author: GUIDRY, Judge.

text:
    Jimmy HARPER, Plaintiff-Appellant, v. BROWN AND ROOT, INC. et al., Defendants-Appellees.
    No. 7544.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    Rehearing Denied May 29, 1980.

      Kramer & Laird, James M. Buck, Alexandria, for plaintiff-appellant-appellee.
    Trimble, Randow, Smith & Wilson, Lon P. Wilson, Alexandria, for defendant-appel-lee-appellant.
    Gist, Methvin, Hughes & Munsterman, John W. Munsterman, Provosty, Sadler & deLaunay, Albin A. Provosty, II, Alexandria, for defendants-appellees.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   GUIDRY, Judge.

In this suit plaintiff-appellant, Jimmy Harper, seeks to recover judgment for the value of certain tools owned by him which mysteriously disappeared from a job site on which he was working. Brown & Root, Inc., (Brown & Root), Central Louisiana Electric Company, Inc., (CLECO), Burns Electronic Security Services, Inc., and Burns International Security Service, Inc., (both hereafter Burns), are named as defendants. Essentially, plaintiff, in his pleadings, seeks recovery from defendants urging that a contractual relationship of depositor-depositary existed between plaintiff and defendants and that his loss occurred as a result of defendants’ breach of this contract.

Defendants in their answers denied any responsibility for plaintiff’s loss. CLECO, by way of a third party demand sought indemnity over against Brown & Root and Burns as well as court costs, reasonable attorney’s fees and any other expenses incurred by CLECO in the defense of the main demand, its demand for indemnity etc. against Brown & Root and Burns being founded in contract.

The trial court, after trial on the merits, dismissed plaintiff’s suit at his costs but granted judgment in favor of CLECO on its third party demand against Brown & Root, Inc., awarding CLECO attorney’s fees of $1000.00. Plaintiff appealed. Brown & Root appealed from only that portion of the judgment awarding CLECO attorney’s fees. CLECO answered the appeal filed by Brown & Root seeking an increase in the amount awarded as attorney’s fees so as to compensate it for services to be rendered by their attorney on appeal.

The principal issue for determination on this appeal concerns whether or not a depositor-depositary relationship existed between plaintiff and all or any one of the defendants, with the latters’ consequent legal obligation to safeguard plaintiff’s property. The record reflects no genuine dispute with regard to the attendant facts.

Brown & Root contracted with CLECO for the construction of a power plant in Rapides Parish, Louisiana, known as the “Rodemacher Power Plant”. Burns contracted with CLECO to provide security at the construction site. The construction site was completely fenced except as to the boundary thereof which fronted on a lake. Access to and from the construction site was through gates monitored by security personnel. An area very near the entrance gate was provided for the parking of the personal vehicles of the persons working at the construction site. No personal vehicles were allowed inside the area of the construction site and persons working therein were not allowed to take any object out of the area without first receiving a clearance permit from a person in authority with Brown & Root. Surveillance over the construction site was maintained by at least one guard on a twenty-four hour basis, seven days a week.

Plaintiff was hired by Brown & Root as a mechanic to repair and maintain machinery and like equipment used by Brown & Root on the Rodemaeher job. As a necessary condition of his employment plaintiff was required to furnish his own tools. Employees furnishing their own tools were allowed to take them from the construction site at the end of each work day and/or on weekends however, a clearance permit was required. Likewise, such employees were permitted to leave their tools within the enclosed area of the construction site after' work was completed each day and over the weekends when no work was performed. For those employees who desired to leave their tools within the construction site there were “gang boxes” and sheds available for the storage of such tools however, the space was somewhat limited.

Plaintiff was assigned to work in a five man crew composed of Mr. Bigger, the mechanics foreman, two mechanics, a Mr. Davis and plaintiff, and two mechanics helpers. During the work day the mechanics, their helpers, and the tools were transported to areas within the construction site where work was to be performed by means of a flat-bed truck. At the end of each work day none of the mechanics removed their tools from the construction site nor were these tools placed in a “gang box” or shed. Rather, the mechanics’ tools were left on the bed of the truck and this vehicle was parked within the construction site some thirty to fifty yards from the guard shack. On the morning of August 1,1978, a Monday, plaintiff reported for work and discovered that all of his tools, contained in two locked boxes which together weighed approximately 175 pounds, were missing. The tools belonging to Mr. Bigger and Mr. Davis were untouched. Plaintiff made demand upon Brown & Root for a return of his tools or their value. Brown & Root disclaimed any responsibility for the loss and this suit followed.

On the basis of the above facts plaintiff asserts that there was a deposit relationship existing- between plaintiff and defendant, Brown & Root, as regards plaintiff’s tools; Brown & Root received an economic advantage from the deposit relationship and must be considered a compensated depositary; having failed to exonerate itself from fault Brown & Root should be cast in judgment for the value of plaintiff’s tools; and, the trial court erred in holding otherwise.

In Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La. 1973) our Supreme Court discussed the legal principles applicable to the contract of deposit and there stated:

“Civil Code Article 2926 provides: ‘A deposit, in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind.’ The deposit is essentially gratuitous, although compensation may be given. Article -2929. Our jurisprudence treats a compensated depositary as one against whom the obligation of preserving the property is under Article 2938 rigorously enforced. United States Fidelity & Guaranty Co. v. Dixie Parking Service, 262 La. 45, 262 So.2d 365 (1972). See Notes, 25 Tul.L.Rev. 268 (1951) and 12 Tul.L.Rev. 458 (1938).
The deposit is perfected by the delivery of the thing deposited. Article 2930. The voluntary deposit takes place by the mutual consent of the depositor and the depositary. Article 2932. ‘Consent is implied when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it.’ Article 2933.
The depositary must use the same diligence in preserving the property that he uses for his own. Article 2937. He is not answerable for the accidental loss or for deterioration not effected by his act. Articles 2939, 2945. However, once the existence of the deposit is established and loss of or damage to the property while deposited, a presumption is raised that the loss resulted from lack of due care on the depositary’s part, and the burden is then on the depositary to exonerate himself from fault. Brown & Blackwood v. Ricou-Brewster Building Co., 239 La. 1037, 121 So.2d 70 (1970); Alex W. Rothschild & Co. v. Lynch, 157 La. 849, 103 So. 188 (1925). (As earlier noted, the obligations of safekeeping are more rigorously enforced against a compensated depositary).
For a deposit, the delivery is made ■when the owner has carried or sent the thing to the depositary, and the latter knowing that the thing had been sent, has not refused to receive it.’ Article 2933. . . .
However, for the delivery of the object to another to constitute a deposit, there must also be mutual intent, expressed or implied, Articles 2932, 2933, that by the act of accepting it the person who receives it has bound himself to safeguard it. Article 2926. See United States F. & G. Co. v. Dixie Parking Serv. Inc., 262 La. 45, 262 So.2d 365 (1972).”

Considering the facts and circumstances of this case in light of these settled principles we determine that the trial court correctly concluded that no deposit relationship existed between plaintiff and Brown & Root. The very basic essentials for the formation of a contract of deposit, i. e., delivery and receipt, are lacking. There was clearly no delivery by plaintiff of his tools into the custody, control, or care of Brown & Root. Although plaintiff’s tools were taken onto the construction site as a necessary condition of his employment these movable items remained constantly in his possession and subject to his sole control. Plaintiff was free to take his tools with him whenever he left the construction site or he was free to leave them at the site in a “gang box”, shed or at whatever location he chose within the site. It can hardly be said that because Brown & Root provided “gang boxes”, sheds for storage, and 24 hour surveillance it thereby impliedly agreed to receive delivery of the personal effects of their employees which the latter chose to leave within the site with the consequent duty of safeguarding same.

The sole issue remaining concerns correctness of the trial court judgment against Brown & Root awarding attorney’s fees to CLECO and whether the fees so awarded should be increased for services rendered on appeal.

The contract between CLECO and Brown & Root provides in pertinent part as follows:

“21. INDEMNITY BY CONTRACTOR AND LIABILITY INSURANCE:
Contractor shall defend and indemnify and save Purchaser and the Consulting Engineers harmless from any and all claims, losses, damages, costs and expenses, including attorney’s fees, arising or alleged to arise from personal injuries, including death, or damage to property, including the loss of use thereof, and resulting from, arising out of or in connection with the WORK or alleged to result from or arise out of or in connection with the WORK, including, without limitation, all liability imposed by virtue of any law designed to protect persons employed at the WORK site.”

Brown. & Root argues that since the quoted indemnity provision does not purport to indemnify CLECO against losses resulting from its own negligence and since CLECO was made a party to this suit based on its own alleged negligence it was error to award CLECO a judgment for attorney’s fees. We cannot agree.

