author: McCORD, Judge.

text:
    William B. MILLS, as Trustee of the Jessie Ball duPont Religious, Charitable and Educational Fund, a Testamentary Trust created under the Last Will and Testament and Codicils thereto of Jessie Ball duPont, deceased, Appellant, v. Edward BALL and The Florida First National Bank of Jacksonville et al., Appellees. The EPISCOPAL CHURCH IN the DIOCESE OF FLORIDA, INC., as Representative of a class of possible beneficiaries under the Last Will and Testament and Codicils thereto of Jessie Ball duPont, deceased, Appellant, v. Edward BALL and The Florida First National Bank of Jacksonville et al., Appellees.
    Nos. LL-460, LL-461.
    District Court of Appeal of Florida, First District.
    March 10, 1980.
    John H. Wilbur and Christine Rieger Milton of Milam & Wilbur, Jacksonville, for appellant Mills.
    Stephen D. Busey of Smith, Hulsey, Schwalbe & Nichols, Jacksonville, for appellant Episcopal Church.
    Delbridge L. Gibbs of Marks, Gray, Con-roy & Gibbs, Jacksonville, for appellee Julian.
    John S. Miller, Jr. of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellees Edward Ball and The Florida First Nat. Bank.
   McCORD, Judge.

These consolidated appeals are from a declaratory judgment construing the will of Jessie Ball duPont. Appellants are William B. Mills, one of the trustees of the Jessie Ball duPont Religious, Charitable and Educational Fund, a testamentary trust created under the last will and testament and codicils thereto of Jessie Ball duPont, deceased, and the Episcopal Church in the Diocese of Florida, Inc., representing a class of potential beneficiaries under the trust. Appel-lees are Edward Ball and the Florida First National Bank of Jacksonville, two of the trustees of the testamentary trust, and others.

The suit below was instituted by Edward Ball and the Florida First National Bank of Jacksonville seeking to resolve a question relating to a class of beneficiaries. Defendant William Mills, by cross-claim and counterclaim, raised additional issues.

The fifth codicil to Mrs. duPont’s will declared:

“3. The names of certain institutions are set forth below and I request but do not direct my trustees to include them among my beneficiaries of the income. Further, I request my trustees, but I do not direct them, to include among the beneficiaries of the income the religious, charitable, literary or educational institutions to which I have made contributions during any of the five calendar years ending December 31, 1964. My trustees can obtain the names of these organizations either from my personal records or from copies of the appropriate tax returns. I do not direct the trustees to pay the income to these institutions exclusively or to any of them, and I do not direct that if distributions are made to some or all that the distribution shall necessarily be in proportion to the amounts previously given by me. In the event the trustees do not use all of the income for the institutions below named or for the organizations to which I have made contributions in the past five years, I direct that the surplus income hereunder be used for the temporary relief of individuals residing in Florida, Delaware, or Virginia who are in need. I do both request and require that all of the property be held and all of the income of the trust be devoted exclusively to religious, charitable, literary, or educational purposes, and that the recipient organizations be only those no part of the net earnings of which inures to the benefit of any private individual and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and that no deviation from these purposes shall be made.”

Among the 425 charitable contributions made by Mrs. duPont during the five-year period mentioned above, were individual contributions to the “discretionary fund” of each of 32 clergymen. Of the 32, 24 were Episcopal, five Catholic, one Baptist, one Russian Orthodox, and one Reformed Church of America (now deceased). The question presented by the complaint was whether the gifts to these 32 donees were gifts to “institutions” thus permitting the trustees to consider those recipients for further gifts from the trust or were gifts to individuals thus disqualifying the recipients from further gifts. The Diocese was joined as a defendant in the action as a representative of the 32 potential beneficiaries.

At the trial the will and codicils, a list of the testator’s charitable bequests for the years 1960-64, affidavits and depositions of various people, and correspondence between the testator and the 32 donees were introduced in evidence. The only other evidence received by the court was the testimony of the Right Reverend Frank S. Cerveny, Bishop of the Diocese of Florida, who testified regarding the discretionary funds of the Episcopal Church, and the other churches involved. He testified that under the practice, traditional and canonical law of the Episcopal Church, discretionary funds are created and made available to ministers and bishops for use for charitable or pious purposes by the clergyman within his discretion; that the money for that purpose is funded from a commitment of collections obtained during periodic church services and from gifts and offerings for the poor made by church members and others; that the fund is a fund of the particular church administered by the individual clergyman. He testified that should a minister or bishop vacate his position, the discretionary fund remains with the institution for his successor in office. This testimony of the bishop was not disputed or rebutted. Trustees Juhan, Ball and the Florida First National Bank admitted that they had no information nor contention that gifts to the 32 donees were other than gifts to institutions. Trustee Mills conceded that he had no question regarding 20 of the donees but was of the view that gifts to 12 of the donees appeared to have been made by Mrs. duPont to the individual recipients for personal purposes. The trial court ruled that Mrs. duPont’s gifts to all 32 donees were gifts to individuals rather than institutions.

Mills, by his cross-claim and counterclaim, raised additional issues by which he sought a declaratory judgment concerning: [1] Whether, under the will, institutions eligible for grants were limited to those named in the will or those previously receiving funds from Mrs. duPont within the five-year period designated in the will. (Trustees Mills and Juhan contended that the will permits gifts to institutions other than those named and those to whom contributions had been made during the five-year period; trustees Ball and the Bank contended that the beneficiaries were limited to those either named or those within the five-year period.) [2] Whether, under the will and under the laws of Florida, each trustee of the fund is entitled to employ, at trust expense, independent counsel to assist him in connection with his duties under the trust. (Mills and Juhan contended that each trustee was permitted to employ independent counsel and need not rely on an attorney selected by the majority; Ball and the Bank contended that the trustees must all utilize one attorney.) On those questions, the trial court ruled that recipients of grants are limited to those institutions named in the will or those receiving grants from Mrs. duPont within the five-year period designated in the will. The trial court also ruled that each trustee is not entitled to employ an independent attorney for advice or other professional duties in his administration of the trust estate but must rely upon an attorney selected by the majority except in instances where no majority decision is reached and the matter is submitted to the trial court for resolution. Appellants contend the trial court erred in both of these rulings.

In the ruling of the final judgment relating to the discretionary funds, the trial court stated as follows:

“There were 32 contributions to ‘Rev.’, ‘Very Rev.’, and ‘Rt. Rev.’ (named individual) ‘Discretionary Fund’ (See Exhibit 2 of the Complaint). It was undoubtedly the intention of the Testatrix that these contributions be used for charitable and benevolent purposes (even including supplements to the income of the named cleric). But the Court finds that they were not intended as contributions to institutions. If intended as contributions to the church or to the Diocese with which the named cleric was or formerly had been associated, the contribution would have been to the named institution or organization as it was in the case of the other 393 contributions.”

While ordinarily the judgment of a trial court will not be disturbed on appeal if supported by competent substantial evidence, the normal presumption accorded to a trial court’s finding is not as strong when that finding is based upon its interpretation of documents and undisputed testimony. The Supreme Court, in Holland v. Gross, 89 So.2d 255 (Fla.1956), said:

“A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion.”

There were no disputed issues of fact in the evidence adduced below. The only evidence presented as to the nature of a discretionary fund of a clergyman was the undisputed testimony of Bishop Cerveny. It is clear from his testimony that the discretionary fund is a fund of the church — the institution. The Bishop testified as follows regarding this:

“Q Would you please explain to us what the discretionary fund is in the Episcopal Church?
A Well, the discretionary fund is used for charitable and pious works. I think, first of all, one, historically this is true, the church exists not only to proclaim the gospel, but to respond to needs of people. So, historically, this has always been true, but also, I think the Court would be interested to know that this is not only a tradition of the church, but this is also canon law of the church, Canon 20, Section 2E, I believe, of the national church'.
* * * * * *
Q . . . I think it would be helpful to the Court, Bishop Cerveny, if you would read that paragraph from the canon to the Court.
A Canon 20, Section 2E, states that: ‘The alms and contributions, not otherwise specifically designated, at the administration of the holy communion on one Sunday in each calendar month, and other offerings for the poor, shall be deposited with the minister of the parish, or with such church officer as shall be appointed by him, to be applied by the minister,' or under his superintendents, to such pious and charitable uses as shall by him be thought fit. During a vacancy, the vestry shall appoint a responsible person to serve as almoner.’ I think not only does this indicate that the — there is a canonical basis for a discretionary fund, but it’s clear that even when a minister leaves, that this is ongoing that the church in his absence appoint a person to continue the disposition of the income in his absence, and that person is called an almoner.
Q What church officers or officials have discretionary funds?
A What church officers — I would say that the — the only person who has a discretionary fund would be the priest in charge of the — of a congregation or the Bishop, and in the absence of a minister in the congregation, a priest, then the vestry can direct a member within its own ranks to dispose of the income to its charitable uses in his absence.
***** *
Q What sources of income are available to a minister or a Bishop for his discretionary fund? How do you—
A It would vary, but first of all, of Canon law, I would say that, at least, it is suggested that the open offering from a Holy Cummunion service each month be directed to the discretionary fund. The vestry at its discretion may decide that there be more than just one Sunday offering. It will come sometimes from individuals or groups of individuals, so, it comes from all kinds of sources.
Q Individuals who make gifts to discretionary funds?
A Individuals making gifts to discretionary funds, to the priests and the church.
******
Q What responsibility, if any exists, for ministers or Bishops to account for the use of its discretionary fund?
A I think it rests simply on his own moral authority. We hope that the man has the moral responsibility to use the funds that are given to him in the right— right use, .
******
Q In a parish or in a church situation, is the rector or minister responsible to or required to account to the vestry for the use of his discretionary fund?
A No, indeed, because oftentimes when you give money to people that you — you want to do that within the confines of a sacramental covenant with them, and that would breach that kind of a covenant. I dare say, if vestry members would ask where the disposition of the income is going, the priest would be very happy to tell them, not telling names, but describing the general needs upon his fund.
Q Have you ever had the situation where gifts made to a discretionary fund with some understanding by the donor as to the ultimate use for disposition of those moneys by the—
A Yes.
Q —by the minister or Bishop?
A There are times that people will want the money to be directed to a specific charitable use, and that being the case, the money is acceptable and so directed.
Q Is that consistent with the purpose of discretionary fund as you know of?
A That is very consistent with the purpose of discretionary fund.
Q Do you know whether or not other churches, such as the Roman Catholic Church or the Baptist Church have a similar tradition of a discretionary fund?
A I can’t .speak categorically for the Baptists, I think many of them do. I know this is true of the Roman Church, yes.
Q Do you know of any respects on which the practice in those churches differs from that which you just described?
A No. I don’t think so.”

