text:
    CAJUN ELECTRIC POWER COOPERATIVE, INC. v. ESTATE OF Ben Lamar THOMAS, Jr. and Mary Pipkin Thomas. CAJUN ELECTRIC POWER COOPERATIVE, INC. v. Ira Lucky CAMPBELL, Sr., et al. CAJUN ELECTRIC POWER COOPERATIVE, INC. v. Ira Lucky CAMPBELL, Sr., et al.
    Nos. 14734, 14735 and 14824.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      John Schwab, Baton Rouge, for plaintiff-appellant Cajun Electric Power Cooperative, Inc.
    Charles W. Seaman, Natchitoches, for defendants-appellants Estate of Ben Lamar Thomas, Jr. and Mary Pipkin Thomas.
    Horton & Jones by Donald G. Horton, Coushatta, for defendants-appellees Ira L. Campbell, Sr., et al.
    Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for defendants-ap-pellees The E. R. and Avonia Campbell Trusts.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   HALL, Judge.

These three appeals arise out of two expropriation suits filed by Cajun Electric Power Cooperative, Inc. seeking to expropriate two tracts of land in Red River Parish for the site of a lignite-powered electric generating plant and related distribution facilities to be constructed by the plaintiff. One tract contains 20 acres and is owned by the Thomas defendants. The other tract contains 200.50 acres and is owned by the Campbell defendants.

At trial the only expert opinion evidence as to value was given by the plaintiff’s appraiser who estimated the value of both tracts, exclusive of mineral rights which were to be reserved, at $2,250 per acre. The trial court, taking into consideration one or two sales of other property in the parish for higher prices and the inconvenience to defendants in exercising their reserved mineral rights because of plaintiff’s intended use of the surface of the property, fixed the value of the Thomas tract at $2,500 per acre and the value of the Campbell tract at $3,000 per acre. From judgments rendered accordingly the plaintiff appealed contending the awards were excessive. The Thomas defendants also appealed, contending the award for the value of their property taken is inadequate. The Campbell defendants did not appeal. Finding that there is no evidentiary basis supporting an award in excess of the value estimated by plaintiff’s expert appraiser, we amend the judgments to reduce the amounts of the awards to $2,250 per acre.

Both tracts are located in rural Red River Parish within a quarter of a mile of each other. The Thomas 20-acre tract is cutover hardwood bottom land without any road frontage, being located about three-quarters of a mile from the nearest road. The Campbell 200-acre tract is bottom land with some road frontage presently in agricultural use for the growing of soybeans.

In appraising the subject properties plaintiff’s expert appraiser, James A. McNew, took into account the general upswing in economic conditions in Red River Parish brought about by the location of a new large paper mill, lignite operations and other factors, all of which had brought about an increase in property values. He noted that farm land with road frontage has some increased value because of the possibility of use for rural homesites.

The appraiser determined that the highest and best use of the Thomas tract is for agricultural purposes, noting that there would be some cost of converting this property from cutover timber land to farm land. He determined that the highest and best use of the Campbell tract is for agricultural purposes with possible use for rural residential purposes. Based on comparable sales in the area McNew determined the range in values for agricultural property to be from slightly below $1,000 per acre to an upper limit of $1,500 per acre. Based on these highest and best uses, the appraiser estimated the value of the Thomas tract at $1,200 per acre and the Campbell tract at $1,500 per acre.

The appraiser determined, however, that because these properties lay within the corridor needed by plaintiff for its generating plant and related facilities, the properties had a higher special use value which McNew determined to be $2,250, based primarily on several acquisitions of property by plaintiff for that amount. This was the amount plaintiff had offered defendants for the properties.

The Thomas defendants offered testimony by an engineer who had conducted tests on the Thomas property to show that there were lignite deposits beneath that property. Plaintiff countered with the testimony of an expert mining engineer who testified that because of the size and depth of the deposits, mining would be economically unfeasible and the deposits had no value.

As previously noted, the defendants offered no expert opinion evidence as to value. Defendants relied on recent sales of property in the general area to Phillips Coal Company as supporting a valuation higher than that given by plaintiff’s appraiser. One was a sale by Huckabay for $2,275 per acre and another was a sale of a 45-acre tract for $4,448 per acre. There was another sale by Bierden to Phillips for $2,280 per acre.

Plaintiff’s appraiser explained that the Lee and Huckabay properties were acquired by Phillips for a special purpose, that is, to relocate families that were to be moved in order for Phillips to mine certain properties. Phillips had encountered difficulty in finding a landowner willing to sell an approximately 40-acre tract suitable for subdivision development by reason of proximity to roads, utilities, and the like and the appraiser did not consider the prices paid or the properties involved in the Lee and Hucka-bay sales to be valid comparables. The property sold by Bierden to Phillips was for actual mining purposes and in this respect was not comparable to the subject properties.

The appraiser’s analysis of these sales makes sense and in the absence of expert opinion evidence relating these sales to the value of the subject property, these sales do not afford a substantial evidentiary basis for valuing the subject properties above the special use value placed thereon by plaintiff’s appraiser. In effect the trial court substituted its opinion of value for that of the only testifying expert. The opinion of a witness qualified and accepted as an expert should be given effect if and when it appears to be well grounded from standpoints of sincerity and good reasoning. City of Lafayette v. Babineaux, 297 So.2d 220 (La.App. 3d Cir. 1974); Lafayette Airport Commission v. Roy, 265 So.2d 459 (La.App. 3d Cir. 1972), writs denied 262 La. 1159, 266 So.2d 444 (1972), cert. denied 411 U.S. 916, 93 S.Ct. 1543, 36 L.Ed.2d 307 (1973). Where there appears no reason justifying the trial court’s refusal to accept expert testimony offered in an expropriation proceeding the action of the trial court in substituting its own opinion as to the value is manifest error. State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970).

Defendants also contend that the trial court was correct in considering as an element of the loss sustained by the defendants by reason of the taking the difficulty which defendants will experience in exercising their right to explore for minerals under the mineral reservations. In appropriate cases the value of minerals underlying property being expropriated may be taken into consideration in fixing the value of the property as a whole. There is also authority for taking into consideration a reduction in the present value of mineral rights caused by an interference with or prohibition against exercise of those rights resulting from the use to which the surface will be put, where there is evidence of the present value of the mineral rights and of the value of such rights after the taking. State, Sabine River Authority v. Salter, 184 So.2d 783 (La.App. 3d Cir. 1966).

In the instant ease, however, there is no evidence in the record as to the present value of the mineral rights or the effect of the taking on such value. The evidence relative to the lignite deposits underlying the Thomas tract is to the effect that although such deposits exist they have no economic value. Without an evidentiary basis in the record the assignment of any value or loss for this item is entirely speculative.

There is no evidentiary basis in this record to support a value for the property taken higher than that fixed by plaintiff’s appraiser, whose appraisal is based on sound reasoning and judgment and whose value estimate is based on special use for plaintiff’s purposes, which value is substantially higher than the value based on existing highest and best use of the property.

By supplemental brief the Thomas defendants contend that legal interest should have been granted from the date of taking, which defendants argue occurred after the 15th day from service at which time defendants should be considered as having waived the right to contest the expropriation (see LSA-R.S. 19:6 and 7), rather than from the date of rendition of the judgment. Defendants’ novel argument has no merit. The record does not indicate that the property has been appropriated to the plaintiff’s use. In Trunkline Gas Company v. Rawls, 394 So.2d 1250 (La.App. 2d Cir. 1981) writ denied 400 So.2d 904 (La.1981), we held that legal interest is due from the date of the judgment or from the date the plaintiff appropriates the property to its use, whichever date is sooner. Legal interest in this case should run from the date of the judgment and the judgment is correct in this respect.

For the reasons assigned the judgments are amended to award $2,250 per acre for the property taken. The judgment in the Thomas case is reduced from $50,000 to $45,000. The judgments in the Campbell case are reduced from the sum of $75,187.50 to the sum of $56,390.63 for the interest of the Campbell Trusts and from the sum of $526,312.50 to the sum of $394,734.38 for the interest of Ira L. Campbell, Sr., individually and as administrator of the Estate of Anna Yearwood Campbell. As amended the judgments are affirmed. Costs of the appeal are assessed to the defendants.

Amended and as amended, affirmed.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Peter C. HUBBARD et ux., Plaintiffs-Appellees, v. Charlie Joe MILNER et al., Defendants-Appellants.
    No. 14736.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 7, 1981.

      Gist, Methvin, Hughes & Munsterman by DeWitt T. Methvin, Jr., Alexandria, for defendants-appellants.
    Richard N. Ware, Coushatta, for plaintiffs-appellees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The legal issue posed by this appeal is whether the parents of a minor guest passenger killed in 1980 while riding in a non-owned automobile, as a result of the negligence of the host driver, may avail themselves of the uninsured motorist coverages of two policies of insurance issued to the decedent’s father.

The trial judge answered this question in the affirmative and rendered judgment accordingly. The defendant insurance company appealed. We reverse.

