adoption of Prangley, 122 So.2d 423 (Fla. 2d DCA 1960).

We disagree with the trial judge that the evidence in this case established an abandonment under Section 63.072(1). In this respect, it is of the utmost importance to bear in mind the standard of proof which must be met to establish an abandonment. This court has several times pointed out that abandonment must be shown by clear and convincing evidence. In the Interest of C.K.G., 365 So.2d 424 (Fla. 2d DCA 1978); In re Adoption of Wilson, 328 So.2d 50 (Fla. 2d DCA 1976); In re Adoption of Prangley, supra; Roy v. Holmes, 111 So.2d 468 (Fla. 2d DCA 1959). We hold that the evidence in this case does not meet that standard of proof.

As we have noted above, appellant placed Jennifer in the custody of appellees in February of 1976, when Jennifer was 26 months old and appellant was 18 years of age. Appellant was living at that time with a man who was hostile and abusive, and she testified that she felt it was not good for Jennifer to be in the environment created by appellant’s relationship with that man. Considering appellant’s circumstances at the time, we do not feel it necessary to interpret her action as expressing a choice between Jennifer and the man with whom appellant was then living. Even from a cold record, we have some idea from appellant’s testimony of the difficulties she was then experiencing in dealing with life on her own, which were aggravated by the responsibility of caring for Jennifer. We can just as well view appellant’s action in giving Jennifer to the care of appellees as a commendable expression of concern for Jennifer’s welfare.

Appellees make much of the fact that on February 16, 1976, appellant accompanied appellees to an office of the Department of Health and Rehabilitative Services and made a formal request for assistance in placing the custody of Jennifer with appel-lees. (This presumably prompted the subsequent Chapter 39 proceeding.) Appellant testified that she did not intend by this action to stamp the arrangement with permanency; she said that she thought all she was doing was giving permission for medical treatment so that, if anything happened to Jennifer, appellees would be able to obtain medical treatment for her. Appellant has never given written consent to appel-lees’ custody of Jennifer and did not receive notice of the Chapter 39 proceeding which produced the orders of February 24, 1976, and March 1, 1977. .

In any event, the trial judge did not find that appellant’s actions in February 1976, in and of themselves, constituted an abandonment. Indeed, other than stepparent adoption cases, the typical adoption case seems to arise from a situation in which natural parents have given the custody of their child to those who thereafter seek adoption. Leaving a child temporarily in the care of others or giving up the custody of the child pursuant to an agreement or other formal arrangement does not, standing alone, constitute an abandonment. In re Adoption of Gossett, 277 So.2d 832 (Fla. 1st DCA 1973); Annot., 35 A.L.R.2d 662 (1954), sections 14 and 15. We focus, therefore, on appellant’s actions and inactions from February 1976, when she placed Jennifer in the care of appellees, to the date of the filing of appellee’s petition for adoption on October 27, 1977.

It is undisputed that during this period of time appellant never contributed to Jennifer’s support although she was able to do so. She said that this was because “they told me not to.” Appellees testified that appellant never offered to furnish support for Jennifer, but it is also true that appellees never asked for money, clothing, or other necessities for Jennifer, and indicated to appellant that Jennifer had plenty of everything, which indeed she had. Appellant said that she would have sent money and clothes if she thought Jennifer needed them.

The failure of a natural parent to support a child, while a relevant circumstance to be considered, is not in and of itself a sufficient basis for permitting the adoption of the child over the objection of the parent. In re Adoption of Wilson, supra; Annot., 35 A.L.R.2d 662 (1954), section 9. As we have said, the scenario in the case before us represents a rather typical adoption situation. The natural parent places the child in the care of others and then fails to provide support for the child while the child remains in the custodial home. We have found no case in which these two factors, standing alone, have been held to constitute an abandonment. In those cases in which abandonment has been found, the evidence has shown that, in addition, the natural parent failed to show any interest in the child, indicating a complete withdrawal from and neglect of parental duty and responsibility. E. g., In re Adoption of Lee, 174 So.2d 87 (Fla. 2d DCA 1965). It is this expression of disinterest by the natural parent which seems to be the pivotal factor in determining whether the natural parent has abandoned the child. Steets v. Gammarino, 59 So.2d 520 (Fla. 1952). Compare Harden v. Thomas, 329 So.2d 389 (Fla. 1st DCA 1976) and Turner v. Adoption of Turner, 352 So.2d 957 (Fla. 1st DCA 1977).

In this case appellant sent Jennifer gifts on only two occasions, but talked to her on the telephone a number of times. In addition, she and appellees corresponded, and appellees sent pictures of Jennifer to appellant.

On the other hand, appellant never saw or visited with Jennifer during this period of time. She was then living in Key West, which we recognize is a considerable distance from appellees’ home in Arcadia. Appellant and appellees disagree as to why there was no visit; appellant testified that every time she asked appellees if she could come up, they said “no.” Appellees, on the other hand, testified that they never denied appellant access to Jennifer.

Apparently sensing a developing battle with appellees over Jennifer, appellant consulted a lawyer in July of 1977 in an effort, in her words, “to get Jennifer back.” About the same time, after first writing to appellees that she wished to visit Jennifer, appellant went to Arcadia, admittedly taking a chance that appellees would be home, and found no one at appellees’ residence when she arrived. In September 1977, appellant’s attorney wrote a letter to appel-lees’ attorney asking if appellant could visit Jennifer. There is no indication that this letter was ever answered. Shortly thereafter the petition for adoption was filed.

Appellees apparently have felt that the environment of their home was far superior to anything that appellant could offer Jen-' nifer, and that appellant’s life was both unstable and unpredictable. Further, ap-pellees admittedly encouraged Jennifer to think of appellees as her parents and to refer to them as such. Significantly, they told Jennifer that appellant was her “Aunt Doris” and asked appellant to call herself Aunt Doris when she talked to Jennifer on the telephone. Appellant said she complied with that request so as not to upset Jennifer. Without implying criticism of appel-lees, who have to love the child dearly and whose motives no doubt were the best, we nevertheless observe that appellees actively encouraged the development of a parent-child relationship between them and Jennifer to the exclusion of appellant as a factor in Jennifer’s life.