An affidavit of Bishop Cerveny further clarifies this question as follows:

“5. Pursuant to Canon 20, Sec. 2(3), and the practice, custom and tradition thereunder, discretionary funds of ministers and bishops are considered the property of the church or diocese institutions with which the minister or bishop is associated, and are available to the minister or bishop as a result of the position held by him with the particular church or diocese. Should the minister or bishop vacate his position, the discretionary fund remains and is available to his successor in office. 6. The practice, custom, and tradition regarding discretionary funds described above is a practice not only with the Episcopal Church but also the Roman Catholic Church and other Christian churches known to the affiant.”

From Bishop Cerveny’s testimony and affidavit, it is obvious that the discretionary fund of a particular active clergyman is a fund of the church (the institution) which is administered by the clergyman in the performance of his duties. A gift to the discretionary fund is, thus, a gift to the church, an institution. It is also clear, however, that the only persons who administer a discretionary fund are a priest or minister in charge of a congregation or a bishop or a member of a vestry designated by the vestry to dispose of the income to its charitable uses in the absence of a minister or priest in the congregation. It follows that to qualify for future gifts from the trust, the gifts must be to a particular minister’s discretionary fund who was the recipient of a gift or gifts to his discretionary fund by Mrs. duPont during the five years specified, and such a minister may receive such a gift only if he is an active minister or priest of a congregation or an active bishop of the church at the time the gift is made. It matters not that the gift to a minister’s discretionary fund by Mrs. duPont was earmarked for a particular religious, educational or charitable use by the minister or even a personal use of the minister in furtherance of his ministry, as she undoubtedly considered such uses to be pious uses by a minister who was devoting his life to the work of the church. The trial court’s ruling that grants to the clergymen’s discretionary funds were not gifts to institutions is not supported by the evidence.

We find no error in the trial court’s ruling that the institutions eligible for grants under the will are limited to those named in the will or those previously receiving funds from Mrs. duPont within the five-year period designated in the will, and, therefore, we affirm as to that ruling.

As to the contention that the trial court erred in its general ruling that each trustee is not entitled to employ an independent attorney for advice or other professional duties in his administration of the trust estate, we find no error, subject to certain modifications which we will hereafter set forth. We point out initially that the trial court’s ruling is applicable or should be applicable only to employment of an attorney at the expense of the trust. There should be no prohibition to employment of an attorney by a trustee at his expense. If litigation ensues between a minority trustee and majority trustees and the court determines that the minority trustee is entitled to an award of attorney’s fees for the services of his attorney in the litigation [see Ball v. Mills, 376 So.2d 1174 (Fla. 1 DCA 1979)], the fee allowed should also encompass reasonable prelitigation advice and counsel of the attorney preparatory to such litigation.

Appellant Mills and appellee Juhan contend that the Will of Jessie Ball duPont, deceased, and § 737.402, Florida Statutes (1977), authorize each individual trustee to employ an attorney at the expense of the trust to advise and assist him in the performance of his duties. Mills and Juhan point to Item 20 of the Will which provides as follows:

“I specifically confer upon my executors and trustees the right to choose whatever attorneys or counsel are desired by them for purposes of advice or other professional duties and to compensate them from my estate or trust according to the reasonable value of their services.”

The following additional provision, contained in Item 15 of the Will, as amended by the Third Codicil, however, makes it clear that the above provision has reference only to the trustees as a body rather than to an individual trustee. It provides as follows:

“I do hereby provide by this codicil that a majority decision of the executors or trustees shall govern, but in the event that a majority decision is not reached, then the question or matter under consideration shall be referred to the appropriate court for decision and the decision of the court shall be final.”

Under Item 15, the trustees act by a majority thereof, and the decision to employ an attorney or attorneys is controlled by a majority.

Trustee Juhan refers to § 737.401 and § 737.402, Florida Statutes (1977) (a part of the Trust Administration Law). § 737.401 provides:

“The trustee has all powers conferred upon him by this part unless limited in the trust instrument.”

§ 737.402(1) provides:

“From the time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform every act that a prudent. trustee would perform for the purposes of the trust, without court authorization, including, but not limited to, the powers specified in subsection (2).”

Subsection (2) provides:

“Unless otherwise provided in the trust instrument, a trustee has the power:
* ' * * * * #
(y) To employ persons, including attorneys, auditors, investment advisors, or agents, even if they are the trustee or associated with the trustee, to advise or assist the trustee in the performance of his administrative duties; to act without independent investigation upon their recommendations; and, instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary.
(z) To prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of his duties.”

Appellee Juhan contends that nothing in the Will of Mrs. duPont specifies or requires that the trustees employ only one attorney to represent all of the trustees or forbids the selection of independent counsel by each of the four trustees if a single trustee deems independent counsel desirable for the purpose of advice or other professional duties; that the above statute authorizes a trustee to employ counsel and that such be an expense of administration for which the trustee is entitled to reimbursement. As above stated, however, we do not construe the Will to authorize the employment of an attorney by a single trustee if he is one of multiple trustees nor does the above-refer-. enced statute authorize such. Paragraphs (a) through (x) (omitted from the above quote to reduce verbiage) set forth general powers which obviously are possessed by multiple trustees only collectively or by the trustee of a single trustee trust. The powers set forth in paragraphs (y) and (z) are on no different footing than those preceding them and likewise apply only to the body of trustees as a unit or the trustee of a single trustee trust.

The Illinois Appellate Court, First District, Third Division, in the case of Re Estate of Greenberg, 15 Ill.App.2d 414, 146 N.E.2d 404, 66 A.L.R.2d 1162 (1958), had before it a question closely akin to the question presented here. There the Will contained a provision that “if at any time three persons shall be acting as co-executors and co-trustees hereunder, the determination of the majority of such co-executors and co-trustees shall control.” There one co-executor was given leave by the probate court to employ an attorney as his attorney. Subsequently, the other two co-executors petitioned the probate court for an order terminating the services of the attorney engaged by the single co-executor stating that it was their intention and desire to continue to retain other attorneys as counsel for all the co-executors. In resisting the petition, the one co-executor contended it was necessary and essential that he have counsel of his own choosing. He set forth reasons therefor similar to those presented by appellant Mills and appellee Juhan in the case sub judice. The probate court denied the single co-executor the right to have individual counsel. On appeal the superior court reversed and ruled that the individual co-executor could have independent counsel to represent him at the expense of the estate. The appellate court then reversed the superior court and ruled that an express direction in the Will that the determination of the majority of the co-executors shall control necessarily applied to the employment of legal counsel. There the court quoting with approval from In re Dunlop’s Estate, Sur., 142 N.Y.S. 286, 288, said:

“While executors are entitled to the services of a competent lawyer, the employment of additional lawyers by the individual executors should be regarded by the court with disfavor, and compensation out of the estate should not be allowed to such lawyers unless it appears to the satisfaction of the court that their employment was necessary for the protection of the interests of the legatees.”

We agree with the ruling of the Illinois and New York courts. As applied to the case sub judice, compensation to attorneys employed by an individual trustee should not be allowed from the funds of the trust unless it appears to the satisfaction of the court that their employment was or is necessary for the protection of the trust.

AFFIRMED in part and REVERSED in part and remanded for further proceedings consistent herewith.