Plaintiffs’ 16 year old daughter was killed in a one-car accident on November 1, 1980 while riding as a passenger in an automobile owned and operated by Charlie Joe Milner. The accident was due solely to the fault of Milner. The Milner vehiclé was covered by a liability insurance policy issued by Western Preferred Insurance Company (Western Preferred) which provided per person bodily injury liability limits of $5,000. Also in force and effect at the time of the fatal accident were two automobile insurance policies issued by State Farm Mutual Automobile Insurance Company (State Farm) to Peter C. Hubbard, the deceased passenger’s father, each of which provided uninsured and underinsured motorist (UM) coverage in the amount of $10,000 for injuries to one person.

Plaintiffs sued Milner, Western Preferred and State Farm for damages for the wrongful death of their daughter. Western Preferred settled thq^claim against it and Mil-ner by paying plaintiffs its $5,000 policy limits. Plaintiffs and State Farm executed a “receipt and partial release” under which State Farm paid plaintiffs the $10,000 limits under the UM coverage of one of its policies. The parties agreed that the question of coverage under the second policy would be submitted to the trial court for decision based upon a written stipulation of facts. The latter included a clause to the effect that the damages suffered by plaintiffs exceeded the combined totals of the three insurance policies.

Prior to 1977 our jurisprudence permitted the “stacking” of all UM policies under which the injured party was an insured. Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Graham v. American Casualty Co., 261 La. 85, 259 So.2d 22 (1972). For example, if the owner of two vehicles with UM coverage was injured by an uninsured motorist while occupying another’s insured car, the injured party was deemed to be an insured within the definition of his own two policies as well as the other owner’s policy and could “stack” the three policies. See Seaton v. Kelly, 339 So.2d 731 (La.1976).

Our uninsured motorist statute mandates coverage for bodily injury caused not only by uninsured motorists but also by underinsured motorists. The latter is one with insurance liability limits less than the damages incurred by the insured. Under this scheme, uninsured motorist insurance became “excess” coverage after the tort-feasor’s liability insurance was exhausted. See Comment, Uninsured Motorist Coverage, 24 Loyola Law Review, 85, 87 (1978).

Act 623 of 1977 amended La.R.S. 22:1406(D)(1)(c) to prohibit “stacking” of uninsured motorist coverage. However, an insured injured in a non-owned automobile may use his own uninsured motorist policy as excess to the primary coverage on the non-owned vehicle. It is stipulated, though, that only one uninsured motorist policy is available as excess above the primary coverage.

In Courville v. State Farm Mutual Automobile Insurance Co., 393 So.2d 703 (La.1981), the injured partf was driving his father’s pickup truck which was struck by a vehicle operated by a negligent uninsured motorist. The pickup truck was covered by a UM policy and the injured party’s father also had UM coverage on another vehicle. Observing that the injured claimant was occupying a non-owned vehicle, the Louisiana Supreme Court allowed “stacking” of the two UM policies, reasoning that the facts of the case fit squarely under the exception to the prohibition against “stacking”. Therefore, the UM policy on the pickup truck was deemed to afford primary coverage and that on the other vehicle excess coverage.

Here, unlike Courville, the negligence of the driver of the host vehicle was the cause of the accident and resulting injuries. In Breaux v. Government Employees Insurance Co., 369 So.2d 1335 (La.1979), involving a like factual situation, the court held that “our uninsured motorist statute does not mandate protection under the host driver’s uninsured motorist coverage when the sole cause of the accident is the negligence of the host driver.” Consequently, under these circumstances the host driver’s UM policy does not afford the primary coverage.

Following the Breaux rationale, the trial judge in this case concluded that UM coverage on the Milner vehicle would not be available to plaintiffs. However, he allowed “stacking” of plaintiffs’ two policies because a “literal reading of the applicable statute indicates that stacking is permitted one time when the injured party is riding in a non-owned vehicle.”

Appellants argue that the trial judge erred because, unlike Courville, neither of its policies afforded primary coverage as contemplated by the pertinent UM statute-ry provisions; that this case does not come under the exception to the general prohibítion against the “stacking” of UM policies; and, consequently, that the only UM coverage available to plaintiffs is one of defendant’s UM policies rather than both.

The recent Louisiana Supreme Court case of Nall v. State Farm Mutual Automobile Ins. Co., 400 So.2d 1390 (1981) involved a factual situation substantially similar to the case at bar. There, Nall’s minor son was injured while riding as a guest passenger in a car owned by Ruby and driven by the latter’s son, whose negligence caused the accident. Ruby had liability and UM insurance coverage on his automobile. Nall had two family automobile insurance policies, each of which included UM coverage. Ruby’s insurer paid the limits under its liability coverage and Nall’s insurance carrier paid the limits under the UM coverage of one of its policies but denied liability under the other. The parties stipulated that plaintiff’s damages exceeded the aggregate of the amounts paid under those policies.

Seeking to have adverse judgments of lower courts reversed, plaintiff argued that he was entitled to “stack” the UM coverage of his two policies, citing the “stacking” exceptions under La.R.S. 22:1406(D)(1)(c). Rejecting this contention, the Supreme Court pointed out that since neither of plaintiff’s policies provided primary UM coverage on the Ruby car, the statutory exception to “stacking” did not apply. Therefore, the case was controlled by the general rule “that an insured who has UM coverage available to him under more than one policy may not stack.”

Here, as in Nall, neither of plaintiffs’ UM policies provided primary coverage on the vehicle in which their daughter was riding. Consequently, under the Nall rationale, the statutory exception to “stacking” does not apply. Therefore, we conclude that the trial judge erred in permitting recovery by plaintiffs under both UM policies issued to them by State Farm. For that reason, we reverse the judgment of the district court and render judgment dismissing plaintiffs’ suit against State Farm, at plaintiffs-appel-lees’ cost,

      . (c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following;
      With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
      (i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
      (ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage.

      . Properly speaking, we do not understand this to be an attempt to “stack” UM coverage. Rather, plaintiffs seek recovery from an asserted primary UM policy coverage and, after exhausting that, seek recovery from an excess UM policy.


author: FORET, Judge.

text:
    Dean GORDON, Individually and On Behalf of the Minor, Lisa C. Gordon, Plaintiff-Appellant, v. ALEXANDRIA COCA-COLA BOTTLING COMPANY, LTD. and the Coca-Cola Company, Defendants-Appellees.
    No. 8576.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 1981.
    Writ Denied Feb. 19, 1982.

      Bolen & Erwin, Gregory S. Erwin, Alexandria, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Walter C. Thompson, Jr., New Orleans, William P. Polk, Alexandria, for defendants-appellees.
    Before FORET, SWIFT and LABORDE, JJ.
   FORET, Judge.

Dean Gordon (Plaintiff) appeals from a judgment of the trial court sustaining an exception of prescription filed by defendants, Alexandria Coca-Cola Bottling Company, Ltd. and the Coca-Cola Company. We affirm.

FACTS

Plaintiff brings this action based on products liability and redhibition, individually, and on behalf of his minor daughter, Lisa C. Gordon (Lisa), to recover damages for personal injuries allegedly suffered by her when a 32-oz. glass bottle of Coca-Cola exploded. The parties submitted the following written statements of fact:

“(a) Deane Gordon and Ann Gordon are married and presently living together as man and wife;
(b)Lisa C. Gordon, a minor child, is the legitimate child of Deane and Ann Gordon, with whom she resides;
(c) No tutorship proceeding has ever been brought on behalf of the child and no tutor has ever been appointed for her judicially;
(d) The date upon which the accident in question occurred was September 11, 1976; and
(e) The Coca-Cola Company did not manufacture, distribute, or sell the bottle which allegedly exploded.”

Plaintiff instituted these actions on March 27, 1981, approximately 4x/2 years after the accident occurred. Defendants filed an exception of prescription alleging that both plaintiff’s tort claim and his claim in redhibition were barred by the liberative prescription of one year. The trial court sustained the exception dismissing plaintiff’s actions and granted him this devolu-tive appeal.

PEREMPTORY EXCEPTION OF PRESCRIPTION

Plaintiff contends that the liberative prescription of one year is no bar to the bringing of a tort suit on behalf of a minor when no tutor has been appointed to represent the minor in any proceeding. Plaintiff cites LSA-C.C. Article 3554 in support of his contention.

LSA-C.C. Article 3554 provides:

“Art. 3554. Suspension of liberative prescription as to minors and interdicts; exceptions
Art. 3554. Prescription does not run against minors and persons under interdiction, except in the cases specified by law.”

LSA-C.C. Article 3541 provides:

“Art. 3541. Running of certain prescriptions against minors, interdicts and absentees
Art. 3541. The prescriptions mentioned in the preceding Article, those provided in Paragraphs I and II of Section three of Chapter three of this title, and those of thirty years, whether acquisitive or liberative, shall run against minors and interdicted persons, reserving, however, recourse against their tutors or curators.”

LSA-C.C. Article 3536 provides in pertinent part:

“Art. 3536. Other actions prescribed by one year
Art. 3536. The following actions are also prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.” (Emphasis ours)

LSA-C.C. Article 3536 is found in § 1 (“Of the Prescription of One Year”) of Section 3 (“Of the Prescription Which Operates a Release from Debt”) of Chapter 3 (“Of Prescription”) of Title XXIII (“Of Occupancy, Possession and Prescription”) of the Louisiana Civil Code. Thus, the prescriptive period set forth in LSA-C.C. Article 3536 runs against minors. Goodwin v. Bodcaw Lumber Company, 34 So. 74 (La.1902); Alien v. Thibodeaux, 200 So. 680 (La.App. 1 Cir. 1941).

