author: DANIEL S. PEARSON, Judge.

text:
    Norma Jurado GONZALEZ, Appellant, v. TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.
    No. 80-2131.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Lanza, Sevier & Womack, Coral Gables, and Judith A. Bass, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C. Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Norma Gonzalez was insured under an automobile insurance policy issued by The Travelers Indemnity Company of Rhode Island. The policy, inter alia, provided Gonzalez with personal injury protection and uninsured motorist benefits. Gonzalez was injured in an automobile accident caused by an uninsured motorist and presented a P.I.P. claim to Travelers. When Travelers denied her claim, Gonzalez sued in the Circuit Court in and for Dade County, Florida, Case No. 76-35110. Ultimately, Gonzalez accepted Travelers’ offer of judgment of $2,447.04, was paid, and executed a release. Thereafter, Gonzalez filed a demand for arbitration for uninsured motorist benefits. Travelers then brought an action seeking a declaration that Gonzalez’s claim for uninsured motorist benefits was barred by the release she signed. The trial court, determining that the release clearly and unambiguously prevented Gonzalez from making any claim for uninsured motorist benefits, entered a summary final judgment in favor of Travelers.

Assuming, arguendo, that the release is clear and unambiguous, that finding is not dispositive of Gonzalez’s counterclaim for reformation which alleged, in essence, that the release did not express the intent of the parties that the claim for uninsured motorist benefits was not to be released. Gonzalez properly points out that the evidence concerning the intent of the parties was not undisputed and that, therefore, Travelers was not entitled to summary judgment on Gonzalez’s counterclaim. The record indeed reflects that (1) Travelers’ claims manager informed his home office, “. . . we settled the P.I.P. portion of the claim by paying the additional benefits due .. . (2) when the uninsured motorist claim was filed, Travelers’ claims manager wrote to Travelers’ counsel, “you previously handled P.I.P. suit — if you need , additional information please advise. Why don’t you give me a call and we can discuss what discovery is necessary and what discovery was done on P.I.P. suit”; (3) the cover letter transmitting the settlement drafts to Gonzalez stated, inter alia, “[t]hese drafts constitute full and complete settlement of your claim for Personal Injury Protection Benefits”; (4) Travelers’ attorney could not recall any conversation in which Gonzalez’s attorney told him that the lawsuit would settle all of Gonzalez’s claims and could not recall any understanding with Gonzalez’s attorney with respect to the uninsured motorist claim. It is clear where an agreement does not carry out the intent of the parties or violates such intent, equity will reform the contract. See Vasquez v. Simms, 75 So.2d 783 (Fla.1954); Royal Insurance Company Limited v. Smith, 158 Fla. 472, 29 So.2d 244 (1947); Poland v. Phillips, 371 So.2d 1053 (Fla. 3d DCA 1979); Alexander v. Kirkham, 365 So.2d 1038 (Fla. 3d DCA 1979); Napoli v. Liberty Mutual Insurance Company, 364 So.2d 878 (Fla. 4th DCA 1978); Florida Cranes, Inc. v. Florida East Coast Properties, Inc., 324 So.2d 721 (Fla. 3d DCA 1976); Niagara Fire Insurance Company v. Allied Electrical Company, 319 So.2d 594 (Fla. 3d DCA 1975); Hanover Insurance Company v. Publix Market, Inc., 198 So.2d 346 (Fla. 4th DCA 1967); Ormsby v. Ginolfi, 107 So.2d 272 (Fla. 3d DCA 1959); accord, Palilla v. St. Paul Fire and Marine Insurance Company, 322 So.2d 46 (Fla. 1st DCA 1975); see also Meyer v. Aetna Casualty & Surety Company, 360 So.2d 462 (Fla. 3d DCA 1978); Urbaine Fire Insurance Company of Paris, France v. Combs, 108 Fla. 262, 145 So. 585 (1933).

Accordingly, holding that there existed genuine issues of material fact as to whether the release expressed the intent of the parties, we reverse the judgment of the trial court with directions that a trial on Gonzalez’s claim for reformation of the release be held.

Reversed and remanded with directions.

      . The pertinent language of the release in question states:
      “This Release covers any and all claims for personal injuries, known or unknown, past and future; mental and physical pain and suffering, loss of earnings or earning capacity; ... any and all claims which have arisen or may arise as a result of the described acts which is the subject matter of the suit pending in the Circuit Court in and for Dade County, Florida, Case No. 76-35110.”
      We need not decide whether the trial court’s view that the release is clear and unambiguous is correct. While the document purports to release “any and all claims for personal injuries, known or unknown, past and future,” it is arguable that that seemingly all-inclusive language is later qualified by more restrictive language referring to “any and all claims which have arisen or may arise as a result of the described acts which is the subject matter of the suit pending in the Circuit Court in and for Dade County, Florida, Case No. 76-35110.” However, the subject matter of the suit was a claim for P.I.P. benefits, not a claim for uninsured motorist benefits. While an argument can certainly be made that the “described acts” are the subject matter of the suit, the use of the singular, i.e., “which is the subject matter,” can be equally, if not more plausibly read to qualify “any claim.” The term “subject matter” itself is imprecise. Switow v. Sher, 136 Fla. 284, 186 So. 519 (1939); Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). Moreover, it is undisputed that Travelers authored the release, and therefore, the language would be construed against it.


source: Caselaw Access Project

author: PER CURIAM. NESBITT, Judge

license: Public Domain

text:
    Robert VILLANO, Appellant, v. Georgia L. VILLANO, Appellee.
    No. 80-2374.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    S. Peter Capua, Miami, for appellant.
    Charles H. Snowden, Miami, for appellee.
    Before HUBBART, C.J., and HENDRY and NESBITT, JJ.
   PER CURIAM.

We find no abuse of discretion with respect to the challenged portions of the final judgment of dissolution which (a) awarded the wife the husband’s interest in the marital home as lump-sum alimony, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980), rev. denied, 392 So.2d 1378 (Fla.1981); Hague v. Hague, 382 So.2d 852 (Fla. 3d DCA 1980), and cases cited and (b) awarded the wife attorney’s fees in the proceedings below, Canakaris v. Canakaris, supra; Dominik v. Dominik, 390 So.2d 81 (Fla. 3d DCA 1980).

Affirmed.

NESBITT, Judge

(dissenting):

With the incantation of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the majority permits the husband to be stripped of his undivided one-half interest in the sole asset accumulated by the parties during their marriage. The majority has given the reverse application to the equalization test announced in Canakaris, supra.

At the time of the final dissolution, this was a nineteen-year marriage with three children. By the final judgment of dissolution, the husband was required to pay $45 per week per child for the support of the minors, one of which had already attained his majority at the time the case was orally argued. This is a typical American family and a typical tragedy. Both parties are in good heálth and in their early forties. The wife worked outside the home to assist the husband in acquiring a higher education; the husband contributed to the wife’s support when she too acquired a higher education. Both are in the school system with the husband earning $31,500 as an administrator; and it was agreed at oral argument that the wife’s salary as a teacher reached $18,500. Because of the superior earning power of the husband, he was properly required to pay the wife’s attorney’s fees. Canakaris, supra, at 1205; Dominik v. Dominik, 390 So.2d 81 (Fla.3d DCA 1980).

During their marriage, the parties purchased one residence, lived in it, enhanced its value, and then transferred the assets to the present home, which was appraised at $144,000 with an equity of $90,000. By the terms of the final decree, the husband was required to quit-claim his one-half interest in the home to the wife. Other than an automobile, it is undisputed that he has virtually no other assets except his earning capacity.

Under these circumstances, the trial court’s decision to strip the husband of his undivided one-half interest in the sole asset acquired by the parties during their marriage is a clear abuse of discretion. In Canakaris, supra, Justice Overton wrote:

We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.”

382 So.2d at 1204.

Under Canakaris, supra, the case should be remanded to the trial court for a determination as to the portion of the equity in the home to which the wife is entitled because of the contribution she made by putting her husband through school. Furthermore, the wife should be awarded full use and occupancy of the home until the youngest child attains its majority, after which the parties would be free to sell the home or force the partition thereof. By this distribution, no one could seriously suggest that either party would pass from prosperity to misfortune or be “shortchanged.” Surely then, it was an abuse of the trial court’s discretion to award the wife the husband’s undivided one-half interest in the home, which interest was worth at least $45,000.

I would affirm that portion of the order that required the husband to pay the wife’s attorney’s fees but otherwise reverse with directions as I have indicated.


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Julian LOPEZ, Appellee.
    No. 81-266.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Richard Menin, Miami Beach, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Lopez pled guilty to an information which charged him with carrying a firearm in the course of a robbery. Nonetheless, the trial court’s five-year sentence did not include a provision that he serve a minimum mandatory three-year term without eligibility for parole or gain time, as is required under these circumstances by Section 775.087(2), Florida Statutes (1979). We agree with the state’s position that there is nothing to justify this omission. D’Alessandro v. Shearer, 360 So.2d 774 (Fla.1978). Hence, the sentence is reversed in part and the cause remanded with directions to make the sentence imposed as to Count I of the information subject to the three-year mandatory requirement.

Reversed and remanded.

      . We have jurisdiction to consider its appeal as one from an illegal sentence under Fla.R.App.P. 9.140(c)(1)(I) and Sec. 924.07(5), Fla.Stat. (1979).