We fail to find in this case that absence of interest, that withdrawal from and neglect of parental duty and responsibility, which evinces a settled purpose on appellant’s part to forsake permanently all her parental rights and to relinquish all her parental claim to Jennifer. It has been observed many times that the conduct of a natural parent may constitute neglect, indifference, or even irresponsibility for a child’s welfare, but nevertheless may not amount to abandonment. E. g., Roy v. Holmes, supra; In re Adoption of Gossett, supra. In contemplation of the law, abandonment is absolute, complete, and intentional, and must be established by clear and convincing evidence. We hold that there was no such evidence of abandonment in this case. In this respect we agree with the analysis of the trial judge in Adoption of Sanderson, County Ct., 143 N.Y.S.2d 520 (Steuben County Ct,1955), a case involving a very similar situation.

In closing we note that Jennifer remains a dependent child in the Chapter 39 proceedings pending in the trial court. That case is not formally before us but the exhibits in this record show that the trial judge also presided over those proceedings. The last order the trial judge entered in the dependency case was dated November 28, 1977, one month after the petition for adoption was filed in the case at bar. The order placed temporary custody of Jennifer with appellees. The dependency proceedings, of course, remain open for such further orders as the trial court deems in the best interest of Jennifer upon petition of appellees, appellant, or the Department of Health and Rehabilitative Services, which has had legal custody and has supervised Jennifer’s placement with appellees in the past. The trial judge exercising the jurisdiction prescribed in Chapter 39 over dependent children could very likely be faced with petitions for child support, visitation rights, change or termination of custody, further supervision by the Department, authorization for medical treatment, and similar requests. In that event the thorough social investigations of the parties and child which were done by the Department in this action can be up-dated without undue delay. When the trial judge decides those questions he will be guided by the best interest of the child test and the standard of proof, unlike that in the case before us, is preponderance of the evidence. In The Interest of C.K.G., supra.

REVERSED.

HOBSON, J., concurs.

GRIMES, C. J., dissents with opinion.

GRIMES, Chief Judge,

dissenting.

Judge Danahy’s well reasoned analysis of the law will provide considerable guidance to those engaged in adoption proceedings. Nevertheless, I believe the majority has unwittingly fallen into the trap of substituting its judgment for that of the trial judge in the application of the law to the facts of this case.

In referring to appellant’s circumstances when she placed Jennifer in the custody of appellees in February, 1976, this court concludes that rather than interpreting her conduct as expressing a choice between Jennifer and the man with whom she was then living it “can just as well view appellant’s action in giving Jennifer to the care of appellees as a commendable expression of concern for Jennifer’s welfare.” While this court can take that view, the point is that the trial judge took the other view. Not only did appellant accompany appellees to the office of Family Services and ask that custody of Jennifer be given to appellees, she then left for parts unknown. Perhaps this is why she never received notice of the Chapter 39 proceeding which resulted in the order granting custody to appellees.

Appellant argues that she only contemplated leaving the child with appellees on a temporary basis. Yet a year after she left the child, she wrote appellees a letter in which she said “I’ve talked to Russ [Jennifer’s father] on the phone so we’re going to get the divorce started. Then I can get custody of Jennifer and I can sign her over to you.”

In light of appellant’s lack of efforts to see the child, her failure to furnish any support, and her total acquiescence in allowing appellees to raise Jennifer as their own child, I cannot say that as a matter of law this record does not support the court’s finding of abandonment. I respectfully dissent.

      . As far as we can determine from the record, the delay was caused primarily by the nine months consumed by the Department of Health and Rehabilitative Services in completing the social study of appellant and appellees ordered by the trial judge on his own motion. We recognize that such a study is mandated or authorized by § 63.122(5) (to be filed within 90 days) but that study is pertinent only to the determination whether, assuming all necessary consents have been obtained, the adoption is in the best interests of the person to be adopted. Before that question is reached in a case where the written consent of a parent is otherwise required and has not been given, the trial judge must first decide whether to excuse the consent of that parent and proceed without it. In such a case, we believe the better practice would be to conduct a hearing on the question of consent without waiting for the completion of the social study. Should it be determined’ that no statutory ground exists for excusing the consent of the parent who has withheld it, the social study would become unnecessary.

      . No order was entered in the Chapter 39 proceeding purporting to commit Jennifer for subsequent adoption. Such a commitment terminates the rights of natural parents and their consents are not necessary in subsequent proceedings for adoption of the child so committed. § 39.41(4), Fla.Stat. (Supp.1978); § 63.-062(3) and § 63.072(2), Fla.Stat. (1977).

      . The rights of a natural parent may be terminated not only in a Chapter 63 adoption proceeding but in a proceeding under Chapter 39. If a child is declared dependent in a Chapter 39 proceeding, the trial judge may permanently commit the child to the Department of Health and Rehabilitative Services or a licensed child placing agency willing to receive the child for subsequent adoption. The grounds for such a commitment as stated in § 39.11(l)(b), Fla.Stat. (1977) were changed by the legislature in 1978 and are now stated in § 39.41(l)(d), Fla.Stat. (Supp.1978). One ground for commitment is a finding that the parent has abandoned the child. In 1978 the legislature also added to Chapter 39 a definition of abandonment for purposes of that chapter which appears more narrow than the definition of abandonment for adoption purposes established by case law in Florida. § 39.01(1), Fla.Stat. (Supp.1978). Since the 1978 amendment defining abandonment in Chapter 39 took effect October 1, 1978, after the pivotal events in this case, we need not and do not address the question whether the definition of abandonment for purposes of § 63.072(1) and the definition of abandonment for purposes of permanent commitment in a Chapter 39, proceeding are or should be the same.


author: LARRY G. SMITH, Judge. LARRY G. SMITH, Judge.

text:
    GADSDEN COUNTY TIMES INCORPORATED, Timothy O. Matthew, Collins Conner, and Creston Nelson-Morrill, Petitioners, v. Mallory E. HORNE, Respondent.
    No. TT-211.
    District Court of Appeal of Florida, First District.
    March 11, 1980.
    On Rehearing April 22, 1980.

      Sidney L. Matthew, Tallahassee, for petitioners.
    Mallory E. Horne, Tallahassee, pro se.
   LARRY G. SMITH, Judge.

This case is before this court on petition for common law certiorari. Petitioners, Gadsden County Times Incorporated, Timothy 0. Matthew, Collins Conner, and Cre-stón Nelson-Morrill, are the defendants in a libel suit filed by respondent-plaintiff, Mallory E. Horne. The trial judge denied petitioners’ motion for partial summary judgment in which petitioners requested an order adjudging plaintiff to be a “public figure”, so as to make applicable in the libel suit the “actual malice” standard of proof required by New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). We deny the petition on jurisdictional grounds.