Plaintiff also cites three decisions by the Louisiana Supreme Court in support of his contention. We find these to be either in-apposite to the issue before us or in support of our decision herein .

Plaintiff next contends that if LSA-C.C. Article 3541 is found to make the prescription of LSA-C.C. Article 3536 run against minors, for whom no tutor has been appointed, then it is unconstitutional. Plaintiff relies on the due process and equal protection clauses of the Fourteenth Amendment to the U. S. Constitution and LSA-Const. Art. 1, § 3. Essentially, he argues that LSA-C.C. Article 3541 provides a remedy to those minors, who have been placed under the regime of tutorship, against their tutor for failing to institute an action on their behalf within the prescriptive period. However, a minor such as Lisa is provided with no remedy against her parents for their failure to timely institute an action on her behalf. We find no merit to this argument. LSA-C.C. Article 3541 applies equally to all minors whether a tutor has been appointed for them or not.

Finally, plaintiff contends that LSA-C.C. Article 3541 is inapplicable to actions in redhibition, which must be brought within one year from the date of sale. See LSA-C.C. Article 2534. Thus, he argues that this prescription does not run against minors. We find that the prescriptive period of LSA-C.C. Article 2534 runs against minors, there being no exception made for them in that article. See Stelly v. Gerber Products Company, 299 So.2d 529 (La.App. 4 Cir. 1974), writ denied, 302 So.2d 616 (La.1974); Cf. Cotton States Chemical Company, Inc. v. Larrison Enterprises, Inc., 342 So.2d 1212 (La.App. 2 Cir. 1977).

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

      . Plaintiff also cites LSA-C.C. Article 3522 in support of his contention. That article makes the same provision for minors as does LSA-C.C. Article 3554 with respect to prescription. However, it is found in that section of the La. Civil Code dealing with “acquisitive prescription”.

      . Plaintiff first cites City of New Orleans v. Ricca, 217 La. 413, 46 So.2d 505 (1950). This case involves acquisitive prescription, rather than liberative prescription. He then cites Tyler v. Lewis, 143 La. 229, 78 So. 477 (1918). Dicta in Tyler supports our decision herein. Finally, plaintiff cites Turner v. Consolidated Underwriters, 248 La. 37, 176 So.2d 420 (1965). Turner is a workmen’s compensation case interpreting the provisions of LSA-R.S. 23:1234, which deals specifically with the limitations of time as applied to minors in workmen’s compensation proceedings.

      . Plaintiff argues that a child may not sue his parents under the provisions of LSA-R.S. 9:571. However, LSA-R.S. 9:571 provides a procedural bar to suits by an unemancipated minor against his parents and does not destroy the underlying cause of action. See Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972); Lewis v. Till, 395 So.2d 737 (La.1981). If Lisa would have a cause of action against her parents for their failure to timely institute an action on her behalf (a question which we do not decide), then she could assert that cause of action when the procedural bar is removed.


author: HAWKINS, Justice

text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY v. BOB BURNHAM PONTIAC TOYOTA, INC.
    No. 52947.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Rehearing Denied Jan. 6, 1982.
    Bryan, Nelson, Allen, Schroeder & Back-strom, James W. Backstrom and John Ban-ahan, Pascagoula, for appellant.
    Russell J. Lachaussee, Pascagoula, for ap-pellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice

for the Court.

Bob Burnham Pontiac Toyota, Inc., an automobile dealership, obtained a judgment against Universal Underwriters Insurance Company in the Circuit Court of Jackson County for $10,000 actual damages and $35,000 punitive damages under an insurance policy covering losses caused by dishonest or fraudulent acts of employees. Universal appeals. We reverse and remand.

The issues we address on this appeal are:

(1) Whether the circuit judge erred in instructing the jury that, as a matter of law, employees of the plaintiff had committed dishonest acts, and that plaintiff had sustained damages thereby; and

(2) What the measure of damages recoverable under a fidelity insurance policy should be when the dishonest act of an employee results in a claim for damages by a third party against the employer.

In March, 1977, Marvin R. Dean, Jr., commonly known as “Buddy” Dean, went to Burnham’s place of business and traded a 1975 Ford pickup for a 1976 GMC truck. Mel Hannemann, a salesman for Burnham, handled the transaction.

A credit union of Continental Can Company was lienholder for $1,934.09 owed it on the vehicle at the time, and held the original title in its possession as such lienholder. To effect transfer of title and release of the lien, it was necessary for the credit union to release its lien. To accomplish this, Burn-ham prepared a bank draft on itself, in envelope form and in accordance with its customary procedure, which in effect informed the credit union that upon presentation of the draft to a local bank, with all requisite title documents enclosed therein, including a release of its lien, it would be paid $1,934.09.

At the conclusion of the notation on the face of the draft was a place for the customer to sign authorizing the release of the papers. The notification (printed in red) on the draft in this case was as follows:

Net payoff quoted by you (please telephone us if incorrect) for: 1975 Ford Floo (P234A) F10YNW83318 Year Make Model Serial Number (our Stock No.) After you have inserted into the draft envelope all papers including released title, please deposit in routine banking channels. We will pay it when presented after verifying contents. Okay to forward this dealer all papers requested in paying off my account:
Customer (signed) Marvin R. Dean, Sr.
(typed) Marvin R. Dean, Sr.

Hannemann signed the name of Marvin R. Dean, Sr., on the draft.

The 1975 Ford truck had been purchased by Marvin R. Dean, Sr., as a present for his son Buddy, but the title was in the name of Dean, Sr., and the financing in his name.

Burnham had purchased the GMC truck from Jeffcoat Motors, another local dealer. The GMC was not new but in ordinary circumstances would still have been under the 12,000 mile new vehicle warranty when Buddy purchased it. A few days after purchasing the GMC Buddy noticed something was wrong with its air conditioning system, and Burnham told him to take it to the GMC dealer in Pascagoula to have it repaired under warranty. The GMC dealer informed Buddy the truck had been wrecked and was therefore excluded from warranty. Buddy then returned the truck to Burnham, and requested the return of the 1975 Ford truck and rescission of the trade. Burnham agreed to perform any work the manufacturer would perform under a 12,000 mile warranty, which satisfied Buddy, and he kept the truck. For the next few months Burnham made periodic repairs to the GMC, and Buddy remained satisfied.

Buddy installed a butane system in the GMC, and several months later it caught fire. The burned GMC was returned to Burnham, who later sold it for $2,500.00.

Several months after the purchase, and probably after the GMC had caught fire, Dean, Sr., went to Burnham’s place of business and asked for the return of the 1975 Ford pickup. He stated he had given the truck to his son as a present, and he wanted to know how Burnham had traded it without his authorization.

Cooper, the used car sales manager for Burnham, showed the draft to Dean, Sr., who informed Cooper the signature thereon was not his. This was the first time Burn-ham (with the possible exception of Hanne-mann) became aware that Marvin R. Dean, Sr., was not the same person as Buddy Dean.

After Dean, Sr.’s complaint, George Ryan, general manager of Burnham, got Hannemann and Cooper together and asked them if there was anything wrong with the way the deal was handled. They said no.

Following his first inquiry, Dean, Sr., began to cause Burnham difficulties, making complaints to them and about them, and apparently lodging criminal affidavits against some of the employees. There was a fistfight of some sort between Dean, Sr. and Cooper. A complaint was made to the Motor Vehicle Comptroller, and a hearing was scheduled at Burnham’s place of business.

Burnham, who was in bad health and not at the business fulltime, was at his place of business the day before the hearing. Burn-ham asked Hannemann, “Now, Mel, there’s nothing that we have to worry about? There’s no discrepancy in this deal in any kind of way?”

Hannemann then informed Burnham and Ryan for the first time, “Yea, Mr. Burn-ham, I signed the man’s name to the draft.”

Until this revelation Burnham had thought there was no merit to Dean, Sr.’s harassment, but following this admission, the company recognized it had legal problems and liability.

The record is not clear as to the first time Burnham notified Universal Underwriters of its problems. The record does reflect, however, that numerous telephone calls were made, and that there was correspondence from Burnham requesting assistance from Universal, including a “negotiator.” The invariable response from Universal was there was no coverage under its policy with Burnham. Except in receiving the telephone calls, and letters from Burnham, Universal made no investigation.

On October 8, 1977, Universal wrote Burnham acknowledging receipt of “report of accident” and declining coverage. The letter went on to state the reasons for the disclaimer were “the allegations set forth in the claimants letter dated June 1, 1977, do not allege a peril for which coverage can be afforded.” The letter further stated that in making the disclaimer, Universal did not intend to waive any other defense under the policy. The claimants’ letter referred to is not a part of the record.

