author: WILLIS, BEN C., Associate Judge. BOOTH, Judge,

text:
    VIGILANT INSURANCE COMPANY, Appellant, v. Donna Maria REISER, Appellee. The CHILD GUIDANCE CLINIC OF DUVAL COUNTY, INC., Appellant, v. Donna Maria REISER, Appellee.
    Nos. NN-336, NN-337.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1980.
    Rehearing Denied Jan. 13, 1981.

      Bruce S. Bullock and Robert M. Sharp of Bullock, Sharp & Childs, P. A., Jacksonville, for appellants.
    William C. Gentry of Bedell, Bedell, Ditt-mar & Zehmer, P. A., Jacksonville, for ap-pellee, Reiser.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee, Berry.
   WILLIS, BEN C., Associate Judge.

The appellee, Donna Maria Reiser, sued Reginald V. Berry, M.D., a psychiatrist, to recover damages for his alleged negligence in treatment of her for mental and emotional health problems. Joined as defendants were Child Guidance Clinic of Duval County, Inc., and its insurance carrier, Vigilant Insurance Company, and also City of Jacksonville and its insurer, Travelers Insurance Company. The case proceeded to trial by jury on the issues of the negligence of defendant Berry, negligence of plaintiff, damages sustained, and on the vicarious liability of the Child Guidance Clinic and the City and their respective insurers. It is shown that plaintiff was a patient of Dr. Berry for the period of October 1975 to September 1977. For the period October 1975 to December 31, 1976 Dr. Berry was employed by Child Guidance Clinic, which held a liability insurance policy issued by defendant, Vigilant Insurance Company, to cover both the Clinic and Dr. Berry during that period. From January 1, 1977 until the last of Dr. Berry’s treatment of Donna at the end of September 1977, he practiced in the Youth Resources Bureau, which is an agency of the City of Jacksonville.

A special verdict form was submitted to the jury, and specific findings were rendered that:

(1) Dr. Berry was negligent in his treatment of the plaintiff and such was a legal cause of injury and damage to the plaintiff;
(2) The total damages consisted of $35,000 for pain and suffering experienced to date, $25,000 for future pain and suffering, $40,054.93 for medical and hospital expenses to date, $141,010 for present value of future medical and hospital expenses, and $63,000 for present value of loss of earning ability in the future. This is an aggregate of $529,-054.93.

The jury also found that plaintiff was not herself guilty of negligence which was a legal cause of any of her loss or damage. It also found that Dr. Berry was acting within the scope of his employment with defendant, Child Guidance, while he was treating the plaintiff, but that while he was associated with the City of Jacksonville he was an independent contractor, rather than an employee of the City. There is no challenge to any of these findings.

It is the Answers to Questions 7 and 8 which have raised the issues presented on this appeal. Question 7 states:

“Can you determine what portion of Donna Reiser’s damages, if any, are attributable to the period of time from October 1975 through December 1976, as opposed to that portion of damages, if any, attributable to the period of time from January 1, 1977 through September 1977?”

The response was: “Yes.”

Question 8 and the response to it is as follows:
“If your Answer to the foregoing question is YES, state the percentage of damages suffered by the plaintiff, Donna Keiser, while she was receiving treatment from Dr. Berry during each period of time:
October 1975 - December 1976 20%
January 1, 1977 - September 1977 80%

Following the verdict, plaintiff moved for the entry of a judgment against defendants Berry, Child Guidance and Vigilant for all damages found by the jury to have been suffered by the plaintiff. Vigilant moved for the entry of a judgment against it of twenty percent of the total damages. The trial court, in a very detailed order, concluded that plaintiff is entitled to recover all damages found to have been sustained and that judgment in her favor for that amount should be entered against Dr. Berry, Child Guidance Clinic and Vigilant Insurance Company. After finding that there were collateral sources payments to the extent of a net of $26,775.39, which should be credited against the findings of damage, the Court entered a “final judgment” in the amount of $502,279.54 in favor of plaintiff against Berry, Vigilant and Child Guidance. It is from this judgment that Vigilant and Child Guidance appeal. Dr. Berry has not appealed and it is not contested that he was guilty of negligence in the treatment of plaintiff and that the damages assessed are supported by the evidence. There is no challenge to the findings of the jury that Dr. Berry was an independent contractor, and not an employee of the City of Jacksonville, for the period of January 1, 1977 until September 1977.

The real contention is made that under the findings of the jury in response to Questions 7 and 8, Child Guidance and Vigilant should be liable for only twenty percent of the total damages, as only that portion was found to be attributable to the period of October 1975 through December 1976. The point is made that since the jury concluded that the accrual of the damages could be apportioned between the period Dr. Berry was employed by Child Guidance and the period he was associated with the City, and proceeded to make such apportionment, it would follow that Child Guidance and Vigilant should be liable only for the damages suffered during the period of employment of Dr. Berry by Child Guidance, and the period of insurance coverage by Vigilant.

This seems to be a case of first impression in the appellate courts of this state. The trial court very ably set forth its findings and the reasoning for its adjudications. We set forth the pertinent parts of its “Order on Plaintiff’s Motion for Entry of Judgment on Verdict” :