We concede that absent an express provision indemnifying an indemnitee against losses resulting from his own negligence indemnification will not .be allowed if the cause of injury or loss sustained is shown to result from the indemnitee’s own negligent act of commission or omission. Polozola v. Garlock, Inc., 343 So.2d 1000 (La. 1977). We likewise concede that the contract of indemnity in this case did not- contain a provision indemnifying CLECO against losses resulting through its own negligent acts. However, even assuming arguendo that the allegations of plaintiff’s petition indicate that CLECO was joined as a party defendant solely on the basis of it's own alleged negligence this circumstance does not deprive CLECO of its contractual right of indemnity if it is otherwise shown to be entitled thereto. In matters of indemnity the allegations of a claimant’s pleadings, as to the cause of injury, are not determinative of an indemnitee’s right to indemnification. Rather, whether or not indemnification should be allowed can be determined only after liability is fixed.

In the instant case, after the matter was fully tried on its merits, plaintiff conceded that his claim against CLECO was without merit and should be dismissed. On appeal plaintiff-appellant has specified no error in the trial court’s dismissal of his claim against CLECO. This fact, i. e., the dismissal of plaintiff’s claim against CLECO, not the allegations of plaintiff’s pleadings, is determinative of CLECO’s rights under the contract of indemnity.

The indemnification clause in the contract between CLECO and Brown & Root is clear and unequivocal. The latter agreed to indemnify the former from any and all claims, losses, damages, costs and expenses, including attorney’s fees, arising or alleged to arise from damage to property, and resulting from, arising out of or in connection with the work. This is such a claim and CLECO is clearly entitled to recover the attorney’s fees expended by it in defense thereof. We likewise find merit in CLECO’s answer to the appeal wherein it requests an increase in the amount awarded so as to compensate for the services rendered by their attorney on appeal. In this regard we consider an additional award in the amount of $500.00 to be adequate.

For the above and foregoing reasons the judgment appealed from is amended so as to increase the amount of attorney’s fees which Brown & Root is condemned to pay to CLECO to the sum of $1500.00 and in all other respects the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff does not specify any error in the trial court’s dismissal of his action as against CLE-CO and Burns and in fact conceded at the trial level that his suit against these parties should be dismissed.


source: Caselaw Access Project

author: COFER, Justice,

license: Public Domain

text:
    Robert Donald FLITER v. Doris Jean FLITER.
    No. 51813.
    Supreme Court of Mississippi.
    May 14, 1980.
    Joffe & LeSieur, Scherry J. LeSieur, Biloxi, for appellant.
    Breland & Barnett, Norman L. Breland, Gulfport, for appellee.
    Before SMITH, P. J., BROOM and COF-ER, JJ.
   COFER, Justice,

for the Court:

This case is here on appeal from the Chancery Court of the Second Judicial District of Harrison County. Robert Donald Fliter has taken the appeal, and Doris Jean Fliter, his former wife and the mother of their son, is the appellee. It results from an unsuccessful attack by appellant on the propriety of appellee’s combining in one action her suit for divorce against appellant and a suit for child support under Chapter 453, Laws of Mississippi (1978), effective July 1, 1978, and now appearing as Mississippi Code Annotated, section 93-11-67 (Supp.1979). The statute reads as follows:

(1) In an action for child support, a court may exercise personal jurisdiction over and enter a judgment in personam against a defendant if personal service of process is made as provided below and if the parties had resided in a marital relationship with each other in this state for thirty (30) days and if the complainant has continuously resided in this state after the defendant has become a nonresident.
(2) The defendant shall be personally served with a summons and a copy of the petition in the manner prescribed by the law of the state in which service is made or by any form of mail addressed to the defendant with a receipt showing personal delivery or by personal service outside this state in the manner prescribed for service within this state.
(3) Proof of service outside this state may be by affidavit of the individual who made service or in the manner prescribed by the law of this state or in the manner prescribed by the law of the state in which service is made. If service is by mail, proof may be a receipt signed by the defendant or other evidence of personal delivery to the defendant.

The parties were married at Biloxi on September 30, 1975, and were separated in March 1977 at Biloxi. Appellant is a nonresident of the state, having left the state in October 1977, and having at all times since remained absent from this state.

The parties undertook to stipulate facts which would bring the case into proper focus and perspective for this decision. This stipulation is as follows.

1. That complainant and defendant were married on September 30, 1975, in Biloxi, Mississippi, and separated in March of 1977.

2. That the defendant left Biloxi, Mississippi, and removed himself from the jurisdiction of the State of Mississippi in October of 1977, and that he remained absent from this jurisdiction willfully, continually, obstinately for a period of one year as of October 31, 1978, and continued to remain absent in the same manner since that time up and until this date, and continues to remain so absent from the jurisdiction.

3. That he has made a special appearance in this cause by and through his counsel as aforesaid to contest the jurisdiction of the Decree rendered by this Court on March 21, 1979, pursuant to Section 93-11-67, Mississippi Code of 1972, Annotated.

4. That the defendant has contributed the sum of $100 per month to the complainant since he has been absent from the jurisdiction of the Court, the same being paid from Denver, Colorado, from his retirement pay, and additional sums since October 1977, through April 10, 1979, for a total of $2,200.

5. That the defendant is 43 years of age and the complainant is 46 years of age; that they have one child born of their marital union, Donald Keith Fliter, who is 14 years of age and who resides with the complainant in Biloxi, Mississippi.

6. That the last day of the March Term of the Chancery Court of the Second Judicial District of Harrison County, Mississippi, was Friday, April 6, 1979, and that the complainant’s attorney received a copy of the Motion to Set Aside Final Decree of Divorce on April 5,1979, and that the Chancellor signed an order setting the case over to a vacation time hearing pursuant to motion filed by the Defendant’s attorneys in the absence of the complainant’s attorneys.

7. That Honorable Jason Floyd, Jr., the presiding Chancery Court Judge, who signed the Final Decree of Divorce at issue, was associated with the law firm of Breland and Barnett prior to taking the bench, and that because Judge Floyd was involved in representing the complainant prior to assuming his duties as chancellor, Judge Floyd recused himself from the case when it became apparent that the Court’s jurisdiction in the instant divorce action was to be contested.

8. That the defendant, Robert Donald Fliter, received notice of publication which was instituted on December 1, 1978, but no return receipt was requested by the Clerk of the Court.

9. That a summons was issued returnable by certified mail, return receipt requested, the return being dated January 6, 1979.

10. That subsequent to that, complainant’s attorneys requested that the complaint and the summons be mailed by certified mail, return receipt requested, to the defendant Robert Donald Fliter, and that the same was acknowledged and signed for on January 16, 1979, by Robert Donald Fli-ter, and that his signature as appears thereon, copies of said return receipt being made a part hereof, are authentic and genuine and are, in fact, the signature of the defendant who had not only notice of the complaint, but who had a copy of the complaint from January 16, 1979, until the decree was rendered, and that he had a copy of the summons for said time, and that he further had a copy of the summons from January 6, 1979.

11. That the defendant did nothing toward defending said summons and complaint and remained absent from the jurisdiction.

12. That the complainant and defendant resided in a marital relationship for at least 30 ' days next preceding their, separation which took place in March of 1977, and that the defendant remained in Harrison County, Mississippi, until on or about October of 1977, at which time he left the State of Mississippi and took up residence in California.

13. That the defendant has been represented by opposing counsel, Carl Joffe and Scherry LeSieur since January 16,1979, and that they have represented the said defendant since that time up, until, and during the present time.

14. That the testimony of Mrs. Fliter was. to the effect that the defendant was able-bodied and gainfully employed with a United States Air Force retirement of at least $460 per month, and that such facts are hereby stipulated.

From the stipulation it is apparent that, after the suit was filed, process was served on appellant in one of the manners provided in Section 93-11-67, quoted above, and that, without appearing to make defense against the suit, appellant suffered a decree to be entered awarding to his wife a divorce and the custody of their child and a monthly award for the support of the child. The decree was entered March 21, 1979, and, on April 5, 1979, a date within the same term, he made a special appearance and filed his motion to set aside the portions of the decree which act upon him in a personal manner, which, he alleged, was undertaken pursuant to the statute here under attack. In the motion, he asserted that the statute is a part of the Uniform Reciprocal Enforcement of Support statutes, a fact, he contends, is evidenced by its codification as a part of that statute, and the legislative intent was to “provide a method by which a complainant could enforce the payment of past due support payments, which were formerly not recoverable under the reciprocal enforcement of support laws, and not to Create a means of conferring original in personam jurisdiction upon the court to order such support.”

The chancery court, with the above stipulation before it, overruled the motion, stating, in a well-reasoned opinion, that the relief afforded by the statute might be sought and awarded in an action, such as here, where divorce is also involved; that such conclusion is in keeping with equity’s desire to do complete justice and is well within the public policy of the state.

Appellant assigns only one error for reversal:

The chancellor erred in applying the statute to an original divorce action, and by such misapplication in exercising in personam jurisdiction over the nonresident appellant, in ordering appellant to pay $400 per month as child support.
The award of divorce is not before us.

In argument and in his brief, he makes attack also upon the jurisdiction in this particular case, which will hereinafter be noted.

Appellant’s chief argument in support of his position is that the statute is a part, or an enlargement of our “reciprocal support” statutes, Section 93-11-1, et seq., and draws support, he believes, from the fact that it has become codified as a part of that statute. (Actually, the last section of the chapter.) We are not persuaded.