Ryan replied by letter of October 7, acknowledging receipt of the October 3, letter and then stating:

It is, of course, necessary for us to inform you at this time that we do not agree with the premise set forth in your letter. We know that you do not have the facts you need yet. We are certain, after we present the facts to you in this writing, that Universal will have foreseen the situation occurring and would have afforded coverage of the peril within our dealership insurance coverage. Such is our faith in Universal and in their competency to insure dealership operations equitably that we feel most confident of your help.
Probably what we need most at this instance is one of your top-notch negotiators. We have seen you fellows in action through the years — in small claims, large claims; simple ones, complicated ones— witnessed it in the aftermath of the devastation and destruction of Camille — negotiation with swiftness and with heart. We need that kind of help now. This is no situation for us amateurs. We need a Pro.
We have divided the facts up in to eleven parts and five exhibits, which we attach to and make a part of this letter. The development of the real facts and the true picture have taken a long agonizing time. For a long time in this claim we proceeded blissfully unaware that the dealership had been compromised, and when one of the culprits confessed in writing — long after the fact was committed, we became urgently wide awake and cognizant of the perils in which we were involved. After examining the attachments, please let us hear from you further.

The information sent with this cover letter is not in the record, either.

The Deans filed suit in the circuit court of Jackson County. Burnham filed a suit against the Deans in the chancery court of Jackson County, apparently seeking some sort of accounting of the Deans’ claims. The chancery court action resulted in a decree finding Burnham owed “the defendants” $9,486.90.

Following rendition of this decree, Burn-ham paid Dean, Sr., $9,486.90.

Burnham had in effect with Universal a policy insuring Burnham, with $10,000 policy limits, against the following loss:

EMPLOYEE DISHONESTY COVERAGE-FORM A
I. Loss of Money, Securities and other property which the insured shall sustain to an amount not exceeding in the aggregate the amount stated in the Table of Limits of Liability applicable to this insuring Agreement I, through any fraudulent or dishonest act or acts committed by any of the Employees, acting alone or in collusion with others.

Burnham filed suit against Universal in the circuit court of Jackson County on December 1, 1978, under this policy alleging damages through the dishonesty of Hanne-mann and Cooper, and numerous occasions upon its part of reporting relevant information to Universal, and their refusal to compensate plaintiff. The declaration asked for $35,000 actual damages and $100,000 punitive damages.

At the trial Ryan testified of the previous excellent relationship with Universal over a period of years, but in this case repeated unsuccessful efforts to get Universal to investigate this case and assist them, and of correspondence. The chancery court decree was admitted as a part of the record, but the circuit court refused to permit the decree to be offered into evidence before the jury. The court did permit Ryan to testify he paid Dean, Sr., $9,486.90 following rendition of the chancery court decree.

Burnham and Ryan repeatedly characterized the act of Hannemann as a forgery, unauthorized, and done totally without their knowledge or authority. ■ Hannemann, no longer an employee of Burnham, was called as a witness for the plaintiff.

Hannemann acknowledged he signed the draft, stating Marvin R. Dean had told him to sign it and that he had later learned this was not Marvin R. Dean, Sr. However, on cross-examination he testified as follows:

Q. Allright. At the time ... at the time you received the authorization to sign the name on there, you thought the man who owned it was telling you to sign it, right?
A. Yes, sir.
Q. And you thought his name was Marvin R. Dean, Sr.?
A. Well, I knew ... I had been authorized by the boy, Buddy Dean, to sign it and I asked him how he wanted it signed. He said, “Marvin R. Dean, Sr.”
Q. And you thought he was Marvin R. Dean, Sr.?
A. No, he gave his name as “Buddy Dean”, but he told me to sign it “Marvin R. Dean, Sr.”
Q. You didn’t know anything about the father at this time?
A. No, sir, I never knew a thing about him.

When the plaintiff rested its ease, Universal made a motion for a directed verdict, which was over-ruled. Universal offered no testimony in defense.

When both sides rested, the court refused a requested peremptory instruction of the defendant, and granted a requested peremptory instruction in favor of Burnham. The court reasoned as follows:

Based on the testimony, it is undisputed at this time, one of the employees signed the name of the owner of the vehicle without that person’s authority, even though he did, at the time, think the person telling him to sign it was the person who was the owner; and, therefore, it resulted in a dishonest act . .. maybe for which he is not criminally responsible because we are not involved in a criminal matter at this time. But the net results of it is that it was, in fact, a dishonest act, even though the man that signed it may have thought the man giving him permission to do it had the authority to do so and it turned out he did not have that authority. So I think it’s clear that, from the evidence before the Court, that there was a dishonest act within the definitions of the policy.

Based upon his ruling set forth above, the circuit judge granted the plaintiff the following instruction.

The plaintiff has sustained actual damage as a result of the fraudulent or dishonest act or acts committed by the employees of the plaintiff, acting alone or in conjunction with others, and the plaintiff is entitled to a verdict in an amount which will reasonably compensate the plaintiff for its loss sustained as a proximate result of said employee’s act not to exceed $10,000 under the terms of the (word illegible) Contract.

There was a jury verdict in favor of Burnham for $10,000 actual damages and $35,000 punitive damages, and judgment in that amount rendered thereon, from which this appeal has been taken.

I.

Was there a jury issue on liability and damages?

We find the trial court was in error in finding as a matter of law the action of Hannemann was fraudulent or dishonest. It was for the jury to determine under proper instruction of the court whether the conduct of Hannemann was either dishonest or fraudulent. It is patent Hannemann had no legal right to sign the name of Marvin R. Dean, Sr. Whether it was dishonest or fraudulent, however, depends upon Hanne-mann’s state of mind, his intent to deceive or defraud, or what might reasonably have been inferred from his conduct. The evidence is sufficiently conflicting to have made a jury question to decide either that his act was or was not fraudulent or dishonest. See Anderson Dunham, Inc. v. Aiken, 241 Miss. 756, 133 So.2d 527 (1961); 27 C.J.S. Dishonesty.

The lienholder credit union submitted the original title to Burnham after the debt of $1,934.09 was paid. Thereafter, somebody other than Dean, Sr., signed his name to the title, thereby authorizing the motor vehicle commission to issue title to the 1975 Ford pickup to Burnham or a subsequent buyer. Mississippi Code Annotated §§ 63-21-31, 63-21-33. It was this act which was the heart of converting the vehicle to Burn-ham’s own use. The record is not clear as to whether Hannemann had any part whatsoever in this unauthorized assignment of the motor vehicle title, or whether Hanne-mann’s signing of Dean, Sr.’s name to the draft brought about or proximately caused the unauthorized signing of the motor vehicle title. Before being entitled to any damages, Burnham has the burden of proving the circumstances of the signing of this title, and the sufficient factual connection of Hannemann with this act to make a jury issue on this question.

II.

What is the measure of damages?

Instruction P-5 is further defective in that it authorized the jury to pay plaintiff an amount “not to exceed $10,000.” First of all, the proof of actual damages was less than $10,000, and the instruction placed a higher ceiling than the damages actually sustained. Secondly, such an instruction is defective in suggesting an amount of actual damages. St. Louis San Francisco Railway Co. v. Dyson, 207 Miss. 639, 43 So.2d 95 (1949). We recognize that the purpose in giving the instruction was to inform the jury that, regardless of the amount of damages, the amount recoverable under the insurance policy was limited to $10,000. Had this been a case in which there was no question but that the amount of damages under the policy exceeded the policy limitations, it would have been proper to instruct the jury in the same instruction, that in no event could the amount of their verdict exceed the limitations of the policy. In a ease in which there is an issue of fact for the jury to determine whether or not the amount of damages exceeds the policy limitations, we believe the better procedure would be to cover the limits of the policy by a separate instruction, and instruct the jury that regardless of the amount of actual damages, the amount recoverable is limited to that stated in the policy. In a case as this, in which the proof of actual damages in no event reaches the policy limits, we see no reason in placing the ceiling figure fixed by the policy.

It was also error for the court to permit Burnham to offer into evidence the amount it paid Dean, Sr., without first proving that that was the amount it legally owed him. The amount of actual damages which Universal would owe Burnham, assuming payment was promptly made and there were no consequential damages because of a refusal to pay Dean, Sr. is for the conversion of his Ford pickup because of a dishonest or fraudulent act of Burn-ham’s employee or employees, which was not known to or approved by Burnham. The measure of damages for conversion is the value of the property at the time and place of its conversion. Masonite Corp. v. Williamson, 404 So.2d 565 (Miss.1981).

We therefore reverse and remand this case for a new trial where it will be incumbent upon the plaintiff to prove, and for the jury to determine, upon proper instructions by the circuit judge:

(1) fraudulent or dishonest act or acts were committed by employees of the plaintiff covered by the policy;

(2) as a result thereof, plaintiff became legally obligated to pay Dean, Sr., damages; and

(3) the amount in damages plaintiff became legally obligated to pay Dean, Sr.

In view of this decision, we of necessity do not reach the propriety of giving an instruction on punitive damages. Upon retrial, this issue will be governed by our holding in Aetna Casualty and Surety Company v. Steele, 373 So.2d 797, 801 (Miss.1979):

The rule in Mississippi is settled that punitive damages are not recoverable for a breach of contract unless such breach is attended by intentional wrong, insult, abuse, or such gross negligence that amounts to an independent tort.