LARRY G. SMITH, J., and MASON, ERNEST E., Associate Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    William B. MILLS, as Trustee under the Last Will and Testament and Codicils thereto of Alfred I. duPont, deceased, Appellant, v. Edward BALL, J. C. Belin, T. S. Coldewey, Alfred duPont Dent, W. L. Thornton and Florida First National Bank of Jacksonville, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, deceased; T. Edwin Austin, Jr., State Attorney in and for the Fourth Judicial Circuit of the State of Florida; and The Nemours Foundation, a corporation organized under the laws of Florida, Appellees.
    Nos. MM-261, MM-282.
    District Court of Appeal of Florida, First District.
    March 17, 1980.

      John H. Wilbur, Christine Rieger Milton and James F. Valenti, Jr., of Milam & Wilbur, Jacksonville, for appellant.
    Fred H. Kent, William L. Durden and Fred H. Kent, Jr., of Kent, Watts, Durden, Kent & Mickler, Jacksonville, for appellees Ball, et al.
    E. Earle Zehmer, C. .Warren Tripp, Jr., and William R. Dorsey, Jr., of Bedell, Be-dell, Dittmar & Zehmer, Jacksonville, for appellee Dent.
   McCORD, Judge.

These are consolidated appeals from a partial final judgment in a declaratory judgment action brought below by all of the trustees under the Last Will and Testament and Codicils thereto of Alfred I. du-Pont, with the exception of William B. Mills, who was made a party defendant since he was not in agreement with the contentions of the other trustees on the questions presented for adjudication. The Will and Codicils of Alfred I. duPont established a trust to be administered by four trustees named in the Will (the Will and Codicils named certain alternates in the event those named as trustees were not living at the time of his death and also provided for the surviving trustees to elect replacements to fill vacancies occurring among the trustees). In 1965 the trustees determined to elect additional trustees and Messrs. T. S. Coldewey and Alfred duPont Dent were elected. Subsequently, in 1967, the then six trustees determined to elect two additional trustees and Messrs. J. C. Belin and W. L. Thornton were elected. It is these additions to the trustees that are in controversy in this phase of the lawsuit. Trustee Mills contends they are invalid, and the remaining trustees contend otherwise. The trial court in the supplemental declaratory judgment which formed the basis for the partial final judgment here on appeal defined the issues tried and determined by that judgment as follows:

“I. Whether Messrs. Coldewey and Dent in 1965, and Messrs. Belin and Thornton in 1967, were validly elected as Trustees?
II.If the Will does not authorize the Trustees to increase the number of individual Trustees without Court authorization, in view of the facts and circumstances existing in 1965 1967, should the Court now expressly approve the actions of the Trustees in electing Coldewey and Dent in 1965, and Belin and Thornton in 1967?
III. Whether this Court has the power to appoint additional Trustees of the duPont Trust, and to confirm their prior actions as Trustees?
IV. Are Petitioners or Defendant Mills precluded from challenging the legal status of the additional Trustees?”

In relation to these issues the trial court made the following findings of fact:

“Alfred I. duPont executed his Last Will & Testament on November 19, 1932. Subsequently, Mr. duPont executed Codicils thereto dated March 4, 1933, and January 15, 1935, respectively. Mr. duPont died a resident and citizen of Duval County, Florida on April 29, 1935. His Last Will & Testament and Codicils thereto were admitted to probate by Order of the County Judge of Duval County, Florida, dated May 25, 1935. The executors administered the Estate and distributed the remaining assets to the Trustees.

The entire residuary Estate of Mr. duPont was placed in the Testamentary Trust. Except for several small annuities, Mrs. du-Pont was the sole beneficiary of the Trust for life. During her lifetime therefore, and at all times material to the issues of fact and of law herein determined and the declarations announced herein, the Alfred I. du-Pont Testamentary Trust was entirely a private, as opposed to a charitable trust. Upon her death, the Trustees were instructed to:

‘. . . cause to be incorporated a corporation for charitable purposes, to be designated and known as “The , Nemours Foundation” . . . and my Trustees are hereby directed to pay over, at convenient intervals, to the said corporation, the net income of my estate, subject to the annuities and legacies hereinabove mentioned for the purpose of maintaining the said Estate of “Nemours” as a charitable institution . . . .’

Mrs. duPont and the other Trustees of the Estate caused the creation under the laws of Florida of The Nemours Foundation as a non-profit charitable corporation. They also caused to be constructed, maintained and operated by The Nemours Foundation on the grounds of Nemours in Wilmington, Delaware, the Alfred I. duPont Institute, a charitable hospital operated for the care and treatment of crippled children. After completion of the hospital, Mrs. duPont irrevocably assigned to The Nemours Foundation an undivided 12 percent of her income from the Trust, from which the cost of operating the hospital at Nemours was provided.

Upon Mrs. duPont’s death, except for several small annuities still being paid out, the entire income from the Trust became payable to The Nemours Foundation. Because of the large additional sums that became available to the Foundation, the Trustees originally filed this action to obtain constructions of the Will of Mr. duPont and to receive instructions of the Court as to the authorized use of such additional funds, so as to properly implement Mr. duPont’s testamentary instructions.

This Court, in the final judgment entered herein on December 31, 1971, declared that:

‘Based upon the evidence and the law applicable thereto, the Court finds that the Last Will and Testament and Codicils thereto of Alfred I. duPont require the Trustees to establish, maintain and operate a charitable institution. The charitable institution which Mr. duPont’s Trusteés are required to establish does, in fact, require the construction, maintenance and operation of a hospital as the primary and dominant purpose of the institution . . .’ (Emphasis Supplied)

Subsequent to the Final Judgment and in compliance therewith, the Trustees have commenced implementation of a plan to establish at ‘Nemours’ a modern hospital complex, which will cost in excess of sixty million dollars to construct and equip. Since the present Trustees would be required to enter into binding agreements for the expenditure of approximately sixty million dollars for the purposes hereinabove set forth, they, pursuant to this Court’s Order dated December 31, 1971, made application to the Court to have their legal status as Trustees determined and declared.

The Will and Codicils thereto named three individual trustees: Mrs. Jessie Ball duPont (Mr. duPont’s widow), Edward Ball (Mrs. duPdnt’s brother), and Reginald D. Huide-koper (Mr. duPont’s son-in-law), and a corporate trustee, the Florida National Bank of JacksonvilleFlorida. Said trustees qualified and received distribution of the residuary estate from the executors in 1939. The principal assets received by such trustees and their inventory value totaled $54,666,-061.

It is apparent from the Trustees’ minutes and other evidence, oral and documentary, in the record herein, that from the very beginning the Trustees sought to implement the plans and purposes expressed by Mr. duPont during his lifetime. The trustees in 1965 still retained ownership of substantially all of the assets owned by Mr. duPont at the time of his death. They still owned the E. I. duPont Company stock, the stock in the Florida National Group of banks, and the stock in St. Joe Paper Company which had been acquired by merger of other corporations in which Mr. duPont owned stock into St. Joe Paper Company. The Trustees took an active part personally in the expansion and management of the banks owned or controlled by the trust, proceeded with the expansion of the paper mill at Port St. Joe, Florida, acquired more timberlands in West Florida and South Georgia, and continued the development and operation of the various other businesses owned by Mr. duPont, such as Apalachicola Northern Railroad Company and St. Joseph Telephone & Telegraph Company.

The Alfred I. duPont Trust in twenty-six years changed from a basically passive to a very active Trust. That fact is demonstrated by documents admitted into evidence and testimony of petitioner Trustees themselves, which show that the assets of the Trust changed and increased in size and complexity from 1939 to 1965 in the following ways:

1. St. Joe Paper Company, or its wholly-owned predecessor corporations, owned 372,533 acres of' woodlands in 1939. By 1965, this figure had increased to 996,294 acres; by 1967, the acreage owned by St. Joe had increased to 1,003,137 acres of woodlands.

2. St. Joe’s paper mill at Port St. Joe had been built, and had been enlarged substantially from a small mill costing $7,200,000 to a much larger mill, together with a corru-gator, bleach plant, and 17 box plants, at a cost of more than $97,000,000.

3. St. Joe had acquired overseas operations in Ireland in 1964 and 1965.

4. St. Joe Telephone and Telegraph Company, which was owned by Mr. duPont prior to his death, had expanded its services from 167 telephones in 1930 to 8,996 telephones in 1965 and to 10,203 telephones in 1967.

5. Apalachicola Northern Railroad, which was owned by Mr. duPont at the time of his death, had grown from $3.1 million in assets in 1934 to 8.5 million in 1965.

6. The Florida National Group of Banks had grown from eight banks, with a book value of $2,226,000 and deposits of $27.3 million in 1939 to thirty banks, with a book value of $79.3 million and deposits of $771 million, in 1965.

7. The Florida East Coast Railway, acquired since 1939, had become a major asset of the Trust. By 1967, the FEC had assets of $87.8 million. Operating revenues of the FEC were $24.3 million in 1965 and $23.6 million in 1967.

8. One of the measurements used by the lay and expert witnesses to indicate the growth in the corpus of the Trust was that of the dollar value of such assets. The stated book value or cost of the assets as reflected in the reports of the Trustees to this Court in 1939 was $54,666,061.02, and the stated value on December 31, 1965, was $103,277,768.64.

9. The only testimony submitted as to the market value of the assets in September of 1939 was that such assets were worth approximately $72,500,000.