Appellant’s main attack is the fact that appellee combined in her bill of complaint prayers for divorce, custody of the child, and support of the child. He insists that the last item of relief, child support, must be the sole prayer. He would in essence, read the words “in an action for child support,” as meaning “in an action for child support alone” or “in an action for child support only,” or “in an action wherein child support is the only relief sought.” We do not believe that we are thus to amend the statute. The child support sought and decreed in the suit is very closely akin to the prayer for divorce, and, where both are desired, are most properly combined in one áction, affording an opportunity to do complete justice between the parties.

We see no insurmountable obstacles in the fact that as to divorce the proceeding is in rem, while that part of it having to do with child support, has, under the present statute, become in personam.

This Court has said in dealing with section 13-3-63 (nonresident motorist process statute) that:

The basic purposes of the act are to provide a remedy for citizens of this state against nonresidents who operate automobiles within the state, and to afford a nonresident adequate notice of a pending suit with reasonable opportunity to defend the action. Nationwide Mutual Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (1964).

Ellis v. Milner, 194 So.2d 232, 235 (Miss.1967).

In 1975, the Supreme Court of Texas, in Mitchim v. Mitchim, 518 S.W.2d 362 (1975), had before it the issue of whether the Arizona court had jurisdiction to award a decree for alimony against Mitchim. In its decision, it said, and in doing so, quoted with approval from Mizner v. Mizner, 84 Nev. 268, 439 P.2d 679 (1968), as follows:

In recent years a number of states have adopted long-arm statutes with specific language making them applicable to cases growing out of domestic difficulties. These statutes are given their intended effect, (citations omitted). In other states long-arm statutes containing only general language have been held to confer personal jurisdiction over nonresident defendants in divorce actions. .
The Supreme Court of the United States has not held that a long-arm statute is constitutionally incapable of' conferring personal jurisdiction in cases involving child custody or alimony. We agree with the Supreme Court of Nevada, which reasoned in Mizner as follows:
Still, it seems to us that the minimum contacts concept of in person-am jurisdiction is peculiarly suited to matrimonial support cases. If such contacts are in fact present in the particular case before the court, then the extension of in personam jurisdiction beyond the borders of the forum state may prove to be a sensible step in solving some of the hardships arising from family separation. Courts must know by this time that strict application of the Pennoyer rule to family support cases has encouraged migratory divorce by offering a shield to a spouse wishing to avoid financial responsibility. The state of the matrimonial domicile has a deep interest in its citizens and a legitimate purpose in taking steps to preclude their impoverishment. Accordingly, it is our opinion that in personam jurisdiction may be acquired over a non-resident defendant in a divorce action by extraterri-. torial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exist sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy “traditional notions of fair play and substantial justice.” (518 S.W.2d at 365, 366).

We agree with this logic, and, examining the record now before us, we conclude that the “traditional notions of fair play and substantial justice” requirement is met in appellant’s minimum contacts with Mississippi. He married appellee under the laws of Mississippi, in Mississippi, which is their matrimonial domicile; they lived together for some period somewhere and they separated from each other in Mississippi; he abandoned her in Mississippi; when he left the state, he left her and their son in Mississippi; he sent support money for the child to appellee in Mississippi; this State had and has a deep interest in the marriage, separation, divorce and support of its citizens, including their children; he left his wife, and their child, a potential heir of his, in Mississippi and these being true, he left an important matter of unfinished business in Mississippi, the care, support and wellbe-ing of appellee and of their child.

The extension of the in personam jurisdiction of non-resident parties to support of children, in the general class of cases to which this belongs, is viewed as much needed and none too early.

We find no merit in this assignment.

Appellant has said, however, that requisite jurisdiction is not reflected in this case. He asserts that the bill of complaint does not allege (1) that the parties had resided in a marital relation with each other in this state thirty days, and (2) that complainant, the appellee, has continuously resided in this state after' defendant, the appellant, became a non-resident.

The statute gives the jurisdiction where, among other necessary things, the parties had resided in a marital relationship with each other in this state for thirty days, and “if the complainant has continuously resided in this state after the defendant has become a nonresident” (Emphasis added). These prerequisites to availability of the right to in personam procedure are missing from the bill of complaint, are jurisdictional and without them no cause of action for child support relief is stated. Being absent, they are not supplied by the stipulation, if they may be, and we have the right and duty to notice them even if not made a ground of demurrer or other available pleading. Horton v. Horton, 213 Miss. 768, 57 So.2d 723 (1952).

This Court has held that long-arm statutes are to be strictly construed, being in derogation of the common law, and their provisions must be followed. State Farm Mutual Automobile Ins. Co. v. Stewart, 209 So.2d 438, 440 (Miss.1968); Nationwide Mutual Ins. Co. v. Tillman, 249 Miss. 141, 161 So.2d 604 (1964); Rice v. McMullen, 207 Miss. 706, 43 So.2d 195 (1949).

It is concluded that the in personam decree of child support is not supported by the pleading, and must be set aside.

Accordingly, the cause is reversed, as to the in personam decree and it is set aside, and the cause is remanded for any desired proceedings, not inconsistent herewith.

REVERSED, IN PERSONAM DECREE SET ASIDE, AND CAUSE REMANDED.

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

      . We note that section 93-11-65 is also codified in that Chapter and is basically different from the “reciprocal act” in the use of it, for the relief it provides and affords an approach to child custody and support akin to the provisions of the statutes on divorce and alimony, section 93-5-1, et seq. We find of passing interest that section 93-11-65 was codified in Mississippi Code 1942 Annotated, as section 1263.5 under “Chancery Courts” although the reciprocal support statute had been adopted in 1954 and appeared in the Mississippi Code of 1942 Annotated as section 456.01, et seq.
      Section 93-13-1 to 93-13-187, inclusive, provide for guardians and their manner of appointment, duties, and termination. Beginning with section 93-13-211, are sections outlining the manner of achieving certain ends without compliance with the guardianship sections 93-13-1 to 93-13-187, inclusive.
      Sections 93-5-23, 93-11-1, 93-11-65 and 93-11-67 are all means to a common end, the maintenance of children, and are all equally available in factual situations for which they are tailored. (Emphasis added).


author: PATTERSON, Chief Justice,

text:
    Shelby T. WILSON, Executor of the Estate of Shelby C. Wilson, Deceased v. PLANTERS BANK OF TUNICA, Mississippi.
    No. 51865.
    Supreme Court of Mississippi.
    May 14, 1980.
    Semmes Luckett, Leon L. Porter, Jr., Clarksdale, for appellant.
    Tucker & Tucker, Jack N. Tucker, Tuni-ca, for appellee.
    Before PATTERSON, C. J., ROBERTSON, P. J., and SUGG, J.
   PATTERSON, Chief Justice,

for the Court:

This case arose in the Chancery Court of Tunica County when the executor of the estate of Shelby C. Wilson contested the $125,000 claim of the Planters Bank of Tu-nica (the bank) against the estate. From a-decree allowing the claim, the executor, appeals, arguing that the accommodation endorsement of Shelby C. Wilson on his son’s negotiable instrument cannot be enforced because of equitable defenses and because no consideration was received for it.

On January 16, 1975, Tombo Wilson acquiesced in the bank’s request that he renew and consolidate his two outstanding notes in a single $125,000 demand instrument. The witnesses disagreed as to whether he consented with the bank’s suggestion that his father, Shelby C. Wilson, sign as an accommodation endorser. However, the evidence shows Shelby C. Wilson expected the visit of H. D. Holmes, the bank’s president, on the afternoon of January 16, saying when Holmes arrived, “I understand you have something for me to sign.” Shelby signed the note “payment guaranteed,” and Holmes left. On January 30, 1975, Shelby died.

There is no question but that Shelby C. Wilson was aged and suffered a distressing array of physical maladies on January 16 when he endorsed this substantial obligation to accommodate his son. The record convinces us of this much, but it also confirms that the chancellor had solid footing in the facts when he wrote the following in his opinion:

Mr. Wilson was in bad health and his vision was very poor, but he clearly was competent. It is my opinion that he knew and understood what he was signing and that he is chargeable therewith. Mr. Wilson was experienced in business and legal matters, and was able to understand the effect of his endorsement and guaranty of his son’s note. During the period before and after signing this note he continued to serve on the County Board of Supervisors and he carried on substantial business transactions. There is no indication of fraud, duress, or misleading by the Bank. .

We think the complete medical details of Shelby’s physical condition before his demise would be unenlightening. It is enough to say the chancellor’s findings supporting his rejection of the executor’s equitable defenses advanced through Mississippi Code Annotated section 75-1-103 (1972) contain no manifest error and therefore must be affirmed. E. g., O. J. Stanton & Co., Inc. v. Mississippi State Highway Comm., 370 So.2d 909 (Miss.1979).

The appellant next contends that Shelby received no consideration for lending his name to the instrument of his son and because of this the estate is relieved of any obligation in payment. Mississippi Code Annotated section 75-3-408 (1972) states in part:

Want or failure of consideration is a defense as against any person not having the rights of a holder in due course (Section 3-305) [§ 75-3-305], except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind. ■ .