REVERSED AND REMANDED.

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

APPENDIX “A”

IN THE CHANCERY COURT OF JACKSON COUNTY, MISSISSIPPI

BOB BURNHAM PONTIAC-TOYOTA, INC. COMPLAINANT VS. NO. 33,470 MARVIN R. DEAN, ET AL DEFENDANTS

THIS CAUSE having come on for hearing on Bill of Complaint, Amendment to Bill of Complaint, and Answer to the Bill of Complaint, and the Court having taken extensive evidence, oral and documentary, and having heard and observed the witnesses, and being fully advised in the premises, does hereby FIND, DETERMINE, ADJUDICATE, ORDER AND DECREE as follows:

I.

All necessary and proper parties are before the Court.

II.

That the subject 1975 Ford pick-up truck was lawfully titled in the name of the defendant, Marvin R. Dean. That Mel Hanneman, an employee of Bob Burnham Pontiac Toyota, Inc., without authority, intentionally signed the name of the defendant, Marvin R. Dean, to a draft to cause the transaction complained of to be consummated and did put the transaction in process with knowledge that he had not requested or obtained a power of attorney from the said Marvin R. Dean to sign his name.

III.

That M. E. Cooper, another employee of Bob Burnham Pontiac-Toyota, Inc., approved the trade with the defendant, Marvin R. Dean, Jr., knowing that there was no valid power of attorney signed by the defendant, Marvin R. Dean, authorizing the transfer of title of the 1975 Ford and thereby induced the name of Marvin R. Dean to be signed by another employee of Bob Burnham Pontiac-Toyota, Inc., to the title to the 1975 Ford without lawful authority. That Complainant thereby voluntarily parted with title to and possession of the 1976 GMC and then voluntarily parted with title to and possession of the 1975 Ford, with the true facts of the transaction never having been disclosed to Complainant, and such withholding of information misled Complainant into believing the transaction was bona fide.

IV.

That by virtue of the sale of the 1976 GMC to the defendant, Marvin R. Dean, Jr., and the acceptance of his trade-in vehicle, a 1975 Ford, the Complainant’s employees, Mel Hanneman and M. E. Cooper, received a direct monetary gain from such sale, although such sale was then made without lawful authority for the reasons set forth hereinabove.

V.

That the executive officer of Complainant, including the President, Robert Bum-ham, was without knowledge of the circumstances set forth hereinabove until long after Complainant had parted with title to and possession of both the 1975 Ford and the 1976 GMC.

VI.

That although the defendant Marvin R. Dean complained to Complainant that he had not signed the title and he demanded rescission of the transaction, the true facts, though requested, were not disclosed to Complainant by its employees, Mel Hanne-man and M. E. Cooper, until much later and after the defendants had sustained substantial loss, expense, inconvenience and delay.

VII.

The Complainant has sustained the allegations of the original Bill of Complaint, and the defendants have placed in evidence an accounting of the losses and damages which they have sustained.

VIII.

The defendants are hereby awarded judgment against the Complainant for the sum of $9,486.90 as damages sustained by said defendants as a result of the actions set forth in Paragraphs II and III hereinabove.

SO ORDERED, ADJUDGED AND DECREED, this the 20th day of July, 1978.

Vs/ Kenneth B. Robertson CHANCELLOR

Approved:

Marvin R. Dean, Sr.

Glenn Barlow

Atty. for Marvin R. Dean, Sr.

and Buddy Dean

      . This record has presented the Court with some difficulty. It appears critical information has been omitted, and many facts are revealed only by offhand references of witnesses.

      . See Appendix “A” for the full text of the final decree of this mysterious lawsuit in which there obviously was more than one defendant, but which specifically names only Marvin R. Dean.

      . It is not clear from this record just how Dean, Sr.’s name got on the title. Apparently, the usual business practice of Burnham was to procure a power of attorney from the buyer authorizing Burnham to sign the buyer’s name to the motor vehicle title assigning the title and transferring ownership of the vehicle taken on a trade-in. Dean, Sr., manifestly gave no such power of attorney, but somebody connected with Burnham signed his name assigning the motor vehicle title, anyway. Hannemann’s connection with this act, if any, is not shown in the record.

      . Appleman, Insurance Law and Practice, § 6357, states, “... unless otherwise stipulated, the bond should be construed as a covenant to pay the damages actually suffered.” See also Wyler v. Schindler, 267 App.Div. 380, 46 N.Y.S.2d 390 (1st Dept. 1944), aff’d 293 N.Y. 685, 56 N.E.2d 297.


author: BRADLEY, Judge.

text:
    Jo Ann FITCH v. INSURANCE COMPANY OF NORTH AMERICA.
    Civ. 2966.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, and Robert H. King, Gadsden, for appellant.
    William T. Mills, II of Porterfield, School, Bainbridge, Mims, Clark & Harper, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal involves a claim by a workmen’s compensation insurance carrier for reimbursement of compensation benefits previously paid to the injured employee, following the employee’s recovery of damages from a third party. The employee appeals from a judgment in favor of the insurer.

On March 15, 1979 appellant, Jo Ann Fitch, was injured while employed at Mason’s Department Store. The employer’s insurance carrier, Insurance Company of North America (INA), began paying temporary total disability benefits to Fitch as a result of her injury. Fitch subsequently filed a third-party lawsuit against Charles Wilson, a co-employee, alleging that his negligence had been the proximate cause of her injury. INA thereafter filed a motion to intervene in order to protect its right of reimbursement for benefits previously paid under § 25-5-11(a), Code 1975. The motion to intervene was granted on August 21, 1980, and the case was set for trial in March 1981.

In February 1981 Fitch and defendant Wilson settled the lawsuit for $3,000.00. A consent judgment was entered for that amount and Wilson paid the sum into court. At that time, however, INA had not been informed of the entry of the consent judgment. Fitch filed a motion to compel distribution of the sum paid into court and, in May 1981, the clerk of the court disbursed the money to Fitch’s attorney, even though the matter of distribution was still under advisement of the court.

Upon discovery of the settlement, INA filed a motion for relief from judgment on July 10, 1981. The motion was granted and the court entered a judgment finding that INA was entitled to recover the amount previously paid out as compensation benefits to Fitch. From that amount INA was obligated to pay its pro rata share of the attorney’s fees and expenses of the third-party action, pursuant to § 25-5-11(c), Code 1975. The judgment was later amended to correct a mathematical error. Fitch appeals from that judgment.

The issues on appeal concern INA’s right to reimbursement of previously paid benefits under § 25-5—11(a), and the payment of a pro rata share of attorney’s fees and expenses under § 25-5-11(c). Section 25-5-11 provides:

(a) ... If the injured employee . . . recover damages against such other party, the amount of such damages so recovered and collected shall be credited upon the liability of the employer for compensation, and if such damages so recovered and collected should be in excess of the compensation payable under this chapter, there shall be no further liability on the employer to pay compensation ... and the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of such injury or death....
(c) In any settlement made under this section with a negligent third party by the employee ... the employer shall be liable for that part of the attorney’s fees incurred in the settlement with the third party, either with or without a civil action, in the same proportion that the amount of the reduction in the employer’s liability to pay compensation bears to the total recovery had from such third party. [Emphasis added.]

Fitch contends that the reimbursement claim of INA. attaches only to the “net proceeds” of the damage recovery. Fitch and her attorney were operating under a fifty percent contingency fee arrangement, with Fitch having responsibility for the payment of pretrial expenses. She argues that this contingency fee, along with the expenses, should be deducted from her total recovery before INA’s reimbursement claim attaches. As a result, Fitch would owe INA only $1,015.95, an amount less than the $2,170.79 in benefits paid to her under the compensation laws. This amount, offset by INA’s portion of attorney’s fees pursuant to § 25-5-11(c), the amount of which the parties do not dispute, results in Fitch not owing INA anything.

INA, on the other hand, contends that its claim for reimbursement attaches to the entire $3,000.00 recovery, such that INA is entitled to recover the full amount paid by it to Fitch. This recovery, offset by INA’s pro rata portion of attorney’s fees and expenses, results in Fitch owing INA approximately $735.00.

We agree with INA’s contention. We cannot support the view that damages “recovered and collected,” as stated in § 25-5-11(a), include only that amount which Fitch retains after payment of her attorney’s fees. It is clear that the statute presupposes that the entire money judgment recovered, $3,000.00 in the present case, is the sum to which the insurer’s claim for reimbursement attaches. Nowhere is it mentioned that only the “net” recovery, after payment of attorney’s fees, is intended. The purpose behind § 25-5-11(a) is to pre-elude the employee from recovering twice for the same injury. Orum v. Employers Casualty Co., 348 So.2d 792 (Ala.Civ.App.1977). Fitch has already received $2,170.79 in compensation benefits from INA; she has also recovered a judgment of $3,000.00 from a third party for the same injury. To deduct her attorney’s fees prior to reimbursing INA would in essence be to allow Fitch to benefit twice from her injury. Such is not allowed under the statute.