      . The defendant need not be present for this amendment.


text:
    Joan L. STEVENS, Appellant, v. Harold A. STEVENS, Appellee.
    No. 81-357.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 8, 1982.
    Hugh R. Papy, Key West, for appellant.
    Michael Halpern, Key West, for appellee.
    Before BARKDULL, HENDRY and FER'GUSON, JJ.
   PER CURIAM.

We find no error or abuse of discretion has been demonstrated by the appellant with respect to the trial judge’s rulings which (a) limited evidence at the hearing to the three issues remaining for disposition pursuant to the parties’ stipulation to the division of jointly owned real properties; (b) ordered the wife to pay the husband his share of the net proceeds from the sale of the Varela Street property; and (c) denied the wife alimony and attorneys fees. Quick v. Leatherman, 96 So.2d 136 (Fla. 1957); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). No reversible error having been demonstrated, the final judgment under review is affirmed.

Affirmed.


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Silvio P. ZAFRA, Appellee.
    No. 81-474.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 9, 1982.
    Jim Smith, Atty. Gen., for appellant.
    Paul Morris, Rosen, Pórtela, Bronis, An-gueira & Clay and William A. Clay, Miami, for appellee.

      Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

We join the trial court in rejecting the state’s position that the apparently unrestricted authority conferred by the terms of 19 U.S.C. § 1581(a) is not limited by the reasonableness requirement of the fourth amendment and that a customs officer may therefore make an investigative stop and subsequent search of a vessel in inland waters even though there is neither (a) evidence of a border crossing or its functional equivalent, nor (b) prior reasonable suspicion of illegal activity. It is clear that this contention is incorrect and that, under the stated circumstances, such activity is not constitutionally permissible. United States v. Villamonte-Marquez, 652 F.2d 481, 484 (5th Cir. 1981); United States v. Guillen-Linares, 643 F.2d 1054 (5th Cir. 1981); United States v. D’Antignac, 628 F.2d 428, 432-33 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); Morales v. State, 407 So.2d 321 (Fla.3d DCA 1981) (dictum); Earnest v. State, 293 So.2d 111 (Fla. 1st DCA 1974); see, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In the posture in which the case was presented and decided below, we need and do go no further in determining the outcome of this appeal.

Affirmed. .

      .§ 1581. Boarding vessels
      (a) Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under the Anti-Smuggling Act, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

      . Compare United States v. Freeman, 579 F.2d 942 (5th Cir. 1978) (stop and boarding on open waters for document check; subsequent search based on probable cause discovered thereafter); Morales v. State, 407 So.2d 321 (Fla.3d DCA 1981).

      . Compare United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981); State v. Smith, 399 So.2d 22 (Fla.3d DCA 1981).


text:
    Leonard WISNIEWSKI, Appellant, v. HISTORICAL ASSOCIATION OF SOUTHERN FLORIDA, INC. and the Republic of Haiti, Appellees.
    No. 81-497.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied Feb. 2, 1982.

      Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Todd A. Cowart and Diane H. Tutt, Miami, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

At stake in this litigation are the respective rights of Leonard Wisniewski, the plaintiff, and the Republic of Haiti, an intervening defendant, to the possession of two antique cannons located on the premises of the Historical Association of Southern Florida, Inc. Wisniewski’s claim derives from his being the purchaser from, and assignee of, Marine Exploration Company, which loaned the cannons to the Historical Association, as bailee, to exhibit them with the understanding that the cannons would be returned to Marine upon demand. Marine, and later Wisniewski, indisputably standing in Marine’s shoes, made this demand, and upon being refused possession, Wisniewski brought a replevin action. Haiti’s claim, if claim it can be called, derives from (a) the gratuitous mention of the Haitian Government in Marine’s loan letter to the Historical Museum; (b) an “official newspaper” of questionable admissibility reporting a purported, unsigned contract between Haiti and Marine Exploration which, at most, required Marine, in exchange for exploration rights in Haitian territorial waters, to divide “the sale product of such wrecks” in the proportions of seventy-five per cent for Marine and twenty-five per cent for the Haitian Government, but did not give Haiti an interest in the artifacts themselves; (c) a letter to Jean Duvalier from the Historical Museum and plaques on the Museum wall thanking the Haitian Government for “making it possible” for the Museum to exhibit the cannons, which letter and plaques, acknowledgments of the gratuitous mention of Haiti in the loan agreement, prove even less about Haiti’s interest in the cannons than the loan agreement. Even assuming, arguendo, that the “contract” between Haiti and Marine Exploration could be regarded as giving Haiti some ownership interest in the cannons, that interest was clearly separated from the right of possession which, by all that is shown by this record, was exclusively a right of Marine Exploration Company and, by assignment, a right of Wisniewski. In a replevin action the right of immediate possession is the question to be determined, and that right may prevail even against absolute legal title to the property where title and possession have become separated. Bringley v. C. I. T. Corporation, 119 Fla. 529, 160 So. 680 (1935). Haiti never possessed the cannons nor was given any right to possession by the “contract,” and its claim to possession must necessarily be an incident of ownership which was never determined below. Wisniewski’s claim, on the other hand, quite apart from the unresolved issue of ownership, is the claim of one who had actual possession so that any attempt by Haiti to impeach his title was irrelevant to the replevin action. Parramore v. Smith, 158 Fla. 85, 27 So.2d 670 (1946). While the fragmentary evidence concerning Haiti’s interest may have justified the Historical Museum, concededly a mere stakeholder of the cannons, in proceeding cautiously and refusing to immediately honor the demands of Wisniewski and his assignor, Marine, for the return of the cannons, so as to allow Haiti to intervene and have its colorable claim adjudicated by a court, it did not justify the trial court in denying Wisniew-ski his right to replevin the goods. Whatever claim Haiti may have against anyone for its share of the proceeds of the sale of these goods is not before us.

Accordingly, we reverse and remand with directions to enter a judgment for replevin in favor of Wisniewski.

      . The letter signed by the Presidents of Marine and the Historical Museum reads:
      “Marine Exploration Co., Inc. herein agrees to loan to the Historical Museum of Southern Florida, 3280 South Miami Avenue, Miami, Florida the use of two (2) brass cannons, one carriage and other miscelleanous [sic] treasure artifacts to display at the Historical Museum on the behalf of Marine Exploration Co., Inc. and the Haitian Government.
      “Marine Exploration Co., Inc. agrees to loan to the Historical Museum these artifacts and cannons for an undefinite [sic] period of time, but at Marine Exploration Co., Inc. request, the Historical Museum must return these artifacts and cannons to Marine Exploration’s premises within a reasonable period of time.”

      . We do not decide the admissibility of the document. We treat the “official newspaper” report of this contract as having been properly admitted, since its admission does not affect the outcome of this appeal.


text:
    George GOLDBLOOM, and Emanuel Edelstein d/b/a MG Investment, Appellants, v. J. I. KISLAK MORTGAGE CORPORATION, Appellee.
    No. 81-649.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee and Gerald F. Richman and Robert C. Biegen, Miami, for appellants.
    Steel, Hector & Davis and Talbot D’Al-emberte, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The appellants, Goldbloom and Edelstein, doing business as MG Investment, are the owners of office space rented to the appel-lee, Kislak. They were the plaintiffs below in an action for a declaratory judgment as to the terms of their lease and for the recovery of double rent under Sec. 83.06(1), Fla.Stat. (1979). This is an appeal from a summary judgment against them which determined that an option provision in the lease entitled Kislak to a five-year renewal at the same rent. We reverse.

The record shows that a 1974 lease was renegotiated in April, 1977 primarily to reflect changes in the areas of the office building occupied by the tenant. At that time, Kislak prepared and presented to MG a three-year lease form which contained the following renewal clause.

SUBJECT TO THE CONTINUED GOOD STANDING OF LESSEE IN THE PERFORMANCE OF ITS OBLIGATION PURSUANT TO THIS LEASE, THE LESSOR HEREBY GRANTS TO LESSEE THE OPTION TO RENEW THIS LEASE AGREEMENT FOR AN ADDITIONAL TERM OF FIVE (5) YEARS AS SET FORTH IN THIS LEASE.. ..

Goldbloom, who was representing MG in the matter, vehemently objected to the phrase “as set forth in this lease” on the ground, he said, that it would have permitted renewal for the same amount of rental provided in the existing lease. Since he demanded the right to renegotiate the rental at the end of the term, he refused to sign the lease as drawn. Kislak’s agent was Sylvia Woodall. While, during the present litigation, she could not recall the reason for Goldbloom’s objection to the phrase, she did remember that it had been vigorously asserted. In any event, because of MG’s position, the parties mutually agreed to delete the term from the draft. As amended, the option provision of the lease finally executed by both sides appears as follows:

SUBJECT TO THE CONTINUED GOOD STANDING OF LESSEE IN THE PERFORMANCE OF ITS OBLIGATION PURSUANT TO THIS LEASE, THE LESSOR HEREBY GRANTS TO LESSEE THE OPTION TO RENEW THIS LEASE AGREEMENT FOR AN ADDITIONAL TERM OF FIVE (5) YEARS AS SET FOR-T-H IN THIS LEASE.. ..
GB
SW
(Initialed by parties)

Notwithstanding the revision, in 1980 Kis-lak purported to exercise the renewal option at the same rental previously provided. Consistent with that position, it remained on the premises subsequent to the expiration of the three-year term, tendering only those amounts in rental payments. MG demanded a renegotiation of the rental and, after that was declined, the immediate possession of the leasehold. Finally, the landlord commenced this action. The proceeding was terminated by a summary judgment for Kislak holding that the final draft of the option clause unambiguously provided for a renewal at the same rental as the existing term, so that parol evidence as to the parties’ perhaps contrary intention could not be received. We disagree with this conclusion.