“The Court must decide whether, as a matter of law, the plaintiff is entitled to judgment for all of her damages against defendants and whether questions 7 and 8 are irrelevant and may be disregarded. In entering judgment upon a special verdict, the Court may disregard irrelevant issues or special findings which are not supported by the pleadings or the evidence and should enter judgment based upon those findings which are supported by the evidence. 76 Am.Jur.2d, Trial, §§ 1203, 1142-1143, 1175; 89 C.J.S., Trial, § 531. Further, in entering a judgment on a verdict the verdict must be construed in accordance with the true intent of the jury and in conformity with the material issues made by the pleadings and the evidence in the cause and in accordance with the applicable law. See 32 Fla.Jur., Trial, §§ 257-258. See also Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971).
“The jury concluded that the defendant Berry was negligent in his treatment of Donna Keiser. All of the experts, including the expert witnesses offered by the defendants, agreed that Berry’s treatment did not comply with accepted standards. The jury further found that the plaintiff suffered substantial damages as a result of Berry’s negligence. In so doing, the jury assessed the majority of plaintiff’s damages for future losses, including future mental pain and suffering and substantial damages for future medical care and loss of ability to earn money. Such a finding is consistent with the manifest weight of the evidence that, as a result of Berry’s failure to provide Donna Reiser with proper care when at age seventeen she first came to . him in October, 1975 and was most amenable to treatment, the prospects of her recovering from her mental disorder were substantially diminished. Thus, plaintiff’s experts testified that as a result of the failure to receive proper treatment while she was still an adolescent, the prospects of increased future medical care and hospitalization were substantially increased and her ability to obtain and maintain employment at a level commensurate with her intelligence was substantially diminished. Based upon its award of future damages for medical care and impairment of earning capacity, the jury obviously accepted such testimony. Furthermore, in accordance with Standard Jury Instruction 6.2b, the jury also obviously concluded that it could not determine what portion of plaintiff’s damages resulted from an aggravation of her pre-existing condition and held defendant Berry liable for the whole. Thus, they assessed the plaintiff’s hospital and medical expenses to date in the full amount, rather than apportioning such damages.
“The evidence adduced at trial established that, although plaintiff initially appeared to improve after coming under Berry’s care, as she continued under his treatment, her symptoms began to manifest themselves to the point that by the time she left his care in September, 1977, she was found to be psychotic and required hospitalization for approximately nine months. All of the psychiatrists-experts, except Dr. Shellow who appeared in behalf of Vigilant and Berry, testified that it was medically impossible to allocate any of the damages suffered by the plaintiff to any time period during which she was seen by Berry. Dr. Shellow, whose testimony Vigilant relies upon to support its claim for proration, testified that Donna Reiser did not have any continuing injury or damage; that her future medical care and impairment of function and other claimed losses were due to her pre-existing condition and were not affected by Berry’s treatment; and that in his opinion, the only harm caused by Berry was that his treatment contributed to plaintiff having to go into the hospital in September, 1977. He further expressed an opinion that since plaintiff’s condition apparently deteriorated during the period of time leading up to the hospitalization at Shands in Gainesville, she apparently suffered more of that damage during the latter part of the treatment than during the first part.
“By its verdict, the jury obviously did not accept Dr. Shellow’s testimony regarding Donna Reiser’s^ future damages. However, the jury awarded plaintiff only $35,000.00 for her pain and suffering to date and by answer to interrogatory numbered 8 apparently concluded that the symptoms and damages attributable to Berry’s negligent treatment primarily manifested themselves during the latter part of his treatment. Thus, the jury allocated Donna’s damages while she was seeing Berry from October, 1975 through September, 1977 to twenty percent during the first 14 months and eighty percent during the last 8 months. “On the basis of the jury’s finding in response to question number 8, Vigilant asks the Court to enter judgment against it for only twenty percent of all the damages suffered by the plaintiff, including the $454,000.00 in future damages found by the jury. However, the Court is of the opinion that to do so would be contrary to law and the manifest weight of the evidence and would not be consistent with the jury’s intent as shown by the entire verdict.
“Under Florida law, if a tortfeasor negligently causes or substantially contributes to causing damage to another, he is liable for all such damages. In an action against more than one tortfeasor, each is jointly and severally liable for all plaintiff’s damages, regardless of the relative degree of fault of each tortfeasor. See Issen v. Lincenberg, 293 So.2d 777 (Fla.3d DCA 1974), Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). Thus, in the above case, where the jury found that Lincenberg was fifteen percent negligent and another party was eighty — five percent negligent, the court was nevertheless required to enter all of plaintiff’s damages against Lincenberg. The continued vitality of this common law rule became questionable after the Florida Supreme Court’s adoption of the law of comparative negligence requiring proration of negligence between a negligent plaintiff and a contributorily negligent defendant. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, as reaffirmed by the Florida Supreme Court in Lincenberg, supra, and later discussed in Lawrence v. Florida East Coast Railway Company, 346 So.2d 1012 (Fla.1977), although a jury should compare the negligence of a plaintiff to that of the defendants in a comparative negligence situation, the relative negligence of a defendant to that of another has no bearing on the right of the plaintiff to collect all of his damages from any one of the tort-feasors. It is appropriate only to a claim for contribution among tortfeasors. See also Souto v. Segal, 302 So.2d 465 (Fla.3d DCA 1974).
“In the instant case, it has been established that Berry was negligent during the period of October, 1975 through December, 1976 and that such negligence caused or contributed to causing plaintiff’s damages. It is instructive to note that, under the applicable law, Berry would be liable for all of her damages even if her damages had been worsened by the subsequent negligent treatment by another psychiatrist from whom the plaintiff might have sought treatment after December, 1976. Such a result is clearly recognized by the Supreme Court in Stuart v. Hertz Corporation, 351 So.2d 703, 707 (Fla.1977). This Court is persuaded that Berry’s insurance carrier and employer during the aforesaid time period would likewise be responsible for all of plaintiff’s damages even if the damages were worsened by another negligent psychiatrist administering treatment subsequent to December, 1976. See Stuart, supra, and Osborne v. Hartford Accident and Indemnity Co., 476 S.W.2d 256, 263 (Tenn.App.1972). This would be even more apparent where, as in the instant case, only one psychiatrist has treated the plaintiff continuously during the entire time period.
“Vigilant Insurance Company’s responsibility for paying damages is derivative of Dr. Berry’s liability. The policy in issue is an occurrence policy, that is, Vigilant agrees to pay ‘all damages because of . . . [i]njury arising out of the rendering of or failure to render, professional services ...’, during the policy period. As in all such liability policies, the insurer’s obligation is not simply limited to damages which occur during the policy period. Rather, as stated in the policy, it is obligated to pay ‘all damages ’ which arise out of injuries caused by the defendant’s negligence during the policy period.
“Vigilant did not request a special interrogatory to the jury on the issue of whether the plaintiff suffered injury as a result of Berry’s negligence during the period October, 1975 through December 31, 1976, which question might have been germane to the issue of its coverage. However, it is clear from the evidence and from the jury’s verdict that Berry was negligent during such period of time and that the plaintiff suffered injury as a result thereof. Indeed, the substantial verdict for future medical care and impairment of earning capacity indicates the jury’s finding that Berry’s failure to provide early treatment during the time he was at Child Guidance and covered by Vigilant resulted in plaintiff suffering substantial injury. Furthermore, there was no evidence adduced at trial to rebut the expert opinion testimony regarding the future consequences of lack of early treatment. The jury’s verdict on this point is therefore consistent with the evidence and inasmuch as Berry is liable for all damages which his negligence during this period of time caused or contributed to causing, Vigilant Insurance Company is obligated to pay such damages.
“Over objection of all other parties in this cause, the Court agreed to include questions on the verdict form regarding Vigilant’s contention that the jury should prorate the damages for the period of time after Vigilant ceased to have coverage. After having fully studied the applicable law, the Court is of the opinion that a question regarding prorating negligence between defendants may have been appropriate if the City had not dismissed its claim for contribution. However, in the absence of a claim for contribution, such an allocation of negligence among the defendants would be irrelevant to plaintiff’s right to recover all of her damages against Berry and his insurer inasmuch as such damages were caused at least in part by his negligence during the policy period. See, e. g., Osborne v. Hartford Accident & Indemnity Co., 476 S.W.2d 256 (Tenn.App.1972). Furthermore, such issue was not previously raised by Vigilant in its pleadings or in its pre-trial stipulation.
“In addition, there was no competent evidence offered by Vigilant from which the jury could have attempted to allocate plaintiff’s damages to different periods of time when Berry was treating her. Indeed, there was no evidence adduced at trial or offered by Vigilant from which damages for plaintiff’s future loss could be allocated, the uncontradicted evidence being that such damages were due to the entire course of negligent treatment and incapable of any proration. Accordingly, there was no sufficient basis upon which the jury could undertake to allocate damages even if there were a legal basis to do so. See Security Life & Trust Company v. Jones, 202 So.2d 906, 909 (Fla.2d DCA 1967).
“During the trial, the Court attempted to fashion questions to the jury to conform with Vigilant’s request. Vigilant did not provide the Court with forms or questions or instructions on the law regarding the issues sought to be resolved by such questions. The questions as finally phrased, numbered 7 and 8 on the verdict form, were not objected to by Vigilant, except that Vigilant’s counsel argued that such questions should be in mandatory language directing the jury to apportion rather than asking the jury if it could apportion the damages to the two periods of time. At the hearing held Friday, February 16, 1979, on the motion to enter a judgment on the verdict, Vigilant’s additional counsel stated that Vigilant had no objection to the Court having made such question optional. Therefore, the only reservation that Vigilant had to questions 7 and 8 has effectively been withdrawn.
“As phrased, question number 7 asked the jury if it could attribute any damages to the two periods of time. Upon answering yes, question number 8 asked the jury to state the relative percentages of damages which Donna Reiser suffered from October, 1975 through September, 1977 while she was receiving treatment from Berry. Such questions do not address the issue of whether Berry was negligent during each such period of time or whether such negligence was a legal cause of loss, injury or damages suffered thereafter. The jury answered the question by saying that of the damages that occurred while plaintiff was being treated by Berry, twenty percent occurred from October, 1975 through December 31, 1976 and eighty percent occurred from January 1, 1977 through September, 1977. Such a finding is consistent with the evidence that the plaintiff’s symptoms did not become worse nor did her condition begin to deteriorate until the latter part of the time she was under Berry’s care. However, although possibly indicating the attention which the jury gave to the evidence and the efforts which they made to carefully evaluate the testimony and reach their verdict, the answers to questions numbered 7 and 8 are not controlling as to Berry’s and Vigilant’s liability for all of plaintiff’s damages arising out of his negligent treatment. Moreover, answer number 8 further confirms that the plaintiff did suffer injury during the policy period as a result of Berry’s negligence. Vigilant is therefore liable for ‘all damages’ for ‘which the insured shall become legally obligated to pay’ as a result of his negligence. (Part One, Vigilant Policy.)
“Questions numbered 7 and 8 as framed do not speak to the issues sought to be raised by Vigilant and provide no basis for the Court to enter a judgment against Vigilant for less than the full damages which the jury assessed against its insured. To attempt to reduce the $454,000.00 in future damages would not only be contrary to law as previously noted herein but would also be contrary to the manifest weight of the evidence and not in conformity with any finding by the jury. Having asked for questions number 7 and 8 to be given and making no objection to the form of those questions, Vigilant cannot now complain that the jury’s answers to such questions are not responsive to the issue of the amount of damages to be assessed against it. See Crawford v. DiMicco, 216 So.2d 769 (Fla. 4th DCA 1968); Isenberg v. Ortona Park Recreational Center, Inc., 160 So.2d 132 (Fla. 1st DCA 1964).
“Based on the foregoing, the Court concludes that by its verdict entered on February 9, 1979, the jury found that the defendant Berry was negligent in his treatment or failure to properly treat the plaintiff; that the plaintiff was herself not guilty of any contributory negligence; and that Berry’s negligence during the time he was covered by Vigilant Insurance Company was a legal cause of plaintiff’s total damages in the amount of $529,054.93. Based upon Berry’s and Vigilant’s motion to reduce the award by collateral sources, the affidavit of plaintiff’s counsel offered at the hearing on February 16, 1979, and the agreement of the parties at such hearing, the Court further finds that medical insurance benefits have been received by the plaintiff in the amount of $28,124.89, for which the plaintiff or members of her family have paid premiums in the total amount of $1,349.50, and that the judgment should be reduced by $26,-775.39. Accordingly, final judgment in the amount of $502,279.54 shall be entered in favor of the plaintiff and against Reginald V. Berry, M.D., Vigilant Insurance Company and The Child Guidance Clinic of Duval County, Inc.”

The appellants cite the case of Aetna Life Insurance Company of Hartford Conn. v. Maxwell, 89 F.2d 988 (U.S. 4th CCA 1937), which it contends is directly in point. The trial court did not refer to this case. They also attack the statement in the Order that Vigilant had not previously in its pleadings or pre-trial stipulation, raised the issue of prorating damages to the period after Vigilant ceased to have coverage. It is contended that this is in error as the Answer of Vigilant denied any coverage or benefit to plaintiff at times other than for the specific period of time which was admitted. In addition, it is said that the issue was thoroughly discussed by the court and all counsel several times in chamber proceedings. In reading the challenged statement in the full context of the Order, it is obvious that the treatment of prorating in the pleadings and the pre-trial stipulation, or lack of it, had little weight in reaching the conclusions stated. The full thrust of the conclusion of liability of Child Guidance and Vigilant for all damages is that actionable negligence having been shown during the period of liability then these defendants had responsibility for all damages which had their inception during the covered period, including those which became manifest during another period or which worsened by subsequent negligence of the defendant Berry. The contents of the pleadings and the pre-trial stipulation were not a significant factor in the disposition of the case by the trial judge.