Further, § 25-5-11(e), regarding payment by the insurer of a portion of the attorney’s fees and expenses incurred in pursuing the third-party action, was drafted to ease the burden of expense to the employee in bringing the third-party action. Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275 (1971). Had the drafters of § 25-5-11 intended that attorney’s fees be deducted from the third-party recovery before the insurer’s right to reimbursement was computed, there would be no need for the inclusion of subsection (c) in the provision.

We therefore find that since INA had already paid Fitch the sum of $2,170.79 in the workmen’s compensation benefits, INA is entitled to reimbursement of that amount from the $3,000.00 judgment recovered by Fitch against Wilson. Offset against this amount is INA’s pro rata share of attorney’s fees and expenses, figured pursuant to the formulas as contained in the statutory language of § 25-5-11(c) and as explained in Jones and Brobston, The Employer’s Liability for Attorney’s Fees in Third Party Actions, 26 Ala.Law. 296 (1965):

Employer’s Reduced Liability x Third Party Recovery = Attorney’s foes & expenses
$2,170.79_ _x_ $3,000.00 = $1,500.00 + $484.05
x = $1,435.65

See also Baggett v. Webb, supra. Use of the above formula yields an amount of $735.14 to be refunded to INA from the third-party judgment recovered by Fitch. The trial court had determined that Fitch owed INA a net amount of $750.00. The mathematical error in the computation of the net amount owed to INA is corrected, and the trial court’s judgment as corrected is affirmed.

Fitch also contends that the trial court had no authority to grant INA’s motion to set aside the February 1981 consent decree and to enter a judgment granting INA’s right to reimbursement. This contention is without merit. The decision whether to grant or deny a motion for relief from judgment pursuant to A.R.C.P. rule 60(b) is within the sound discretion of the trial court, and the decision will be reversed on appeal only for abuse of that discretion. Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979); Pitts v. Henley, 384 So.2d 1105 (Ala.Civ.App.1980). INA had intervened to assure its right of subrogation to a pro rata share of any recovery the employee might obtain from her co-employee and the trial court had recognized this right by order entered on August 21, 1980. Yet the clerk of the court distributed to the employee the entire settlement amount before the court could determine what if any portion of the settlement amount INA was due to receive. Certainly under this circumstance the trial court was authorized to void the distribution of the $3,000.00 to the employee and to determine the amount rightfully due the employee and INA. We find no abuse of discretion here.

Accordingly, the judgment of the trial court is affirmed as corrected.

AFFIRMED AS CORRECTED.

WRIGHT, P. J., and HOLMES, J., concur.


author: PER CURIAM.

text:
    William Duane ELLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 52272.
    Supreme Court of Florida.
    Oct. 22, 1981.
    Rehearing Denied Feb. 24, 1982.

      Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender , and Jerry L. Schwarz and Richard B. Greene, Asst. Public Defenders, West Palm Beach, Florida, for appellant.
    Jim Smith, Atty, Gen., and Doris E. Jenkins and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This appeal is before us from a jury and judge resentencing of appellant to death, entered upon a plea of guilty. The original death sentence was vacated because of improper consideration as an aggravating factor of a collateral felony for which Elledge at the time had not been convicted. Elledge v. State, 346 So.2d 998 (Fla.1977) [Elledge I],

The facts surrounding appellant’s convictions for first-degree murder and rape of Margaret Anne Strack are detailed in our first review of appellant’s death sentence, and do not require rehashing. It is sufficient to note that Elledge confessed to a weekend of crimes which included the rape and murder of Ms. Strack, the robbery and murder of Edward Gaffney and the robbery and murder of Kenneth Nelson. This Court vacated appellant’s ensuing death penalty for the Strack murder. Although details of the Nelson murder, for which appellant had been convicted before sentencing, were admissible to support the aggravating circumstance of having a previous capital or violent felony conviction, details of the Gaffney murder, for which appellant had not been convicted at the time of sentencing, were not allowable. El-ledge I, at 1001-03.

On this appeal appellant attacks his second death sentence on sundry grounds, all of which we have considered, but only five of which warrant discussion.

Appellant first complains that the limited testimony as to the Gaffney murder was not allowable under the literal dictates of our previous opinion in this ease. Elledge I at 1003. But the entire thrust of our prior decision was the distinction between felony convictions, which were allowable to prove the corresponding aggravating factor, and a charge for such a crime which was not allowable. Our concern was that the requirements of Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977), be met. Provence requires that a conviction is essential for consideration of prior crimes under the aggravating factor in section 921.-141(5)(b), Florida Statutes (1977). Yet it is clear from the record that prior to the resentencig trial, Elledge had indeed been convicted for the Gaffney murder. In El-ledge I we made clear that evidence of convictions for certain felonies is admissible, including testimony of witnesses, “because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case.” Id. at 1001. We are at a loss to understand how appellant could claim that evidence of the Gaffney murder is forever barred despite an ensuing conviction in light of the reasoning in Elledge I.

Appellant asserts that his appearance before the sentencing jury in leg irons led to prejudice in the jury’s mind. Cases which concern such prejudice deal with the adverse effects that such restraints have upon the accused’s presumption of innocence. See Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). But appellant did not stand before the sentencing jury as an innocent man; rather he stood as a confessed murderer of three persons. The critical issue in a restraint case is the degree of prejudice caused by the restraints. Here, we can find very little prejudice since the appellant was an avowed dangerous individual. See United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir.), cert. denied, 411 U.S. 971,36 L.Ed.2d 694 (1973). Second such restraints are within the sound discretion of the court, and the record indicates the judge had information that the appellant had threatened to attack his bailiff. El-ledge through his confessed acts had proven himself a man of his word when violence was threatened, so we would be hard pressed to find the trial court abused its discretion in taking such precautions.

Appellant next asserts that an aggravating circumstance, that the murder was committed to avoid arrest, found by the judge was unsupported by the evidence. This argument is unfounded for a close examination of the record reveals that El-ledge’s taped confession and a transcript of that confession were admitted into evidence. During this confession Elledge detailed the victim’s threats to call the police when he initiated the rape. Such evidence is sufficient to support the conclusion that Elledge killed the rape victim in order to prevent her carrying out her threat.

Appellant attacks the sentencing order because he claims the trial judge included under his initial finding, which stated that Elledge had a significant history of criminal activity, crimes which were either noncapi-tal or nonviolent. Such an argument is clearly obfuscatory as it is apparent that this initial finding concerned the lack of the mitigating circumstance under section 921.-141(6)(a), Florida Statutes (1977), because the findings that directly follow the initial finding also concern lack of mitigating circumstances. The trial judge properly differentiated mitigating from aggravating circumstances in negating the statutorily described mitigating circumstance.

Finally, appellant claims that the trial judge limited jury consideration of nonstatutory mitigating circumstances by giving the standard jury instruction which states: “The mitigating circumstances which you may consider, if established by the evidence, are these . . . .” We have previously considered this argument in depth and have flatly rejected it. See Peek v. State, 395 So.2d 492, 496-97 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). See also Demps v. State, 395 So.2d 501, 505 (Fla.1981).

Having found no merit in any of appellant’s arguments, and having conducted a full review of the sentence which found several aggravating and no mitigating circumstances, we are unable to discern any error that may have deprived appellant of any protections offered by the judicial process. Accordingly the sentence of death is affirmed.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . Section 921.141(5)(b), Florida Statutes (1977), reads: “The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.”

      . State’s Exhibit No. 5

      . The order reads in part:
      On August 3rd, 1977 the jury recommended to this Court that WILLIAM DUANE ELLEDGE be sentenced to death.
      Pursuant to law, this Court makes the following findings of fact:
      (1.) The Defendant does have a significant history of prior criminal activity. The Defendant has been convicted of Murder In The First Degree in Jacksonville, Florida. He has also been convicted of felonious assault in the State of Colorado. This Defendant has been confined in various institutions for a great portion of his life for various other crimes.
      (2.) The Defendant did not commit this Murder while under the influence of extreme mental or emotional disturbance. The Defendant was examined by two psychiatrists and both stated that at the time of the crime the Defendant understood and could appreciate the nature and consequences of his acts. Neither Doctor found nor reported that the Defendant was acting under the influence of extreme mental or emotional disturbance at the time of the crime. There was no indication of insanity.
      (3.) The victim was not a willing participant in the Defendant’s conduct and did not consent to these crimes.
      (4.) This murder was committed while the Defendant was raping the victim or shortly after raping the victim. The murder was committed for the purpose of avoiding arrest, as the victim had threatened to notify the police of the rape and after this threat by the victim, the Defendant committed this murder.
      (5.) This murder was especially heinous, atrocious and cruel. The Defendant choked the victim until she was beating on the wall and gasping for air. He'then threw her from the bed onto the floor and again choked her for approximately 15-20 minutes. During this period of time the Defendant was raping the victim.
      After the rape and murder were completed the Defendant then dragged the body of the victim to the door of the motel room, threw her down the steps and dragged her to an automobile. The Defendant then drove her to a church parking lot and threw her from the car. The Defendant then abandoned her almost nude body, with the legs tied together by an electric cord, in the church parking lot.
      Based upon these findings of fact, and based further upon the advisory sentence rendered to this Court by the twelve member jury, and it being the opinion of this Court that there are sufficient aggravating circumstances existing to justify the sentence of death, and this Court, being of the additional opinion that NO mitigating circumstances exist,
      It is therefore the sentence of this Court, having already adjudged you to be guilty of Murder In The First Degree on March 17th, 1975, that you,
      WILLIAM DUANE ELLEDGE, be sentenced to Death.