Petitioners contend that they are entitled to a ruling by this court holding plaintiff is a public figure as a matter of law. They assert that the trial judge’s failure to so order (1) has a “chilling effect” upon their exercise of First Amendment rights, since petitioners are thereby left uncertain whether plaintiff is a “public figure”, or a “private person”, which in turn requires petitioners to exercise self-restraint in publishing further news stories concerning plaintiff pending litigation of the libel suit; and (2) their uncertainty as to plaintiff’s status further motivates self-imposed prior restraints in publishing news articles concerning plaintiff, because of their reluctance to provide further material which plaintiff might later use against them in attempting to prove his case.

Appellate review of interlocutory orders by certiorari is a remedy available in a restricted category of cases. Certiorari will be granted only in cases in which it clearly appears that there is no full, adequate and complete remedy available to the petitioner by appeal after final judgment, as where (a) the trial court has acted without or in excess of its jurisdiction, or (b) its order does not conform to the essential requirements of law and may cause material

injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Pullman Company v. Fleishel, 101 So .2d 188 (Fla. 1st DCA 1958); Tallahassee Democrat v. Pogue, 280 So.2d 512 (Fla. 1st DCA 1973); and West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975). As a general rule the burden, vexation, or hazard of defending litigation does not furnish a basis for certiorari intervention by the appellate courts. Such burdens are “one of the hazards of living and doing business under a system of free enterprise in which one who conceives himself to be injured is privileged to seek redress in a court of law”. Pullman Company v. Fleishel, supra, at 190.

Petitioners’ claims that the free exercise of their First Amendment rights is jeopardized by their self-imposed prior restraints on further news publications about plaintiff during trial do not, in our opinion, reach the level of material injury required for certiorari intervention. Petitioners cite no case, state or federal, in which these claims have formed the basis for the exercise of common law certiorari jurisdiction. They rely heavily upon federal cases, citing Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969); Dacey v. Florida Bar, Inc., 427 F.2d 1292 (5th Cir. 1970); and Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970), among others. In these cases the court reviewed interlocutory orders, in libel cases, denying defense motions for summary judgment. However, although the principles governing these decisions have been considered, we do not view them as controlling authority on the issue presented to this court. First, the jurisdictional vehicle in these federal cases was not certiorari, but interlocutory appeal, pursuant to provisions of 28 U.S.C.A., § 1292(b), effective 1958. The Code permits interlocutory appeal of certain rulings, including denial of summary judgment, where the trial judge certifies: (1) That the interlocutory order involves a controlling question of law as to which there is substantial grounds for difference of opinion, and (2) immediate appeal from the order may materially advance the ultimate determination of the litigation. The court of appeals then may in its discretion, permit an appeal. See Time, Inc. v. McLaney, supra, at 566.

A second reason why we do not find the cases cited controlling is based upon a fundamental difference in the posture of this case, as compared to those cited by petitioners. In the instant case, a favorable ruling on the “public figure” issue would not dispose of this litigation. In McLaney and the other cases cited the court had before it both the “public figure” issue and the “actual malice” issue, so that a ruling favorable to defendants on both issues would dispose of the litigation. In McLaney, the court sounded a caveat, advising every unsuccessful litigant not to expect an interlocutory appeal from denial of a summary judgment, pointing out that First Amendment cases fall into a different category than the ordinary case, because of the possible impingement upon freedom of the press produced by actions for libel. Review of such cases would be favored, indicated the court, when a trial court and the court of appeals “jointly consider” that the failure to dismiss the libel suit might necessitate “long and expensive trial proceedings, which, if not really warranted, would themselves offend the principles enunciated in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, [(1965)] because of the chilling effect of such litigation” (McLaney, supra, at 566). Thus, the court reasoned, although the federal courts are reluctant to deprive litigants of a jury trial:

“. . . Where, however, it is plain that the record has been fully developed by depositions and affidavits on a motion for summary judgment, and such record demonstrates that, construing all of the facts and inferences to be drawn therefrom in favor of the party against whom the judgment is entered, he would not be entitled to have a jury verdict stand, we have not hesitated to hold that the grant of summary judgment is proper.” (McLaney, supra, at 571-572).

As we interpret McLaney and the other federal cases cited, even under the special interlocutory appeal provisions applicable there, the important objective to be achieved is termination of unwarranted litigation. This objective obviously will not be accomplished here, even by a ruling favoring defendants, because the issue of “actual malice” would remain to be litigated in the trial court. Plaintiff would still be entitled to proceed, albeit under the “actual malice” standard of New York Times, rather than the negligence standard of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), applicable to defamation actions by private citizens.

Moreover, we are not persuaded, particularly in the absence of what we may reasonably consider to be authority on the point, that petitioners’ First Amendment freedom is threatened by its uncertainty whether, pending a ruling on the public figure issue, it must be guided by the negligence standard of care of Gertz v. Robert Welch, Inc., supra, or whether they may indulge their reportorial enterprise under the more protective cloak of the New York Times “actual malice” standard. Further, as for petitioners’ argument that they fear to publish, lest they furnish additional grist for plaintiff’s litigation mill, we do not feel that this is an argument seriously to be considered. First, there would seem to be an equal likelihood of some attempt by plaintiff to use any future articles, if false and defamatory, whether he proceeds as a “public figure”, or a “private person” in this litigation. Secondly, the argument itself calls for speculation as to what petitioners might or might not decide to do with respect to further publications, what the reaction of the plaintiff might be, and finally, what rulings might be made by the trial court on admissibility of any such future publications as evidence at the trial.

Therefore, without suggesting what our jurisdictional decision might be in a case fully developed on both the “public figure” and the “actual malice” issues, we resist the invitation in this case to intervene in the conduct of this litigation. We have confidence that the able trial judge, in due course, will appropriately and correctly dispose of all issues properly before him. We add only that, as petitioners urge, the determination of the plaintiff’s status as a “public figure” or “private person” apparently is one for the trial judge to make, while the issues of “actual malice”, or negligence are ordinarily jury issues. See New York Times v. Sullivan, supra; Gertz v. Robert Welch, Inc., supra; Rosanova v. Playboy Enterprises, Inc., 411 F.Supp. 440 (S.D.Ga. 1976), affirmed 580 F.2d 859 (5th Cir. 1978); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.C.D.C.1977); and Belli v. Orlando Dailey Newspapers, Inc., 389 F.2d 579 (5th Cir. 1967).

The petition for certiorari is denied.

McCORD and SHIVERS, JJ., concur.

ON PETITION FOR REHEARING

LARRY G. SMITH, Judge.