We think the proviso of the “except” clause of the statute controls. “Antecedent obligation of any kind,” in our opinion, includes Tombo’s obligation. The familiar expression, “past consideration is no consideration,” has no place in this area of commercial law. Though prior in time, the consideration supporting the original obligation, in this case, the proceeds Tombo received in exchange for his two notes prior to consolidation, supported not only his consolidation and renewal in the $125,000 note, but Shelby’s accommodation endorsement as well. While the statute indicates “no consideration is necessary” because there is obviously none in this situation in the technical sense, the aim is simply to expand temporally in the interest of commerce the principle that consideration need not flow to the promis-sor; it may flow to another and may flow before the promise is made on the instrument. This sequence is the hallmark of an accommodation party to a negotiable instrument. As UCC § 3 — 108, Official Comment 2 states:

The “except” clause is intended to remove the difficulties which have arisen where a note or draft, or an indorsement of either, is given as payment or as security for a debt already owed by the party giving it, or by a third person. The provision is intended to change the result of decisions holding that where no extension of time or other concession is given by the creditor the new obligation fails for lack of legal consideration [emphasis supplied].

The courts have widely adopted the statutory construction suggested by this language despite the argument that lack of consideration renders unenforceable the contract of an accommodation party to a negotiable instrument. E. g., Blake v. Coates, 292 Ala. 351, 294 So.2d 433 (1974); Musulin v. Woodtek, 260 Or. 576, 491 P.2d 1173 (1971); Castle v. Bagley, 24 Utah 2d 136, 467 P.2d 408 (1970); General Tire v. Solomon, 124 Ga.App. 308, 183 S.E.2d 573 (1971). Capital City Bank v. Baker, 59 Tenn.App. 477, 442 S.W.2d 259 (1969), marks a rare exception which we note critically, thinking it contrary to the plain meaning of the statute.

The executor relies upon First American National Bank of Iuka v. Alcorn, Inc., 361 So.2d 481 (Miss.1978), in support of his argument that consideration in the ordinary contractual sense is necessary to support the undertaking of an accommodation party to a negotiable instrument. We acknowledge that the advent of the Uniform Commercial Code in this state antedated our decision in Iuka, but our review of the Iuka briefs reveals that none of the many parties in the multifarious issues of that appeal cited Mississippi Code Annotated section 75-3 — 408 (1972). Indeed, we think it would have been inapposite had it been cited, because Iuka involved a separate contract of guaranty embracing even future advances to a third person. The aspect of the case to which the executor calls our attention did not concern liability arising from the surety’s signature on a negotiable instrument.

At any rate, in First National Bank of Jackson v. Carver, 375 So.2d 1198 (Miss.1979), we made clear our position that section 75-3-408 displaced prior decisional law on the subject of consideration in a negotiable instrument setting.

AFFIRMED.

SMITH and ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Sidney Anthony JONES, Appellant, v. STATE of Florida, Appellee.
    No. PP-16.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1980.
    Rehearing Denied May 1, and May 28, 1980.
    Michael J. Minerva, Public Defender, Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Doris E. Jenkins, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having reviewed the record and considered the briefs in this cause, we find no error in Points I through III. Appellant argues and the state concedes that the sentence entered violates the terms of the plea arrangement.

Accordingly, the judgment is affirmed and the case remanded for correction of the sentence.

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

ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

Appellant contends that this court overlooked or misapprehended the conflict between this case and Brannen v. State, 94 Fla. 656, 114 So. 429 (1927), as well as the conflict between Brannen, supra, and State v. Carter, 364 So.2d 1249 (Fla. 4th DCA 1978), cert. granted, Case No. 56,084 (Fla. 1979).

Under Brannen, supra, a person who testifies falsely may purge himself of perjury if he recants and testifies truthfully before the case is submitted to the jury. This is the minority position and is based on the belief that the inducement to tell the truth would be destroyed if a witness could not correct his own false statements without being subjected to the risks of a perjury charge and conviction. Although Brannen does not specifically require that the recantation be voluntary — done without knowledge that the perjury has been uncovered and the truth known — the requirement is implicit in the rationale underlying the decision. If the recantation is not voluntary, it would be of little use in discovering the truth, since the truth is already known or known to be available through other sources. See Sherman v. State, 184 So.2d 843 (Fla. 1938) wherein the Supreme Court affirmed the perjury conviction noting that the recantation was not voluntary but came only after the truth had been discovered.

Jones did not acknowledge his false testimony and did not decide to recant until he was confronted by the defense attorneys during a court recess. His attempted recantation was motivated more by the fear of a perjury charge than by any concern with having the truth known.

Clearly, under Brannen, supra and Sherman, supra every recantation does not cure the perjury and the circumstances of Jones’ offer to recant were not such that it was error to deny the recantation.

Appellant also asks us to reconsider our decision on Point III, urging that we have failed to appreciate the effect of Hall v. State, 136 Fla. 644, 187 So. 392 (1939) which establishes coercion as a valid defense of perjury. Not so. Nor have we failed to recognize the holdings of State v. Lyles, 316 So.2d 277 (Fla. 1975), and Andrews v. State, 343 So.2d 844 (Fla. 1st DCA 1976).

We have reviewed the record in light of these cases and find the inquiry conducted by the judge sufficient to show that the plea was voluntarily entered.

The motion for rehearing is denied.

MILLS, C. J., and McCORD and BOOTH, JJ.,-concur.


author: PER CURIAM. BOOTH, Judge, BOOTH, Judge,

text:
    BEC CONSTRUCTION CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Luis GONZALEZ (Deceased) and Eufelia Gonzalez, Appellees.
    No. QQ-222.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1980.
    On Rehearing April 17, 1980.
    On Motion For Clarification On Rehearing June 5, 1980.

      Summers A. Warden, Coral Gables, for appellants.
    George F. Taylor, Jr., of Spencer & Taylor, Miami, for appellees.
   PER CURIAM.

The employer/carrier seek review of an order of the judge of industrial claims wherein attorney’s fees were granted based upon obtaining payment of a hospital bill. Eufelia Gonzalez cross-appeals contending the judge of industrial claims erred in finding she was not entitled to dependency benefits. Because of the jurisdictional question involved, we do not reach the merits of this appeal.

Luis Gonzalez died on July 12, 1975, as a result of an industrial accident. A claim for benefits, in his name, was filed July 15, 1975. An amended claim, requesting additional benefits and a notice of death was filed July 25, 1975; the estate of Luis Gonzalez was never substituted as a party on the claim. Although no claim was actually filed in her name Eufelia Gonzalez claims dependency benefits.

Death of a client terminates the relationship that exists between an attorney and his client and the attorney’s authority to act by virtue thereof is extinguished . . Accordingly, unless there has been a substitution of parties, e. g., a personal representative appointed for the estate of the deceased, a claim for benefits on behalf of a client who is dead is a nullity.

Autry v. J. M. Booth Trucking Co., 6 FCR 163, 165 (1967). No proper claim ever having been filed in this cause, the judge of industrial claims had no jurisdiction and this court has none. Lancaster v. General Development Corp., IRC Order 2-3115 (1977); Curl v. City Economy Cab Co., 4 FCR 288 (1960).

Although the parties below stipulated that Eufelia Gonzalez could receive any benefit to which Luis Gonzalez would have been entitled, this stipulation had no effect. Subject matter jurisdiction cannot be conferred by agreement of the parties. Wilds v. Permenter, 228 So.2d 408 (Fla. 4th DCA 1969).

We, therefore, dismiss this appeal without prejudice and remand for dismissal of the claim without prejudice.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.

ON PETITION FOR REHEARING GRANTED

Appellee/cross-appellant Eufelia Gonzalez filed a motion for rehearing contending that we overlooked her having filed a claim as a claimant for dependency benefits. She calls attention to a letter contained in the record dated January 16, 1976, from her attorney to the Judge of Industrial Claims captioned “Amended Claim.” In- the letter, her attorney requested that the claim be amended to include two other persons as'1 dependents of the decedent Luis Gonzalez and states:

“The claimants, therefore, are to be Eufe: liá Gonzalez, Decoroso Gonzalez and Er-minda Gonzalez.”

It is questionable whether this letter constitutes a claim by Eufelia Gonzalez (decedent’s older sister) for dependency benefits, but affording her the benefit of the doub.t, we will treat the letter as a claim for such benefits. This, however, does not affect our previous dismissal of the appeal without prejudice insofar as such dismissal relates to matters other than Eufelia’s claim for dependency benefits.

We have reviewed the record and briefs and find there is competent substantial evidence to support the finding of the Judge of Industrial Claims that Eufelia did not stand in the position of a parent to the decedent and was not dependent upon him. Eufelia’s cross-appeal of the order denying dependency benefits to her is, therefore, affirmed.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla.1st DCA 1979).

OPINION ON MOTION FOR CLARIFICATION OF OPINION GRANTING PETITION FOR REHEARING

Upon consideration of appellants’ and ap-pellee’s motions for clarification of our previous opinion on petition for rehearing, we make the following clarification:

The Judge of Industrial Claims correctly denied Eufelia’s claim for dependency benefits. He erred in recognizing a claim for attorney’s fees, however, as Luis Gonzalez was deceased when his former attorney sought payment of the hospital bill and a personal representative was not substituted. The order is affirmed as to its denial of dependency benefits but is reversed in other respects for lack of jurisdiction as pointed out in our original opinion. Pursuant to the directions of our original opinion, the cause is remanded for dismissal of the claim in such other respects without prejudice.