Even though, as shall be seen, the result would surely be otherwise if it did not occur, it seems obvious that the parties’ deletion of the expression “as set forth in this lease” created, at the least, an ambiguity as to whether the renewal should nevertheless be on the terms “set forth in this lease,” which required reference to extrinsic evidence and could therefore not properly be resolved by summary judgment. See generally, Holl v. Talcott, 191 So.2d 40 (Fla.1966); Macina v. Magurno, 100 So.2d 369 (Fla.1958); Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981), and cases cited; Kirsh v. Mannen, 393 So.2d 63 (Fla. 3d DCA 1981), and cases cited. This result is required not only by the common sense of the situation but by a prior decision of this court which we consider indistinguishable from the present case. In Southeastern Home Mortgage Co. v. Roll, 171 So.2d 424 (Fla. 3d DCA 1965), the parties had, on its face, deleted from a note a provision for interest after maturity. Even though the legal effect of the remaining language of the instrument clearly would have required the payment of that interest, 47 C.J.S. Interest § 45 (1946), we stated:

The note showed upon its face that the provision for interest after maturity was stricken from the note at the time of execution. We hold that the striking of the provision for interest after maturity from the note created an ambiguity and that testimony explaining such ambiguity was properly admitted. 17A C.J.S. Contracts § 317. The uncontroverted testimony before the trial judge indicated that it was the intention of the parties, by altering the note, to exclude the element of interest both before and after maturity, [e.s.] []

171 So.2d at 425. See also, Taylor v. Florida Power & Light Co., 407 So.2d 293 (Fla. 2d DCA 1981).

Kislak cites a mass of authority— there is none to the contrary — that an otherwise silent agreement simply to renew an existing lease implies that the renewed term is for the same rental as the existing one. Schumacher v. Fatten, 18 Ill.App.2d 387, 152 N.E.2d 402 (1958); Hughes v. Windpfennig, 10 Ind.App. 122, 37 N.E. 432 (1894); Scirpo v. McMillan, 355 Mass. 657, 247 N.E.2d 368 (1969); Davison v. Rodes, 299 S.W.2d 591 (Mo.App.1956); 51C C.J.S. Landlord and Tenant § 71 (1968); 50 Am.Jur.2d Landlord and Tenant § 1165 (1970). The basis of these holdings is “that when there are no terms stated in the option the parties [are deemed to] contemplate that the lease will be renewed on the same terms in the original agreement.” [e.s.] Crossman v. Fontainebleau Hotel Corp., 273 F.2d 720, 727 (5th Cir. 1959). We do not at all disagree with this doctrine, but it has no application to the present case. Here, unlike each of the cited decisions, the face of the option clause, which reflects the deletion, is not silent on the issue. To the contrary, it affirmatively indicates — as the note did in the Roll case — that the parties addressed the very issue in dispute and not only may not have “contemplated” the same rental but may in fact have “contemplated” quite the opposite. And there is surely nothing in the remaining words of the option, which contain no specific reference to the amount of rent at all, which themselves preclude reference to the surrounding circumstances in order to determine the answer to the ultimate question in any issue of contract construction: the intent of the parties. 11 Fla.Jur.2d Contracts § 107 (1979). The pa-rol evidence rule — of which the principle argued by Kislak represents but a single aspect — is based on the premise that that intent is necessarily expressed in the language of the instrument itself. When, contrariwise, as here and in Roll, it appears from the written contract that this is not the case, the rule has no application. See cases and authorities cited supra.

For these reasons, the judgment under review is reversed and the cause remanded for a jury trial to be conducted in accordance with the views expressed herein.

Reversed.

      . The landlords do not ask that we require the entry of summary judgment in their favor and seek only reversal for a jury trial. Of course, we express no opinion as to the ultimate outcome of the trial or the case itself.

      . Just as an otherwise silent lease renewal provision would have required the same rental in the new term. See cases and authorities cited by Kislak and discussed infra.

      . This holding, which is essentially that a facial deletion may create an ambiguity, is closely related.to the majority viewpoint that reference to such a deletion may be employed to resolve one which otherwise exists. 4 Williston on Contracts § 622, n.20 (Jaeger 3rd ed. 1961).

      . It should be pointed out that acceptance of the appellants’ position that no rental for the renewal term had been agreed upon would mean that the option is unenforceable and nugatory. Hughes v. Windpfennig, supra. This presents a strong argument in support of the appellee’s factual contention that the parties’ intentions must have been otherwise. City of Orlando v. Murphy, 84 F.2d 531 (5th Cir. 1936), cert. denied, 299 U.S. 580, 57 S.Ct. 45, 81 L.Ed. 427 (1936).

      .Kislak’s cases merely imply such an intention from silence. On the other hand, if the clause had said the renewal rent would be, say, “at $15.00 a square foot,” the deletion of “as set forth in this lease” could not create an ambiguity.

      . We also agree with the appellants’ contention that the trial court erroneously set the cause for non-jury, rather than jury trial as they had demanded. Hoffman v. Terry, supra; Commercial Trading Co. v. Zero Food Storage, 199 So.2d 109 (Fla. 3d DCA 1967), cert. denied 204 So.2d 332 (Fla.1967).


text:
    Caridad OCASIO, Appellant, v. BUREAU OF CRIMES COMPENSATION DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 81-693.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Jon W. Burke and Linda Dakis, Miami, for appellant.
    Robert Mack, Tallahassee, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

Mrs. Caridad Ocasio had filed a dissolution proceeding and was living apart from her husband when he attacked her and repeatedly slashed her face with a razor. She filed a claim under the Florida Crimes Compensation Act to recover the resulting lost earnings and medical expenses. Following a hearing held pursuant to Section 960.09(3), Florida Statutes (Supp.1980), the deputy commissioner rejected the claim on the sole ground that, because they were still formally married at the time, Mrs. Ocasio was related by “affinity to the person who committed the crime” and was therefore ineligible for an award by virtue of Section 960.04(2)(c) Florida Statutes (1979). She appeals and we reverse.

Section 960.04 provides in its entirety:

960.04 Eligibility for awards.—
(1) Except as provided in subsection (2), the following persons shall be eligible for awards pursuant to this section:
(a) A victim.
(b) An intervenor.
(c) A surviving spouse, parent, or child of a deceased victim or interve-nor.
(d) Any other person who is dependent for his principal support upon a deceased victim or intervenor.
(e) A dependent child of a deceased victim of a crime who is related to or residing in the same household as the person who committed the crime.
(2) Any person who:
(a) Committed or aided in the commission of the crime upon which the claim was based;
(b) Was engaged in an unlawful activity at the time of the crime upon which the claim is based;
(c) Is related within the third degree of consanguinity or affinity to the person who committed the crime, except as provided in paragraph (l)(e);
(d) Is maintaining a sexual relationship with the person who committed the crime; or
(e) Resides in the same household as the person who' committed the crime, except as provided in paragraph (l)(e),
shall not be eligible to receive an award with respect to such claim.

We think it very clear that the present claim is not barred by this statutory provision.

The question on which the case turns boils down to whether the term “affinity” in Section 960.04(2)(c) includes the interspousal relationship. It is conceded that, in Florida and elsewhere, the term has historically and universally been considered to refer only to a relationship with the blood relatives of one’s spouse and specifically does not embrace that between husband and wife themselves. In State ex rel. Perez v. Wall, 41 Fla. 463, 26 So. 1020, 1021 (1899), our supreme court stated:

We do not think it can be maintained that a husband is related to his wife by affinity. They are embraced in the definition of neither affinity nor consanguinity, but are regarded in law ... as one person.

Accord, Ex parte Harris, 26 Fla. 77, 7 So. 1 (1890); State v. Hooper, 140 Kan. 481, 37 P.2d 52 (1934). The appellee points out, however, that, as Wall states, this view was based on the notion that husband and wife were, in legal contemplation, the same person who therefore could not be “related” to each other by affinity or otherwise. Since this attitude is no longer a viable part of the law, it is argued — and the deputy, in a thoughtful order, agreed below — that the term must be given a correspondingly new and modern interpretation. In our view, this approach misses the mark entirely. The issue is not whether spouses are any longer correctly regarded as a single individual; obviously, they are not. Rather, it is what the legislature meant and intended when it employed the particular expression in the present statutory context. State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977). On this point, the controlling principle is that technical legal words, such as “affinity,” are deemed to have been statutorily used as they are legally defined. Davis v. Strople, 39 So.2d 468 (Fla.1949); see Variety Children's Hospital, Inc. v. Perkins, 382 So.2d 331, 337-38 (Fla. 3d DCA 1980). As is said in 30 Fla.Jur. Statutes § 98 (1974):

Technical words and phrases that have acquired a peculiar and appropriate meaning in law cannot be presumed to have been used by the legislature in a loose popular sense. To the contrary, they have been presumed to have been used according to their legal meaning. They will ordinarily be interpreted not in their popular, but in their fixed legal, sense and with regard to the limitations the law attaches to them. Where legal terms are used in a statute, unless a plainly contrary intention is shown they must receive their technical meaning.