10. The only testimony as to market value of the Trust as of December 31, 1965, was $655.6 million. This estimate utilized market value for the traded securities and attempted to evaluate the one million acres of land and other investment real estate owned by St. Joe Paper Company, but the value assigned ($254 million) to the one million acres of woodlands, the investment properties owned by St. Joe Paper Company and the standing timber is not relied upon by the Court.

The above-described growth in size, value and complexity of the assets of the Trust was made possible to a great extent by the investment practices followed by the Trustees. Mr. Edward Ball testified that Mrs. duPont, the recipient of all of the net income of the Trust during the time involved, had independent wealth which left her without need for those funds; that she preferred to have the Trusts’ funds invested in developing properties with growth value, because she wanted to build up a large trust estate. The Trustees, with her consent and leadership, thus supported the purposes set out in her husband’s Will, rather than invest in high-yield properties from which she personally would have received a much larger income. The documentary evidence herein tends to support Mr. Ball’s testimony and no evidence to the contrary was offered.

Petitioners called two expert witnesses. One, Dr. George P. Baker, who testified as to the need to elect additional Trustees in 1965 and again in 1967, was particularly well qualified by experience to testify on that subject, having been Dean of the Harvard Graduate School of Business Administration, a director in numerous large corporations, including Mobil Oil, Lockheed Aircraft, and The First National Bank of Boston, and a member of several committees and commissions appointed by the President, including the President’s Commission on Postal Organization and the President’s Council on Executive Organization. As a Trustee of the Penn Central Railroad, he had had the experience and responsibility of serving as a Trustee of a diversified operating business with several hundred million dollars of assets.

Dr. Baker testified, based on his investigation and examination of the documents offered in evidence by Petitioners and having heard all of the testimony put on by Petitioners at the trial, that in his opinion, an increase in the number of individual Trustees from three to six in May of 1965, and from six to seven in December of 1967, each, in his opinion, was necessary for the preservation, conservation and betterment of the Trust Estate. He went further, adding that ‘actually failure to do so would have bordered on irresponsibility.’

The Court does not base its decision on that point on Dr. Baker’s testimony but does consider it a respected source of support to the conclusions independently reached by it. Mr. Huidekoper died in 1943. Mr. Elbert Dent succeeded him as a Trustee by virtue of his designation as such in a codicil to Mr. duPont’s Will. He served as one of three individual Trustees, along with Mrs. duPont and Mr. Ball, until his sudden and unexpected death in May, 1965. During that time, the corporate Trustee had possession and custody of the trust assets, and performed the trust accounting functions, while the individual Trustees, Mrs. duPont, Mr. Ball and Mr. Elbert Dent, devoted substantially all of their time to the business activities of the trust and the management of its assets. They served as key officers and directors of the businesses controlled by the trust, and helped effectuate the considerable growth described above.

The death of Elbert Dent in May, 1965, left the two remaining individual Trustees in a serious predicament. Mr. Dent had been the youngest of the three individual Trustees and logically should have outlived the other Trustees and arranged for an orderly succession of Trustees. Mr. Ball then was 78 years old, and had suffered at least one serious heart attack, causing hospitalization of five or six weeks. Mrs. duPont was 82 years old and severely limited in her physical activities by reason of a broken hip. The evidence showed that she then was attended by nurses ‘around the clock.’ Advancing age and developing infirmities were substantially limiting the ability of these individual Trustees to continue management of the Trust assets and to oversee the operation of The Nemours Foundation. Both Mr. Ball' and Mrs. duPont had lived long beyond the life expectancy which they had at the time of Mr. duPont’s death.

Faced with those circumstances, the surviving Trustees, Mrs. duPont, Mr. Ball and a representative of the Florida National Bank, met at Nemours on May 10,1965, two days after Elbert Dent died, elected William B. Mills to fill the vacancy created by the death of Mr. Elbert Dent and then elected three additional individual Trustees, Tom S. Coldewey, Alfred duPont Dent and A. L. Hargraves. All of the new Trustees, except Mr. Alfred Dent, were vice-presidents of St. Joe Paper Company. Mr. Mills had also been, for about a month, president of Florida National Bank of Jacksonville, the corporate trustee. Alfred duPont Dent, Mr. duPont’s grandson, had been familiar with the estate’s operations through the participation of his father and mother in the estate’s activities and was experienced in the investment and stock brokerage business.

Counsel for Mr. Dent read into the record statements from a deposition of Mr. Mills that Mr. Ball advised all of the Trustees at the meeting on May 10, 1965, when he and the three additional Trustees were elected, that the Trustees had been advised prior to that time by Mr. H. P. Adair, attorney for the Trust, that they had the power to add additional trustees under the express terms of the Will. The trustees, apparently for that reason, made no attempt to seek court approval of such additional trustees.

Mr. Edward Ball testified that the factors related above were discussed and taken into consideration by him, Mrs. duPont and Mr. Mills, who then was president of the corporate trustee, before the trustees decided to elect additional trustees on May 10, 1965. He also testified without objection from any party, that they then agreed that it was not only desirable but necessary to do so. He said that he agreed to to so because he deemed it best for the conservation, protection and betterment of the Estate to do so.

Defendant Trustee Mills was in the courtroom throughout Mr. Ball’s testimony. Despite the fact that he had denied in his answer that such additional Trustees were legally elected, he never took the witness stand to support his position or to testify that any of the testimony given by Mr. Ball or that of the other Trustees regarding the decision to elect additional Trustees was or was not true.

Petitioners submitted testimony that the election of the three additional Trustees did not long meet the needs of the Trust Estate for several unanticipated and unforeseen reasons.

First, Mr. Hargraves resigned as a Trustee less than nine months after his election and his resignation was accepted at a special meeting of the Trustees on January 7,1966. During the same nine-month period, Mr. Alfred Dent suffered serious injuries in an automobile accident, which kept him hospitalized for several weeks and disabled him from participating as an active Trustee for more than a year. Mr. Mills suffered serious problems with his hip which required special surgical techniques and lengthy convalescence. Mrs. duPont’s health continued to worsen and she became even less active in the affairs of the Trust during. 1966 and 1967. She never attended a Trustees’ meeting after May 10, 1965. A second fall and serious injury to her other hip had all but totally disabled her.

An amendment to the Federal Bank Holding Company Act, which removed the Trust’s exemption from its provision, was enacted into law. It required the Trust to sell either its bank stock or all of its other operating assets. Finally, the Florida East Coast Railway strike was still going on, and the plans and efforts to modernize and streamline the railroad’s operation were moving forward. By reason of those circumstances, the Trustees recognized that it was necessary to the conservation, protection and betterment of the Trust Estate to add one or more additional trustees.

At a special meeting of the Trustees held on December 4, 1967, on motion by Defendant Mills and unanimously carried, it was ‘RESOLVED that the increasing responsibilities and duties placed on the Trustees are such as to require an additional Trustee, with special qualifications tó supervise certain interest areas of the Trust.’ Messrs. W. L. Thornton and J. C. Belin then were elected, one apparently to fill the vacancy created by Mr. Hargraves’ resignation and one to fill the newly created position.”

Petitioners Ball, Belin, Coldewey, Thornton and Florida First National Bank of Jacksonville asked the trial court to construe the Last Will and Codicils as giving the trustees therein provided for the power, to be exercised at their discretion, to elect additional trustees of the estate if they deemed it best for the conservation, protection and betterment of the estate. They asserted that on May 10, 1965, and December 4, 1967, when the then incumbent trustees elected additional trustees, they deemed it best for the conservation, protection, and betterment of his estate to do so; that the evidence demonstrated that the election of additional trustees was in fact for the conservation, protection and betterment of the estate and that Coldewey, Dent, Belin and Thornton were validly elected trustees.

Petitioner Dent asked the court to decide that, even though the language of the Will and Codicils does not expressly grant authority to add additional trustees, ample authority exists under the common law and applicable statutes for the court to authorize such additional trustees upon a showing of changed conditions and that such additional trustees appear to be conducive to the better administration of the trust; that the election of the additional trustees was required for the conservation, protection and betterment of the trust estate and was necessary to the continued management of the estate to accomplish the trust purposes; and that the election of the additional trustees was legally valid.

The State Attorney of the Fourth Judicial Circuit, defendant below, representing the unknown charitable beneficiaries of the trust, argued that the broad powers of the Will gave the trustees authority to appoint additional trustees and that if it did not, that either under the statutory or common law provisions of deviation, the deviation should be approved in this instance.

Appellee, The Nemours Foundation, asked the court to rule that appellant Mills and appellees are precluded from challenging the legal status of the additional trustees under the doctrines of estoppel, laches, res judicata and waiver. The trial court, however, did not rule on that issue because it considered it would be premature to rule on such at this time in view of the restricted nature of the testimony permitted by its pretrial order and its declaratory judgments announced in its supplemental declaratory judgment.

Appellant Mills contended throughout that the elections of the additional trustees were invalid.