The Aetna case, supra, involved an action brought by an infant plaintiff to recover from an insurance company damages for loss of a leg occasioned by the negligent treatment of a physician who was covered by a group liability policy issued by defendant company to a medical society of which the physician was a member. A judgment against the physician had b-Mi recovered for the sum of $6,000, but execution was returned unsatisfied because of the doctor’s bankruptcy. The sixteen-year-old plaintiff had sustained a fracture of the leg on March 25, 1932 and was treated by the doctor involved from March 26 to August 7, 1932. The policy of insurance was not issued until July 23,1932. In the suit against the physician it was charged that he had been guilty of malpractice and negligence throughout the period of employment and that it became necessary to amputate the leg. In the action against the insurance company verdict was rendered against the company for $4,022.67, which the jury found to be the damages suffered through the malpractice which occurred during the policy period. The evidence in the suit against the doctor involved a number of particulars of malpractice, most of which occurred prior to the onset of the policy period on July 23,1932. Evidence in behalf of the doctor was submitted to show he had followed approved methods and practice and had at no time been negligent during the period of treatment. Since the doctor was responsible for the consequences of his neglect whenever it occurred, no attempt was made to distinguish between the period before and the period after the policy became effective. At the trial against the insurance company the defendant sought to offer in its defense the testimony of several physicians to show that, if any malpractice occurred, it occurred prior to the beginning of the policy period and that all treatment from July 23 to August 7 was proper and did not contribute to the damages suffered but would have, if allowed to continue as the doctor proposed, quite likely caused the fracture to be reduced and an amputation avoided. This offer was rejected by the trial judge, on the theory that the insurer, having participated in the defense, even though on a nonwaiver agreement to preserve its right to deny liability, was bound by the judgment upon the issues at stake there. The Court ruled that a judgment in the first suit was not conclusive in the suit directly against the insurer and that there are different issues in the two suits. It therefore held it was error to reject the proffered testimony. After pointing out that the issue in the first suit was whether or not the defendant doctor had been guilty of negligence at any time during his treatment of the injury, that in the suit against the insurer the defendant company is only liable for such malpractice or neglect as took place between July 23, the date of the policy, and August 7, when the physician was discharged from the case. There was no liability for any negligence which took place before July 23. The Court stated, (p. 992):

“Since it was necessary for the jury to distinguish between the effects of the medical and surgical treatment before and after July 23, the evidence of medical men was particularly relevant; and, if the jury had had the assistance of their expert advice, they could have more readily decided whether the substantial damage to the plaintiff was done during the preliminary period of 119 days, when the kind of treatment was determined upon and the greater part of it administered, or during the final 16 days after the issuance of the policy and before the physician was dismissed.”

The case was remanded for a new trial.

The Aetna case, supra, differs from the case before this Court, in that there was no question that the insurer was not liable for any actions before the policy came into effect. The question here is liability for consequences after the end of a policy period but which first arose for negligent acts during the policy period. The Aetna case is not in point and in any event would not be controlling.

We deem that the trial court fully and fairly defined the issues and applied correct principles of law and its factual conclusions are supported by the evidence. Not finding any error in the Order appealed, the same is hereby

Affirmed.

ERVIN, J., concurs.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

The judgment below, as affirmed by the majority here, holds employer, Child Guidance Clinic, liable for the torts of its former employee committed after the employment relationship was terminated. That is contrary to the verdict of the jury, which found that 20 percent of the damages were attributable to the actions of Dr. Berry while he was employed by Child Guidance Clinic (October, 1975 through December, 1976) and 80 percent attributable to Berry’s actions while working at Youth Resources (January, 1977 through August, 1977). There was evidence supporting the jury’s findings that the damages “attributable” to the two periods could be determined and that a greater proportion of the damage resulted during the second period. The jury verdict being thus supported, the trial court erred in entering judgment for plaintiff’s entire damage against the former employer, Child Guidance Clinic, and the insurer, Vigilant.

This suit was brought against Dr. Berry, Child Guidance Clinic, Youth Resources and the respective insurers, Vigilant and Travelers; but plaintiff was unsuccessful in establishing that an employment relationship existed between Berry and Youth Resources. The jury’s finding in its special verdict that Berry was an independent contractor while working at Youth Resources rendered the insurance coverage of that agency unavailable as a source of satisfaction for plaintiff’s judgment. Plaintiff then sought and' obtained judgment for the entire amount of the damage against the employer, Child Guidance Clinic, and the insurer, Vigilant. This was error. In order to require Child Guidance Clinic and Vigilant to shoulder the entire responsibility, plaintiff had the burden of establishing that all the damages resulted from the torts of Dr. Berry committed during the period of employment by Child Guidance. Plaintiff failed to carry that burden. The record reveals a factual issue, which the jury resolved following the special instructions of the verdict. In the event those instructions were improper, a new trial is required.

The evidence showed that Dr. Berry was guilty of a series of tortious acts of commission and omission extending over a 23-month period. These torts included sexual abuse and exploitation of the patient, negligent administration of drugs on numerous separate occasions and failure to prescribe proper drugs and treatment. Even the plaintiff does not contend that all the damages, regardless of when manifested, resulted from torts committed during Berry’s employment at the Clinic. Indeed, plaintiff introduced, and relied substantially, on evidence of Berry’s tortious acts with respect to the plaintiff occurring after he left Child Guidance Clinic. The fact that the doctor-patient relationship had its inception while Berry was employed by the Clinic does not render the Clinic thereafter and forever liable for the malpractice of Berry with regard to that patient. A causal connection must be shown between acts performed during the employment and damages resulting. Here, there was no evidence that the Clinic or its former employment was in any way involved in the continuation of the doctor-patient relationship or the tortious acts committed by Berry after employment ceased.

The doctrine of respondeat superior is based on the assumption that the master controls the acts of the servant and is, therefore, liable for the consequences of those acts. In Variety Children’s Hospital v. Perkins, 382 So.2d 331 (Fla.3d DCA 1980), a suit was brought against a hospital for negligent post-operative care of a patient. The active tortfeasors in th„.. case were nurses and residents employed at the hospital. The hospital contended that the admitting physician, who performed the surgery and stood in the relationship of master-servant to those hospital employees at the time of the operation, was responsible for the post-operative negligence. In rejecting this contention, the District Court held:

Such an employee may, it is true, come under the direction and control of any attending physician so as to shift the responsibility for his acts from the hospital to the doctor. The most familiar of this process occurs in the operating room where each of the attending personnel comes under the authority of the surgeon as the “captain of a ship.” ...
But this principle has utterly no application to the case at bar, in which the negligence occurred when the surgery had long since been completed and the surgeon was neither physically present nor any longer directing the activities of the hospital employees. It is a fundamental rule that the respondeat doctrine applies only when the alleged master has the ability and authority to direct and control the pertinent acts of the employee. (e. s.)

In Wayne v. Unigard Mutual Insurance Company, 316 So.2d 581 (Fla.3d DCA 1975), the court held that there could be no liability under the rule of respondeat superior where the tort in question occurred after the employee-tortfeasor had been discharged from employment.

Nor were Dr. Berry, Child Guidance Clinic and Vigilant joint tortfeasors. Principles applicable to joint tortfeasors were erroneously relied on below as the basis for setting aside the attribution portion of the jury verdict. In Phillips v. Hall, 297 So.2d 136, 137 (Fla. 1st DCA 1974), this court held:

While at times the term “joint tort-feasor” has been loosely used in some cases in connection with the doctrine of respondeat superior ... in its true sense, a master and servant are not joint tort-feasors when the only relationship which the master has to the tort of the servant is that he is his employer. The Supreme Court in New Hampshire in McNamara v. Chapman [81 N.H. 169, 123 A. 229 (1923) ], in a well-reasoned opinion points this out ... “The master not being morally guilty, his liability should extend no further than is necessary to give the aggrieved party redress for the wrong done by the servant. Technical or inequitable rules said to be applicable to joint tort-feasors, and invoked in behalf of the present plaintiff, are not applicable to the present situation ...” (e. s.)

Here, there is but a single active tortfeasor, Dr. Berry, who is unquestionably liable for the entire damage suffered by plaintiff as a result of the 23 months of treatment. The liability of Child Guidance and Vigilant is based on employment and contractual relationships. Damages are properly subject to attribution as to time periods for the purpose of determining vicarious liability and insurance coverage. See, Aetna Life Insurance Company v. Maxwell, 89 F.2d 988 (CCA 4th W.Va.1937).

The jury heard the evidence, considered the relationships of the parties, the circumstances that existed, and made the necessary determinations. The jury’s evaluation of these circumstances is entitled to great weight. Its assessment of the greater part of the damages to the latter period of treatment is supported by the testimony of Dr. Shellow and by the fact that, prior to January of 1977, plaintiff had improved sufficiently to attend a large university away from her home; but, subsequently, after nine months of treatment while Dr. Berry was associated with Youth Resources, she declined dramatically and was required to be admitted into the hospital in Gainesville. I would reverse the judgment below and remand for entry of a judgment in accordance with the verdict of the jury.

I respectfully dissent.

      . Special verdict, in pertinent part:
      7. Can you determine what portion of Donna Keiser’s damages, if any, are attributable to the period of time from October 1975 through December 1976, as opposed to that portion of damages, if any, attributable to the period of time from January 1, 1977 through September 1977?
      Yes _x_
      No _
      8. If your answer to the foregoing question is YES, state the percentage of damages suffered by the plaintiff Donna Keiser while she was receiving treatment from Dr. Berry during each period of time:
      October 1975 December 1976 20 %
      January 1, 1977 September 1977 80 %

      . The parties urge different meanings of “attributable” as used in verdict. Websters Third International Dictionary, Unabridged, p. 142, shows “attributable” means capable of explanation “as caused by or brought about by; . .. as occurring in consequence of or on account of.” Questions 7 and 8, taken together, are the jury determination that Berry’s tortious acts committed during the two time periods caused the percentages of damages indicated.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alford MOTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1351.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

The final judgment of conviction and sentence under review is affirmed upon a holding that the testimony and prosecutorial argument complained of on appeal were not so prejudicial as to call for a mistrial, as urged, rather than a cautionary jury instruction [specifically declined by appellant in the trial court] because: (a) the track mark testimony was at worst an oblique and extremely vague attack on appellant’s character which could have been cured, in our view, by a cautionary instruction; and (b) the alleged attempted drug sale testimony and argument was at worst a disjointed and rather confusing effort to suggest appellant’s involvement in another crime which, in our view, could have also been cured by a cautionary instruction. Rivers v. State, 226 So.2d 337 (Fla.1969); Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977); Rhome v. State, 222 So.2d 431 (Fla. 3d DCA 1969).