This principle is clearly applicable here.

Furthermore, two additional factors make it even clearer that the accepted definition of affinity, which excludes spouses, must be applied to Section 960.04(2)(c). First, it is to be noted that the subsection refers to a relation “within the third degree of .. . affinity” [e.s.] with the criminal. But it is inherently impossible for a husband to bear any particular “degree” of affinity (first?, second?) to his wife. As in the Perkins case, supra, 382 So.2d at 337-38, therefore, the legislature’s very use of the arcane nomenclature in question itself signals the unacceptability of the appellee’s interpretation of the statute. Perhaps more important is that, if it wished, the legislature could easily have accomplished the result achieved below simply by using the familiar and unequivocal expression “husband or wife” or, even more obviously, “spouse” — as it significantly did in another portion, subsection (l)(c), of the identical statute. Its deliberate use of a quite different term in (2)(c) is strong evidence indeed that it intended a quite different meaning. Myers v. Hawkins, 362 So.2d 926 (Fla.1978); 30 Fla.Jur. Statutes § 96 (1974).

The Bureau of Crimes Compensation also argues that the deputy’s interpretation is consistent with what it discerns from Section 960.04(2)(e), (d), and (e) as a legislative policy to render the act unavailable to victims who have a “personal relationship” with their attackers. The legislative intent is, however, best expressed by, and its implementation must be limited to the precise exclusions set forth in the statute itself, see 30 Fla.Jur. Statutes §§ 79, 81 (1974)—none of which, it bears repeating, includes Mrs. Ocasio. Moreover, such a general “policy” would surely extend to an ex-spouse relationship, which, however, admittedly falls within the act. To the direct contrary of the appellee’s position, we think that the carefully drawn provisions of Section 960.04(2) reflect a deliberate and wholly justified legislative choice to afford the benefits of this remedial statute to women like Mrs. Ocasio who are unfortunately but notoriously vulnerable to crimes committed upon them by their estranged husbands. Having discerned that intent, we must effectuate it. Accordingly, the order under review is reversed and the cause remanded for further proceedings consistent herewith.

Reversed.

      . The marriage was dissolved a month later. Ocasio is now serving a fifteen-year sentence for aggravated battery.

      . There is no dispute that the Ocasios had no sexual relationship and were not residing in the same household when the assault took place. Neither subsection (2)(d), (2)(e), nor any other exclusionary clause therefore applies.

      . A single case, State v. Ellis, 325 Mo. 154, 28 S.W.2d 363 (1930), is cited as reflecting a contemporary “trend” in the definition of “affinity” to include the relationship between spouses. Ellis interpreted an “anti-nepotism” state constitutional provision to preclude a court clerk from appointing his wife as deputy. The intent underlying this enactment could hardly be more dissimilar from the one involved in the provision before us. The persuasiveness of Ellis upon the present question is therefore virtually nil.

      . See, Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981), and cases and authorities cited.

      .This is of course because of the somewhat circular reason that husband and wife were never regarded as being in “affinity” at all.

      . See note 2, supra.

      . See also, State v. Smith, 401 So.2d 1126 (Fla. 5th DCA 1981).


author: BASKIN, Judge.

text:
    Mirta FERNANDEZ, as personal representative of Angel Fernandez, Deceased, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, Appellee.
    No. 81-765.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.

      McDermott, Will & Emery and Byron B. Mathews, Jr., Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Linda Shelley, Miami, for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We affirm the trial court order denying appellant attorney’s fees. In so doing, we reject appellant’s contention that the hospital lien law, Chapter 25C, Dade County Code (Code 1959), is inapplicable to personal injury protection (PIP) benefits. We hold that under Chapter 25C, a hospital lien takes priority over benefits covering funeral expenses, lost wages, and lost earning capacity which would be available to appellant under appellee’s PIP coverage. § 627.736, Fla.Stat. (Supp.1980).

Following an automobile accident in which Angel Fernandez, the insured, died, the personal representative of his estate authorized the submission of a claim for PIP benefits to appellee, South Carolina Insurance Company. Appellee offered to pay the proceeds, amounting to $10,000, jointly to Jackson Memorial Hospital and to the personal representative, but the offer was declined on the ground that appellant was entitled to apply PIP benefits to the payment of funeral expenses and lost wages. Appellant filed a lawsuit in which she relied on section 627.736(4)(b), Florida Statutes (Supp.1980) in an attempt to obtain attorney’s fees for appellee’s late payment of insurance benefits. The court ruled that appellee had paid full PIP benefits and that appellant was not entitled to attorney’s fees, apparently because her refusal to accept the joint check had caused the delay.

Chapter 25C, Dade County Code (Code 1959), formerly Chapter 27032, Laws of Florida (1951), provides in section 3 that in Dade County:

[Every hospital operator] shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims and demands accruing to the persons to whom such care, treatment or maintenance are furnished or accruing to the legal representatives of such persons, and upon all judgments, settlements and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlement or settlement agreement and which necessitated or shall have necessitated such hospital care, treatment and maintenance.

The validity and priority of a hospital lien have been firmly established. Public Health Trust of Dade County v. O’Neal, 348 So.2d 377 (Fla. 3d DCA 1977); Dade County v. Pavon, 266 So.2d 94 (Fla. 3d DCA 1972); Dade County v. Perez, 237 So.2d 781 (Fla. 3d DCA 1970); Dade County v. Bodie, 237 So.2d 553 (Fla. 3d DCA 1970); Palm Springs General Hospital v. State Farm Mutual Automobile Insurance Co., 218 So.2d 793 (Fla. 3d DCA 1969). The clear language of Chapter 25C contains no exclusion for PIP claims. We therefore conclude that the hospital lien takes priority over appellant’s other PIP benefits.

We find no error in the court’s denial of attorney’s fees for late payment. The court’s conclusion that the delay in payment was attributable to appellant’s refusal to accept the draft made payable to appellant and to Jackson Memorial Hospital jointly is supported by the record. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976). Appellant’s remaining points are without merit.

Affirmed.

      . Angel Fernandez incurred more than $72,000 in medical bills at Jackson Memorial Hospital prior to his death.

      . § 627.736(4)(b), Fla.Stat. (Supp.1980):
      Personal injury protection insurance benefits shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. However, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment, notwithstanding that written notice has been furnished to the insurer. For the purpose of calculating the extent to which ány benefits are overdue, payment shall be treated as being made on the date a draft or other valid instrument which is equivalent to payment was placed in the United States mail in a properly addressed, postpaid envelope or, if not so posted, on the date of delivery.

      . Section 25C-1 (Code 1959) excludes accidents or injuries “within the purview of the Workmen’s Compensation Act."


text:
    E.S.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-841.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).


text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 81-1279.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Neil I. Maryanoff, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and James A. Jurkowski, Asst. County Atty., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

When the State chooses, as is its prerogative, and apparently often its wont, to announce that it brings “no action,” because it is not prepared to charge a defendant in an information or indictment or, alternatively, to afford to the defendant an adversary preliminary hearing within twenty-one days from the date of his arrest, see Fla.R.Crim.P. 3.131(b), it must accept the consequences of its action, the most obvious of which is that the case against the defendant is, at least for the moment, over. If, as here, the defendant who is the beneficiary of the “no action” is at liberty on a bail bond, the exoneration of him, as principal, is an exoneration of the surety.

In the present case, one Lazaro Martinez was arrested on a burglary charge on August 22, 1980. Allied Fidelity Insurance Company (the surety) undertook a bail obligation and secured Martinez’s release from custody. Twenty-one days later, the State, not having filed an information or indictment, announced a “no action” of the charges against Martinez.

Nearly three months later, the State filed an information charging Martinez with the burglary. A notice of arraignment was mailed to Martinez and the surety. When Martinez failed to appear on the date set forth in the notice, the trial court entered a final judgment of estreature against Allied. Allied appeals, and we reverse.

The State contends that since it has six months from the time of the defendant’s arrest to bring him to trial under the speedy trial rule, the obligation of the defendant to appear and the concomitant obligation of the surety to produce the defendant are not discharged by a “no action” announcement until that time has run. Since the State concedes, as it must, that a nolle prosequi or its equivalent would relieve the defendant of any obligation to appear and would discharge the surety, see All Florida Surety Company v. State, 78 So.2d 89 (Fla.1955); State v. McLeod, 31 Idaho 536, 173 P. 496 (1918); State v. Veterans of Foreign Wars Post 1856, 223 Iowa 1146, 274 N.W. 916 (1937); see also State v. Sokol, 208 So.2d 156 (Fla. 3d DCA 1968), it is critical to its contention that a “no action” is ineffective to discharge the surety, that a “no action,” unlike a nolle prosequi, does not release the defendant. It is far from convincing for the State to attempt to distinguish a nolle prosequi by calling a no action “merely an administrative indication that the State is not proceeding with its case at the time of the announcement.” That very definition of a “no action” is equally applicable to a nolle prosequi, which, itself, is but a non-final, non-binding indication that the State is not proceeding with its case at the time of the nolle prose-qui. State v. Sokol, supra. But equally important is that a “no action” is not, as the State suggests, a mere “administrative indication” gratuitously taken by the State. As the State well knows:

“A defendant who is not charged in an information or indictment within 21 days from the date of his arrest ... shall have a right to an adversary preliminary hearing on any felony charge then pending against him. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.” Fla.R.Crim.P. 3.131(b)(1).