Petitioners’ motion for rehearing calls our attention to an error in this court’s opinion filed March 11, 1980 denying certio-rari. The opinion (first paragraph) states: “The trial judge denied petitioners’ motion for partial summary judgment . .”

(emphasis supplied). That sentence is corrected to read: “The trial judge denied petitioners’ motion for summary judgment .,” etc. Petitioners correctly point out that their motion for summary judgment requested a “final summary judgment,” and their memorandums of law filed in the trial court in support of the motion covered both the “public figure” and “actual malice” issues. The trial court’s order denying the motion contains an explicit ruling only on the “public figure” issue, as indicated by the finding:

. this Court from an examination of this matter is of the opinion that the defendant has failed to establish that there is no genuine issue as to whether the plaintiff was a public figure at the time of the alleged libelous publication (Order on Motion for Summary Judgment)

It may be presumed, as petitioners suggest, that on account of the trial judge’s failure to rule favorably to petitioners on the “public figure” issue, the trial judge did not find it necessary to reach the “actual malice” question. However, this is a matter for resolution in the trial court, and not at this stage of the proceeding.

It is unmistakable, however, that petitioners presented to this court only the “public figure” issue. Paragraph III of the Petition For Writ of Common Law Certio-rari, filed by petitioners, states in its entirety:

III. NATURE OF THE RELIEF SOUGHT
Petitioners seek the issuance of a Writ of Common Law Certiorari quashing the Order of the trial judge and directing the trial judge to rule on the public figure question or in the alternative this Court should enter an Order determining that Respondent is a public figure for purposes of this action.

Furthermore, petitioners’ argument and citation of authorities was relevant only to the “public figure” issue, and the appendix obviously omitted portions of the record bearing on the “actual malice” question. Petitioners assert in their motion for rehearing, for the first time in this court, that the case is “fully developed” so as to present all issues for complete and final adjudication by this court. We are unable to agree on the basis of the showing made by petitioners at this juncture. We note also respondent’s contention (Response To Petition For Rehearing) concerning pending discovery efforts, which in itself would indicate less than a fully developed record. See Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla. 3rd DCA 1975), and Falls Poultry Distributing Co. v. Canner, 372 So.2d 129 (Fla. 3rd DCA 1979).

We adhere to our opinion and decision, with the modification noted, denying certio-rari.

McCORD and SHIVERS, JJ., CONCUR.

      . There is some indication that disposition of the “actual malice” issue by summary judgment may not be undertaken as freely as in the past. See Hutchinson v. Proxmire, 443 U.S. Ill, 99 S.Ct. 2675, footnote 9, at 2680, 61 L.Ed.2d 411 (1979) reading in part:
      “. . . The proof of‘actual malice’calls a defendant’s state of mind into question, New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and does not readily lend itself to summary disposition. See 10 Wright & Miller, Federal Practice and Procedure § 2730, at 590-592. Cf. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). ...”
      See also Rolston v. Reader’s Digest Association, Inc., 188 U.S.App.D.C. 185, 578 F.2d 427 (D.C. Cir. 1978), reversed, 443 U.S. 157, 99 S.Ct. 2701, footnote 3, page 2704, 61 L.Ed.2d 450 (1979), citing Hutchinson v. Proxmire, supra, concerning propriety of summary judgments on the issue of “actual malice”.

      . Petitioners cite a Florida case, Menendez v. Key West Newspaper Corporation, 293 So.2d 751 (Fla. 3rd DCA 1974), where the court, relying upon Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966), cert. den. 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967), indicated that where the issue is “recklessness” employed in the publication of alleged false and libelous information, summary judgments should be more liberally granted. But see footnote number 1, relating to disposition of “actual malice” issues by summary judgment.


author: PER CURIAM.

text:
    Patience R. MORGAN, as Personal Representative of the Estate of Beaumont Morgan, Deceased, Appellant, v. CONTINENTAL CASUALTY COMPANY, etc., Appellee.
    No. 78-2124.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    As Corrected On Denial of Rehearing April 18, 1980.
    Anderson & Moss, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller, Stieglitz & Hart and William J. Flynn, Jeanne Heyward, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff appeals from a final summary judgment entered in favor of the defendant. The trial court found that no insurance coverage was afforded to plaintiff’s decedent under a policy provided to the decedent by his employer. We affirm.

Plaintiff’s decedent was a licensed commercial pilot for Delta Air Lines. He and a friend were killed when an Aero Commander airplane owned by the decedent crashed in Jamaica. This friend, though not licensed as a pilot, was knowledgeable in the operation of light aircraft. The decedent was covered under a group insurance policy issued to his employer by the defendant. The policy provided coverage as follows:

AIR COVERAGE

Part H

The insurance provided by the Policy shall apply while the Insured Employee or a Dependent covered hereunder is riding as a passenger in any aircraft properly licensed to carry passengers and while an Insured Employee is operating or performing duties as a crew member of any aircraft owned, leased or operated by Delta, including ferry flights, except that no coverage shall apply while such aircraft is being used for training or testing, except if the Insured Employee is riding solely as a passenger observer.

The defendant’s policy contained the following exclusions:

EXCLUSIONS

Part 1

This Policy does not cover any loss, fatal or non-fatal, caused by or resulting from:

(5) riding in any aircraft, except to the extent permitted and specifically described in Part H, ‘Air Coverage’.

The issue as to whether coverage was provided for the decedent under this set of circumstances came before the trial court on cross-motions for summary judgment wherein the court denied plaintiff’s motion and granted the defendant’s motion from which this appeal is perfected.

Plaintiff contends that the term “riding as a passenger in an aircraft” is ambiguous and therefore the policy must be construed most favorably to the insured. Plaintiff further argues that there is no exclusion for pilots and therefore the policy is subject to a reasonable construction and interpretation that a “passenger” includes a “pilot” within the policy coverage.

Defendant urges, and we agree, that the coverage provisions are unambiguous and must be construed as written. Brown v. Gulf Life Insurance Company, 343 So.2d 91 (Fla. 3d DCA 1977); Stewart v. State Farm Mutual Insurance Company, 316 So.2d 598 (Fla. 1st DCA 1975). Moreover, in construing the provision of insurance contracts, courts are bound to give the language its plain, normally accepted meaning. Hertz Corporation v. Pugh, 354 So.2d 966 (Fla. 1st DCA 1978); Equitable Life Assurance Society of the United States v. Pinon, 344 So.2d 880 (Fla. 3d DCA 1977).

Adopting this approach, it is clear that “passenger” does not embrace the term “pilot” within policy coverage.