Affirmed.


author: HOBSON, Acting Chief Judge.

text:
    Phyllis K. Hollander BERGER, Appellant, v. Roger HOLLANDER, Appellee.
    No. 80-314.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.

      Wayne O. Smith of Wallace, Smith & Finck, P.A., St. Petersburg, for appellant.
    Radford W. Smith of Zewadski & Smith, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Phyllis K. Hollander Berger appeals that portion of a final judgment of enforcement of foreign divorce decree as local decree in which the Pinellas County circuit court refused to enforce the portion of a New Jersey judgment dealing with child support arrearages which had accrued after the parties’ son Jeffrey became 18 years of age, and as it required appellee Roger Hollander to provide for Jeffrey’s college education. We reverse.

The parties were married in June 1959. Two sons were born of the marriage, Jeffrey I. Hollander, June 21, 1960, and Scott N. Hollander, January 12, 1963. Appellant filed for a divorce in the Superior Court of New Jersey, Chancery Division, Essex County. The final judgment of divorce was entered in September 1968 and awarded custody of the two minor sons to appellant. The final judgment incorporated by reference a property settlement agreement entered into by the parties. This settlement provided, in part, that appellee would pay certain medical expenses and $40 per week child support for each son, with an adjustment provision in the event his income increased.

On September 20, 1977, the New Jersey court entered an order holding that appellee was in arrears for child support for the years 1971 through 1974 in the amount of $5,200. The order required appellee to pay $52.50 per week child support from July 1, 1977 to July 1, 1978.

In March 1978, the New Jersey court entered another order finding that appellee had failed to pay child support for the years 1971 through 1974 in the amount of $5,200 and from January 1977 to March 1978 in the amount of $2,685. The order stated that appellee was to be arrested and confined to the county jail of Essex County until he became current in his arrearages or until he satisfied the court of his willingness to pay. The New Jersey order further required appellee to pay tuition, room and board and expenses of Jeffrey Hollander’s college education.

In October 1978, appellant filed a complaint in the circuit court of Pinellas County seeking to establish and enforce the March 1978 New Jersey judgment as a local decree. Appellee, a resident of Pinellas County, filed an answer and affirmative defenses to the complaint as well as a motion for summary judgment. The Pinellas County court granted appellee’s motion for summary judgment finding that Jeffrey Hollander was an emancipated young adult under the laws of both New Jersey and Florida. The order further held that to require a divorced parent to be responsible for the higher education and support of a normal, healthy, emancipated person when a married parent has no such responsibility under the laws of New Jersey or Florida, would violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. For that reason, the Pinellas County court established as a local decree only that portion of the New Jersey judgment which assessed child support arrearages for Jeffrey Hollander until his 18th birthday and all arrearages for Scott Hollander, a minor.

Article IV, Section 1, of the United States Constitution requires the courts of each state to give full faith and credit to the judicial proceedings of every other state. Thus, unless a valid final judgment of a sister state violates some public policy of the State of Florida, the courts of Florida must enforce it as they would a Florida judgment.

The New Jersey judgment in question may be divided into three parts for purposes of this discussion. The first part is concerned with child support for minor children where the payments are past due and unpaid at the time of the judgment. The second part deals with child support arrear-ages for a child over the age of 18 years which are past due and unpaid at the time of judgment. The third portion deals with future payments for college expenses which have not yet accrued when the judgment is rendered.

As to the first portion of the New Jersey judgment, there is no question that the Florida court was correct in extending full faith and credit. That part of the judgment was not subject to modification in the state of rendition and is, therefore, final for purposes of the full faith and credit clause. Sackler v. Sackler, 47 So.2d 292 (Fla.1950).

The same finality appears in the portion of the New Jersey judgment which ordered appellee to pay child support for Jeffrey Hollander from the date of his 18th birthday to the time of rendition of the judgment. Under case law of the State of New Jersey, there is no fixed cge in the law when emancipation occurs. Present New Jersey law merely accelerates the age of adulthood. Although age is prima facie evidence of emancipation, it is not necessarily emancipation. Schumm v. Schumm, 122 N.J.Super. 146, 299 A.2d 423 (1973); Limpert v. Limpert, 119 N.J.Super. 438, 292 A.2d 38 (1972). Thus, in New Jersey, appel-lee could be held to pay child support for his son after the age of 18. Recent Florida case law is not to the contrary. Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980). Inasmuch as the child support payments for Jeffrey after his 18th birthday were reduced to a final judgment in New Jersey, that portion of the New Jersey judgment is entitled to full faith and credit in the State of Florida.

An order for future installments of child support not yet due is not enforceable under the requirements of the full faith and credit clause because the order is subject to modification by the court of rendition. Nevertheless, Florida courts may give effect to a foreign judgment under the principles of comity. As stated in Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (Fla.1926), comity is the practice by which one court follows the decisions of another court on a like question, though not bound by the law of precedence to do so. The Herron opinion went on to state that the rules of comity “may not be departed from unless in certain cases for the purpose of necessary protection of [Florida] citizens or of enforcing some paramount rule of public policy.” 110 So. at 542. We hold that, under the circumstances of the instant case, neither the public policy of New Jersey nor that of Florida is contravened by requiring a divorced parent, under certain circumstances, to provide an adult child with a college education.

For these reasons, we reverse the final order of the trial court in this cause and direct that the March 1978 New Jersey judgment be established, in its entirety, as a Florida decree.

REVERSED.

BOARDMAN and CAMPBELL, JJ., concur.

      . N.J.Rev.Stat. § 9:17B-3; § 743.07, Fla.Stat. (1973).

      . In Ross v. Ross, 167 N.J.Super. 441, 400 A.2d 1233 (1979), the court stated that the “continuing education of a child, through enrollment in college, university or other post-high school training program, has already been established as a possible basis for prolonging the noncustodial parent’s support obligation beyond the age of majority.” In that case the court decided that the daughter could not be considered emancipated until her law school training was completed. The father’s obligation under the divorce decree to support his daughter “until emancipation” would include payment of support until completion of graduate school. That court held that “there is no clearly established cut-off date that would entitle the father to a ruling as a matter of law." 400 A.2d at 1235.
      This court expressed similar sentiments in Nicolay v. Nicolay when we stated, “in lowering the age of majority, the legislature did not intend to deprive worthy children of the funds needed to attend college. ... [TJhere is no fixed rule forbidding an order of increased child support to finance a child’s college education up to the age of twenty-one.” 387 So.2d at 505. In that case we held that the lower court was correct in increasing the mother’s alimony payments solely to allow her to furnish her children over 18 with college educations.


author: SCHEB, Chief Judge.

text:
    Kevin Eugene NICKS, Appellant, v. STATE of Florida, Appellee.
    No. 80-695.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

A jury found Kevin Eugene Nicks guilty of two counts of possession of cocaine under section 893.13(l)(e), Florida Statutes (1979), and two counts of sale or delivery of cocaine under section 893.13(l)(a)l. The trial court sentenced Nicks to ten years on each count to run concurrently.

Possession of cocaine is a third — degree felony under section 893.13(l)(e), the maximum prison sentence for which is five years under section 775.082(3)(d). Consequently, the trial court erred in imposing ten-year sentences for the convictions of possession of cocaine. The court, however, legally sentenced Nicks to ten years on each of the convictions for selling cocaine because that offense is a second-degree felony under section 893.13(l)(a)l and carries a maximum sentence of fifteen years under section 775.-082(3)(c).

We find no merit to the other point Nicks raises.

Accordingly, we affirm all four convictions and the sentences for sale of cocaine but vacate the sentences on the possession counts as being excessive. We remand and direct the trial court to resentence Nicks to a maximum of five years imprisonment on each possession count.

RYDER and DANAHY, JJ., concur.


text:
    G.A., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. OO-175.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.

      Gilbert A. Schaffnit, Asst. Public Defender, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

G.A., a juvenile, appeals from the juvenile court’s order waiving its jurisdiction and certifying him for trial as an adult. He urges, among other points, that the petition for delinquency should be dismissed because it was untimely filed.

Before reaching the issues raised by G.A., we must first address the jurisdictional issue brought to the fore by the Fifth District Court of Appeal’s recent ruling that orders from waiver hearings are interlocutory and therefore not reviewable under Fla.R.App.P. 9.140(b) (1978). In Interest of R. J. B., 394 So.2d 126 (Fla. 5th DCA 1980).

We agree with the Fifth DCA that such orders are interlocutory in nature. Mitchell v. State, 351 So.2d 1142 (Fla. 1st DCA 1977). However, we think these appeals are governed by Florida Rules of Juvenile Procedure (1977) and Sections 39.09(2)(e) and 39.-14(1), Fla.Stats. (1978 Supp.), rather than by Fla.R.App.P. 9.140(b). See Malyn v. Atlantic Federal Savings and Loan Association, 384 So.2d 957 (Fla. 1st DCA 1980); Fidelity and Casualty Co. of N. Y. v. Scott, 386 So.2d 315 (Fla. 1st DCA 1980).

Section 39.09(2)(e) provides that a waiver order shall be reviewable pursuant to Section 39.14, Fla.Stat., and the Florida Rules of Appellate Procedure. Section 39.-14(1), Fla.Stat., states:

Any child, and any parent or legal custodian of any child, affected by an order of the court may appeal to the appropriate district court of appeal within the time and manner prescribed by the Florida Appellate Rules.