We are not blind to the fact that the State, in order to eliminate the defendant’s entitlement to an adversary preliminary hearing where it has not filed an information or indictment within the allotted twenty-one days, dismisses, by a “no action,” the then pending charges. As we have said, this is the State’s prerogative. But having exercised this prerogative, the State cannot be heard to say that the restraint on the defendant remains as before. As the rule so clearly tells us, had an adversary preliminary hearing been held and no probable cause found, the defendant would have been entitled to be released on his own recognizance or under a summons to appear, Fla.R.Crim.P. 3.131(b)(5), that is, released on far less onerous conditions than a bail bond. Surely the State cannot on the one hand defeat the defendant’s right to an adversary preliminary hearing, and thus a potential finding of no probable cause, and on the other hand urge that a greater restraint on his liberty than that allowed by Florida Rule of Criminal Procedure 3.131(b)(5) continue in effect.

Accordingly, we hold that the announcement of a “no action” serves to release the accused, and, simultaneously, discharges the surety. If the State later files an information or indictment against the released accused, his presence before the court to answer to the charges contained in the information or indictment must be acquired, not through a letter, but through the process or order of the court, as by summons or, if necessary, an arrest warrant.

The final judgment of forfeiture against Allied Fidelity Insurance Company is

Reversed.

      . A “no action” is a dismissal of the pending charges before an information or indictment has been filed; a nolle prosequi is the dismissal of a pending information or indictment.

      . Neither a “no action” nor a “nolle prosequi” prevents a subsequent charging of the defendant by an information or indictment, see State v. Sokol, 208 So.2d 156 (Fla. 3d DCA 1968). Both, however, serve to terminate then pending proceedings and to release the defendant from all restraint.

      . A nolle prosequi clearly, even if not permanently, abandons the prosecution. Whether the filing of a second information while the first is pending constitutes an abandonment of the first so as to discharge the surety, compare All Florida Surety Company v. State, 78 So.2d 89 (Fla.1955), with Cotton Belt Insurance Company v. State, 392 So.2d 34 (Fla. 3d DCA 1981), is irrelevant to the present case.

      . Since the mere fact that an information or indictment is not filed does not serve to discharge a surety, West v. State, 75 Fla. 342, 78 So. 275 (1918); see also Worthley v. State, 320 So.2d 479 (Fla. 3d DCA 1975), the announce-, ment would seem superfluous but for the desire of the State to avoid the impact of Florida Rule of Criminal Procedure 3.131(b)(1). See infra.

      .Such a release would have discharged the surety on the original bond. Accredited Surety and Casualty Company, Inc. v. State, 383 So.2d 308 (Fla. 2d DCA 1980).


text:
    Anne Rae PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-834.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.
    Richard G. Lubin of Lubin & Hamill, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from the denial of a motion based upon Rule of Criminal Procedure 3.850. Appellant contends her conviction and sentence were the result of ineffective assistance of counsel and requests a new trial. We previously remanded this matter to the trial court for specific findings of fact and conclusions of law on this issue. Based upon the trial court’s order pursuant to this remand, we conclude that ineffective assistance of counsel has been demonstrated and her conviction is hereby vacated.

REVERSED.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.


author: BERANEK, Judge.

text:
    LONESTAR FLORIDA, INC., and Liberty Mutual Insurance Company, Appellants, v. Margaret M. COOPER, Hornbostel Enterprises, Inc., d/b/a Red Dog Sally’s Lounge and Liquor Bar, Appellees.
    No. 80-1162.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.

      Robert F. Jordan of Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellants.
    Joel L. Kirschbaum of Esler & Kirsch-baum, P. A., Fort Lauderdale, for appellees.
   BERANEK, Judge.

Appellants contend the circuit court erred in dismissing with prejudice their claims for contribution against Hornbostel Enterprises, Inc., d/b/a Red Dog Sally’s Lounge and Liquor Bar. Both claims were based on the legal theory that the bar owner was negligent in serving liquor to an obviously intoxicated patron and that such negligence was the proximate cause of an automobile accident and death. The trial court dismissed the claims with prejudice based on arguments regarding contribution and indemnity under Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), and related cases. We conclude the trial court reached a correct conclusion in dismissing the claims with prejudice but rely upon a more direct and basic proposition of law for this result.

According to the allegations of the pleadings, appellants were the owner and its insurance carrier of a car being driven by a person who became intoxicated at Red Dog Sally’s Lounge and Liquor Bar. The intoxicated driver and owner were sued by the parents of the minor who was killed in an accident with the drunk driver bar patron. The owner of the automobile joined Red Dog Sally’s in a third party claim for contribution asserting that if the car owner was liable to the plaintiff, then the bar should be liable to the owner.

Before considering the questions of contribution and indemnity, we first explore whether any civil cause of action exists against a bar owner for dispensing alcoholic beverages to a drunk patron who later drunkenly and negligently injures another.

There is no question that the present Florida law on this subject is that no cause of action exists. Section 768.125, Florida Statutes (Supp.1980), provides as follows:

768.125 Liability for injury or damage resulting from intoxication. — A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

This statute was passed in 1980 and was not in effect at the time of the accident in question. We conclude, however, that Section 768.125, as stated above, is declarative of the existing law on the subject, rather than a change in the law as applicable to this case.

At common law there was no cause of action against the dispenser of alcohol for injuries caused to another by the intoxicated recipient. Since the Florida Legislature has not passed a Dram Shop Act or Civil Damages Act regarding alcohol, the common law remains in effect. United Services Automobile Association v. Butler, 359 So.2d 498 (Fla. 4th DCA 1978). The statutes in effect at the time in question were Sections 562.11 and 562.50, Florida Statutes (1979). These statutes prohibited the sale of alcohol or other intoxicants to minors or habitual drunkards after notice. Neither statute prohibited the sale of intoxicants to adult persons already intoxicated.

In Davis v. Schiappacossee, 155 So.2d 365 (Fla.1963), the Supreme Court held that the sale of alcoholic beverages to a minor in violation of a state statute constituted negligence per se. The opinion makes it clear that the absence of a Dram Shop Act would have required a different result but for the particular statute in question. Also see Reed v. Black Ceaser’s Forge Gourmet Restaurant, 165 So.2d 787 (Fla.3d DCA 1964), holding that a bar owner was not liable for the sale of intoxicants and the damages resulting therefrom.

Notwithstanding the above, appellants rely upon a municipal ordinance (Section 3.04 of the Pompano Beach Code of Ordinances), which prohibits the sale of alcoholic beverages to intoxicated persons along with numerous other described persons. Appellants contend that the municipal ordinance prohibiting the sale of alcohol to intoxicated persons gives rise to a cause of action here and that the conduct of the appellees constitutes negligence per se. We disagree. The municipal ordinance does not serve to create a civil cause of action in a situation where the state statutes on the subject and the common law are to the contrary. The state law does not recognize the cause of action asserted here and the municipal ordinance does not create such a cause of action. Having so concluded, we need not reach the issues of contribution or indemnity.

We thus hold that the trial court correctly dismissed the claims for contribution.

AFFIRMED.

OWEN, WILLIAM C., Jr. (Retired) and GREEN, OLIVER L., Jr., Associate Judges, concur.


author: HERSEY, Judge.

text:
    Charles Henry ORDONEZ, Appellant, v. STATE of Florida, Appellee.
    No. 80-2157.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.
    Rehearing Denied Feb. 10, 1982.

      John R. Harrington of Harrington & Mattel, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Charles Henry Ordonez was found guilty of violation of a condition of his probation and was adjudicated guilty of the felony for which his probation had originally been imposed. He takes this appeal from those proceedings. He has not been sentenced to any term of incarceration, apparently because of the length of time he was on probation.

In 1974, appellant Ordonez, at the age of seventeen, was arrested (his third arrest) in connection with a charge of breaking and entering a structure with intent to commit a felony, an offense for which he could have been sentenced to fifteen years in prison. As part of a plea bargain to avoid prison Ordonez agreed to obtain a high school diploma or a General Equivalency Diploma, which became the only special condition of his probation. He was also to observe the customary general conditions. He was given two years to accomplish performance of this requirement.

The evidence is that he returned to high school where he discovered that one class he was required to attend was repetitious of one he had taken in the previous year. He refused to attend that class despite a warning that continued truancy would result in his suspension. He was indeed suspended whereupon he left school. Thereafter he attended night school but fell asleep in class and discontinued attendance after a brief period. No further effort was made by Ordonez during the entire initial two year period to comply with the special condition of probation.

His probation supervisor, near the end of the period, caused Ordonez to be arrested and a hearing to be held on the violation. It was not contested that appellant had neither received a high school diploma nor taken the test to obtain a General Equivalency Diploma.

We assume, without being called upon to decide, that the trial court would have been justified at that time in revoking probation and adjudicating appellant guilty of the original felony, imposing such sentence of incarceration as the circumstances warranted. This is so because the test on appeal of a probation revocation is whether the evidence is sufficient to satisfy the conscience of the court that a condition of probation has been violated. Bernhardt v. State, 288 So.2d 490 (Fla.1974). Proof sufficient to support a criminal conviction is not required. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947).