In the alternative, plaintiff contends there is a genuine issue of fact because it is the operational status at the moment of the crash that determines whether the decedent was a “pilot” or a “passenger.” Defendant counters that it is the status throughout the journey that determines whether one is the “pilot” or a “passenger.” It should be borne in mind that plaintiff’s decedent was the only licensed pilot aboard the craft at the time of the fatal accident. Defendant’s position is supported by the Federal Aviation Regulations which are applicable and controlling under the set of facts presented. Those Regulations establish that a pilot is not a passenger and does not lose his status as such because he remains responsible and in command of the aircraft even though he undertakes some momentary task other than actual operation of the aircraft. Breton v. Penn Mut. Life Ins. Co., 223 La. 984, 67 So.2d 565 (1953); cf. Curtis v. American Casualty Company of Reading, Pa., 60 Tenn.App. 204, 445 S.W.2d 661 (1968). Le-

Plaintiff presented affidavits in support of her motion and in opposition, to defendant’s motion for summary judgment. The affidavits were based upon recitals by some of the decedent’s friends of prior experiences in which decedent had allowed another to pilot the aircraft while decedent directed his attention to correcting some malfunction.

It is well established that affidavits, such as those presented by plaintiff, which are based entirely upon speculation, surmise and conjecture, are inadmissible at trial and legally insufficient to create a disputed issue of fact in opposition to a motion for summary judgment. Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961). See Smith v. Prudential Insurance Company of America, 300 S.W.2d 435 (Mo.1957).

Under the circumstances of this case, the trial court correctly held that the Federal Aviation Regulations determined the decedent’s status at the time of the fatal accident.

Affirmed.

      . See generally 14 C.F.R. §§ 1.1 and 91.3 (Aeronautics and Space).


text:
    R. P. HEWITT & ASSOCIATES OF FLORIDA, INC., and Comet Steel Erection, Inc., Appellants, v. Edward MURNIGHAN, Appellee.
    No. QQ-472.
    District Court of Appeal of Florida, First District.
    March 12, 1980.
    J. Burke Culler, Jr., of Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, P.A., Miami, for appellee. •
   PER CURIAM.

Appellants R. P. Hewitt & Associates of Florida, Inc., and Comet Steel Erection, Inc., bring this appeal from a final workmen’s compensation order entered July 18, 1979. The order awarded appellee, Edward Murnighan, temporary total disability benefits. Appellants present the following point on appeal: whether the judge of industrial claims erred as a matter of law in finding compensability, where the record is void of any competent, substantial evidence establishing that the cause of the industrial accident was not occasioned primarily by the intoxication of the employee. We find no error and therefore affirm.

Appellee is a 48-year-old experienced ironworker. He was working for appellant employer on September 29, 1978, when he and a partner ironworker were assigned to weld an iron grating to horizontal supports on a stairway forty feet above the ground. Before beginning work at 12:30, appellee and his partner had lunch, appellee having two or three beers with lunch. The foreman did not object to workmen having beer with lunch. The accident occurred about 3:30. Appellee and his partner were standing together on the grating discussing how to cut a piece of it. To pick up tools, appellee’s partner took one step to the right, and appellee took one step to the left. In that split second, the piece of grating appellee stepped on slipped vertically, and he and the grating fell through the space between the supports. When his partner turned at the sound, appellee was already waist deep through the hole. Appellee’s foreman was on the ground explaining the job, and happened to be pointing at appellee and his partner when appellee fell.

Appellee suffered severe injuries from his fall, including multiple fractures and internal injuries, and was immediately taken to an emergency room. The first doctor who treated appellee on arrival smelled alcohol on his breath, and noted his affected speech. A blood alcohol sample was taken, which read 0.14%. This doctor testified appellee was under the influence of alcohol. A second doctor who examined appellee between 4:30 and 5:00 testified he could not tell if appellee was drunk or not, because appellee was in shock. A third doctor who examined appellee about 6:00 testified that appellee was probably in shock, but not unconscious. This doctor stated appellee smelled of alcohol, had slurred speech, and would say only that he was hurting. A fourth doctor examined appellee about a month after the accident, and diagnosed chronic alcoholism based on appellee’s statement he would drink two or three cases of beer per week, but not based on any physical findings, such as liver disease. Finally, a doctor who was, an expert in the field of forensic toxicology reviewed appellee’s medical records, but did not treat him. He testified he could not tell from the manner in which appellee fell whether appellee’s being under the influence of alcohol caused the fall. However, this doctor felt appel-lee’s blood test showed he had been under the influence of alcohol, although he noted that an alcoholic could have a greater tolerance regarding the effects of alcohol upon his actions.

Appellee’s partner as well as his foreman and an ironworker’s steward all testified that they had worked with appellee throughout the day of the accident, but had not noticed any indications he was drunk. Specifically, they did not smell alcohol on his breath, or note any unusual movements, such as staggering. Appellee’s fellow workers also testified that working on a grating was a particularly dangerous iron-worker’s job, since the two and a half feet wide grating strips would tend to slip on the two inch wide slippery metal support strips. Thus a grating was not considered safe untih welded down, although it was necessary to stand on the granting in order to weld it. Appellee’s partner on the grating opined the accident occurred because the grating was lying off-balance when ap-pellee stepped on it, and his weight tipped it, causing him to fall with it.

We affirm the judge’s order finding ap-pellee’s accident was compensable. According to § 440.09(3), Fla.Stat. (1977):

If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee’s blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee.

In the instant case, appellee’s blood sample revealed 0.14% concentration of alcohol, greater than the statutory standard for intoxication. However, the judge correctly found that appellee had presented sufficient evidence to overcome the presumption that his injury was occasioned primarily by his intoxication.

Competent, substantial evidence supports the judge’s conclusion that the accident primarily resulted from the inherent dangerousness of appellee’s work upon the grating. Appellee’s fellow workers presented undisputed testimony attesting to the hazardous nature of this work. Furthermore, appel-lee’s partner on the grating testified that a shift in the grating caused appellee to fall after the split-second he placed his foot on the grating.

No evidence was presented showing that appellee had behaved in a drunken manner prior to falling from the grating. To the contrary, appellee's fellow workers unanimously testified that they had detected no signs that he had been drinking on the day he fell, despite their frequent contact with him that day. Although there was medical testimony indicating appellee seemed to be under the influence of alcohol at the hospital, the judge properly chose to believe the fellow workers’ testimony that appellee did not seem drunk on the grating, especially considering the fact the doctors first saw appellee suffering from shock due to his injuries.