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

BOOTH, J., dissents.


author: PER CURIAM. NESBITT, Judge

text:
    PAN AMERICAN BANK OF MIAMI and Pan American Bancshares, Inc., etc., Appellants, v. Richard OSGOOD, Appellee.
    No. 78-2276.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied June 18, 1980.

      Smathers & Thompson, Shepherd D. Johnston, Miami, for appellants.
    Greene & Cooper, Robyn Greene, Joan M. Bolotin, William Huggett, Miami, for appel-lee.
    Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a final judgment entered on a jury verdict awarding appellee $6,000 in compensatory damages and $25,-000 in punitive damages on a complaint alleging negligent injury to appellee’s credit reputation.

For a convenient reference, the appellant will be referred to as “Bank” and appellee as “Osgood.”

The plethora of points on appeal are more readily disposed of after a recitation of the salient facts which follow:

Osgood became the assignee of a promissory note and a chattel mortgage on a motor home which the Bank had financed on behalf of the original owner. Osgood assumed payment of the monthly installments due on the note. The Bank also held power of attorney which authorized it alone to convey or transfer title.

Approximately seven months later, Osgood drove the motor home to Texas where he found a purchaser. He telephoned the Bank’s loan officer and inquired as to whether the Bank would accept $9,500 as payment for the motor home. The loan officer later, advised him that the Bank would accept the sum of $10,500. That sum was remitted to the Bank, $9,500 from the acquiring purchaser and $1,000 from Osgood. The Bank accepted the payments and transferred title to the acquiring purchaser. Osgood testified that it was his understanding with the loan officer that the remittance of $10,500 was in complete discharge of his obligation to the Bank. The Bank had no further communication with Osgood.

Pursuant to its contract with a credit reporting agency, the Bank assigned this transaction an “1-9” rating-and so reported it. “I” stands for chargé-off and “9” indicates the worst possible credit rating. The “charge-off” indicates that the Bank removed the balance from its list of assets and charged the balance against its loan loss reserve. A “charge-off” occurs when the Bank suffers a loss irrespective of whether the debtor still owes anything. While it is somewhat inconsistent, the Bank also rebated interest under the transaction under the applicable regulations and arrived at a deficiency of approximately $1,700.

Six months after the foregoing transaction, Osgood applied for a loan through another bank in order to finance a new business venture. The loan application was denied due to the poor credit rating he received from the foregoing transaction. The loan officer at that bank indicated he would have denied Osgood’s loan regardless of whether it had been reported as a “charge-off” or a deficiency. This was Osgood’s first knowledge of an unfavorable credit rating.

Osgood returned to the Bank to talk with the loan officer with whom he had formerly discussed the sale. There, he spoke with a new loan officer who told him that it appeared a settlement had been made and there would be no problem in clearing up the matter. The loan officer advised Osgood that he would consult with his superiors and advise him. He later told Osgood the Bank’s attorney advised that the Bank should assume the position that the monies were still owed to it. The successor loan officer disavowed the action of the loan officer with whom Osgood had previously conducted business. Osgood testified that the loan officer advised him that only ten per cent of those who threaten to bring legal action against the Bank do so, and then, only one per cent are successful. After this conversation, he received a letter from the Bank that he had a deficiency balance on the note of $1,729.56, representing a charge-off and unless the matter was settled the Bank would place it in the hands of attorneys for collection.

Osgood, having been unsuccessful in obtaining a loan, invested his own savings into a new business venture which failed for lack of sufficient capital, He then commenced this action against Pan American Bank of Miami and its holding company, Pan American Bancshares, Inc. The holding company was eventually dismissed from the suit with prejudice. The Bank answered the complaint and filed a counter-claim to collect the deficiency claimed on the promissory note to which Osgood interposed affirmative defenses of waiver and settlement. ■ After trial by jury, a verdict in favor of Osgood and against the Bank was returned. Judgment was entered and this appeal ensued.

At trial, the Bank requested that the jury be instructed that a new and independent consideration was necessary in order to satisfy the outstanding balance due on the note and obligation. The trial court properly refused to so instruct the jury. In transactions governed by the Uniform Commercial Code, Section 673.408, Florida Statutes (1977), “no consideration is necessary for an instrument or obligation . . . given in payment . . .for an antecedent obligation of any kind.” Holm v. Woodworth, 271 So.2d 167 (Fla. 4th DCA 1972). See Newbern v. Pan American Bank of Orlando, N. A., 368 So.2d 425 (Fla. 4th DCA 1979).

The Bank contends that Osgood’s cause of action is contained in the common law counts of libel and slander to which it would have the affirmative defense of “good motive.” It further contends that Osgood should not be permitted to characterize his action as negligence in order to avoid the affirmative defense and requirements of a defamation action. A party has the right to choose its remedy and may pursue any theory provided that a cause of action has been stated. Hines v. Trager Construction Co., 188 So.2d 826, 830 (Fla. 1st DCA 1966). See 1 Am.Jur.2d, Actions, §§ 31, 145 (1962); Fla.R.Civ.P. 1.110.

The Bank also contends the trial court erred in denying its motion for directed verdict on the plaintiff’s claim because the evidence did not establish the Bank’s negligence. This argument focuses upon the fact that the Bank was under a contractual’ obligation with the credit bureau to report the credit standing of its customers, which the credit bureau disseminates to other parties to the agreement. The Bank points to the fact that it actually suffered a loss from the deficiency on a promissory note in an amount claimed by its counterclaim and having truthfully and correctly reported it did not breach any duty to Osgood. The fact that actual loss was suffered or that such loss was truthfully and. correctly reported is simply irrelevant in that the obligation between Osgood and the Bank had been extinguished by payment. Osgood set forth a cause of action under the theory that the Bank was negligent in handling his account. He argued that under the circumstances of this case the Bank had the duty to either give notice of the charge-off of his loan, attempt to collect the deficiency balance of the loan from him or notify him of the report sent to the credit bureau. He alleged that the Bank breached that duty and that the breach was a proximate cause of the damages he sustained. The jury was properly charged as to the cause of action for negligence and, after weighing all the evidence presented, found that a duty existed and the Bank’s breach of that duty was the cause of the damages suffered by Osgood.

The Bank further contends that the trial court erred in denying its motion for leave to file an amended answer to the plaintiff’s claim. The Bank wanted to add, by the amendment, the defense of qualified privilege accorded under the Fair Credit Reporting Act, 15 U.S.C., § 1681h(e) (1970). This request, which was presented late in the trial, attempted to inject somewhat complicated issues into the case. The trial court was in the best position to assess the timeliness and possible disruption and prejudice resulting from the injection of a new issue at that state of the proceedings. We will not substitute our judgment for that of the trial court. Whitehall Realty Corporation v. Manufacturers Trust Company, 100 So.2d 617 (Fla.1958); Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978).

Finally, the Bank contends that the evidence was insufficient to warrant an award of punitive damages. We are required to review the evidence adduced in the view most favorable to the prevailing party. In this posture, there was an abundance of evidence to support a punitive damage award. See Fla.Std.Jury Instr. (Civ.) 6.12; Doral Country Club, Inc. v. Lindgren Plumbing Company, 175 So.2d 570 (Fla. 3d DCA 1965) [gross negligence as to indicate the wanton disregard of rights of others;] Lan-Chile Air Lines, Inc. v. Rodriguez, 296 So.2d 498 (Fla. 3d DCA 1974) [reckless indifference to the rights of others].

Although not raised, we note that the judgment appealed from has been entered jointly against the Bank and its holding company, Pan American Bancshares, Inc., which had been dismissed as a party prior to trial. It is fundamental error to enter a judgment against an entity not a party to the action. Board of Public Instruction of Dade County v. Feller, 219 So.2d 737 (Fla. 3d DCA 1969). We therefore delete Pan American Bancshares, Inc. from the judgment appealed from.

We have reviewed the various other contentions which the Bank raises and find them to be without merit.

For the foregoing reasons, the judgment, as modified, is affirmed.

NESBITT, Judge

(dissenting).

I cannot join the majority in sanctioning a negligent defamation. Labeling the plaintiff’s cause of action as “negligence” is contrary to common law and deprives the defendant of its constitutionally protected defense of qualified privilege. The Declaration of Rights of the Florida Constitution of 1968, Article I, Section 4 provides:

Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the parties] shall be acquitted or exonerated.

The defense of qualified privilege is not recognized in an action for negligence. By its nature, that affirmative defense is available only for intentional torts such as defamation. It is the rule in this jurisdiction that the conduct of a defendant committing an intentional tort precludes submitting a plaintiff’s cause of action to the trier of facts on a negligent theory. Williams v. Cotton, 346 So.2d 1039 (Fla. 1st DCA 1977); McDonald v. Ford, 223 So.2d 553 (Fla. 2d DCA 1969). The Declaration of Rights of the Florida Constitution makes this rule uniquely applicable for the intentional tort of defamation.