The evidence shows that appellant made one feeble attempt to return to high school and, by his own admission, refused to comply with the reasonable requirements of the institution which, quite naturally and predictably, resulted in the termination of his relationship with the school. This was certainly an exercise of his own free will and therefore intentional, whether or not it could be said that the end result was consciously planned. It was his action which ended his high school career and thereafter his inaction which, in whole or in part, precluded his obtaining a General Equivalency Diploma. He totally failed to fulfill the special condition of probation; his violation must therefore be characterized as substantial. Thus, the two tests of violative conduct were met. Such conduct, consisting of a willful and substantial violation is sufficient to support revocation of probation. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978).

We do not condone or excuse appellant’s refusal to expend the time and effort necessary to fulfill the promise he made in order to avoid going to prison. Nor are we impressed, at this late date, with arguments going to the intrinsic reasonableness of the condition or appellant’s mental ability to comply. Those were known quantities at the time the bargain was struck.

The fact is, however, that appellant’s probation was not revoked at the hearing in 1976. Instead, the term of probation was extended another two years, during which appellant made little progress toward fulfilling the special condition. At his next hearing in 1978, the condition not having been fulfilled, another two year extension was negotiated.

Finally, in 1980, after six years of probation, appellant attended the hearing which resulted in the ruling and the adjudication appealed here.

Appellant stands before the court a young man of twenty-four, to be now convicted of a felony he committed seven years ago. He has not been arrested for a crime in the interim. He has steady employment and has recently been promoted to management level. His family and friends are apparently supportive of his transition to maturity and honesty, although only his mother was called upon to testify. Others were present and we presume their testimony was to be favorable.

The special condition of probation was intended to assist in appellant’s rehabilitation. It’s goal was to make appellant a useful, law-abiding citizen, a valuable member of society. It appears that this goal has been reached, nothing to the contrary appearing in the record. We are thus prompted to reflect on the question of what good it would do to punish appellant for failing to accept what was intended as guidance; how would it now benefit appellant — or society?

These considerations lead us to conclude that no good purpose is served by branding appellant a felon for a crime he was accused of committing seven years ago as a juvenile.

We therefore reverse and instruct the trial court to vacate the adjudication. Probation has already and properly been terminated.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HURLEY, J., and OWEN, WILLIAM C., Jr., Associate Judge (Retired), concur.


text:
    Curtis H. ARTHURS, Appellant, v. Sharon Lee ARTHURS, Appellee.
    No. 81-82.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.

      Michael B. Smith of Law Office of Emil Jaczynski, P. A., Fort Lauderdale, for appellant.
    No appearance for appellee.
   PER CURIAM.

This is an appeal by the husband from that part of a final judgment of dissolution which requires his attorney to pay to the wife’s attorneys from the wash-out settlement proceeds of the husband’s pending Workmen’s Compensation claim the sum of $1,007. The award, in the form of additional support, was conditioned on the husband’s failure to pay that sum from other funds within five months of the final judgment. We reverse that part of the final judgment.

Section 440.22, Florida Statutes (1979) provides:

ASSIGNMENT AND EXEMPTION FROM CLAIMS OF CREDITORS.
No assignment, release, or commutation of compensation or benefits due or payable under this chapter except as provided by this chapter shall be valid, and such compensation and benefits shall be exempt from all claims of creditors, and from levy, execution and attachments or other remedy for recovery or collection of a debt, which exemption may not be waived.

By its order, the trial court effected a “judicial compulsory assignment” in violation of the statute.

While no Florida case is directly on point, the same conclusion was reached by the Civil Court of Appeals in Texas in Mabry v. Aetna Casualty & Surety Co., 280 S.W.2d 572 (Tex.Civ.App.1950). In Mabry, a wife filed suit against her husband’s Workmen’s Compensation carrier for one-half of all compensation benefits due her husband, (Texas being a community property state). The wife had previously been awarded one-half of the compensation benefits in a divorce proceeding filed subsequent to the husband’s compensation claim. The wife notified the compensation carrier of the divorce order prior to compensation settlement, but the carrier ignored the order and paid the husband his full compensation settlement. The court in Mabry upheld the carrier’s actions, and found the divorce decree awarding the wife one-half of her husband’s compensation benefits to be a “judicial compulsory assignment” prohibited by a Texas statute exempting Workmen’s Compensation benefits from attachment, judgment and all other suits or claims or assignments. See 100 C.J.S. Workmen’s Compensation § 387 (1958).

We also disapprove of that aspect of the judgment which places the burden on appellant’s attorney to make this payment since he was obviously not a party.

We are unable to determine from the record before us whether the trial court intended to, or would be justified in ordering the additional support payment given the unavailability of the source of funds we here insulate from that liability.

Accordingly, we reverse that aspect of the final judgment and remand for further proceedings at the trial court level. In all other respects the judgment is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

LETTS, C. J., and HERSEY and GLICK-STEIN, JJ., concur.

      . It is not our intent, by this opinion, to signal that a spouse can receive a large award of workmen’s compensation which would revolutionize his or her net worth yet have it excluded from the traditional criteria for furnishing support.


author: DOWNEY, Judge.

text:
    Urban C. BALBIER and Marian A. Balbier, his wife, Appellants, v. CITY OF DEERFIELD BEACH, Appellee.
    No. 81-398.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1982.
    Peter A. Portley of Portley & Sullivan, Pompano Beach, for appellants.
    Andrew S. Maurodis, Deerfield Beach, and G. Carlton Marlowe, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellants, Urban C. and Marian A. Bal-bier, seek review of a judgment finding they had no interest in a dedicated street right-of-way and awarding them no compensation therefor.

The litigation in the trial court commenced as an eminent domain proceeding against a number of property owners. Lot 1, Block 30, of Deerfield Beach is a platted subdivision lot owned by appellants that is bordered on the east by the Atlantic Ocean, on the west by S.E. 21st Avenue, and on the north by S.E. 7th Street. Appellants settled with the City on the value of Lot 1 but reserved the right to subsequently litigate their claim to the value of the fee in that portion of S.E. 7th Street which abutted their Lot 1. S.E. 7th Street, which intersects S.E. 21st Avenue, is paved west of 21st Avenue but not east of 21st Avenue. Appellants contended that, since their lot abuts the dedicated right-of-way of S.E. 7th Street, they are entitled to recover the value of the fee in the right-of-way. The City’s position, which was adopted by the trial judge, is that the City owns the right-of-way pursuant to the authority of Section 95.361, Florida Statutes (1979), since it has maintained it as a roadway for more than four years prior to the taking.

The City’s evidence concerning construction and maintenance of S.E. 7th Street east of S.E. 21st Avenue is scant. The only evidence of any construction or maintenance was adduced by Mr. Vogel, Public Works Director for the City of Deerfield. He testified that the City had done some maintenance on this particular right-of-way for an unspecified number of years. The maintenance involved was installing trash containers near the beach, building steps to the beach with railroad ties, and placing boulders and fill to stem erosion. Thus, we are compelled to hold that the City has failed to bring itself within the statute in question. In pertinent part, Section 95.361 provides:

“Roads presumed to be dedicated
“(1) When a road, constructed by a county, a municipality, or the Division of Road Operations, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or Division of Road Operations, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether the road has been formally established as a public highway or not. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
* * % sfc * sic
“(b) The municipality, if it is a municipal street or road; or
Sfc Jfc Sfc ífc 5{! #
“(2) The filing of a map in the office of the clerk of the circuit court of the county where the road is located showing the lands and reciting on it that the road has vested in the state, a county, or a municipality in accordance with subsection (1) or by any other means of acquisition, duly certified by:
$ ‡ ‡ jfc * 4c
“(c) The mayor and clerk of the municipality, if the road is a municipal road or street, shall be prima facie evidence of ownership of the land by the state, county, or municipality, as the case may be.”

The cases indicate the statute should be strictly construed because the effect of the statute is to deprive an owner of his property in a relatively short period of time compared to acquisition of title by prescription and adverse possession. St. Joe Paper Co. v. St. Johns County, 383 So.2d 915 (Fla. 1st DCA 1980). The City could have established its title to the property by showing construction of a road and maintenance thereof for the required four years, or by filing a map as provided under subsection (2). Downing v. Bird, 100 So.2d 57 (Fla.1958). However, the City failed to bring itself within either subdivision of the statute. There was no proof of the construction required under subsection (1) of the statute and that is essential. Genet v. City of Hollywood, 400 So.2d 787 (Fla. 4th DCA 1981). Nor is the evidence sufficient for the City to proceed under subsection (2). The transcript of the hearing reflects that the City offered in evidence a certified copy of a map of the subdivision as Plaintiff’s Exhibit one. However, the map contains no legend reciting that the road in question has vested in the City in accordance with subsection (1); nor does it contain any certification as required. These statutory requirements are mandatory if one seeks to avail itself of that portion of the statute. Downing v. Bird, supra.

In view of the foregoing, the order dated February 6, 1981, is reversed and the cause is remanded for further proceedings to determine appellants’ interest in the property in question and the value thereof.