Viewing all of the evidence as a whole, the judge properly could have concluded that appellee’s intoxication was not the primary cause of accident, but only a remote cause, if indeed any. Substantial evidence was presented showing a completely sober man could have suffered the same accident appellee did. Appellee thus met his burden of showing by substantial evidence that his accident was not primarily occasioned by his intoxication. This case may be contrasted with the pre-1977 case of Zee v. Gary, 137 Fla. 741,189 So. 34 (1939). In that case, the burden remained with the employer to show that the employee’s intoxication was the primary cause of accident. The employer in that case failed to meet this burden, with the result that the accident was found com-pensable. In the instant case, the statutory language in § 440.09(3) reversed the eviden-tiary burden, so that it fell on appellee, as a legally intoxicated employee, to overcome the presumption his accident had occurred primarily because of his intoxication. Since appellee met this burden, however, his accident also is compensable.

Accordingly, the order of the judge of industrial claims is hereby affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Pauline YOUNG, Appellant, v. Roy YOUNG, Appellee.
    No. 00-446/T1-143.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Rehearing Denied April 24, 1980.

      Paul A. Bernardini of LaRue & Bernardi-ni, Daytona Beach, for appellant.
    Robert K. Rouse, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Daytona Beach, for appellee.
   PER CURIAM.

This is an interlocutory appeal from a final order dismissing Appellant’s personal injury complaint for insufficiency of service of process under sections 48.161 and 48.171, Florida Statutes (1979).

Appellant has alleged that while a passenger in a car driven by her husband, Clifford Young, she was injured as a result of a collision. She filed suit against Roy Young, Clifford’s brother, alleging he was the owner of the car in which she was injured and was thus liable to her for the injuries.

Because Roy Young is not a resident of Florida, it is required that service of process be obtained in accordance with section 48.-171, Florida Statutes (1979). In order to meet the requirements of the statute, the plaintiff must also comply with the dictates of Electro Engineering Products Co., Inc., et a 1. v. Lewis, 352 So.2d 862 (Fla.1977) which holds:

To acquire jurisdiction over a nonresident pursuant to this section of Florida’s Long Arm Statute, the plaintiff must initially allege in the complaint sufficient jurisdictional facts to show that the nonresident manufactured or serviced a product which was used within this state in the ordinary course of commerce and trade, and which injured a person in this state. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the Long Arm Statute. At that time the plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint.

Id. at 864.

Because Appellant was basing her complaint against Appellee upon his alleged ownership of the car, it is incumbent upon her to establish that ownership. In her complaint she alleged:

At all times material hereto, Roy Young was a non-resident of the State of Florida, who owned a certain 1966 Ford two door truck bearing South Carolina plate NWN 145 for the year 1978, vehicle identification number 6K27T175067. Said non-resident, Roy Young, had consented to the use of the above-described motor vehicle by his brother, Clifford Earl Young, knowing that Clifford Earl Young would operate said motor vehicle upon the streets and highways of the State of Florida. In so consenting to the use of said motor vehicle upon the streets of Florida, defendant Roy Young thereby appointed the Secretary of State as his resident agent for service of process.

The question on appeal is whether Appellant carried the burden going forward with the evidence establishing Appellee’s ownership of the car. This burden required the production of sufficient evidence to make a prima facie case. In re Estate of Ziy, 223 So.2d 42 (Fla.1969). It should not be confused with the “burden of proof” needed at trial which is the duty of establishing the truth of a given proposition. Id.

The evidence presented at the trial court included an affidavit, deposition and two documents; a bill of sale and a vehicle registration. The registration showed Roy Young to be the owner of the car. The bill of sale purported to show a sale of the car from Roy to Clifford. However, Clifford testified in his deposition that the bill of sale was not genuine and denied having signed it or having seen it before. The testimony of the brothers clearly establishes they formulated and carried out a plan to have Clifford drive the car while ownership was shown in Roy’s name. This was done because Clifford’s driving record made him uninsurable and unable to register the car in his name; he had been convicted of driving while intoxicated three times in the past year.

Because Roy signed the South Carolina registration as owner and because there is no evidence anyone but Roy was ever the named owner of the car, we must find he was the owner. The trial court’s finding otherwise is unsupported in the record except for some self-serving declarations from the brothers in an obvious attempt to avoid the insurance and motor vehicle registration laws of this state. This course of conduct should not be approved by the courts and the brothers are estopped from seeking our approval of their scheme. When Roy, in his sworn statement, referred to the plan and characterized it as “honor among thieves,” he may not have been far from the truth.

Appellant has met the burden of going forward and established Appellee’s ownership of the car so the order of the trial court dismissing Appellant’s personal injury complaint is reversed.

REVERSED.

DAUKSCH, C. J., UPCHURCH and SHARP, JJ., concur.

      . Service on nonresident motor vehicle owners, etc. Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle or of having it operated, or of permitting any motor vehicle owned, or leased, or controlled by him to be operated with his knowledge, permission, acquiescence or consent, within the state, or any resident of this state, being the licensed operator or owner of or the lessee, or otherwise entitled to control any motor vehicle under the laws of this state, who becomes a nonresident or conceals his whereabouts, by the acceptance or licensure and by the operation of the motor vehicle, either in person, or by or through his servants, agents, or employees, or by persons with his knowledge, acquiescence and consent within the state constitutes the Secretary of State his agent for the service of process in any civil action begun in the courts of the state against such operator or owner, lessee or other person entitled to control of the motor vehicle, arising out of or by reason of any accident or collision occurring within the state in which the motor vehicle is involved.


author: COBB, Judge.

text:
    COUNTY OF SEMINOLE, a political subdivision of the State of Florida, Petitioner, v. The Honorable Tom WADDELL, Jr., Circuit Judge in and for the Eighteenth Judicial Circuit of Florida, Mark P. Rabinowitz and W. J. Heffernan, Jr., Respondents.
    No. 79-424.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Rehearing Denied April 18, 1980.

      Nikki Clayton, County Atty., Sanford, for petitioner.
    Andrew A. Graham, of Reinman, Harrell, Silberhorn, Moule & Boyd, P.A., Altamonte Springs, for respondents.
   COBB, Judge.

On October 2, 1978, the trial court appointed the Respondents Rabinowitz and Heffernan to represent one Terry Melvin Sims on a charge of first degree murder. At the conclusion of their representation, the trial court awarded them a joint fee of $17,500.00, which Seminole County now challenges via certiorari review. The petitioner has standing to do so. MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla. 1973); Dade County v. Strauss, 246 So.2d 137 (Fla. 3d DCA 1971).