In construing the Will and Codicils, the trial court found that Alfred I. duPont conferred upon the trustees and vested in them the widest powers and the greatest discretion. It pointed to Item 6(h) which authorized them generally in the administration of his estate, “to do every and all things that they may deem best for the conservation, protection and betterment of my estate, as fully and completely as I might do, personally, were I alive and able to act for myself.” The trial court found that the Will makes plain Mr. duPont’s intent and purpose to leave to the discretion of his trustees the time and manner of doing the things which he charged them with doing; except where the Will made express provision otherwise, that there is no manifestation in his Will of an intent to limit the individual trustees thereunder to a maximum of three; that refusal by the court to allow the trustees the broad powers which Mr. duPont intended to vest in them would tend to defeat, and in 1965 and 1967 probably would have defeated, his paramount purpose in creating the trust estate. The court found that the Will and Codicils vested in the trustees the discretionary power to appoint additional trustees to those provided for in the Will, if they deemed it best for the conservation, protection, and betterment of the estate to do so; that the trustees at the times of election of additional trustees did deem it best for the conservation, protection and betterment of the estate to elect the additional trustees and that the additional trustees were validly elected.

In so ruling the trial court stated as follows:

“7. Where there has been a change of circumstances after the creation of the Trust and it is possible to find a manifestation of intention by the settlor that the trustee may adjust his conduct to the change and act as he would not otherwise be intended to act, the trustee is not deviating from the terms of the trust in so acting. Scott on Trusts, 3rd Ed., Sec. 167, pp. 1268.
8. The jurisdiction of equity to enforce trusts should and does include power to vary the details of administration which the settlor has prescribed in order to secure the more important result, namely, obtaining for the beneficiaries the advantages which the settlor stated he wished them to have. Bogert, 2nd Ed., Sec. 561 p. 129.
9. It appears to the Court that Mr. du-Pont, when preparing his Will, anticipated that conditions such as those which confronted his Trustees in 1965 and 1967 would arise during the administration of his Estate, and that he intended to give his Trustees all powers necessary to enable them to solve such problems by including those expressly stated in Item 6(h) and Item 6(q).
10. This Court has the power to ratify acts of the Trustees in electing additional Trustees in 1965 and again in 1967 if it is of the opinion that such consent would have been forthcoming if it had been requested at that time. [Citations omitted.]
11. This Court has the power and, where facts and circumstances require, has the duty to ratify, by proper Order, the actions of the then incumbent Trustees in 1965 and 1967 in electing Coldewey, Dent, Belin and Thornton as of the date of their respective elections and to confirm the legal status of each named individual to act as a Trustee of the Estate from the date of his election.”

In discussing the other alternative argued by appellee Dent, the court said:

“14. The Court has the power to grant to a trustee a power which is highly convenient or necessary to the proper execution of the trust but which the settlor did not expressly give to the trustee, Bogert on Trusts, Handbook Series, Fifth Edition, Sec. 88, p. 319, citing Wallace v. Jullier [Julier], 147 Fla. 420, 3 So.2d 171[711] (1941).
15. This Court on May 10, 1965, and December 4, 1967, had the power, under the common law and the then existing circumstances, to permit the then incumbent Trustees of the Alfred I. duPont Testamentary Trust to deviate from any restrictions and conditions then contained in Mr. duPont’s Will and elect additional Trustees for cause shown.
16. Even if the provisions of the Will should be read so as to expressly restrict the power of trustees to add additional trustees, nevertheless this Court is authorized by Sections 737.403(1), 737.502, and 737.507, Florida Statutes (1977), to permit the trustees to deviate from such restriction for cause shown.
17. The language of that statute conditioning the power of deviation upon a showing of ‘cause’ means that the trial court may, in its discretion, approve the deviation upon a finding that it is reasonable and not arbitrary or capricious.
18. This Court has power to ratify and approve actions of the Trustees in changing the number of individual trustees, if the Court could have done so in 1965 and 1967 under the common law and its then inherent power.”

The trial court found the election of the additional trustees to be valid under either or both of the alternatives stated above— (1) the broad powers of the Will gave the trustees power to amplify their number, and (2) even if the Will did not grant the trustees such power, the court, under the evidence presented, was authorized to approve and ratify, and did approve and ratify, the appointment of the additional trustees. While we disagree with the former, we agree with the latter.

Mr. duPont did give his trustees very broad powers in the administration of the trust under Item 6(h) of the Will, but we are unable to conclude from this, as did the trial judge, that the power to increase the number of trustees was included therein. Paragraph (h) is one of 17 powers granted to the trustees under Item 6 of the Will. Reading Item 6 in its entirety indicates that it deals only with the powers of the four trustees in asset management of the trust. Item 6 does not pertain to the internal structure of the trust administration. Under the doctrine of ejusdem generis, as applied to construction of this Will, this general powers clause is limited to matters similar to those enumerated within the particular portion of the Will containing the general clause. Compare Given v. Hilton, 95 U.S. 591, 24 L.Ed. 458 (1877), in which the United States Supreme Court held:

“It is doubtless true that in the construction of wills, as well as of statutes, where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things ejusdem generis with the particular things mentioned. This is because it is presumed the testator had only things of that class in mined . . . ”

There is nothing in the Will of Mr. duPont to indicate that the provisions of Item 6(h) were intended to reach beyond the management of the trust corpus. Item 5 of the Will is the item which deals with the trustees. It vests certain property in the trustees, appoints the original four trustees, and sets forth the details for their succession. It provides only for successors to the original four trustees. If Mr. duPont had intended to give the trustees authority in their discretion to add additional trustees, he would have certainly mentioned it specifically in his Will. It is not reasonable to conclude that he intended such authority to be included in the general powers of the trustees contained in the item dealing with asset management. We, therefore, disagree with and do not find competent substantial evidence to support the trial court’s finding that Mr. duPont anticipated the conditions such as those confronting his trustees in 1965 and 1967 and intended to give them all powers necessary to enable them to solve such problems, including power to increase their number.

We agree with the trial court’s ruling that if the trustees were not authorized to amplify their number, the trial court had authority to approve the appointment of the additional trustees and declare them to be valid trustees pursuant to the evidence presented in this case.- As pointed out by the trial court, Florida courts are authorized by statute to permit deviation by trustees from restrictions in trust instruments “for cause shown.” § 737.403(1) and § 737.-507, Florida Statutes (1977). § 737.507 provides as follows:

“Power of court to permit deviation. This part does not affect the power of a court to relieve a trustee from any restrictions on his powers and duties that are placed upon him by the governing instrument or applicable law for cause shown and upon complaint of the trustee, state attorney, or an affected beneficiary and notice to the affected parties.” (Emphasis supplied.)

§ 737.403(1) as pertinent here is the same. Appellee Mills contends that the above statutes should be construed to require the restrictive rule stated in the Restatement (Second) of Trusts, § 381:

“The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust.”

In this respect appellee Mills quotes from 30 Fla.Jur., Statutes § 112 as follows:

“Statutes are to be construed with reference to appropriate principles of the common law. And, when possible, they should be co construed as to make them harmonize with existing law, and not conflict with long settled principles.”

While this statement of the law is generally applied, a showing of good cause as mandated by the Florida statute is such a far cry from the strictures of § 381 in the Restatement (Second) of Trusts that we are unable to find that the Legislature intended such a result. If the Legislature had intended to place such restrictions on the court, it would have been more restrictive in the language used in §§ 737.507 and 737.403(1).

In naming four trustees and providing for their succession, Mr. duPont neither directed that the trustees not be expanded in the future nor that they not be diminished in the future. We have no clear expression that Mr. duPont actually intended that there be no future change in the number of trustees. We have only the fact that he initially named four trustees to administer the trust. The record shows that the trustees’ action in increasing their number was upon the advice of their counsel that they had the power under the Will to take such action. Its validity was not questioned until some years later. The trial court was entirely correct in its determination that, under the evidence presented in this case, the additional trustees were highly convenient or necessary to the proper administration of the trust; that their election was reasonable and not arbitrary or capricious and should be approved. The circumstances shown by the trial court’s findings of fact established good cause and fully authorized the trial court’s nunc pro tunc ratification and approval of the appointment of the additional trustees.

Appellant relies heavily upon the opinion of the Court of Civil Appeals of Texas, Houston, (14th Dist.) in Moody v. Haas, 493 S.W.2d 555 (1973). There the settlors of a very large charitable trust had provided for three trustees. The three subsequently expanded their number to seven. The trial court declined to enjoin the increase, and the Court of Civil Appeals reversed. There, unlike here, the evidence showed no need for an amplification of the number of trustees, the court pointing out:

“As we have noted the ‘size’ of the Foundation, the value of its assets, is less than when it was established. Its ‘functions’ have been well within the boundaries of the stated purposes of its charity. Its ‘complexity’ is of less degree by virtue of the disposition of certain properties. There is no evidence of the existence of facts relevant to those facets of the Foundation which would authorize a departure from the settlors’ expressed intent as to the structure by which their charity was to be administered.”

Appellant Mills contends that an additional point which this Court should determine on this appeal is whether, even if the expansion of the board of trustees in 1965 or in 1967 had been appropriate, the trial court committed reversible error in approving the particular individuals elected at those times. This was not one of the issues ruled upon by the trial court in the partial final judgment here on appeal. The trial court severed that issue for a separate trial.