      .Appellant seeks to characterize the initial finding as the aggravating circumstance under section 921.141(5)(b), Florida Statutes (1977), which concerns prior convictions for capital or violent felonies.

      . “The defendant has no significant history of prior criminal activity.”


text:
    William Riley JENT, Appellant, v. STATE of Florida, Appellee.
    No. 58744.
    Supreme Court of Florida.
    Dec. 3, 1981.
    Rehearing Denied Feb. 15, 1982.

      Leonard J. Holton, Dade City, and Jerry Hill, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

William Jent appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm both his conviction and sentence.

On July 13,1979 four men rode on horseback through the Richloam Game Preserve in Pasco County looking for some stray cattle. Instead of the cattle, they found the badly burned body of a young woman. Six weeks later an indictment issued, charging Jent and his stepbrother Ernest Miller with the premeditated murder of a woman named “Tammy.”

At trial three eyewitnesses presented an ugly, confused story — a drunken swimming party, the beating of the unknown woman by Jent and his stepbrother, transporting her in the trunk of a car to Miller’s home where four men raped her, and placing the woman back in the car trunk and taking her to the game preserve where Jent and Miller poured gasoline on the woman and set her on fire. The medical examiner testified that the victim had been alive when ignited and that burns were the cause of death. The jury convicted Jent as charged, and the trial court sentenced him to death. This appeal followed.

Jent alleges that the trial court erred by failing to provide him with transcripts of the grand jury testimony of three eyewitnesses. Just prior to trial Jent’s attorney requested access to this testimony, claiming that the three witnesses’ testimony at trial would be inconsistent with what they had told the grand jury. Counsel claimed that the prior testimony would provide impeachment material, to which Jent was entitled under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After hearing argument, the court found that the defense had not laid a proper predicate for disclosure of grand jury testimony under the exceptions to section 905.27, Florida Statutes (1979).

There is no pretrial right to inspect grand jury testimony as an aid in preparing one’s defense and holding an in camera inspection of such testimony is a matter within the trial court’s discretion. Minton v. State, 113 So.2d 361 (Fla.1959). To obtain access to grand jury testimony, a proper predicate must be laid. Mere surmise or speculation regarding possible inconsistencies in testimony is not a proper predicate. Id.

The three eyewitnesses testified at Jent’s trial. Through cross-examination, defense counsel drew attention to inconsistencies between each one’s trial testimony and her previously given depositions. If, as defense counsel stated, he sought the grand jury testimony in order to attack these witnesses’ credibility, the cross-examination obviated that need for their prior testimony. We agree that the defense failed to present a sufficient predicate and find that the trial judge did not abuse his discretion in denying the request for access to grand jury testimony.

A few days prior to Jent’s trial Samantha Carver, an eyewitness, pled nolo contendere to a charge, arising from the instant homicide, of accessory after the fact. Jent sought to depose Carver, but, on advice of counsel, she invoked her fifth amendment right to remain silent. Jent then moved for a continuance and an order requiring Carver to submit to a deposition. After hearing argument, the trial court denied the motion, finding that Carver still had a fifth amendment privilege, that if her testimony were personally inculpatory she could face other criminal charges, and that the defense had no reasonable grounds to believe that her testimony would exculpate Jent. Jent now claims that the court erred in denying his motion for a continuance, thereby denying him effective assistance of counsel.

We find no merit to this claim. A continuance may be granted in a trial court’s discretion, but only for good cause shown by the party seeking the continuance. Fla.R.Crim.P. 3.190(g)(2). The trial court’s ruling will not be disturbed unless a palpable abuse of discretion is demonstrated to the reviewing court. Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). No such showing has been made in the instant case. Additionally, Jent’s counsel diligently pursued the matter, and his suffering an adverse ruling does not rise to the level of ineffective assistance of counsel.

Jent also challenges the sufficiency of the evidence to convict him of murder. He alleges that the quality of the evidence is so poor that it fails to establish his guilt beyond a reasonable doubt and asks this Court to reweigh the evidence as it did in Tibbs v. State, 337 So.2d 788 (Fla.1976). In making this claim Jent did not have the benefit of our second Tibbs opinion in which we receded from the case on which he relies. Tibbs v. State, 397 So.2d 1120 (Fla.1981). In the latter Tibbs we reaffirmed this Court’s previous conclusion in State v. Smith, 249 So.2d 16 (Fla.1971), that, when a jury properly performs its duty, a reviewing court should not reweigh the evidence.

The state concedes that its witnesses were not pillars of the community. Determining the credibility of witnesses, however, is within the province of the jury. It is the jury’s duty to resolve factual conflicts, and, absent a clear showing of error, its findings will not be disturbed. Alvord v. State, 322 So.2d 533 (Fla.1975), cert, denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1229 (1976); Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert, denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Our review of the record convinces us that the jury performed its function properly and that its verdict is supported by competent, substantial evidence.

When the body was found, the victim’s head was resting against a small stump, which a detective uprooted and had examined. Laboratory technicians found several hairs on the stump, some of which came from the victim and one of unknown origin. The technician who performed a microana-lysis of the hairs testified at trial. During the proffer of her testimony, as well as during direct and cross-examination, she testified that the unknown hair was microscopically the same as Jent’s and that it was “highly likely” that the unknown hair and the samples of Jent’s hair that she had examined had come from the same source. In response to questions from both sides regarding positive identification, however, she repeatedly stated that the unknown hair could not positively be identified as having come from Jent.

Defense counsel objected to testimony regarding hair analysis on the ground that such analysis is not sufficiently reliable or exact to be allowed into evidence. The state countered the objection by claiming that hair analysis is a recognized scientific procedure and that the defense’s argument went to the weight to be given the testimony, not to its admissibility. The trial judge stated that the reliability of microanalysis was a determination for the court to make. After the proffer of the technician’s testimony and argument by both sides, the court overruled the defense’s objection and allowed the testimony into evidence.

As a general rule, the problem presented to a trial court is whether scientific tests are so unreliable and scientifically unacceptable that admission of those test results constitutes error. Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1968), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). This Court has recognized that testimony regarding hair analysis can be admitted into evidence in a criminal trial. Peek v. State, 395 So.2d 492 (Fla.1980). A trial court has wide discretion concerning the admissibility of evidence, and, in the absence of an abuse of discretion, a ruling regarding admissibility will not be disturbed. See Mikenas v. State, 367 So.2d 606 (Fla.1978); Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976); Coppolino v. State. We find no abuse of discretion in regards to allowing hair analysis testimony in the instant case, nor do we find the substance of that testimony out of order: The technician repeatedly stated that she could not positively identify the unknown hair as being Jent’s. Determining what weight to accord this testimony was within the jury’s province, and no error occurred in permitting the jury to hear this testimony.

Jent claims that the trial court erred in denying his motion to exclude cameras from the courtroom during his trial. Neither the United States Supreme Court nor this Court has found the presence of cameras in a courtroom to constitute a per se denial of due process. Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981); In Re Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.), appeal dismissed, 444 U.S. 976, 100 S.Ct. 476, 62 L.Ed.2d 403 (1979). In order to have cameras excluded from a courtroom during trial, a defendant must show prejudice of constitutional dimensions. Compare Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981), with State v. Green, 395 So.2d 532 (Fla.1981).

Jent’s only allegation regarding this claim is that the clicking of the camera distracted his attorney, thereby denying him the effective assistance of counsel. The trial judge, while expressing his dislike for the presence of cameras, stated that he could not hear any such clicking. He also stated that he would grant the motion if, at any time, he found the camera distracting. The motion was never granted, so, obviously, the court never found the camera so distracting as to necessitate its removal. We find that Jent has not shown prejudice of constitutional dimensions and that the trial judge did not abuse his discretion in refusing to grant the motion.

Jent alleges error on two points regarding the victim’s identity. He first claims that the indictment did not sufficiently describe one certain person and that the trial court erred in failing to grant his motion to dismiss the indictment. Jent’s second point is that the state failed to prove beyond a reasonable doubt that the person allegedly beaten, raped, and burned and the person autopsied were one and the same.

We agree with the state that no error occurred regarding the victim’s identity. An indictment must fulfill two requirements: the defendant must be apprised of the charges sufficiently to enable preparation of a defense, and the allegations must be specific enough to protect the defendant against being placed in jeopardy twice for the same offense. State v. Black, 385 So.2d 1372 (Fla.1980). If the deceased’s name is unknown, the indictment must give as clear a description of the person as the facts before the grand jury permit. Johnson v. State, 60 Tex.Crim. 305, 131 S.W. 1085 (1910). See Commonwealth v. Di Stasio, 294 Mass. 273, 1 N.E.2d 189 (1936). We find that the indictment sufficiently apprised Jent of the crime charged and that it called him to answer for the death of one particular person and no other.