The false imputation of a poor credit standing is clearly actionable in libel. 20 Fla.Jur. Libel and Slander §§ 30-31. In this case, Pan American, by prearranged plan, submitted Osgood’s credit rating to a credit reporting agency which disseminated it to another member bank which, in turn, denied Osgood a loan based on the report. Since the deficiency balance on Osgood’s account claimed by Pan American had been extinguished, the jury could well have found that Pan American’s action constituted libel per se even oyer the affirmative defense of qualified privilege, Matthews v. Deland State Bank, 334 So.2d 164 (Fla. 1st DCA 1976) and Vinson v. Ford Motor Credit Company, 259 So.2d 768 (Fla. 1st DCA 1972) but Pan American was nevertheless entitled to have that defense submitted to a jury. Consequently, Pan American’s motion for directed verdict should have been granted. Citizens National Bank of Orlando v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1974).

Unlike the majority, I cannot find any actionable negligence to support Osgood’s recovery. This deficiency became apparent at the charge conference. At that time, the trial court questioned Osgood’s counsel with respect to the legal basis or authority for the duty owed by Pan American which would be necessary to support Osgood’s claim for actionable negligence. When his counsel was unable to supply the court with such basis or authority, the trial court instructed the jury as follows:

Whether Pan American Bank owed a duty to Richard Osgood to give notice of the charge-off of his loan to the bank, attempt to collect the deficiency balance of the loan from Richard Osgood, or notify Richard Osgood of the report to the credit bureau. Such a duty does not exist as any requirement of the law.
However, if you find that such a duty did exist under the circumstances of this case, then you must determine whether Pan American Bank was negligent in performing the duty, and whether Mr. Osgood suffered damage as a result, (emphasis added).

Through its instruction, the trial court advised the jury as to the precise basis for Osgood’s claim of negligence and then advised them that no such duty existed in any requirement of the law. In so instructing the jury, the court abdicated its judicial function, in favor of the jury, to ascertain the existence of a duty owed by Pan American to Osgood. In discussing the functions of the court and the jury in a negligence action, Dean Prosser states:

The existence of a duty. In other words, whether upon the facts and evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. . A decision by the court that, upon any version of the facts, there is no duty must necessarily result in judgment for the defendant.

W. Prosser, Law of Torts, 206 (4th Ed.1971). Accord Restatement (Second) Torts, § 328B (1965); 57 Am.Jur.2d Negligence § 34 (1971); 65A C.J.S. Negligence § 252, p. 804 (1966).

An analysis of Osgood’s claim, in light of the record presented, demonstrated the failure of Osgood to plead or prove the existence of a legal duty owed by Pan American to protect Osgood from the injury complained of founded in negligence. Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976).

Pan American was under no duty to collect the deficiency balance on the note from Osgood. The non-existence of a duty on the part of Pan American can hardly be imputed as an affirmative duty owed by it to Osgood.

There is no reason or precedent in the common law to support Osgood’s claim that he should have been notified either before or after the charge-off was reported to the credit reporting agency. To the contrary, the case of Putnal v. Inman, 76 Fla. 553, 80 So. 316 (1918) authorizes parties having a community of interests to associate for the purpose of communicating the credit status of prospective customers and such communication is privileged when made in good faith and in the manner and on occasions which properly serve the purpose of the association.

There was nothing in the statutory law which required notice or disclosure to be given to a customer until Congress addressed the problem by the enactment of the Fair Credit Reporting Act, 15 U.S.C.A. §§ 1681-1681t (1970). That Act requires disclosure of certain credit reporting information to consumers. To the extent that the Fair Credit Reporting Act does not place limitations or restrictions on the decision of Putnal v. Inman, supra, that decision remains the controlling precedent in this jurisdiction. See 15 U.S.C.A. § 1681t (1970). In this case, the transaction between Osgood and Pan American is excluded from the Fair Credit Reporting Act by definition. 15 U.S.C.A. § 1681a(d)(A) (1970) [“any report containing information solely as to transactions or experiences between the consumer and the person making the report”]; see United States v. Puntorieri, 379 F.Supp. 332 (E.D.N.Y.1974). Putnal v. Inman, supra, clearly negates any requirement of notice to Osgood under the facts of this case.

In addition to the absence of any statutory or common law requirement to give notice, the evidence adduced at trial does not disclose the existence of any practice prevailing in the banking industry which would require Osgood to be notified that his credit status was being submitted to or had been submitted to a credit reporting agency.

For these reasons, Pan American’s motion for directed verdict should have been granted. Atlantic Aircraft Corp. v. English, 198 So.2d 862 (Fla. 3d DCA 1967); Smith’s Bakery, Incorporated v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961).

The majority permitted the appellee to circumvent the defenses allowable under the law of defamation by proceeding in negligence when, in fact, no negligence had been shown to exist. I respectfully disagree with that result.


author: HUBBART, Judge. PER CURIAM.

text:
    Rose C. FRIEDMAN, Appellant, v. Gilbert W. FRIEDMAN, Appellee.
    No. 80-115.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Rehearing Denied June 4, 1980.

      Hersh & Bernstein and Brian R. Hersh, Miami, for appellant.
    Spiegelman & Spiegelman and Robert I. Spiegelman, Miami, for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The central issue presented for review is whether the venue for a separate maintenance action unconnected with marriage dissolution under Section 61.09, Florida Statutes (1979), [when brought against a Florida resident], may be laid in the county where the petitioner or the parties’ minor children are physically present and denied support. We hold that venue for such action does lie in such county under Section 47.011, Florida Statutes (1979), as the cause of action accrues therein when the respondent declines to support the petitioner or the parties’ minor children in the subject county. We, accordingly, reverse that portion of the order under review which transfers the venue of this cause to Lee County, Florida.

I

The facts of this case are undisputed. On December 14,1979, the appellant wife [Rose C. Friedman] filed a petition for separate maintenance unconnected with marriage dissolution against the appellee husband [Gilbert W. Friedman] urider Section 61.09, Florida Statutes (1979), in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The wife prayed that the court award her alimony, child support and other separate maintenance requests unconnected with a marriage dissolution. The wife also filed a declaration of domicile stating that she presently resided at 9981 S.W. 16 Street, Miami, Dade County, Florida. The petition for separate maintenance alleged that the wife had previously resided with her husband in Ft. Myers, Lee County, Florida, until December 1979, that the wife thereafter came to Dade County, Florida and set up a separate residence and that the husband has failed and refused to support his wife and minor child in Dade County, Florida.

The husband through counsel made a motion for change of venue alleging that the parties had lived together as man and wife in Lee County, Florida, more or less, continuously from 1963 until the wife decided to leave for Dade County, Florida in December 1979, that the husband’s residence is in Lee County, Florida, that the marital domicile of the parties is in Lee County, Florida, and. that the cause of action sued upon accrued in Lee County, Florida. Upon proper notice of hearing, the trial court on January 3, 1980, . entered an order of temporary support for the wife [prayed for by separate motion] and transferred the venue of this cause to Lee County, Florida, but only upon the condition that the temporary support previously ordered is in fact paid to the wife. The wife appeals that portion of the order which transfers the venue of the cause.

II

It is the established law of this state that “(a)ctions [against Florida residents] shall be brought only in the county where the defendant resides, where the cause of action accrues or where the property in litigation is located.” § 47.011, Fla. Stat. (1979). A cause of action for marriage dissolution [§ 61.052, Fla.Stat. (1979)] accrues in the Florida county in which the parties were last present with a common intent to remain married, and, accordingly, the venue for such action against a Florida resident may be laid in such county. Barr v. Barr, 343 So.2d 1326 (Fla. 3d DCA 1977); Carroll v. Carroll, 322 So.2d 53, 57 (Fla. 1st DCA 1975). A different rule prevails, however, with reference to an action for separate maintenance unconnected with marriage dissolution under Section 61.09, Florida Statutes (1979). Such a cause of action accrues in the county in which the petitioner or the parties’ minor child is physically present and refused support therein by the supporting spouse, and, accordingly, the venue for such action against a Florida resident may be laid in such county. Rivenbark v. Rivenbark, 335 So.2d 23 (Fla. 1st DCA 1976). Indeed, the law is well-settled that “(f)or purposes of a separate maintenance action, it is . . . irrelevant where the parties permanently reside or where their marital domicile is located.” Weinschel v. Weinschel, 368 So.2d 386, 387 (Fla. 3d DCA 1979).

In the instant case, we deal with an action brought by a wife for separate maintenance unconnected with marriage dissolution under Section 61.09, Florida Statutes (1979), against a respondent husband who is a resident of the state of Florida. It is undisputed that the wife removed herself from Lee County, Florida where she had lived almost continuously with the respondent husband since 1963, that the wife came to Dade County, Florida, in December, 1979, where she set up a separate residence, and that the wife was thereafter refused support from the respondent husband for herself and their minor child. As such, it is clear that the separate maintenance action accrued in Dade County, Florida, and that the venue of this cause was properly laid in such county against the husband as a Florida resident. A different result would obtain, however, had the wife filed a petition for dissolution of marriage in Dade County, as clearly, venue would only lie for such action in Lee County, Florida.