We have considered appellant’s remaining point — whether appellant has been denied procedural due process throughout this litigation. We find no denial to appellant of procedural due process.

AFFIRMED.

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


author: WENTWORTH, Judge.

text:
    Shirley J. CLAYTON, Appellant, v. Billy P. CLAYTON, Appellee.
    No. OO-497.
    District Court of Appeal of Florida, First District.
    March 10, 1980.

      Frank E. Sheffield, of Michaels, Sheffield, Perkins, Collins & Vickers, Tallahassee, for appellant.
    C. Gary Moody, Gainesville, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order granting appellee’s petition to terminate payment of child support under a prior dissolution decree and denying a counter petition for permanent alimony. We affirm.

Previous Florida decisions have permitted the suspension of support payments, by order of court, as a method of penalizing the recalcitrant party and enforcing the court’s decree granting visitation. Hardy v. Hardy, 118 So.2d 106 (Fla. 1st DCA 1960); Putnam v. Putnam, 136 Fla. 220, 186 So. 517 (1939). The rule applied with respect to future payments, however, is that “the court should not refuse to require these payments for the support of the minor children where the children will thus be required to suffer.” Hardy, supra. Also see Vance v. Vance, 274 So.2d 5 (Fla. 4th DCA 1973), Warrick v. Hender, 198 So.2d 348 (Fla. 4th DCA 1967), and Cortina v. Cortina, 108 So.2d 63 (Fla. 2nd DCA 1959), which indicate that the welfare of the child must be considered when suspending support payments due to a denial of visitation.

Although the order here appealed does not expressly reflect application of the correct standard in terminating the support obligation in the present case, our examination of the record shows no compelling evidence that the child “will be required to suffer.” We note, in addition, that the decision does not preclude subsequent modification upon a showing of changed circumstances.

The order appealed is therefore affirmed.

ROBERT P. SMITH, Jr., and LARRY G. SMITH, JJ., concur.


author: PER CURIAM.

text:
    SOUTH CAROLINA INSURANCE CO. and Artesian Pools, Appellants, v. James BLACKMAN, Appellee.
    No. QQ-191.
    District Court of Appeal of Florida, First District.
    March 10, 1980.

      B. C. Pyle of Whittaker, Pyle, Stump & Webster, Orlando, for appellants-cross ap-pellees.
    Thomas R. Mooney, Orlando, for appellee-cross appellant;
   PER CURIAM.

The employer/carrier appeals, and the claimant cross-appeals, a worker’s compensation order which we affirm except as to the award of permanent disability benefits. While the claimant was found to have reached maximum medical improvement from an orthopedic standpoint, he was also awarded further remedial psychiatric care. An award of such continuing remedial care precludes as finding of total maximum medical improvement. Miami Aviation Corp. v. McAllister, IRC Order 2-2963 (May 7, 1976), cert. denied 345 So.2d 424 (Fla.1977); Thompson v. Arnold Cellophane Corp., IRC Order 2-3029 (Sept. 2, 1976). Permanent disability benefits may not be commenced prior to the claimant’s maximum medical improvement from both the orthopedic and psychiatric disorders. McAllister, supra; Gardinier, Inc. v. Lamkin, IRC Order 2-3033 (Sept. 9, 1976).

Accordingly, the order appealed is affirmed in part and reversed in part, and remanded for further proceedings consistent herewith.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


author: SHAW, Judge.

text:
    David H. McNEW, Appellant/Cross-Appellee, v. SOUTHERN INTERMODAL LOGISTICS and Employers Insurance of Wausau, Appellees/Cross-Appellants.
    No. QQ-256.
    District Court of Appeal of Florida, First District.
    March 10, 1980.

      Steven A. Werber, Robert A. Skells, of Commander, Legler, Werber & Dawes, Jacksonville, for appellant/cross-appellee.
    M. Wayne Myers, of Cowles, Coker & Myers, Jacksonville, for appellees/cross-appellants.
   SHAW, Judge.

In January of 1978 the appellant, David H. McNew, entered into an agreement with the appellee, Southern Intermodal Logistics, under the terms of which he agreed to furnish, upon request, his tractor and the labor to operate the tractor; the equipment and labor to be available for use at all times during the term of the agreement. Southern required the claimant to take out workmen’s compensation insurance and deducted the insurance payments from claimant’s weekly pay. As part of the agreement the claimant obligated himself to keep his tractor in safe operating condition and in compliance with ICC safety regulations. Southern routinely inspected the vehicle to insure that it was being maintained properly-

On September 28, 1978, the claimant was struck in the head by the door of the cab while making vehicular repairs and was hospitalized for a laceration of the scalp. The next day he noticed blurred and cloudy vision which progressively worsened and was diagnosed by Dr. Chiel M. Wind, an ophthalmologist, as bilateral choroidal sclerosis. Dr. Wind referred the claimant to Dr. J. Donald M. Gass, a professor of ophthalmology at the University of Miami Medical School and a specialist in retina diseases, who diagnosed serpiginous cho-roiditis. It was brought out during the course of the hearing that at the time of the accident the claimant was experiencing no significant difficulties with his eyes but that in 1972 had experienced a visual problem which was diagnosed at the time as chorioretinitis. Although there is some disagreement as to the nomenclature of the claimant’s eye condition, the medical experts agreed that it is an inflammatory disease of unknown cause which has a tendency to reoccur and progress over a period of years. The experts agree that the disease has only been well-described for about six or seven years and according to Dr. Gass there are less than 100 reported cases in the world. Faced with this dearth of medical information regarding the disease the experts agree that it is impossible to state within any degree of probability the relationship between trauma and the disease. Dr. Gass, however, felt that in light of the temporal relationship, the trauma and the exacerbation of the disease are related within the realm of medical probability or a “tremendous coincidence.”

The deputy commissioner, we feel, correctly found that the accident arose out of and within the course and scope of the claimant’s employment and reserved jurisdiction as to the award of costs and fees. Points 1 and 2 on cross-appeal are accordingly affirmed. He erred, however, in denying the claim for the eye injury.

When serious injury is conclusively shown and a logical cause for it is proved he who seeks to defeat recovery of compensation for the injury has the burden of overcoming the established proof and showing that another cause of injury is more logical and consonant with reason. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970). The medical experts, due to their unfamiliarity with the disease, are reluctant to testify that it was probably reactivated by the blow to the head. On the other hand, a more logical reason for the exacerbation has not been advanced and Dr. Gass, who possessed the superior qualifications in this field, placed significance upon the temporal relationship between the blow to the head and the flareup of the disease. The dilemma faced by the experts is illuminated by the following excerpt from the deposition of Dr. Gass:

Q Now, Doctor, what is the relationship, in your opinion, between the trauma and the onset of that lesion?
A Well, there is no relationship in the past, to my knowledge, between trauma and this disease.
It tends to have a flareup unrelated to anything the patient does.
These patients are in perfectly good health.
And this is the first patient I ever saw who had trauma and very shortly thereafter noted the onset of a reactivation of his disease. And yet — and whether there is a cause and effect, I can’t say.
The only thing you can say, there’s no question that the onset, reactivation of his disease temporally was related to the time he got hit on the head with whatever it was, the cab of his truck. If you can rely on this history — and we have pretty good facts about what happened very soon after that.
But I can’t say — it’s not a disease that we characteristically associate with trauma precipitating an active reactivation of it. I just haven’t gotten that history before.
But I think I would hasten to say that this disease has only been well-described in about six or seven years; it’s been in the past mixed up with many other diseases.
And so we still — if you recorded the world literature, you would be talking about less than 100 cases.
Q You make the statement in your report, “I think one has to say it’s within the realm of medical probability that the blow to the head”—
A Well, I think that the only thing I can say, it’s either that or it’s a tremendous coincidence, and it would be that.
I don’t know what the truth of the matter is.
It’s just that when somebody says he gets hit on the head and very shortly thereafter has visual loss, evidence pictorially, examination, every other way that he’s got an active lesion there.
And we know that was his only good eye.
We know he was not driving a truck with the vision he had when I saw him.

While we can appreciate the reluctance of the doctors to render an opinion relative to causality, we must weigh this reluctance against the impossible position the claimant is placed in due to the state of the art. Taken in a vacuum we agree with the deputy’s observation that a mere temporal connection is insufficient to establish a causal connection between accident and injury. However, where, as in the instant case, the claimant conclusively demonstrates a serious injury and a logical cause for it is proven, the carrier, in order to defeat recovery for the injury, has the burden of overcoming the established proof and showing that another cause of the injury is more logical and consonant with reason. Wilhelm, supra. We believe the carrier failed to overcome the claimant’s proof of a serious injury and a logical cause therefor. On this issue the order is reversed and the cause is remanded to the deputy commissioner with directions that he enter an order consistent with this opinion.

ERVIN and SHIVERS, JJ., concur.


text:
    CITY OF HOLLYWOOD and American Mutual Insurance Company, Appellants, v. Philip CASTORA, Appellee.
    No. QQ-417.
    District Court of Appeal of Florida, First District.
    March 10, 1980.
    Donald D. Gillis and Thomas R. Trompeter, of Underwood, Gillis, Karcher, Reinert & Valle, Miami, for appellants.
    George V. Lanza, R. David Donlin, Coral Gables, and Robert E. Huebner, Fort Laud-erdale, for appellee.
   PER CURIAM.