The petitioner contends that Section 925.-036(4), Florida Statutes, limits the maximum fee to respondents to $2,500.00. That statute provides: “The compensation for representation shall not exceed the following per case per defendant: . . (4) For capital cases represented at the trial level: $2,500.” This enactment became effective on October 1, 1978.

The respondents argue that the statute is directory and not mandatory; that the limitation does not apply to “extraordinary cases;” that the statute is an unconstitutional infringement on a court prerogative and the separate power of the judiciary, citing Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978); that the statute constitutes a deprivation of due process and is arbitrary and unreasonable; and that the statute violates Article X, Section 6 of the Florida Constitution.

In view of the action of the Florida Supreme Court in upholding the constitutionality of a $750.00 fee limit for capital cases in 1973 , we view the respondents’ constitutional attack on Section 925.036 as merely colorable, rather than substantial, and therefore retain jurisdiction. See State v. Opitz, 357 So.2d 469 (Fla. 2d DCA 1978); Simmons v. State, 354 So.2d 1211 (Fla.1978). Moreover, the trial judge in this case did not directly pass on the validity of the statute or construe the state or federal constitution in regard to this issue. See Art. V, § 3(b)(1), Florida Constitution.

The respondents argue, not without considerable persuasiveness, that the Rose case cannot be reconciled harmoniously with MacKenzie. Be that as it may, MacK-enzie dealt directly and explicitly with the issue which confronts us in the instant case, and it has not been overruled by the Florida Supreme Court. It is the province of that court, not ours, to recede from their 1973 opinion.

We are not persuaded by the argument of respondents that Section 925.036 is directory only. Whatever its faults, the statute is clear and unequivocal. It is a mandatory limitation of $2,500.00 for representation per capital case per defendant, and it provides no exceptions for “extraordinary” cases or multiple representation.

Accordingly, the petition for writ of cer-tiorari is granted and the order being reviewed is quashed and the cause is remanded with directions to award respondents a joint fee that does not exceed $2,500.00 exclusive of costs.

UPCHURCH and SHARP, JJ., concur.

      . MacKenzie v. Hillsborough County, 288 So.2d200 (Fla. 1973).


author: UPCHURCH, Judge.

text:
    TRANSIT CASUALTY CO. and Volusia Transit Management, Inc., a/k/a Votran, Appellants, v. Ethel PUCHALSKI, Appellee.
    No. NN-45/T1-48.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Rehearing Denied April 8, 1980.
    Lester A. Lewis, Daytona Beach, for appellants.
    Terrill J. LaRue, Daytona Beach, for ap-pellee.
   UPCHURCH, Judge.

This is an appeal from a final judgment following a jury trial in the Circuit Court for Volusia County, Florida.

Appellee, Ethel Puchalski, sued Appellants Volusia Transit Management, Inc., a/k/a Votran, and Transit Casualty Company as the liability insurer of Votran, for injuries received in a fall while a passenger on a municipal bus. The bus was very crowded and Appellee, who. was seventy-five years of age, was standing near the front of the bus behind the driver holding a strap to steady herself. During the ride, the bus made several stops causing the standing passengers to “sway”.

The bus however, while traveling at normal speed, made an unanticipated stop. The stop was so sudden that it caused the other standing passengers to lunge forward knocking Appellee from her position behind the driver. Appellee was pushed forward into the fare box resulting in her injury.

Appellee testified that she did not know the reason for the sudden stop, but she saw no unusual alignment of traffic although the bus was almost touching the car in front of the bus, and another car was immediately ahead of that car. The bus driver was unable to testify as to the reason for the stop claiming he did not remember a sudden stop.

Appellant has raised as error the question whether the trial court erred in failing to direct a verdict in favor of Appellants, who alleged that Appellee’s evidence was insufficient to make out a prima facie case of negligence.

In incidents of this type, the courts have held that plaintiff has the burden of establishing a prima facie case of negligence by a preponderance of the evidence. Sharp v. Long, 283 So.2d 567 (Fla. 4th DCA 1973). The mere occurrence of an accident does not give rise to a presumption of negligence. Lash v. Noland, 321 So.2d 104 (Fla. 4th DCA 1975).

While a carrier is not an insurer of the safety of its passengers, a common carrier is expected to exercise the highest degree of care consistent with the practical operation of the bus. The mere fact that a bus stopped suddenly, without reason or circumstance, does not make out a prima facie case of liability. Blackman v. Miami Transit Co., 125 So.2d 128 (Fla. 3d DCA 1960).

The rationale for imposing upon a common carrier a duty to exercise the highest degree of care is particularly apparent when it undertakes a transport standing passengers, especially when they may be of advanced age. A bus passenger has no duty to continually monitor traffic conditions, bus speeds, or other factors which may, in some possible way, affect the safe operation of a bus. A passenger may be conversing with a friend, reading, or situated where he cannot see. Rogers v. Orlando Transit Co., 70 So.2d 551 (Fla.1954). It is unreasonable to expect such a person when hurled to the floor and injured, to be able to negate each possible way the accident could have happened.

In circumstances such as these, it seems that it would be the better rule to hold that a presumption of negligence arises which shifts the burden to the defendant to explain how the accident happened in the absence of negligence of the driver. The courts of Florida have not gone this far and, instead, have created a distinction on the violence of the stop. Jacksonville Coach Co. v. Rivers, 144 So.2d 308 (Fla.1962); Blackman v. Miami Transit Co., 125 So.2d 128 (Fla. 3d DCA 1960) and City of Coral Gables v. Patty, 162 So.2d 530 (Fla. 3d DCA 1964).

Our decision here does not depart from the existing rule that the plaintiff must establish a prima facie case. Plaintiff had shown that the bus was stopped immediately behind two cars, almost touching the last, there was no unusual alignment of traffic, there was a traffic light ahead of the two stopped cars, and there were no parking spaces, alleys, streets, or businesses in the vicinity out of which a vehicle could have darted. From these facts and in view of the high standard of care imposed upon a common carrier, a jury could reasonably infer that the injury resulted from the driver’s inattention. It was not necessary that plaintiff negate each and every possible nonnegligent cause of the injury. We therefore hold that the trial judge was correct in submitting the question of negligence to the jury. Defendant, whose driver had the best opportunity to observe the conditions at the time, was not in anyway limited in offering a more compelling or plausible explanation of the accident.

AFFIRMED.