These statutes evidence a legislative policy in favor of allowing appeals from waiver orders in the time and manner set out in Florida Rules of Appellate Procedure i. e. by filing a notice of appeal within 30 days of the date of the order. Fla.R.App.P. 9.140(b). We recognize that this legislative declaration cannot create a right to interlocutory review unless approved by the Supreme Court, State v. Smith, 260 So.2d 489 (Fla.1972), but we find such approval in the order adopting the 1977 Florida Rules of Juvenile Procedure, The Florida Bar, Re: Florida Rules of Juvenile Procedure, 345 So.2d 655 (Fla.1977), and in Rule 8.220(f) of those rules. In that order, the court states: “[SJtatutes not superseded shall remain in effect as rules promulgated by the Supreme Court.” Id. at 655. The Florida Rules of Juvenile Procedure do not indicate that the above statutes were superseded.

Florida Rules of Juvenile Procedure, Rule 8.220(f) states:

After a hearing at which a judge enters an order waiving jurisdiction and certifying a child for trial as an adult, adjudicating a child delinquent, dependent, or ungovernable, or a disposition order, he shall forthwith inform the child, his parents or custodians concerning the right of appeal therefrom, including the time allowed by law for taking an appeal.

If this rule does not contemplate the taking of an appeal from orders waiving jurisdiction, the language is meaningless. The rules of construction applicable to statutes also apply to the construction of rules. Syndicate Properties, Inc. v. Hotel Floridian Company, 94 Fla. 899, 114 So. 441 (1927); Bryan v. State, 94 Fla. 909, 114 So. 773 (1927). We may not presume that the Supreme Court has promulgated a rule which is purposeless or useless. Dickinson v. Davis, 224 So.2d 262 (Fla.1969), Department of Revenue v. Merritt Square Corp., 334 So.2d 351 (Fla. 1st DCA 1976). The rule lists several orders which are final orders of the juvenile court; although as recognized in Mitchell, supra, a waiver order contemplates further court proceedings, it also is final as regards the juvenile process. By inclusion of orders waiving jurisdiction with these other orders, we think the Court has created the right to appeal from waiver orders before the juvenile is transferred into the criminal justice system.

To interpose an appeal immediately prior to the juvenile’s entry into the criminal justice system is consistent with the expressed state policy of treating juvenile offenders differently than adult offenders. The emphasis for juvenile offenders is on rehabilitation and restitution rather than on fixing criminal responsibility, guilt and punishment. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Section 39.001(2), Fla.Stat. (1978 Supp.). The legislature and the Supreme Court have recognized that in order to effectuate this policy and insure that a juvenile is properly being transferred into the main stream of the criminal justice system, it is necessary to allow an interlocutory appeal at this time.

The Fifth DCA relies, in part, on the committee notes to Fla.R.App.P. 9.140(b) (1978) which indicates that this rule is intended to supersede all other rules of practice and procedure. In our opinion, neither this committee comment, nor the similar language of Fla.R.App.P. 9.010 (1978), [“These rules shall supersede all conflicting rules and statutes.”], indicates a clear intention to eliminate the right of appeal from waiver orders found in Fla.R.Juv.P. 8.220(f) (1977). An intention to supersede or repeal other court rules or statutes must be clearly expressed, Woodgate Development Corporation v. Hamilton Investors Trust, 351 So.2d 14 (Fla.1977). Since committee rules are not binding, State ex rel. Evans v. Chappel, 308 So.2d 1 (Fla.1975), we cannot construe the comment as expressing such an intention. Nor, considering the history of the appellate and the juvenile rules can we conclude that the Supreme Court intended the appellate rules to eliminate rights granted by the Florida Rules of Juvenile Procedure.

The above quoted language of Fla.R. App.P. 9.010 (1978) has been in existence, with minor modifications, since 1942. With knowledge of this language, the Supreme Court, in 1972, adopted Fla.R.Juv.P. 8.110(h) (1972), retained and renumbered 8.220(f) in the 1977 revision, see above. After the March 1977 revision of the Florida Rules of Juvenile Procedure effective July 1, 1977, the Supreme Court revised the Florida Rules of Appellate Procedure, adopted October 10, 1977, reconsidered December 22, 1977, effective March 1, 1978, carrying forward the phrase quoted above. Under these circumstances, we cannot conclude that the Supreme Court adopted Fla. RJuv.P. 8.110(h) (1972) and retained it in 1977, 8.220(f) without intending that it be given full force and effect. Nor are we willing to conclude that the Supreme Court adopted Fla.R.Juv.P. 8.220(f) in March 1977 only to repeal it in October 1977 simply by retaining language extant since 1942.

We recognize this ruling directly conflicts with that of In The Interest of: R.J.B., supra and so certify for the purpose of compliance with the Fla.R.App.P. 9.030(a) (2)(A)(vi) (1980).

We now turn to the merits. On 12/24/78, G.A. shot and killed his mother. According to his statement, he fired the gun after loading it with what he thought was an empty shell. Investigator Ingram testified that when he arrived on the scene, Deputy Wallace had already given G.A. his Miranda warnings and that he, Ingram, did not repeat them. Ingram testified he questioned G.A. and obtained a statement, and that G.A. would not have been allowed to leave the premises had he attempted to do so. After the questioning was completed, G.A. was released to a family member.

Appellant contends that G.A. was taken into custody for purposes of activating the running of various rule and statutory time limits. On the facts of this case, we agree. Section 39.01(33), Fla.Stat., (1978 Supp.) defines “Taken into custody” as the

[S]tatus of a child immediately when temporary physical custody over the child is attained by a person authorized by law, pending the child’s release, detention, placement, or other disposition as authorized by law. [e.s.]

The law enforcement officials exercised temporary physical custody over G.A. by detaining him for questioning in connection with his alleged commission of a delinquent act G.A. was given Miranda warnings and was not free to leave until the officers determined that he should be released to a family member.

The investigating officers who detained G.A. and questioned him did not file a written juvenile complaint report (JCR) with the intake office within three days of 12/24/78 as required by Section 39.03(2), Fla.Stat., (1978 Supp.) Nor did any law enforcement agency file a sworn complaint with the clerk of the circuit court as required by Section 39.03(4)(a), Fla.Stat., (1978 Supp.) Instead, the state attorney immediately sought a grand jury indictment for murder in the first degree which, he has the authority to do, but which does not toll the time for filing the petition for delinquency. In re S. E. B., 365 So.2d 451 (Fla. 1st DCA 1979).

Under Fla.R.Juv.P. 8.110(e) (1977) a juvenile is entitled to release if the petition for delinquency is not filed within thirty days of the date the JCR is referred to the intake officer. The Supreme Court has ruled that this right of release is substantive and the petition for delinquency must be dismissed with prejudice if untimely filed. In The Interest of S. R. v. State, 346 So.2d 1018 (Fla.1977). The three day rule, however, is procedural and absent a showing of prejudice, failure to timely file the JCR does not require dismissal. In The Interest of G. L. T., Jr. v. State, 366 So.2d 25 (Fla.1978). The Third DCA, faced with this same question, analyzed the statutes and the case law and concluded that the juvenile’s substantive rights are violated and he is entitled to relief if the petition for delinquency is not filed within 33 days of the date the juvenile is taken into custody. State v. G. D. C., 372 So.2d 514 (Fla. 3d DCA 1979). We agree with this analysis. Here, the JCR and the petition for delinquency were both filed on February 21, 1979, 59 days after G.A. was taken into custody, 26 days late.

We agree with the trial court that G.A. needs rehabilitation. However, under the law a juvenile is entitled to release if the petition for delinquency is not timely filed. We therefore, have no choice but to order that G.A. be discharged.

Because of our decision, it is not necessary to treat the other points raised by appellant.

Reversed and remanded with instructions to discharge the defendant.

MILLS, Chief Judge, and McCORD and THOMPSON, JJ., concur.

      . Supreme Court of Fla. Rules of Procedure, Rule 39, (1942); Supreme Court of Fla. Rules of Procedure, Rule 50, (1955); Fla.R.App.P. 1.4 (1962), Fla.R.App.P. 9.010 (1978).

      . Compare In the Interest of R. L. J., 336 So.2d 132 (Fla. 1st DCA 1976). R.L.J. involved the custodial interrogation of a juvenile and the voluntariness of his confession elicited during that custody. In R.L.J. we also addressed the question of whether Chapter 39, Fla.Stat., (1976) prohibited all custodial interrogations of nonarrested juveniles and concluded that it did not. R.L.J. was decided under the 1976 statute however, which did not include the word “immediately” in defining “taken into custody”. Since the legislature is presumed to know the prior existing law and the constructions placed on it, Dickinson v. Davis, 224 So.2d 262 (Fla.1969), we must presume that the addition of “immediately” was intended to convey a meaning different from prior constructions. By the current definition of “taken into custody” we think the legislature intended that even temporary detention of juveniles would start the running of speedy trial and other time limits.

      . Section 39.05(6) Fla.Stat., (1978 Supp.) provided for 45 days, and June 9, 1980, the rule was amended to conform to the statute. On July 1, 1980, the legislature amended the statute to start the 45 days running from the date the child was taken into custody. At the time of these proceedings, the 30 day rule was in effect and superseded the statute. P. L. H. v. Brownlee, 389 So.2d 649 (Fla. 5th DCA 1980). Here the difference is immaterial since the petition for delinquency was not filed within 30 days nor within 45 days.


text:
    JACK LAWRENCE CONTRACTOR, INC., and Michigan Mutual Insurance Company, Appellants, v. Robert COLQUITT, Appellee.
    No. SS-72.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Rehearing Denied Jan. 16, 1981.
    John J. O’Riorden, of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, Sarasota, for appellants.
    Robert R. Johnson, of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, and Janet W. Freeman, West Palm Beach, for appellee.
   PER CURIAM.

This is the appeal of the deputy commissioner’s order which awarded attorney’s fees to Colquitt following a partially successful defense in a modification proceeding. Colquitt was originally awarded permanent total disability benefits as a result of injuries sustained as an employee of Jack Lawrence Contractor, Inc. On March 14, 1979, the appellants moved to modify the previous award based upon an alleged change in the claimant’s condition or, alternatively, upon mistake of fact. On September 25,1979, the deputy commissioner modified the original order by requiring payment of benefits based upon a fifty percent (50%) permanent disability rating. The deputy commissioner subsequently awarded Colquitt attorney’s fees.