LETTS, C. J., and ANSTEAD, J., concur.


author: COWART, Judge.

text:
    Thomas Allan CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 81-111.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

The record discloses an adequate basis for the trial court to have concluded that the appellant voluntarily, knowingly, understandingly and intelligently waived his right to have counsel to represent him at trial. The trial judge satisfied himself that appellant had enough information to make an informed decision and was competent enough to know he was making such a decision. The trial judge is not required to inquire as to an accused’s technical legal knowledge and ability or to satisfy himself that the accused is making a wise decision in exercising his right to waive counsel and to defend himself. However, the trial judge was caught in another snare. An accused is entitled to have counsel at every critical stage of a criminal prosecution. Sentencing is such a critical stage. Due process requires that a defendant have counsel at sentencing or that the record show his solvency or valid waiver at that time. The record on appeal, as supplemented, shows that at the sentencing proceeding in this case the trial judge, recalling that appellant had waived counsel for, and represented himself at, trial, merely confirmed his recollection by asking appellant if he had represented himself and, upon receiving an affirmative reply, proceeded with the sentencing. Accordingly the judgment of conviction is affirmed and the sentence is vacated and the cause remanded for inquiry as to appellant’s desire for counsel to represent him at sentencing and for resentenc-ing.

JUDGMENT AFFIRMED, SENTENCE VACATED, CAUSE REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Fla.R. Crim.P. 3.160(e).

      . Machwart v. State, 222 So.2d 38 (Fla. 2d DCA 1969); Wingard v. State, 200 So.2d 630 (Fla. 2d DCA 1967); Fulmore v. State, 198 So.2d 101 (Fla. 2d DCA 1967); Langlois v. State, 191 So.2d 284 (Fla. 3d DCA 1966); Reader v. State, 168 So.2d 557 (Fla. 2d DCA 1964); Williams v. State, 165 So.2d 197 (Fla. 2d DCA 1964); Evans v. State, 163 So.2d 520 (Fla. 2d DCA 1964).


author: COBB, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Anthony J. FURLAN, Appellee.
    No. 81-677.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.

      Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    James N. Powers, P. A., Orlando, for appellee.
   COBB, Judge.

In this appeal, Travelers Insurance Company contests a final judgment adjudging it liable to pay personal injury protection benefits to the appellee, Anthony J. Furlan, in Furlan’s action for coverage.

Furlan’s complaint against Travelers seeking to have Travelers declared liable to pay personal injury protection benefits to Furlan was tried completely on the parties’ stipulation of facts, from which the following facts were taken. On June 10, 1979, Furlan, an eighteen-year-old pedestrian, was struck and injured by an automobile owned and operated by Meeks. Meeks and his automobile were insured by Travelers, the policy providing for $10,000 personal injury protection coverage with no deductible. At the time of the accident, Furlan did not own a motor vehicle and was a resident in the household of his mother. Furlan’s mother owned an automobile upon which she had an insurance policy from Allstate providing for $10,000 personal injury protection coverage with an $8,000 deductible. The parties agreed that Furlan was entitled to personal injury protection coverage from Allstate, but disputed whether Furlan was covered by Meeks’ Travelers policy.

The trial judge ruled that Furlan was entitled to coverage under Meeks’ Travelers policy and entered judgment for Furlan. This appeal followed.

The question of whether Furlan was entitled to benefits under Meeks’ personal injury protection policy is governed by section 627.736, Florida Statutes (1979). Section 627.736(4)(d)4 provides that accidental injury sustained by one other than the owner of the vehicle, through contact with the vehicle, is covered only so long as the injured person is not himself either the owner of a motor vehicle with respect to which personal injury protection coverage is required to have been secured or "entitled to personal injury benefits from the insurer of the owner or owners of such a motor vehicle.” (Emphasis added.)

At the time of the accident, Furlan’s mother owned a motor vehicle upon which she was required to carry personal injury protection coverage and upon which she did carry personal injury coverage for $10,000 with an $8,000 deductible. Furlan was a resident of his mother’s household at the time of the accident; therefore, he was entitled to coverage under her policy. § 627.736(4)(d)3, Fla.Stat. (1979). Since Furlan was entitled to personal injury protection benefits from another source, he fell squarely within the exclusion of section 627.736(4)(d)4.b and was thus not entitled to personal injury protection coverage under the policy of the owner of the car which struck him. See State Farm Mut. Auto Ins. Co. v. Guerra, 340 So.2d 1221 (Fla. 3d DCA 1977); Farley v. Gateway Ins. Co., 302 So.2d 177 (Fla. 2d DCA 1974).

This result, of course, relegates Furlan to collecting personal injury protection benefits under his mother’s policy, with an $8,000 deductible, rather than under Meeks’ policy with no deductible. We reject his argument against this “inequity.” Cf. Tapscott v. State Farm Mut. Auto. Ins. Co., 330 So.2d 475 (Fla. 1st DCA 1976). Section 627.739, Florida Statutes (1979), provides that a named insured’s election of a deductible will bind not only the named insured but also any person subject to the coverage. Continental Ins. Co. v. Roth, 388 So.2d 617 (Fla. 3d DCA 1980). The constitutionality of this statute has not been challenged in this case and, therefore, is not addressed.

Accordingly, the judgment of the trial court is reversed, and this cause remanded for entry of judgment in favor of the appellant, Travelers Insurance Company.

REVERSED and REMANDED with instructions.

ORFINGER and SHARP, JJ., concur.


text:
    Leotha THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1325.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 1982.
    Leotha Thomas, pro se.
    No appearance for appellee.
   COWART, Judge.

As required by Florida Rule of Appellate Procedure 9.040(c), appellant’s notice of appeal was treated as a petition for mandamus to require the trial court to enter an order on appellant’s pending motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850; the trial court having now entered an order on said motion this petition for mandamus is moot and, accordingly, the cause is

DISMISSED.

ORFINGER and SHARP, JJ., concur.


author: BOARDMAN, Judge.

text:
    UTICA MUTUAL INSURANCE COMPANY, Appellant, v. Donald Roy JONES, a minor, by and through his parents and next friends, Donald Revis Jones and Karen Lois Jones, individually, and Roy G. Davis d/b/a Tampa Wholesale Nursery, Appellees.
    No. 80-1909.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      Timón Y. Sullivan and David R. Tyrrell of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Joel S. Perwin and Joel D. Eaton of Pod-hurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, Miami, and Wagner, Cunningham, Vaughan & McLaughlin, Tampa, for appellees Donald Roy Jones, Donald Re-vis Jones, and Karen Lois Jones.
    Howard L. Garrett of Garrett & Garrett, Tampa, for appellee Roy G. Davis, d/b/a Tampa Wholesale Nursery.
   BOARDMAN, Judge.

Utica Mutual Insurance Company, one of the defendants in the trial court, appeals a final judgment awarding damages against it and appellee/defendant Roy G. Davis in favor of plaintiffs/appellees Donald Roy Jones (Donnie) and his parents. We reverse.

The facts are that on January 25, 1974, Michael Davis, appellee Davis’ son, invited Donnie, who was then twelve years old, over to his house to play. When Donnie arrived, Kenneth King, another friend of Michael and Donnie, was also present.

At some point, the boys decided to tie Shane, a German shepherd belonging to the Davises, to a little red wagon in the hope that the dog would pull them in the wagon. After the dog was tied to the wagon by means of a rope looped through her collar, the boys began running alongside the wagon and jumping into it. However, because Shane proved to be too weak to pull the boys, they soon abandoned this sport and began walking or running toward the rear of the Davis property. Shane, who was still tied to the wagon, accompanied them.

As they were running along, Donnie’s dog suddenly emerged from the bushes ahead of them, and Shane ran after the other dog. As Shane ran past Donnie, who was slightly ahead of Shane and the other two boys, some portion of the wagon struck Donnie, resulting in permanent injury to his leg.

The instant lawsuit against Davis and appellant, his insurer, ultimately ensued. The complaint was predicated on Section 767.01, Florida Statutes (1979), which provides: “Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or livestock, or to persons.”

In construing a statute, the court should where possible consider its history, the evil to be corrected, the intent of the legislature, the subject regulated, and the object to be obtained. Englewood Water District v. Tate, 334 So.2d 626 (Fla. 2d DCA 1976). The Fourth District Court of Appeal in Wendland v. Akers, 356 So.2d 368 (Fla. 4th DCA 1978), cert. denied, 378 So.2d 342 (Fla.1979), traced the history of section 767.01 as follows:

As originally enacted in 1881, the wording was:
“that all owners of dogs shall be held liable and responsible for damages to sheep or other stock killed or maimed by their dogs.” Chapter 3294, Laws of Florida (1881).
Thus, damage to persons was not included. But in the 1892* Compilation, Section 2341 provided:
“Owners of dogs shall be held liable for damages to persons and stock killed or injured by their dogs.” (Emphasis supplied.)
We find no legislative enactment to include damages to persons within the scope of the statute.
Later, in 1901, the legislature enacted Chapter 4979, Laws of Florida (1901), which provided:
“When any dog or dogs shall kill or in any way damage sheep or other domestic animals in this State, the owner of such dog or dogs shall be liable upon the action for damages to the owner of such sheep and other domestic animals for the damage committed upon the same by such dogs.”
But in the next Compilation in 1906, Section 3142 provided:
“Owners of dogs shall be liable for any damage done by their dogs to sheep or other domestic animals or live stock, or to person.” (Emphasis supplied.)
Thus once again the compiler placed words in the Compilation which were not there when the act was adopted by the legislature. Although the validity of Section 767.01, Florida Statutes (1975), cannot now be questioned because of the rules relating to statutory re-enactments, Section 767.01 should be given a restrictive scope because the legislature never specifically included damage to persons within the purview of the statute at the time of the enactment of these laws.

Id. at 369-370; n. 5.