We also find that the person described in the indictment was the person autopsied. At trial the medical examiner testified that she visited the scene and observed as police took photographs of the victim’s body. She identified one of those photographs and stated that she had performed an autopsy on the person in that photograph. One of the eyewitnesses to, the entire sequence of events identified one of the photographs taken at the scene as being of “Tammy,” the victim. We find that the state introduced convincing, satisfactory, unequivocal proof, compatible with the nature of this case, that sufficiently identified the victim. See Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978).

Following his conviction, Jent moved for a new trial, alleging, inter alia, the discovery of new and material evidence. After holding a hearing concerning the newly discovered evidence, the trial court denied the motion. Jent now claims that the trial court erred in denying his motion for new trial.

The motion was predicated on affidavits signed by Elmer Carroll and his girlfriend Tina Marvin, both former residents of Dade City. Carroll’s affidavit stated that he witnessed the beating death of a woman named Gail Bradshaw and the subsequent burning of her body. According to the affidavit, this murder took place in the Richloam Game Preserve on July 12, 1979. Marvin’s affidavit stated that Carroll related the facts of Bradshaw’s death to her.

At the hearing, defense counsel contended that the body identified as “Tammy” was, in fact, that of Gail Bradshaw and that someone other than Jent caused her death. Bradshaw’s father, sister, and brother testified at the hearing. Only the brother identified photographs of the body as being his sister.

Elmer Carroll and Tina Marvin also testified at the hearing. On the stand, however, they recanted the statements made in their affidavits. Carroll testified that he was not at the game preserve on July 12 and that he saw nothing violent happen to Bradshaw. When shown a photograph of the body found at the game preserve, he said that it was not Bradshaw. Marvin, when questioned by defense counsel, again stated that Carroll told her that Bradshaw had been killed. On cross-examination, however, she retracted that statement and said that Carroll had never told her that Bradshaw had been taken to the game preserve and killed. Further questioning by the state produced the following dialog:

Q Well, then why did you sign an affidavit to that effect swearing that was the truth?
A I was just doing it for Mr. Hersch [Miller’s attorney].
Q Why did you do that?
A To help him out I guess.
Q Why did you think you should help him out?
A Because he said he would stand by me all the way.
[Meaning] he would stand beside me and he also said that he would give me a lawyer.

Both Carroll and Marvin testified that the statements on which their affidavits were based were prompted by Miller’s promises, either in person or through his sister, to Carroll and Marvin, respectively, that Miller would see that Marvin and her child were taken care of while Carroll was in jail.

After hearing all the testimony, the trial judge denied the motion for new trial. The judge stated that he did not think a jury would believe Carroll and Marvin’s testimony. He stated further that he believed that a jury, if it heard their testimony, would still render the same verdict.

As this Court has previously stated:

In deciding a motion for new trial on the ground of newly discovered evidence, the trial judge must weigh both the evidence adduced at the first trial, and the evidence offered on the motion, in order to determine whether the newly discovered evidence “if introduced at the trial would probably have changed the verdict.” Accordingly, the “trial judge has a wide discretion in the matter of granting or denying [motions for new trial] which we will not overthrow unless some abuse is shown.” Only very rarely should the trial court’s determination be disturbed.

Baker v. State, 336 So.2d 364, 370 (Fla.1976) (citations omitted); Clark v. State, 379 So.2d 97 (Fla.1979), cert. denied, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981). After reviewing the record, we find that this case is not one of the rare instances where the trial court’s determination should be disturbed. We understand the trial judge’s conclusions regarding the incredibility of Carroll and Marvin’s statements and testimony and find no abuse of discretion in his ruling.

The indictment charged Jent with one count of premeditated murder. During the trial, one witness testified that the victim had been raped, and the state mentioned that fact several times during closing argument. The court gave the jury the standard instruction on first-degree murder, which includes a felony-murder charge. The eourt did not, however, instruct on the underlying felony of rape. Defense counsel did not object to this omission, but, rather, concurred in the proposed instructions after examining them.

In his motion for new trial Jent alleged that the court erred in failing to instruct on the underlying felony. The court, however, found Jent’s reliance on State v. Jones, 377 So.2d 1163 (Fla.1979), and Robles v. State, 188 So.2d 789 (Fla.1966), to be misplaced. The court concluded that those cases did not control the instant situation because the evidence showed an incidental rape during the commission of a premeditated murder rather than an incidental murder during the perpetration of a rape. Relying on Frazier v. State, 107 So.2d 16 (Fla.1958), the court found no error regarding the felony-murder instruction.

On appeal Jent again alleges error in that instruction. “Where there is sufficient evidence of premeditation, the failure to give the underlying felony instruction, where it has not been requested, is not error which mandates a reversal absent a showing of prejudice.” Knight v. State, 394 So.2d 997, 1002 (Fla.1981). In reaching this conclusion we, as did the trial court, relied on Frazier. We find that the trial court properly found the failure to instruct on the underlying felony harmless. As the trial court pointed out, the state “feebly” argued felony murder; the evidence, however, overwhelmingly shows premeditated murder. The defense did not request such an instruction, and Jent has failed to show that any prejudice resulted from the failure to instruct on the underlying felony.

At the conclusion of the sentencing hearing, the jury recommended that Jent receive the death penalty. The trial court agreed with this recommendation, finding nothing in mitigation, but finding in aggravation that the homicide was especially heinous, atrocious, and cruel and that it was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. On appeal Jent claims (1) that subsection 921.141(5)(i), Florida Statutes (1979), is an unconstitutional attempt to govern practice and procedure, (2) that the new aggravating factor improperly places a burden of proof on a defendant, and (3) that the trial court improperly restricted the consideration of mitigating evidence. We find no merit to any of these claims.

In Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980), the appellant attacked section 921.141 in its entirety as an unconstitutional incursion into this Court’s power over practice and procedure. We found that claim to have no merit and find no differently regarding the instant claim.

Regarding Jent’s second sentencing claim, he alleges that every person convicted of premeditated murder will start the sentencing proceeding with one aggravating circumstance already established. This, Jent argues, will violate due process by forcing the defendant to prove lack of premeditation in the sentencing phase of the trial. We do not agree that this will occur. As we stated in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), the aggravating circumstances set out in section 921.141 must be proved beyond a reasonable doubt. The level of premeditation needed to convict in the penalty phase of a first-degree murder trial does not necessarily rise to the level of premeditation in subsection (5)(i). Thus, in the sentencing hearing the state will have to prove beyond a reasonable doubt the elements of the premeditation aggravating factor — “cold, cab culated . . . and without any pretense of moral or legal justification.”

After reviewing the record, we find that the trial court did not improperly limit consideration of mitigating evidence. Jent complains that the court did not instruct the jury on nonstatutory mitigating evidence, but he did not ask the trial court to give the instruction he now propounds to this Court. In fact, when asked by the trial court, defense counsel indicated his satisfaction with the instructions that court proposed to give.

Finding no error, we affirm both the conviction and sentence of death.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.

      . The jury convicted Miller of first-degree murder in a separate trial. In a combined sentencing hearing both Jent and Miller received the death penalty. Miller v. State, No. 58,795 (Fla.).

      . Several witnesses referred to the victim as “Tammy.” Her name has never been established more definitely.

      . Defense counsel stated that he was not alleging that they would commit perjury.

      . § 905.27(1), which allows disclosure of grand jury testimony for the purpose of:
      (a) Ascertaining whether it is consistent with the testimony given by the witness before the court;
      (b) Determining whether the witness is guilty of perjury; or
      (c) Furthering justice.

      . Each of the three witnesses had given two depositions. Any inconsistencies do not rise to the favorable evidence level of Brady.

      . Carver had not been adjudicated and sentenced when the court heard this motion nor had she been granted immunity.

      . The trial court correctly concluded that accessory after the fact is not a lesser included offense of premeditated murder. See Palmes v. State, 397 So.2d 648 (Fla.1981).

      . We find no merit in Jent’s contention that the trial court erred in not finding “weakness” of the evidence as a mitigating factor in the sentencing proceeding.

      . “[E]xcept in rare instances, there are not enough individual characteristics in hair from which to determine positively that a hair of unknown source came from a particular person to the exclusion of all other persons.” A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases 412 (1978) (footnote omitted). This Court acknowledged that conclusion in Peek v. State, 395 So.2d 492 (Fla.1980).

      . The indictment charged Jent with one count of premeditated murder for the death of “Tammy, a white female, 5' 06" in height, and weighing approximately 120 pounds, a better description of said person to the Grand Jury unknown.”

      . New and material evidence which, if introduced at trial, would probably have changed the verdict is a ground for granting a new trial. Fla.R.Crim.P. 3.600(a)(3).

      .We note that a state attorney was not present at the interviews which produced these affidavits and that neither Carroll nor Marvin was represented by counsel during the interviews.

      . § 921.141(5)(i), Fla.Stat. (1979). The court commented that, on the facts of this case, these two circumstances “seem to blend into one” and appears to have considered them as only a single aggravating factor. In the absence of mitigating factors, finding only a single aggravating factor is sufficient to warrant imposition of the death penalty. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).