The order under review is reversed insofar as it transfers the venue of this cause to Lee County, Florida. In all other respects, the order under review is affirmed.

Affirmed in part; reversed in part.

ON MOTION FOR REHEARING

PER CURIAM.

The husband has filed a motion for rehearing in this cause in which he correctly points out that on February 22, 1979, the wife herein filed a petition for dissolution of marriage in the Circuit Court for- the Eleventh Judicial Circuit of Florida. On December 14, 1979, the wife also filed the instant separate maintenance action. On March 17, 1980, the trial court properly transferred the venue of the marriage dissolution action to the Circuit Court in Lee County, Florida. No appeal has been taken from this order. •

The above additional facts do not, in our view, change the substance of our disposition of this appeal. Based on the authorities and analysis stated in our main opinion, we still conclude that the trial court committed reversible error in transferring the venue of the separate maintenance action to the Circuit Court in Lee County, Florida. The filing of the prior marriage dissolution action and the subsequent transfer of the venue thereof does not change this result.

Still, we believe the husband is correct in his contention that so long as the marriage dissolution action pends before the Circuit Court in Lee County, Florida, the separate maintenance action in Dade County, Florida, should be abated. Rivenbark v. Rivenbark, 335 So.2d 23 (Fla. 1st DCA 1976). We, accordingly, grant the husband’s motion for rehearing and modify our reversal herein to require the trial court upon remand to abate the instant separate maintenance action so long as the marriage dissolution action herein pends before the Circuit Court in Lee County, Florida.


author: HOBSON, Acting Chief Judge.

text:
    William G. INMON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-402.
    District Court of Appeal of Florida, Second District.
    April 23, 1980.
    Rehearing Denied June 4, 1980.

      John L. Riley, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant William G. Inmon, Jr. was charged by information with involuntary sexual battery by threatening force against the victim. Prior to trial, the State served notice on appellant that his case had been referred to the Career Criminal Prosecution Program and that if the case proceeded to sentencing the State would “request that the defendant be sentenced pursuant to the Florida Habitual Offender Statute.” Section 775.084, Florida Statutes (1979). This notice was based on appellant’s prior conviction for the same offense.

At trial, appellant exercised six peremptory challenges and attempted a seventh challenge which was objected to' by the State on the ground that the charge was not a life felony. Appellant argues that under the Habitual Offender Statute he could be sentenced to life imprisonment and, therefore, should have ten peremptory challenges. The court upheld the State’s objection and appellant was restricted to six peremptory challenges.

Appellant argues, inter alia,, that where an offense charged is a first-degree felony and the State has announced that it will seek life imprisonment under the Habitual Offender Statute, appellant is entitled to ten peremptory challenges. We are unable to agree with appellant’s argument and affirm the judgment and sentence entered against him.

Section 775.084(3)(b) provides:

(b) Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant. (Emphasis ours)

We interpret this provision to mean that the State shall serve notice on the defendant either before he enters a plea of guilty or nolo contendere, or, in the event he enters a plea of not guilty and submits to trial, prior to the imposition of sentence. In the instant case, appellant was charged with a first-degree felony which entitled him to only six peremptory challenges. If the State had elected to wait until immediately prior to sentencing to notify appellant that he would be sentenced under the Habitual Offender Statute, appellant certainly would have been limited to the six peremptory challenges allowed under the original information. The fact that the State chose to notify appellant. prior to trial has no effect on this issue.

Appellant raises several other issues which we find to be without merit. Therefore, we affirm the judgment and sentence entered against appellant.

AFFIRMED.

BOARDMAN and CAMPBELL, JJ., concur.

      . Notice was pursuant to Section 775.084(3)(b), Florida Statutes.


author:
COBB, Judge.
      SHARP, Judge,

text:
    Florence PERRY, Appellant, v. J. M. LANGSTAFF, M.D., Appellee.
    Nos. 78-850/T4-93, 78-1092/T4-93A.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Rehearing Denied June 4, 1980.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg and Hawkesworth & Schmick, P. A., Miami, for appellant.
    John G. Rooney of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee.
   COBB, Judge.

In this malpractice action, the trial court entered a summary judgment for the defendant urologist, and timely appeal was initiated to this . Court. The plaintiff claimed the defendant negligently severed the right external iliac artery during surgery to remove kidney stones from the ureter.

The evidence viewed most favorably for the plaintiff supports, at least inferentially, the proposition that the defendant surgically severed the artery after identification was made of the ureter. Does this constitute actionable negligence based upon a departure from the accepted standard of care prescribed by Section 768.45(1), Florida Statutes? The appellant asserted at the trial level and in her appellate brief that it does. At least one expert witness, a vascular surgeon, Dr. LaRosa, testified in his deposition that this type of incident is recurrent even with the most careful urologic surgeons.

The defendant testified before the trial court that the artery should not be cut in normal circumstances, but in this case of abnormal scarring he did not admit that cutting the artery was negligence. He did make the statement, “In a normal anatomical decision, you’d have to be an idiot to cut it.” He denied making such a decision, and the uncontroverted evidence before the trial court' was that this was not a normal anatomical situation, but an extraordinary case of sear tissue formation resulting from past surgical procedures and disease. No evidence, expert or lay, was presented to the trial court to support the breach of the requisite statutory duty under these facts.

Once the movant for summary judgment has met his initial burden of tendering competent evidence demonstrating the non-existence of any genuine issue of material fact, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue. It is not enough to merely assert that a breach of duty existed. See Landers v. Milton, 370 So.2d 368 (Fla.1979); Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957). Accordingly, the summary judgment entered by the trial court is AFFIRMED.

CROSS, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

This is an appeal from a summary judgment in favor of the defendant/doctor in a medical malpractice suit. The trial court relied on Sims v. Helms, 345 So.2d 721 (Fla.1977), and Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977) in granting a summary judgment. It stated there were no material issues of fact because the plaintiff would not be able to provide an expert medical witness to support her claim at trial. The plaintiff argues she should have been allowed to proceed to trial based on the testimony of doctors and the parties adduced at the medical mediation procedure and pretrial discovery.

The defendant performed surgery on the plaintiff for removal of a kidney stone from her ureter. Because this was not plaintiff’s first surgery of this nature, there was a great deal of scar tissue, which made identification of the ureter difficult. During the course of the surgery the iliac artery was cut with a scalpel. Defendant’s notes made immediately following the surgery state:

Dialated ureter was noted and attempts at disection of this down to the level of the stone, a vertical clean defect was made in the right iliac artery.

Two months later the defendant added the following notation: “However, in the course of events, in the dissection of the scar tissue around the ureter, the right external iliac vessel was lacerated.” One fair inference from the surgical notes and the defendant’s deposition is that the cut in the artery happened after he had located and identified the ureter and. the blood vessel beneath it.

The medical testimony focused on the difficulty in finding and properly locating the ureter and the artery in a patient who has previously had surgery in the same area, and who has a lot of scar tissue. In such an operation, damage to the artery by nicking or tearing it is not unlikely or unusual. But the defendant himself admitted that the artery should not be cut where the vessel has been identified, or at least such was a permissible inference from his testimony given at his deposition.

Under the circumstances of this case, I do not think Sims and Thomas are controlling. Both involve medical malpractice suits against doctors who punctured other organs during the course of performing hysterectomies. Apparently punctures of the bladder or damage to the ureter occur sufficiently often, in the process of removing the uterus, that they must be considered risks of that type of surgery. The injury alone is not sufficient to show negligence, and if the plaintiff cannot muster a medical opinion to show negligent treatment or choice of treatment, summary judgment against her is appropriate. Sims, at 723.

In the present case, there was no such showing that cutting the artery is a reasonable risk of this kind of surgery after the ureter and blood vessels have been identified. The most favorable inference from the depositions and evidence, to which the plaintiff was entitled, was that the defendant cut too deeply into the ureter in removing the stone, and in fact sliced all the way through it, and through the artery lying beneath. The difficulty in this case was not the method and procedure chosen by the defendant/doctor but rather his negligent administration of an approved procedure for which summary judgment is not appropriate. Cowan v. Diaz-Padron, 350 So.2d 1107 (Fla. 3d DCA 1977).

It is not necessary for the plaintiff to produce a medical expert in all malpractice cases, in order to successfully obtain a jury trial. Pierce v. Smith, 301 So.2d 805 (Fla. 2d DCA 1974). Such a rule would unconstitutionally deprive a party of the right to jury trial. City of Cocoa v. Sullivan Packing Co., 167 So.2d 750 (Fla. 2d DCA 1964), Art. 1 § 22 Fla.Const. The rule stated in Thomas and Sims should be strictly limited to situations where damage to other body organs is sufficiently common and unavoidable as to make it a normal kind of risk of that kind of surgery. This case falls outside that area.