Pursuant to a remand from the Industrial Relations Commission, the deputy commissioner entered the order currently on appeal. In doing so, he recited his initial findings and merely substituted an award of 65% permanent partial disability for his initial award of permanent total disability.

In an effort to arrive at wage earning capacity, the deputy speculated as follows:

. In all probability, the Claimant would be able to demonstrate a wage earning capacity at the minimum federal hourly wage rate . . . $106.00 weekly . . . premised upon an hourly rate of $2.65 per hour and a forty hour work week. .

Florida’s Supreme Court, in Wesley’s Inc. v. Caramello, 156 So.2d 853 (Fla.1963), put to rest such conjecture by pointing out that while the deputy’s finding with regard to wages the claimant can earn might not be unreasonable in light of his knowledge of present economic conditions and wage scales, nevertheless, the determination is not based on competent substantial evidence unless there is some evidence in the record to support the figures arrived at by the deputy. Id. at 855, 856. The deputy’s speculation in this instance will not support a wage earning capacity loss.

In its order of remand the Industrial Relations Commission ruled that the claimant had not made a prima facie showing of his industrial unemployability. As a matter of law, a claimant’s recovery cannot be predicated upon wage earning capacity loss criteria absent an adequate job search, or its excusal. Exxon Company, U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978); Chicken’N’Things v. Murray, 329 So.2d 302 (Fla.1976). The inadequacy of the claimant’s job search is res judicata and finding no basis in the record for excusal, we conclude that the claimant has failed to demonstrate a disability in excess of his anatomical rating, therefore recovery is limited to the 34% anatomical rating which is unchallenged. Accordingly, the award of 65% permanent partial disability is hereby reversed and the cause is remanded for a new order limiting recovery to 34% permanent partial disability-

In his initial order the deputy directed that as between Continental Insurance Company and American Mutual Liability Insurance Company, each carrier shall provide the claimant with such treatment as may be required by the injury sustained from the accident for which that particular carrier was responsible. Absent a timely appeal, this award of future medicals became final twenty days after copies were mailed to the parties. Section 440.25(4)(a), Florida Statutes (1975). The Commission, on remand, noted that Continental Insurance Company was not a party to the appeal and its obligations were fixed by the order of November 15, 1976. The order now being appealed appears to place all responsibility for future medical treatment upon American Mutual Liability Insurance Company and in so doing it is in error and is reversed. See Florida Parole and Probation Commission v. Fry, 9 FCR 324 (1975). American Mutual’s liability for future medical treatment is limited to the 1975 accident and injuries resulting therefrom.

As to Point 3, counsel’s entitlement to a fee is contingent upon what, if any, benefits he has obtained for his client over and above those benefits voluntarily given by the carrier. This issue shall be reexamined on remand.

The order is reversed and the cause is remanded for entry of an order consistent with this opinion.

ERYIN, SHIVERS and SHAW, JJ., concur.


text:
    William BOSHEARS, Petitioner, v. STATE of Florida, Respondent.
    No. TT-57.
    District Court of Appeal of Florida, First District.
    March 10, 1980.
    William Boshears, pro se.
   PER CURIAM.

This cause is before us upon petition for a writ of error coram nobis. Petitioner does not present any previously unknown matters which would have prevented the rendition of a judgment of conviction. Absent such a showing, the claim for such relief is deficient. Fiske v. State, 107 So.2d 745 (Fla. 2nd DCA 1958).

Accordingly, the petition is denied.

MILLS, C. J., LARRY G. SMITH, and WENTWORTH, JJ., concur.


author: PER CURIAM,

text:
    Jesus M. CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2117.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Leonard Robbins, Hollywood, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM,

Appellant, Jesus Castillo, has appealed from a judgment and sentence entered after he was found guilty by a jury of robbery while carrying a firearm. Appellant was sentenced to five years in the penitentiary with a mandatory minimum sentence of three years pursuant to Section 775.-087(2)(a) Florida Statutes (1977).

Appellant seeks reversal on the grounds of insufficiency of identification, admission of prejudicial evidence, inadequate jury instructions and imposition of improper sentence.

We have carefully considered the points on appeal in light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. Douglas v. State, 328 So.2d 18 (Fla.1976); Smith v. State, 375 So.2d 864 (Fla.3d DCA 1979); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976); Williams v. State, 307 So.2d 877 (Fla.3d DCA 1975); Section 775.087(2)(a) Florida Statutes (1977). The judgment and sentence are affirmed.

Affirmed.


text:
    COUSINS ASSOCIATES, INC., and Roberta H. Cousins, Appellants, v. Jane C. COUSINS et al., Appellees.
    No. 78-2128.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Pallot, Poppell, Goodman & Slotnick, Miami, L. Mifflin Hayes, Elizabeth, N. J., for appellants.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Mark V. Silverio, Miami, for ap-pellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed in all respects. See Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., 226 So.2d 393 (Fla.1969); Children’s Bootery v. Sutker, 91 Fla. 60, 107 So. 345 (1926); Shatterproof Glass Corp. v. R. P. Buckmaster, 256 So.2d 531 (Fla. 2d DCA 1972).


author:
HENDRY, Judge.
      SCHWARTZ, Judge

text:
    Linda Gale POPE et vir., Appellants, v. CRUISE BOAT COMPANY, INC., and Western World Insurance Company, Appellees.
    No. 78-2381.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Samuel M. Spatzer, Miami, for appellants.
    Daniels & Hicks and Mark Hicks, Anderson & Moss, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   HENDRY, Judge.

This is an appeal by the plaintiffs from a summary final judgment rendered in favor of the defendants/appellees. Linda Gale Pope and Earl Pope contend that the trial court erred in finding the nonexistence of genuine issues of material fact; erred in concluding that the defendants, Cruise Boat Company, Inc. and its insurer, were entitled to judgment as a matter of law; and erred in denying plaintiffs’ subsequent motion for rehearing. We cannot agree, and shall discuss the facts and reasons for our determination that the trial court order be affirmed.

Linda Gale Pope was a pedestrian who, on a summer morning, chose to walk on the shoulder of a county street running in front of the property leased by Cruise Boat as its place of business; she was on her way to her place of employment, a hospital laundry business located near the Cruise Boat Company premises, where she had been working for approximately ten (10) months. It appears from the uncontroverted facts contained in the record that when she was walking the shoulder of the street, she came upon a boat on a trailer and two pickup trucks parked perpendicular to the street on the shoulder, but not protruding into the street. In her attempt to go around the boat, she stepped off the shoulder into the street and was struck by a truck.

In the complaint, Linda Gale Pope and her husband, who is suing for loss of consortium, alleged that Cruise Boat was careless and negligent in maintaining the premises in an unsafe condition in that boats and vehicles were permitted to be parked on the property in such a manner as to cause pedestrians to walk on the public street, and that said negligence was a proximate cause of the injuries sustained by Linda Gale Pope when she was struck by a truck being operated on N.W. 151 Street, Opa Locka. As the cause progressed in the trial court, there came a time when Cruise Boat and its insurer made a motion for summary judgment on the basis that there was no liability on their part, as a matter of law; that is, that a holder of premises owes no duty to a pedestrian to keep the parkway or shoulder abutting a county road clear and unobstructed. The trial court granted the motion, finding that no material issues of material fact were left unresolved and that, as a matter of law, these defendants were entitled to summary judgment.

Appellants now urge, inter alia, that Cruise Boat breached its duty to maintain the premises, its approaches (ingress and egress), in a reasonably safe condition and that, under the facts of the case, the issue of negligence was properly within the province of the jury to determine. Appellants discuss the general proposition of law that a landowner has a duty to maintain approaches to his premises. The cases cited, however, deal with the duty of care owed to a business invitee seeking entry onto or exit from a place of business. Appellant, Linda Gale Pope, was walking on the shoulder of the road and not an “approach” to the Cruise Boat premises; she was not an invitee, business or otherwise; she was merely a pedestrian passing the premises, after having chosen to walk the shoulder of the road rather than the sidewalk on the other side of the same street.

Appellees point out that while there are no Florida cases directly on point, other jurisdictions have long held that negligence in obstructing a sidewalk (rather than a shoulder) was not a proximate cause of injuries sustained by plaintiff where the plaintiff went onto a roadway in an attempt to avoid the obstruction and was hit by a car. In DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 112 A.2d 372 (1955), the Supreme Court of Pennsylvania in holding that the pedestrian who walked around a parked truck, which was protruding into the roadway and blocking the sidewalk, and was struck by a car was guilty of negligence and the truck owner’s action in blocking the sidewalk was not the proximate cause of the accident; the court explained its reasoning at 112 A.2d at 375:

“The question, then, is whether the parking of the Laundry Company’s truck, even if it were a violation of the statute and therefore an act of negligence, was a proximate or only what the law regards as a remote cause of plaintiff’s accident. The theory adopted by the court below that the plaintiff was placed in a position of peril by reason of the blocking of the sidewalk and being compelled thereby to walk out into the roadway; therefore she was not guilty of negligence in what she did but only of an error of judgment. In our opinion the facts do not admit of such an interpretation. Except under unusual circumstances there is certainly no particular ‘peril’ encountered by an adult person in walking into the roadway of a street . . . and the Laundry Company was not bound to anticipate such negligence.”