Colquitt’s attorney was successful to the extent that the benefits were only reduced by fifty percent (50%). Attorney’s fees are appropriate in these circumstances. Jackson v. Hallandale Beach Citgo, IRC Order 2-3710 (1979). Accordingly, the order is affirmed.

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


text:
    William Sam COLEY, Appellant, v. STATE of Florida, Appellee.
    No. TT-228.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Rehearing Denied Jan. 13, 1981.

      Michael J. Minerva, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks reversal of his criminal conviction based upon his contention that the trial judge gave an erroneous jury instruction. He was charged in separate counts with armed robbery and dealing in stolen property, the subject matter of both offenses being the same property, and the jury returned a verdict of guilty on both charges. Appellant maintains that it was error for the trial judge to instruct the jury that a guilty verdict could be returned on both charges, citing Section 812.025, Florida Statutes (1977), which permits trial for theft and dealing in stolen property in connection with one scheme or course of conduct, but provides that the jury may return a guilty verdict for only one of the offenses. We hold that it was not error to give the jury instruction, which incidentally was not objected to at the trial, nor was it error to permit a jury verdict of guilty to be returned on both charges, since the statute by its terms is limited in its application to the specific crimes of theft and dealing in stolen property, whereas the charges here were armed robbery and dealing in stolen property.

Appellant urges that, notwithstanding the statute’s facial application to theft, as opposed to armed robbery, it should be construed as equally applicable to armed robbery, since every robbery necessarily in-eludes a theft. Appellant argues that a finding of guilt of both obtaining property by means of a robbery and dealing in the same stolen property is precisely the inconsistency condemned by the statute. We do not agree.

The “inconsistency” argument advanced by appellants stems from the rule, well established in Florida case law, that larceny (or theft) and receiving stolen property are inconsistent substantive offenses, so that one cannot at the same time commit both offenses as to the same property. Adams v. State, 60 Fla. 1, 53 So. 451 (1910); State v. Brooks, 348 So.2d 417 (Fla. 1st DCA 1977).

The reason for the rule, prohibiting conviction of both larceny and receiving or concealing the same stolen property, lies in the fact that the actions which constitute the taking or asportation of the property so far as the larceny is concerned are inseparable from those actions which constitute the receiving or concealment of the property. Thus, the receiving or concealment is considered not something that occurs subsequent to the larceny, but is in fact a part of it. See Adams v. State, supra.

However, we are dealing here with the statutory offense of “dealing” or “trafficking” in stolen property under Section 812.-019, Florida Statutes, which differs from the old common law offense of “receiving stolen property.” Padgett v. State, 378 So.2d 118 (Fla. 1st DCA 1980).

The offense of dealing in stolen property is committed not merely by possessing stolen property knowing the same to be stolen, which was essentially the former offense of “receiving stolen property.” The offense of “dealing” in stolen property is committed by one who “traffics” in such property, the term “traffic” as defined in Section 812.012(7)(a) meaning “To sell, transfer, distribute, dispense or otherwise dispose of property” or, under subpara-graph (7)(b), “To buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” We conclude, therefore, that the actions which constitute the offense of dealing in stolen property encompass the sale, distribution or transfer of the property, or the receiving, possessing or obtaining control of the property with the intent to sell, transfer or distribute it. These additional elements, furthermore, are separate and distinct from the essential elements of the crime of theft. Thus, absent the prohibition of the statute, Section 812.025, we can envision no reason why a person might not be the thief and also be guilty of dealing in the same stolen property.

We see no reason to expand the operation of the statute to any crime not specified by its terms. The familiar canon of statutory construction, “the expression of one thing excludes another,” supports our conclusion that if the legislature had intended the statute to apply to the offense of robbery, it would have said so. Furthermore, the offenses of robbery and theft are sufficiently distinguishable, the former encompassing the additional element of a taking of property from the person or possession of another person by means of force, violence, assault or putting in fear, so that the additional exception of “robbery” cannot be read into the statute by implication. We are also of the opinion that our construction harmonizes with Section 775.-021(4) (Florida Statutes), under which two or more separate crimes, other than lesser included offenses, committed in the course of one criminal transaction or episode are treated and punishable as separate and distinct criminal offenses.

We note the failure of the trial court to enter judgment of guilt as to the offense of dealing in stolen property. In event such a judgment is entered, appellant would of course have available to him his right of appeal as to any errors alleged to have occurred in connection with his conviction of that offense.

The judgment appealed from is AFFIRMED.

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


author: LARRY G. SMITH, Judge.

text:
    RUBBER PRODUCTS OF TAMPA and Michigan Mutual Insurance Company, Appellants, v. King David HENDERSON, Appellee.
    No. UU-26.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1980.
    Peter H. Dubbeld of Brown, Watson, Goldstein & Douglass, St. Petersburg, for appellants.
    Ted L. Wells, Tampa, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier and the claimant appeal an order of the Deputy Commissioner delaying a determination of the merits of claimant’s worker’s compensation claim until claimant has his alcoholic problem under control. Both the employer/carrier and claimant contend, and we agree, that the Deputy Commissioner erred by failing to rule on the merits of the claim, and that he exceeded his authority when he ordered claimant to obtain treatment for alcoholism not related to his employment or any industrial accident.

Claimant injured his back in an industrial accident, as a result of which the employer/carrier paid temporary total disability from the date of the accident until October 2, 1979. At the hearing, claimant sought additional temporary total disability, permanent partial disability benefits, additional medical care and payment for certain medical services received. The testimony of Dr. Godard, a treating physician, was in conflict with that of two other physicians on the issues of claimant’s ability to return to work, and upon the existence of permanent partial disability as a result of his injury. The order of the Deputy Commissioner states, in part:

It is impossible for me to tell, because of the overriding and obscuring nature of the claimant’s alcohol problem, whether and if so, how much limitation or impairment or disability the claimant has, and I am therefore going to defer any ruling regarding the claimant’s claimed disability or need for any future medical treatment until the claimant has accomplished certain objectives.

The Deputy Commissioner then ordered that the claimant join and attend Alcoholics Anonymous, under the direction and supervision of Dr. Godard for at least six months; that Dr. Godard, as soon as he felt claimant was able to return to work, should call claimant’s employer and make arrangements for him to return to work; and that jurisdiction of the claims for temporary total or permanent partial disability, and further medical treatment, would be deferred until after the lapse of six months, or until claimant had satisfied Dr. Godard and his employer that he had his alcoholic problem under control, and would be able to return to work.

We join with claimant’s attorney in recognizing the sincere and compassionate interest shown by the Deputy Commissioner in his efforts to rescue claimant from the debilitating effects of excessive alcoholic indulgence. We note, incidentally, that the claimant in fact disputes the Deputy’s finding that claimant is an alcoholic, contending that such a finding is unsupported by the record. Since both parties agree that the claimant’s alcoholism, if in fact it does exist, is unrelated to his employment or his injury, we are compelled to hold that although his alcoholic condition, whatever it may be, may make the task more difficult, nevertheless, a ruling on the merits of the claims presented must be made. Atlantic Cold Storage v. Hernandez, IRC Order 2-3071 (November 22, 1976); and Westberry v. Copeland Sausage Company, et al., 389 So.2d 1214 (Fla. 1st DCA 1980). Further, that portion of the order requiring claimant to join and attend meetings of Alcoholics Anonymous must be stricken.

It was not reversible error for the Deputy Commissioner to allow Dr. Godard to refer to his notes, over the employer/carrier’s objection that the notes were not provided to counsel within five days prior to the hearing (Section 440.13, Florida Statutes). We agree, however, with the employer/earrier’s contention that since the claimant did not prevail at the hearing the award of expert witness fees of $350.00 for the testimony of Dr. Godard was premature. Upon remand, the Deputy Commissioner may order payment of such fee if the claimant prevails, subject to the right of the employer/carrier to a hearing on their objections to such payment or the amount ordered.

REVERSED and REMANDED.

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


author: DANIEL S. PEARSON, Judge.

text:
    Mervin BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1397.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Susan Minor, Asst. Atty. Gen., and Michael A. Vandetty, Legal Intern, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Mervin Brown contends that we should overturn his robbery conviction because the trial court allowed the State to prove in its case in chief that Brown was not, as he had stated in a voluntary post-arrest interview, employed by a certain concern on the date of the robbery. He flatly tells us that where the State elicits from its own witness the defendant’s alibi, the State may not impeach that alibi unless and until the defendant adopts it or has an opportunity to deny or explain his statement. We just as flatly disagree.

Evidence of a defendant’s acts or statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt. See, e. g., Mackiewicz v. State, 114 So.2d 684 (Fla. 1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960); Spinkelink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221. See also United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), appeal after remand, 572 F.2d 506, cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978); United States ex rel. Royster v. McMann, 292 F.Supp. 116 (E.D.N.Y.1968) (exculpatory statements, when shown to be false, become inculpatory and are to be treated as admissions); Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1895); United States v. Boekelman, 594 F.2d 1238 (9th Cir. 1979); Fox v. United States, 381 F.2d 125 (9th Cir. 1967); Holt v. United States, 272 F.2d 272 (9th Cir. 1959) (the destruction, suppression or fabrication of evidence is relevant to prove guilt).