COBB and SHARP, JJ., concur.


author: HURLEY, Judge. MOORE, Judge,

text:
    Kenneth Gerald CHEATHAM and James Kansinger Jones, Petitioners, v. C. L. NOVELL, Sheriff, Respondent.
    Nos. 80-351, 80-352.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1980.
    Rehearing Denied March 28, 1980.
    Milton E. Grusmark, Law Officers of Milton E. Grusmark, P. A., Miami, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for respondent.
   HURLEY, Judge.

By original petition for writ of habeas corpus we are asked to determine the standard to evaluate a request for bond, made by an adjudicated defendant, pending disposition of a motion for new trial. We conclude that the general principles set forth in Younghans v. State, 90 So.2d 308 (Fla.1956), apply and should guide the exercise of the trial court’s discretion.

Petitioners Cheatham and Jones are defendants in the trial court. They were free on bond until the jury returned verdicts of guilty, at which point the trial court adjudicated both and remanded them to the custody of the sheriff without bond. Oral motions for release on bond pending disposition of the motions for new trial were denied. Since then, each defendant has filed a written motion for new trial and requested a hearing for bond.

Our consideration starts with the premise that except for those charged with a capital offense or an offense punishable by life imprisonment, all citizens enjoy the right to release on reasonable bail until the moment of adjudication. Article I § 14, Florida Constitution; State ex rel. Lickert v. Roberts, 331 So.2d 394 (Fla. 2d DCA 1976); Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA 1975), cert. dism. 320 So.2d 393 (Fla.1975). Equally accepted is the proposition that except for certain recidivists, “[a]ll persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956) . . Rule 3.691(a), Fla.R.Crim.P.; Spencer v. State, 284 So.2d 229 (Fla. 3d DCA 1973).

For purposes of bail the continuum of a criminal prosecution passes through two phases — pre and post adjudication. In most instances during the first phase bail is obtainable as a matter of right; after adjudication it becomes subject to the criteria in Younghans, supra. Andress v. Coleman, supra. In concluding that this formulation should apply to the case at bar, we have rejected the notion that there could be a hiatus between adjudication and the filing of a notice of appeal when a defendant’s entitlement to bail would be suspended and not subject to review.

Our rules permit review of a conviction in two forums. The first occurs in the trial court upon the filing of a motion for new trial under Rules 3.850, 3.590 and 3.600, Fla.R.Crim.P. The second takes place in the appellate courts under the appropriate rules of appellate procedure. Petitioners herein are now engaged in the trial court and consequently their eligibility for bond is governed by Rule 3.590(d) which states:

Until such motion is disposed of, a defendant who is not already at liberty on bail shall remain in custody and not be allowed his liberty on bail unless the court upon good cause shown (if the offense for which the defendant is convicted is bailable) permit the defendant to be released upon bail until the motion is disposed of. If the defendant is already at liberty on bail which is deemed sufficient, it may permit him to continue at large upon such bail until the motion for new trial is heard and disposed of.

In considering this provision, we first note that petitioners have been adjudicated guilty and therefore we need not reach the issue presented to the Andress court which construed similar language in Rule 3.550. The above provision requires the defendants to make a showing of good cause and calls upon the trial court to exercise its sound discretion. The only remaining issue is the standard to be applied in this process.

Adjudication requires Rule 3.590(d) to be read in tandem with Rule 3.691(a). Thus when an adjudicated defendant seeks review of his conviction with a motion for new trial, Rule 3.691(a) supplies the standard for bond review. It states in part:

All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Youn-ghans v. State, 90 So.2d 308 (Fla.1956)

Younghans, of course, deals with the appropriate considerations for review of a motion for bond pending appeal. Its general principles, however, have equal application to a motion for release on bond pending the disposition of a motion for new trial. Younghans’ four criteria should be considered together with a determination of whether the motion for new trial is filed “in good faith, on grounds not frivolous but fairly debatable . . . .” Younghans v. State, supra at 310.

Whether or when a trial court pronounces adjudication of guilt is a matter within its sound discretion. We recognize it may be common practice to adjudicate defendants upon receipt of the jury’s verdict and so our action today is simply a clarification and restatement of the appropriate standard for post adjudication bond.

Petitioners/defendants’ motions for bond pending disposition of the motions for new trial are now pending in the trial court. We therefore stay issuance of the writ, but direct the trial court to conduct a bond hearing forthwith.

It is so ordered.

ANSTEAD, J., concurs.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting.

I respectfully dissent. In the interest of expediting the majority’s decision and avoiding rendering it moot in these consolidated cases, I will refrain from a lengthy discussion. Suffice to say, the decision reached by the majority establishes a procedure which is not contained in the statutes or rules of procedure.

Fla.R.Crim.P. 3.691(a) requires a person adjudicated guilty of a felony to establish that his appeal is taken in good faith, on grounds fairly debatable, and not frivolous before post-trial release may be sought. The majority would apparently apply these same standards to a motion for a new trial pending after adjudication of guilt.

Fla.R.Crim.P. 3.550 and 3.590(d) deal with persons found guilty but prior to adjudication of guilt. Rule 3.691 is concerned with persons who have been adjudicated guilty and requires the filing of a notice of appeal prior to being eligible for post-trial release. Fla.R.App.P. 9.140(e)(1) allows the lower court to entertain a motion for post-trial release before or after the notice of appeal is filed; however, a defendant may not be released from custody until the notice is filed. As noted in the “committee notes” to Rule 9.140(e)(4), our jurisdiction to review trial court orders on post-trial release of adjudicated defendants is not vested until the filing of a notice of appeal. By entertaining the instant petitions for habeas corpus, the majority is allowing these petitioners to circumvent that provision.

In my opinion, the “Author’s Comment” to Fla.R.Crim.P. 3.590 as contained in Florida Statutes Annotated is aptly put. The adjudicated defendant should determine, as a matter of strategy, whether to seek quick disposition of his motion for new trial in order to remain free on bail. Otherwise, he must accept the fact that he was adjudicated guilty and is not eligible for post-trial release until his notice of appeal is filed. In fact, this is precisely the reason Section (b) of the Rule provides for dictating the motion into the record and obtaining a ruling immediately upon a finding of guilt.

      . Powers v. Schwartz, 357 So.2d 764 (Fla. 3d DCA 1978).

      . Kelly v. State, 362 So.2d 945 (Fla.1978); McKenzie v. State, 355 So.2d 434 (Fla. 4th DCA 1977).

      . Pittman v. State, 370 So.2d 1207, 1208 (Fla. 1st DCA 1979).