Specifically, we must examine whether under the facts presented, Cruise Boat’s action or omission to act, in permitting vehicles and a boat on a trailer to be situated where they were, constitutes a proximate cause of the plaintiff’s injury — or merely what the law regards as a remote cause. The Supreme Court of Florida holding in National Airlines, Inc. v. Edwards, 336 So.2d 545 (Fla.1976), while adopting language from Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974), stated at 547:

“Appellants suggest that the issue is one of reasonable foreseeability and that only the jury can apply that test. This proposition cannot be true because under it every allegation of a breach of duty no matter how remote from an injury would result in a jury trial. The question of proximate cause is one for the court where there is an active and efficient intervening cause.”

The question of proximate causation if well explained in Matthews v. Williford, 318 So.2d 480 (Fla. 2d DCA 1975), at 481 and 483:

“The law is well settled in this state that a remote condition or conduct which furnishes only the occasion for someone else’s supervening negligence is not a proximate cause of the result of the subsequent negligence.”
**♦*#*
“In short, conduct prior to an injury or death is not legally significant in an action for damages like this, unless it is a legal or proximate cause of the injury or death — as opposed to a cause of the remote conditions or occasion for the later negligence.”

In conclusion, we find that the trial court did not commit error since, as a matter of law, the conduct of Cruise Boat Company, Inc. in permitting the parking condition was not a proximate cause of the injury complained of by the plaintiffs. Clearly, a motion for summary judgment may be granted when it is made to appear from the pleadings, deposition, affidavits or other evidence before the court that there exists no genuine issue of material fact to be tried and that the movant is entitled to judgment as a matter of law. Tobias v. Englander, 329 So.2d 363 (Fla. 3d DCA 1976).

Affirmed,

SCHWARTZ, Judge

(concurring specialty)-

I do not at all subscribe to the basis of the majority opinion, which I think is contrary to such cases as McCabe v. Watson, 225 So.2d 346 (Fla.3d DCA 1969), cert. discharged, 232 So.2d 739 (Fla.1970). I concur in affirmance, however, solely on the ground that it conclusively appeared that there was no evidence that the defendant was responsible for the vehicles and boats which obstructed the plaintiff’s passage through the area upon which she had a right to walk. See Sims v. Helms, 345 So.2d 721, 724 (Fla.1977); Holl v. Talcott, 191 So.2d 40, 47 (Fla.1966).

      . The record also shows that on the other side of the county street a paved sidewalk is provided; on the side where Cruise Boat is located, however, there is a driveway on the business premises and a gravel/sand-covered shoulder between the driveway and the street, N.W. 151 Street, Opa Locka.

      . The truckdriver and his insurer were also named defendants in the suit, but are not parties to this appeal.

      . Although at first blush a seemingly similar factual situation and proximate cause issue were presented in McCabe v. Watson, 225 So.2d 346 (Fla.3d DCA 1969), cert. discharged, 232 So.2d 739 (Fla.1970), we find certain distinctions that make the holding inapplicable to the instant case. Not only was there substantially conflicting evidence that had to be resolved by the jury, but the issue of proximate causation turned on whether defendant’s act of parking one-fourth to one-half of his automobile on the grassy area adjacent to the street while permitting the remainder of the automobile to protrude onto the street in a residential area, in violation of the Code of Metropolitan Dade County, § 30-80.2, proximately caused the injuries to the twelve-year old plaintiff, where the driver of another automobile was forced to drive onto the wrong side of the street in order to avoid the illegally parked automobile and struck the child. Cf. Rodi v. Florida Greyhound Lines, Inc., 62 So.2d 355 (Fla.1952).

      . See also Klarquist v. Chamberlain & Proctor, 124 Cal.App. 398, 12 P.2d 664 (1932) and Smith v. Locke Coal Company, 265 Mass. 524, 164 N.E. 381 (1929).

      . See also, Gibson v. Avis Rent-A-Car System, Inc., 362 So.2d 960 (Fla. 3d DCA 1978) and Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla. 2d DCA 1977).


text:
    Kathryn E. EACHUS et vir., Appellants, v. BIG DADDY’S LOUNGES, INC., Appellee.
    Nos. 79-314, 79-562.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Joe N. Unger, Richard M. Walsh & Associates, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann, Kennings & Kniskern and John W. Wylie, Miami, for appellee.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This is a slip and fall case, in which the trial court entered summary judgment for the defendant.

It is a question of fact as to whether or not a parking lot constructed adjacent to the appellee’s lounge, wherein a concrete bumper was placed in the lot in the proximity of a walkway which was designated to be used by the patrons, constituted a negligent design. We think this is an issue of fact which should have been resolved by a finder of fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Luckey v. City of Orlando, 264 So.2d 99 (Fla. 4th DCA 1972); Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977). Therefore, we reverse the summary judgment under review and return the matter to the trial court for further proceedings.

Reversed and remanded, with directions.


author: HAVERFIELD, Chief Judge.

text:
    Denise FRANCE, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 79-599.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern, and Carol A. Fenello, Miami, for appellant.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellee.
    Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

This is an appeal from an order dismissing with prejudice an amended complaint for declaratory judgment seeking, a determination of entitlement to uninsured motorist coverage.

Appellant, Denise France, sustained serious injuries while a passenger in a friend’s car which was struck by a car operated by Michael Schrader and owned by his sister. At the time of the accident, France was residing with her parents who owned two automobiles insured by Liberty Mutual Insurance Company, appellee herein. She also owned a car which was insured by Travelers Insurance Company. France sued Michael Schrader and settled for the policy limits afforded Michael under his sister’s automobile liability policy. Thereafter, she made claims for underinsured motorist benefits against her friend’s automobile liability insurer, her own personal carrier and Liberty Mutual, her parents’ insurer. Liberty Mutual denied coverage and France filed a complaint for declaratory judgment. Liberty Mutual moved to dismiss on the ground that under the terms of its policy France was not an insured because she owned a private passenger automobile and was specifically excluded from underin-sured motorist coverage. Subsequently, her complaint was dismissed with prejudice. France appeals the dismissal order and in essence argues that the language excluding her from entitlement to uninsured motorist coverage because she is a relative who owns a private passenger automobile is contrary to the public policy of the State of Florida and, therefore, is invalid. We cannot agree.

First, in two previous cases involving policies with identical or similar language excluding from uninsured motorist coverage a relative owning an automobile, this court and a sister court have upheld the validity of such exclusionary clauses. See Liberty Mutual Fire Insurance Company v. Kessler, 232 So.2d 213 (Fla. 3d DCA 1970) and Gilligan v. Liberty Mutual Insurance Company, 265 So.2d 543 (Fla. 4th DCA 1972).

Second, unlike Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), upon which France relies, she is not an insured within the terms of Liberty Mutual’s policy inasmuch as she owned an automobile and was not a “relative” within the definition of the policy.

Last, it is clear that France is requesting that we broaden the existing public policy and on that basis to declare void that clause of the subject policy excluding her from the definition of an insured under the uninsured motorist coverage provision. Courts should be extremely cautious when called upon to declare a contract or provision thereof void on the ground of public policy. See 11 Fla.Jur.2d Contracts § 88 (1979). Justice Terrell in Story v. First Nat. Bank & Trust Co., in Orlando, 115 Fla. 436, 439, 156 So. 101, 103 (1934), described public policy as “a very unruly horse, and, when once you get astride it, you never know where it will carry you”. In the absence of statutory provisions to the contrary, insurers have the right to limit their liability and to impose such conditions as they wish upon their obligations, not inconsistent with public policy and the courts are without the right to add to or take away anything from their contracts. Zipperer v. State Farm Mut. Auto. Ins. Co., 254 F.2d 853 (5th Cir. 1958). As concerns the uninsured motorist statute, the public policy of this state is that every insured within the definition of that term as defined in the policy is entitled to recover under the uninsured motorist provision of the policy (up to the limits thereof) for the damages he or she would have been able to recover against the offending motorist if that motorist had maintained a policy of liability insurance. Davis v. U. S. Fidelity & Guaranty Co. of Baltimore, Md., 172 So.2d 485, 486 (Fla. 1st DCA 1965). We decline to extend the public policy as France urges so as to allow a member of a family to purchase one liability policy and claim total coverage thereunder for the entire family while vastly increasing the risk to his or her insurer by knowingly owning and operating a fleet of uninsured vehicles upon the highways. See Liberty Mutual Fire Insurance Company v. Kessler, 232 So.2d 213 (Fla. 3d DCA 1970), supra.

Accordingly, the dismissal herein appealed is affirmed.

Affirmed.

      . “Persons Insured Under the Uninsured Motorists Coverage, the following are insureds:
      “(a) The named insured and any relative. “Definitions
      $ $ ⅝5 * ⅜! *
      ‘relative’ means a person related to the named insured by blood, marriage or adoption who is a. resident of the same household, provided neither such relative nor his spouse owns a private passenger automobile;”