The evidence in the present case was not introduced to impeach Brown, but to show that Brown lied about his whereabouts on the day of the crime. This was substantive evidence tending to prove Brown’s guilt and was admissible in the State’s case in chief. United States v. Merrill, 484 F.2d 168 (8th Cir. 1973) (where the Government introduced in its case in chief both the defendant’s statement that he had never been in the state where the crime was committed and proof that the defendant had been in the state the day the crime was committed); Matthew v. State, 263 Ind. 672, 337 N.E.2d 821 (1976) (where the state introduced in its case in chief the defendant’s grand jury testimony that he had been at a certain friend’s house on the night the crime was committed and the friend’s testimony that the defendant was not at her house that night). See also United States v. Holbert, 578 F.2d 128 (5th Cir. 1978) (“the [defendant’s] argument overlooks a long line of authority which recognizes that false exculpatory statements may be used not only to impeach, but also as substantive evidence tending to prove guilt.”); United States v. Pistante, 453 F.2d 412 (9th Cir. 1971) (the defendant’s pre-trial explanations were admissible in the Government’s case in chief to prove consciousness of guilt and unlawful intent, even though defendant was not going to take the stand); Douglas v. State, 89 So.2d 659 (Fla.1956) (where, in dicta, the court stated that under circumstances where “one accused of a crime might deny guilt and then offer a false alibi, a false denial that he owned a weapon of the type employed in committing the crime or a similar statement that could be disproved independently of the proof of the commission of the crime by the defendant,” proof of such false statement is evidence tending to show the defendant’s guilt).

Brown’s remaining points on appeal have been considered and found to be without merit.

Affirmed.


author: HENDRY, Judge.

text:
    In re the ESTATE of Brewer CORBIN, Deceased. Elizabeth FREEMAN, Appellant, v. Roberta CORBIN, Appellee.
    No. 80-781.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Papy, Poole, Weissenborn & Papy and Sheridan K. Weinstein, for appellant.
    Ralph F. Miles, Hialeah, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   HENDRY, Judge.

This is an appeal from a Surcharge Order entered by the Probate Division of the Circuit Court for Dade County. We reverse, and remand for further evidentiary hearing.

Two years after the death of her husband, Roberta Corbin (appellee herein) was made personal representative of his estate. A year later, an inventory of estate assets was filed upon the daughter’s (appellant’s) petition. Conspicuously absent therefrom was any reference to the decedent’s business enterprise.

It appears that appellee had attempted to establish her ownership of the business by reference to a purported bill of sale from the deceased; by final judgment of the circuit court entered upon a jury’s verdict, it was determined that the supposed sale was wholly ineffective as a transfer to ap-pellee. However, long before that adjudication, appellee had sold the business to a third party, reacquired an interest upon the buyer’s default on a note, and resold that interest.

The initial transfer was to one Charles A. Schultheis. Consideration for the transfer was $100,000, consisting of cash payments and adjustments, and a $75,000 note held by appellee.

It was found below that appellee actually collected only about $35,000 of the purchase price. The court ordered the return into the estate of the collected amount, less about $12,000 as compensation to appellee for running the business until the time of the transfer to Schultheis.

Appellant complains that the court below failed to order the return of profits and depreciation benefits taken by appellee pri- or to the sale to Schultheis, that appellee was not entitled to compensation for operating the business, and that appellee owed to the estate not what she had actually received from the sale, but rather what the estate lost when she sold the business-$100,000-plus interest from the time of the sale, and reimbursement for depreciation and other benefits not enjoyed by the estate since the sale.

An estate’s personal representative acts as a fiduciary of the beneficiaries, Dacus v. Blackwell, 90 So.2d 324 (Fla. 1956), and is, in practical effect, a trustee of an express trust. Beck v. Beck, 383 So.2d 268, 271 (Fla.3d DCA 1980). And it is clear that “[a] trustee should not be allowed to profit by failure to do that which the relationship requires be done.” Dacus, supra, 90 So.2d at 328. Indeed, “[n]o rule of law is better settled than that a trustee cannot use trust property or his relation to it for his personal advantage.” Jungbluth v. American Bank & Trust Co., 134 So. 618, 101 Fla. 785 (1931) (citation omitted).

By reference to those maxims, we would have no difficulty in divesting appel-lee of the benefits which accrued to her as the result of her malfeasance as personal representative. But appellant seeks damages for conversion as well, and in this unusual circumstance, we deem it inappropriate to impose redundant sanctions: Recovery may be had for the conversion, or for the breach of fiduciary trust, but not both.

Actions for conversion may properly be brought for a wrongful taking over of intangible interests in a business venture. Accord, Cates v. Cates, 268 Ala. 6, 104 So.2d 756 (1958), amended after remand 272 Ala. 615, 133 So.2d 256 (1961); A & M Records, Inc. v. Heilman, 75 Cal.App.3d 554, 142 Cal.Rptr. 390 (Ct.App. 1977), appeal dismissed 436 U.S. 952, 98 S.Ct. 3063, 57 L.Ed.2d 1118, rehearing denied 439 U.S. 884, 99 S.Ct. 228, 58 L.Ed.2d 198 (1978); Miller v. Rau, 216 Cal.App.2d 68, 30 Cal.Rptr. 612 (Ct.App. 1963). Recovery properly extends to the good will of a business. Accord, Cates, supra, 104 So.2d at 760, and 133 So.2d at 259. Contra, cases collected in Prosser, Law of Torts 82, n.4 (4th ed. 1971).

The proper measure of damages for conversion in Florida is the interest’s reasonable market value, measured as of the time and place of conversion. Lilly v. Bronson, 177 So. 218, 129 Fla. 675 (1937); Doral Country Club, Inc. v. Lindgren Plumbing Co., 175 So.2d 570 (Fla.3d DCA), cert. denied 179 So.2d 212 (Fla. 1965), after remand to trial court 196 So.2d 242 (Fla.3d DCA 1967); Klein v. Newburger, Loeb & Co., 151 So.2d 879 (Fla.3d DCA), after remand 153 So.2d 344 (Fla.3d DCA 1963).

Although argument might well be made that lost profits and other special damages should be awarded in conversion cases, see Dobbs, Remedies, 408-11 (1973), we perceive such special damages to be reflected in an appropriate award of interest upon the general damage verdict.

Thus, we reverse, and remand for eviden-tiary hearing regarding the reasonable market value of the business at the time and place of its conversion; that value, plus interest up until the date of final judgment is entered upon remand, Klein, supra, 153 So.2d 344; contra, Gillette v. Stapleton, 336 So.2d 1226 (Fla.2d DCA 1976), shall constitute appellant’s award. Fees and costs regarding operation of the business after the time of conversion shall not be considered in computing the award.

Reversed and remanded.

      . As Prosser, infra, at 81-83, notes, conversion evolved from the common law action of trover, application of which was limited in several respects, including one important sub judice: The action would lie only for the misappropriation of a tangible chattel. Over the years, courts additionally recognized as actionable abridgments of intangible rights, at least insofar as they might be identified with (or merged in) a document or other tangible chattel. Prosser comments:
      There is perhaps no very valid and essential reason why there might not be conversion of an ordinary debt, the good will of a business, or even an idea, or “any species of personal property which is the subject of private ownership;” but thus far other remedies apparently have been adequate, and there has been no particular need or demand for any extension of the rather drastic relief of conversion beyond rights customarily represented by documents.
      at 82-83 (footnotes omitted).
      Here, where appellee has dispossessed the estate of a bundle of rights not immediately reducible to tangible form, and has done so in such fashion that restitution may well be an inadequate remedy, we are constrained to ignore what Prosser calls “this hoary limitation.” at 81.


author: BASKIN, Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, as Liquidator of Franklin National Bank, in Liquidation, Appellant, v. Michael H. WEISSER, Appellee.
    No. 80-880.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellant.
    William J. Segal and Robert A. Shupack, North Miami Beach, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

We are asked to review the trial court’s order dismissing with prejudice the second amended complaint filed by Federal Deposit Insurance Corporation. The trial court found that FDIC, as liquidator, lacked standing to file an action against appellee for the non-payment of notes and guarantees he executed in favor of Franklin National Bank. We reverse.

When Franklin National Bank failed, FDIC was named receiver and liquidator. FDIC then sued to recover amounts owed to the bank by appellee. Final judgment entered in favor of FDIC was reversed by this court because the record lacked documentation establishing FDIC’s capacity to act in Franklin’s stead. Upon remand, FDIC filed successive amended complaints with attachments reflecting that Franklin had been certified insolvent and that FDIC had been appointed receiver. The attached documents also disclosed that FDIC, as receiver, sold Franklin’s assets to FDIC in its corporate capacity.

Appellee contends that although FDIC filed its action in its capacity as receiver, it was permitted to sue only in its corporate capacity. The trial court agreed that FDIC, as liquidator, lacked standing and dismissed the cause. We disagree and reverse.

FDIC, in its corporate capacity, purchased Franklin’s assets from itself as receiver. In its corporate capacity, FDIC commonly serves as liquidator. 12 U.S.C. 1823(d) (1976); Federal Deposit Insurance Corp. v. Smith, 466 F.Supp. 843 (N.D.Ga. 1979); Federal Deposit Insurance Corp. v. Webb, 464 F.Supp. 520 (E.D.Tenn.1978); In re Franklin National Bank, 381 F.Supp. 1390 (E.D.N.Y.1974). Although a receiver may also liquidate assets, FDIC clearly acted in its corporate capacity as indicated by the documents attached to the complaint. FDIC alleged it was “owner and holder of all rights” of Franklin National Bank and established its standing to sue by the supporting documents appended to its second amended complaint.

For these reasons, we reverse the decision of the trial court and remand for further proceedings.