Prosser, Law of Torts, 581 (4th ed. 1971), states: “Strict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility.” Consequently, appellant argues, section 767.01 should be construed to render dog owners liable only for the risk they created by owning the dog. Only when the injury was caused “as a result of canine characteristics for which the legislature intended to make the owner an insurer” should liability be imposed. Mapoles v. Mapoles, 350 So.2d 1137, 1138 (Fla. 1st DCA 1977) (Smith, J., dissenting), cert. denied, 364 So.2d 888 (Fla.1978). “Where ... the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed.” Smith v. Allison, 332 So.2d 631, 634 (Fla. 3d DCA 1976).

We agree. Statutory liability pursuant to section 767.01 should be imposed upon the dog owner only where the damage done by the dog is the direct cause of the injury. Smith v. Allison, supra. In determining whether the dog itself directly caused the injury, we must examine whether the injury was caused by some canine characteristic within the contemplation of the statute.

While Shane’s chasing another dog present in the area obviously constitutes the type of canine characteristic within the contemplation of the statute, it was not that conduct which directly caused Donnie’s injury. But for the wagon, no injury would have occurred when Shane ran past Donnie, inasmuch as the dog never came in contact with the boy. Because this injury was not caused as a result of the risk created by dog ownership, we hold that section 767.01 does not apply here.

We recognize that our decision conflicts with Mapoles v. Mapoles, supra. There a St. Bernard dog was placed on- the rear seat of a Volkswagen, where the owner of the vehicle had previously placed a loaded 12-gauge pump shotgun. Shortly thereafter, the dog’s movements caused the gun to discharge and severely injure the plaintiff, who was standing outside the vehicle. The court held that the damage to the plaintiff was caused by the affirmative act of the dog. We believe the Mapoles decision extends the liability under section 767.01 far beyond that contemplated by the legislature and that Judge Smith’s dissent expresses the better view.

It has also been held that section 767.01 is inapplicable “where the dog takes no affirmative or aggressive action toward the injured party.” Rutland v. Biel, 277 So.2d 807, 809 (Fla. 2d DCA 1973); Smith v. Allison, supra. Donnie’s injuries here were in no way attributable to an affirmative or aggressive act toward him by the dog. Although Shane clearly was engaged in an aggressive act toward Donnie’s dog, Donnie would not personally have been affected by Shane’s act of chasing his dog had the wagon, which was what came in contact with Donnie, not been left tied to Shane. But see English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971), cert. dismissed, 259 So.2d 136 (Fla.1972); Brandeis v. Felcher, 211 So.2d 606 (Fla. 3d DCA), cert. denied, 219 So.2d 706 (Fla.1968).

The other point raised by appellant concerns whether Davis’ insurance policy with appellant covers Donnie’s injuries. We agree with appellant that it does not. The policy covers only accidents arising out of the conduct of Davis’ nursery business. Neither the three boys nor the dog were involved in an activity related to the business at the time the injury occurred.

Although, at the time of the accident, the boys were proceeding toward the back of the nursery where the irrigation system control was located, there was no evidence that they were doing so for the purpose of adjusting those controls. Moreover, while Shane was used after business hours as a watchdog, she was most certainly outside the scope of her employment at the time of the accident. The test to be employed in determining whether the dog was conducting some business of her employer at the time of this accident is whether the dog was doing what her employment contemplated. Morrison Motor Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 983 (Fla.1978). The business of the employer is the type the employee was employed to perform, occurs within the time and space limits of the employment, and is motivated by a purpose to serve the employer. Id. Although Shane was within the time and space limits of her employment, she had been prevented from properly performing her duties as a watchdog by being tied to the wagon.

Accordingly, the final judgment is REVERSED.

SCHEB, C. J., and OTT, J., concur.


author: OTT, Judge.

text:
    William H. HINES, Appellant, v. WAUSAU UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 81-357.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.

      Lee S. Damsker of Gordon & Maney, Tampa, and Anthony T. Martino of Peavy-house, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellant.
    Raymond T. Elligett, Jr., Joseph W. Clark and Charles P. Schropp of Shackleford, Far-rior, Stallings & Evans, P. A., Tampa, for appellee.
   OTT, Judge.

While driving his wife’s car, which she separately owned and separately insured under a policy that included uninsured motorist coverage, appellant was seriously injured in a collision with an uninsured motorist. Appellant was an additional insured (not a named insured) under his wife’s policy. His wife’s insurer paid appellant uninsured motorist benefits to the limits of its policy. Appellant then sought additional benefits from appellee, the insurer of his separately owned vehicle under a separate policy which also included uninsured motorist coverage but provided:

Exclusions.
A. We do not provide uninsured motorist’s coverage for bodily injury sustained by any person:
1. While occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy.

Appellee denied the claim and, upon the filing of this action, successfully moved to dismiss it on the ground that appellant had no uninsured motorist coverage under the policy because of the foregoing exclusionary clause. In purported reliance upon the decision of this court in State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla.2d DCA 1979), the trial court dismissed the action with prejudice. We reverse.

One who purchases uninsured/under-insured motorist coverage thereby furnishes liability insurance to any uninsured/underinsured motorist who might thereafter injure any person covered as an insured under the policy. Dewberry v. Auto Owners Insurance Co., 363 So.2d 1077, 1081 (Fla.1978); Kenilworth Insurance Co. v. Drake, 396 So.2d 836, 839 (Fla.2d DCA 1981). Consequently, uninsured motorist coverage is personal to an insured and differs from liability coverage in that it does not attach to a specific vehicle. A policy provision attempting to exclude coverage or limit it to injuries received in a particular vehicle is void as against public policy. Mullis v. State Farm, 252 So.2d 229 (Fla.1971); Travelers Insurance Co. v. Spencer, 397 So.2d 358 (Fla. 1st DCA 1981); Lee v. State Farm Mutual Automobile Insurance Co., 339 So.2d 670 (Fla.2d DCA 1976), cert. denied, 348 So.2d 954 (Fla.1977).

In Lee, upon facts and policy provisions virtually identical to those in the instant case, we held the “household member” exclusion unenforceable.

Appellee argues that Mullis is no longer valid, in that the public policy upon which it (and its progeny) relied was repudiated by the legislature by the enactment of the so-called “anti-stacking” statute, section 627.4132, Florida Statutes (1976), and great reliance is placed upon State Farm v. Wim-pee, supra. Appellant responds that the rationale of Wimpee was invalidated by South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla.1981), where the supreme court disapproved the reasoning of McLellan v. State Farm, 366 So.2d 811 (Fla. 4th DCA 1979), on which our sister court in the third district had relied in State Farm v. Kuhn, 374 So.2d 1079 (Fla.3d DCA 1979), which was an opinion upon which we, in turn, had relied in Wimpee.

As with any opinion, Wimpee has significance with respect to only its own particular facts. Young Wimpee, who resided with his father, was covered with uninsured motorist insurance under a policy issued to his father, in which only the father’s car was listed. The son was injured (by an uninsured motorist) while driving his own car. We held that the son could not recover uninsured motorist benefits under his father’s policy because the anti-stacking statute (§ 627.4132) specifically directs that “an insured is protected only to the extent of coverage he has on the vehicle involved in the accident.” We interpreted that language to mean that since the son had no uninsured motorist coverage on his own car, he necessarily had no uninsured motorist coverage under his father’s policy.

Whether our analysis and conclusion in Wimpee was right or wrong is of no consequence here. The case before us now involves separate policies, separate vehicles, and separate named insureds. The concluding sentence of section 627.4132 expressly exempts such situations from its purview. Justice England’s wry comment in his concurring opinion in South Carolina Insurance Co. v. Kokay, supra, chronicles the judicial effort that was expended in convincing insurers that the statutory language simply means what it so simply states.

The trial court erred in concluding that appellant was barred from recovering benefits from his own insurer as well as from his wife’s insurer. Accordingly, the judgment of dismissal is REVERSED and the case is REMANDED to the court below for further proceedings.

DANAHY, J., concurs.

RYDER, J., dissents.

      . Shortly before handing down its opinion in Kokay, our supreme court reviewed Mullis in United States Fidelity and Guaranty Co. v. Curry, 395 So.2d 530 (Fla.1981). No intervening invalidity or weakness of Mullís was noted. While perhaps not conclusive of the issue broached here, such unqualified reference to Mullís approaches reaffirmation of its holding, or at least constitutes respectable dictum that the anti-stacking statute did not vitiate it.


author: HOBSON, Acting Chief Judge.

text:
    James H. McRAE, Appellant, v. STATE of Florida, Appellee.
    No. 81-772.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1982.
    Jerry Hill, Public Defender, Bartow, and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant was convicted of attempted burglary. The trial judge retained jurisdiction over the first one-third of appellant’s sentence pursuant to section 947.-16(3), Florida Statutes (1979). In Williams v. State, 374 So.2d 1086 (Fla.2d DCA 1979), this court held that section 947.16(3) does not apply to attempts.

The trial judge also recommended that appellant never be considered for parole. Such a recommendation is improper, because the granting of parole is within the sole discretion of the Parole and Probation Commission. § 921.21, Fla.Stat. (1979).

Accordingly, the judgment and sentence is affirmed, but the retention of jurisdiction over the sentence pursuant to section 947.-16(3) and the judge’s recommendation concerning parole are hereby stricken.

BOARDMAN and OTT, JJ., concur.