Obviously, except in rare cases, neither the court nor the jury can or should be permitted to decide, arbitrarily, what is or is not a proper diagnosis or an acceptable method of treatment of a human ailment. . . . But jurors of ordinary intelligence, sense, and judgment are, in many cases, capable of reaching a conclusion, without the aid of expert testimony, in a malpractice case involving a charge of negligence in the application or administration of an approved medical treatment.. For example, in the exercise of only common sense and ordinary judgment, a jury would have the right to conclude that it is negligence to . . perforate the urethra in performing an operation in which it was necessary to use care not to do so, Goodwin v. Hertzberg, 1952, 91 U.S.App.D.C. 385, 201 F.2d 204. (Emphasis supplied).

Atkins v. Humes, 110 So.2d 663 at 666 (Fla.1959). A jury question is presented in this ease as to whether the defendant negligently performed an approved medical procedure. I would reverse and remand this case for trial.

      . Holl v. Talcott, 191 So.2d 40 (Fla.1966); Wills v. Sears, Roebuck Co., 351 So.2d 29 (Fla.1977).


author: LETTS, Chief Judge.

text:
    In re the ESTATE OF Ivan E. OSBORN, Deceased.
    No. 79-1394.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1980.
    Rehearing Denied June 18, 1980.
    Henry A. Fricke, of Spear, Deuschle & Curran, P. A., Fort Lauderdale, for appellant.
    Nancy Little Hoffmann, and E. Clay Shaw, Jr. of Huebner & Shaw, Fort Laud-erdale, for appellee Pan American Bank of Broward County, N. A.
   LETTS, Chief Judge.

Appealed here is a trial court ruling requiring payment of claim against an estate despite failure by the creditor to petition the probate court for payment within one year from the date the claim was filed. We affirm.

The deceased was a guarantor of a $50,-000 promissory note, in default, in favor of the Pan American Bank which commenced suit on the note in Circuit Court. Thereafter upon the death of the decedent the Bank timely filed its statement of claim against his estate (which was not objected to), substituted the estate as a party defendant and the suit on the note progressed in circuit court resulting in a final judgment in favor of the Bank, rendered prior to the expiration of one year from the date the claim was filed. Some time later, and after the expiration of a year from the date of claim, the Bank petitioned the probate court for payment whereupon the estate responded with argument that the claim was barred under Section 733.709, Florida Statute (1977). The trial judge disagreed and allowed the Bank’s claim. So do we.

Section 733.709 provides as follows:

Claims undisposed of after 1 year
When a person has filed a claim against an estate and the claim has not been paid, settled, or otherwise disposed of and no proceeding is pending for the enforcement or compulsory payment of it at the expiration of 1 year from the date the claim was filed, the claim shall be forever barred. No action shall thereafter be brought to enforce it. This section shall not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.

Pursuant to this statutory wording, the estate contends that, because the instant claim was not paid or settled within a year although the suit on the note was concluded within that year, it is therefore barred. To quote from the language of Judge Schwartz, the estate thus seeks victory from a “gotcha!” maneuver. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979). We fully realize that affirmative “gotcha!” defenses, frequently are, and should be, upheld. This case, however, is not one of those.

The estate urges upon us, In re Estate of Baynard, 307 So.2d 831 (Fla. 2d DCA 1975) which does in some respects support its position. To us, however, there is a vital distinction. In Baynard, the unsuccessful claimant in the circuit court proceeding never named the estate as a defendant and no judgment was ever obtained against the estate either before or after the passage of the statutory period first above referred to.

We have read and reread the applicable statute quoted above and while we agree that, like so many others, it is no model of clarity, we see nothing in its wording to bar the instant claim. Nor do we believe the legislative purpose was to do so. See In re Oxford’s Estate, 372 So.2d 1129, 1132 (Fla. 2d DCA 1979).

To us a proceeding against this estate was “pending for the enforcement or compulsory payment” of this claim at the end of the year. A final judgment against the estate, rather than the decedent had been obtained, enforceable for- twenty years and it had not been “paid, settled, or otherwise disposed of.” In the sense of settlement or payment, it is still as of now very much pending. Were we to hold otherwise, absurd as well as inequitable results could pertain. For example, a suit commenced against the estate within one year but not concluded in that time, would bind the estate only as long as it remained unresolved and not concluded. Thereafter, under the estate’s reasoning, upon the instant of the entry of the final judgment, the suit would be no longer “pending” and the claim would not have been disposed of within a year— ergo uncollectable. Such a Catch 22 result is unacceptable and we will not permit it.

We also reject any thought that this opinion subverts the purpose of the new probate code which seeks as one of its main objectives, the early conclusion of probate. In the case before us, as soon as the final judgment on this properly filed and unob-jected to claim was awarded against the estate, the personal representative should have either appealed it or sat himself down and written a check for it which latter action would have permitted a much earlier termination of the estate proceedings than has in fact occurred.

Although not necessary to this result, nor set forth in the record, we are confident that this indebtedness was taken as a deduction on the 706 estate tax return. Assuming this to be so, surely the estate should be estopped to deduct the item as a debt, actively defend the suit in circuit court, lose that suit and then successfully refuse to pay the creditor upon the premise that the properly filed and unobjected to claim was “otherwise disposed of.” We certainly hope so.

WE AFFIRM THE LOWER COURT JUDGMENT ON THE NOTE, FOR COSTS AND ATTORNEYS FEES.

MOORE and HERSEY, JJ., concur.

      . So far as the record shows, this substitution was accomplished without objection from the estate. Had an objection been lodged and sustained, the Bank no doubt would have proceeded in the probate estate instead.

      . Limitation on Lien of Judgment, § 55.081, Fla.Stat. (1977).


author: McCORD, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. William C. DEWBERRY, Jr., as Administrator of the Estate of Patrick Joseph Dewberry, Deceased, and as Administrator of the Estate of Thomas Michael Dewberry, Deceased, and William C. Dewberry, Jr., Individually, Appellees.
    No. OO-301.
    District Court of Appeal of Florida, First District.
    May 7, 1980.
    Rehearing Denied June 10, 1980.
    William H. Clark, Jr. of Clark, Parting-ton, Hart & Hart, Pensacola, for appellant.
    Fredric G. Levin of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   McCORD, Judge.

This is an appeal from a final judgment awarding $400,000, the full amount of the policy limits, to appellees pursuant to the uninsured motorist coverage contained in appellee William C. Dewberry, Jr.’s, automobile insurance contract. The award was for the damages, resulting from the death of his two minor children, caused by an accident involving an underinsured' motorist. Appellant urges that the award should be reversed because of repeated references by counsel for appellees to the amount of the policy limits during voir dire, opening argument, and closing argument. We agree and remand for a new trial.

Appellees c'ontend that this is an action on an insurance contract and, therefore, the policy limits of the contract are admissible into evidence and may be freely commented upon to the jury. We disagree. While this case is based on contract, it has its underpinnings in tort liability. Before appellee could recover under the contract, he was required to prove that the underinsured motorist was negligent. The prejudicial effect upon the jury of references to policy limits in an action brought against one’s own insurer upon the uninsured motorist coverage of the insured’s policy is no different than in a direct negligence action against the tortfeasor. The issues in both actions are negligence, and policy limits are not normally an issue in either proceeding. These limits were not an issue in the case sub judice. The effect of injecting them into this case was to influence the jury to award the policy limits to appellees rather than to fairly assess the damages.

The Supreme Court in Josey v. Futch, 254 So.2d 786 (Fla.1971), listed four items for consideration when determining whether or not the mention of policy limits was error. While not exhaustive, these items are: (1) the size of the verdict in relation to the policy limits; (2) the nature and extent of plaintiff’s injuries; (3) the amount of damages originally sought by the plaintiff; and (4) any exchanges with the jurors which on their face may reveal influence.

In the case below, the damages awarded were the exact amount of the policy limits. Also, remarks to the jurors by appellee’s counsel during closing argument leave little doubt that his emphasis upon the policy limits had an improper influence on the jury’s verdict. Appellees’ counsel repeatedly told the jury that they should find no less than this amount for the death of the two minor children. Accordingly, we reverse and remand with instructions to grant a new trial.

LARRY G. SMITH, and WENTWORTH, JJ., concur.

      . Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978).

      . “We’re limited to two hundred thousand dollars per child or a total of four hundred thousand dollars, but as I stated to you, the mere fact that there’s two hundred thousand dollar policy limits doesn’t automatically mean we’re entitled to it, because that policy says that we will pay you up to two hundred thousand dollars for any injury or death. And, if the child broke his leg, ten to fifteen thousand dollars. Or, if the child had lost his leg, probably an obvious two hundred thousand dollars. Or, say, Mr. Dewberry had been injured and had lost an arm and a leg in an accident. That would be an obvious two hundred thousand dollar case. We think the loss of a child is an obvious two hundred thousand dollar case. But, we’re at a disadvantage because this is an uninsured motorist case, and I can’t ask you for more than two hundred thousand dollars. .
      I’m confident it will come back over two hundred thousand dollars, but then you’re limited to bringing in a total of two hundred thousand dollars for each child. I’m going to submit to you that it should be a hundred thousand for each parent for each child. 1-don’t think that either one loved a child any more than the other. If you return a verdict in this case for a total of two hundred thousand dollars, you’re not telling these people that’s all those children are worth. You’re telling those people, ‘We gave all that we could under the law.’ ”