      . Weisser v. Federal Deposit Insurance Corp., 365 So.2d 1034 (Fla.3d DCA 1978).


text:
    DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. John SIMMONS, Manny Tortora, W. C. Knuck, Steve Lombardi, and Wayne Opperman, Appellees.
    No. 80-1895.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1980.
    David M. Maloney, Tallahassee, for appellant.
    DuFresne & DuFresne and Elizabeth J. DuFresne, Miami, for appellees.
    Before HUBBART, C. J., HENDRY, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Northwestern National Insurance Co. v. Greenspun, 330 So.2d 561, 563 (Fla. 3d DCA 1976); Niagara Fire Insurance Co. v. Allied Electrical Co., 319 So.2d 594 (Fla. 3d DCA), cert. dismissed, 322 So.2d 925 (Fla.1975); § 59.041, Fla.Stat. (1979).


author: SIMONS, STUART M., Associate Judge.

text:
    Sheldon LAKE, Appellant, v. Paul J. IRRGANG, Jr., Howard W. Lee, John P. Ellerman, Fred M. Temple and Consolidated Export and Manufacturing Corp., a Florida Corporation, Appellees.
    No. 79-1797.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Ronald Fitzgerald, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    David G. Murray of Huebner & Shaw, Fort Lauderdale, for appellee-Howard W. Lee.
   SIMONS, STUART M., Associate Judge.

Appellant Sheldon Lake timely appeals a finding that he lacked sufficient title to sell a boat which he had bought through a supposedly invalid mechanics’ lien sale under Section 85.031(2), Florida Statutes (1975).

In January of 1975, Thomas J. Smith, the original owner of the boat, entered into an oral agreement with Fred Temple, Vice President of Consolidated Export and Manufacturing Corporation, for the storage and maintenance of the boat in exchange for a monthly fee. When Temple could not reach or communicate with Smith for several months, Temple prepared to sell the boat at public auction pursuant to Section 85.031(2), Florida Statutes (1975), in order to cover expenses incurred in conjunction with the boat.

The sale was conducted by Temple’s attorney and the boat went to the highest bidder, Sheldon Lake. After repairing and making improvements on the boat, Lake sold it to John Ellerman. Ellerman than sold the boat to Howard Lee, who, in turn, sold it to Paul Irrgang.

In March of 1976, Smith reappeared and filed a replevin action against Irrgang for possession of the boat. A final judgment was rendered in favor of Smith who recovered possession of the boat. No other persons in the chain of title were parties to that suit.

Following the final judgment in the re-plevin action, Irrgang filed suit against Howard Lee for breach of warranty of title. Lee answered acknowledging the sale but denied knowledge concerning the replevin action. He then filed a third party complaint against John Ellerman for breach of warranty of title. Ellerman answered admitting that he warranted title when he sold the boat to Lee.

Irrgang filed a motion for summary judgment along with a supporting affidavit against Lee. As third party plaintiff, Lee filed a motion for summary judgment against John Ellerman. Prior to the trial court hearing on the summary judgment motions, Ellerman filed a third party complaint against Lake for breach of warranty of title. At a hearing on the motions for summary judgment, the court deferred ruling thereon and granted Ellerman’s ore ten-us motion to add Lake as a third party defendant. Lake thereafter filed a third party complaint seeking indemnification against Fred Temple and Consolidated Export and Manufacturing Corporation for breach of warranty of title.

Although the hearing on the motions for summary judgment was noticed on September 30, 1977, and scheduled for December 20, 1977, Lake and his attorneys were not notified of the hearing and did not appear. The court entered a partial summary judgment in favor of Irrgang against Lee, and denied Lee’s motion for summary judgment against Ellerman. At a final hearing which was subsequently held on the remaining third party complaints, the trial court issued its findings and entered a final judgment for Ellerman and against Lake.

Reviewing the evidence adduced at the actual trial which resulted in the judgment on appeal, it is clear that Consolidated Export had a valid mechanics lien and followed the enforcement provisions of Chapter 85, Florida Statutes (1975). There was no competent evidence presented tending to prove the sale was defective. Rather, the trial court apparently relied upon the prior judgment in replevin in reaching its conclusion. This is erroneous in view of the fact that Lake was not a party to that action and, therefore, is not bound by that judgment or any implication arising therefrom. Forman v. Florida Land Holding Corp., 102 So.2d 596 (Fla.1958). The only other matter argued to support the judgment is that Lake had been “vouched in” under Section 672.607(5)(a), Florida Statutes (1975) and, thus, was bound by the prior determination. This is not the case since the procedure outlined in that section was not followed.

There being no competent evidence to support the judgment, we reverse and remand with directions to enter judgment in favor of Lake.

REVERSED and REMANDED, with directions.

BERANEK and GLICKSTEIN, JJ., concur.


author: LETTS, Chief Judge.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Robert BELLAR, Appellee.
    No. 79-1820.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    H. Clay Roberts of Dixon, Dixon, Hurst, Nicklaus & Webb, Miami, for appellant.
    Robert L. Beals of DiGiulian, Spellacy & Meyer, Fort Lauderdale, for appellee.
   LETTS, Chief Judge.

The trial court entered summary judgment in favor of a self-employed husband, injured while in the course of, and within the scope of, his employment. The ruling as a matter of law, granted coverage to the husband under his wife’s group insurance policy issued by her separate employer. We reverse.

The wife’s group insurance policy contained the following exclusionary clause:

(1) Occupational Injury or Disease Charges — charges incurred in connection with (a) injury arising out of, or in the course of, any employment for wage or profit or (b) disease covered, with respect to such employment, by any workmen’s compensation law, occupational disease law or similar legislation.

Basically, the Husband argues that this clause should be interpreted to exclude injury only if the injured is otherwise covered by workmen’s compensation which the Husband here was not. To reach this result one must ignore the (a) and (b) separation of the quoted exclusionary clause and substitute “and,” for the disjunctive “or.” We simply cannot permit such a substitution or turn a blind eye to the plain intent of the (a) and (b) separation in the sentence quoted above.

In reaching our conclusion we are not unmindful that exclusionary language is to be construed most strongly against the insurer. Stuyvesant Insurance Company v. Butler, 314 So.2d 567 (Fla.1975) and that ambiguity should be resolved against the insurance company which drafts the contract. Daleo v. Bert and Bette Bayfront 66 Marine, 273 So.2d 113 (Fla. 3d DCA 1972). To this end it is persuasive for the husband to argue that there is ambiguity here because the courts have reached contrary results on similar clauses. See United Benefit Life Insurance Company of Omaha v. Glisson, 105 Ga.App. 122, 123 S.E.2d 350 (1961) and Rankin v. New York Life Insurance Co., 240 So.2d 758 (La.App.1970). As the Husband argues, in a well written brief, “If the Georgia and Louisiana Courts of Appeal construed virtually identical language differently from the Courts in Oklahoma and the U.S. Court of Appeals Tenth Circuit then there must be ambiguity in the exclusionary clause”; ergo this Fourth District Court has no business reversing the trial judge. However, the clauses in the Georgia and Louisiana cases cited were not identical to the clause here under consideration, whereas the clause in the Oklahoma and Tenth Circuit cases involve the very same Insurance Company and is identical to the one now before us. See Wilson v. Prudential Insurance Company of America, 528 P.2d 1135 (Okl.Ct.App.1974) and Roskell v. Prudential Insurance Company of America, 529 F.2d 1 (10th Cir. 1976).

Much as we would like to find coverage for this injured Husband we agree with the Oklahoma case cited and find its logic reiterated below irrefutable:

Such an interpretation would require a rearrangement of the clauses or a change of the disjunctive “or” to the conjunction “and” and a deletion of the clause separating devices (a) and (b). Such a restructuring of the sentence would do violence to the contract language and would be in violation of established grammatical rules of construction.
Clauses (a) and (b) are connected by the disjunctive word “or” and are separated by the separating device of using (a) and (b). Charges in connection with injuries arising in the course of employment are excluded regardless of coverage or lack of coverage by any workmen’s compensation laws. The qualifying words of limitation relating to workmen’s compensation laws are properly restricted to the last antecedent “diseases” and do not limit or restrict the more remote antecedent “injury.” Wilson v. Prudential Insurance Company of America, supra, at 1137.

Accordingly, we hold that the exclusionary clause first above cited clearly excludes the self-employed Husband injured in the course of, and within the scope of his employ.

REVERSED WITH DIRECTIONS TO THE TRIAL COURT TO ENTER SUMMARY FINAL JUDGMENT IN ACCORDANCE HEREWITH.

ANSTEAD and HERSEY, JJ., concur.


text:
    G. W. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-2603.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the conviction and remand for correction of the sentence.

Appellant was committed on December 4, 1979 at which time he was thirteen years and two months old. The commitment was to the date of his nineteenth birthday or a term of approximately five years and ten months. An adult could have received a maximum sentence for the two crimes involved here of five years and sixty days. Section 39.11(l)(c), Florida Statutes (1979) provides that when a child has been adjudicated to have committed a delinquent act, the court may:

(c) Commit the child to the department. Said commitment shall be for the purpose of exercising active control, including, but not limited to, custody, care, training, treatment, and furlough into the community. Notwithstanding the provisions of s. 743.07, the term of said commitment shall be until said child is discharged by the department or until he reaches the age of 19.

Section 39.11(3), Florida Statutes (1979) specifies:

(3) Any commitment of a delinquent child to the department shall be for an indeterminate period of time, but the time shall not exceed the maximum term of imprisonment which an adult may serve for the same offense. Any child so committed may be discharged from institutional confinement or a program upon the direction of the department. Notwithstanding the provisions of s. 743.07, no child shall be held under a commitment from a court pursuant to this section after becoming 19 years of age.

Where statutory provisions appear contradictory, it is the duty of the judiciary to adopt, if possible, a construction which harmonizes and reconciles those provisions. Woodgate Development Corp. v. Hamilton Investment Trust, 351 So.2d 14 (Fla.1977).

In this case, the provisions may be construed to require a commitment of an indeterminate period of time until the child is discharged by the department or reaches the age of nineteen, but not to exceed the maximum term of imprisonment which an adult may serve for the offense. Thus, a child’s commitment has parameters of the maximum sentence or his becoming 19, whichever occurs first. Otherwise, the term of commitment is until the child is discharged by the department.

The sentence of commitment exceeds these boundaries and must be corrected.

Affirmed in part; reversed in part, with directions, and remanded.

DOWNEY, HERSEY and HURLEY, JJ., concur.