author: WRIGHT, Presiding Judge.

text:
    Ronald ROBERTS v. FRIT INDUSTRIES, a Corporation.
    Civ. 3649.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.

      George E. Trawick and Henry D. Binford, Ariton, for appellant.
    G.M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of workmen’s compensation benefits.

Ronald Roberts was employed as a laborer with Frit Industries from April 1979 until January 1980. He worked at the Ozark, Alabama facility, where various chemical fertilizers are processed.

The record indicates that claimant suffers from sarcoidsis, a disease commonly involving the lymph nodes, lungs and other organs. In his case, the disease manifested itself by chest pains, stomach pains, and diarrhea, with a marked weight loss.

The claimant alleges his condition arose from inhaling chemical dust particles from the employer’s processing operation. He was denied workmen’s compensation and brought suit. The circuit court found in favor of the employer. Claimant seeks review here.

Claimant contends that the circuit court’s judgment is not supported by the evidence. He argues that there was sufficient evidence presented to establish that his malady was either caused or aggravated by the dusty conditions present at the employer’s plant. He also argues that the two-pronged medical-legal causation test first established in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975), should not be applied in this case.

Claimant’s contention that there was sufficient evidence to support a judgment in his favor appears contrary to the burden of proof in workmen’s compensation eases. The burden in such cases, referred to by both parties as the medical-legal test, is upon the claimant to satisfy the court that a personal injury was sustained; that the injury arose out of and in the course of the claimant’s employment; and that there is a connection between the injury received and the death or disability claimed. City of Tuscaloosa v. Howard, supra; Williams v. Aleo Mining Co., 46 Ala.App. 333, 241 So.2d 893 (1970).

Claimant’s proof of his dusty work environment and that he suffers from sar-coidsis fails to meet his burden of proof. The court found that though conditions at the employer’s plant were in fact dusty and that the claimant was exposed to the dust, there was no evidence that his condition resulted from or was aggravated by the dust.

The ore tenus rule does not apply in this case because it was submitted to the court upon deposition rather than oral testimony. Acton v. Board of Commissioners of the Alabama State Bar, 283 Ala. 121, 214 So.2d 685 (1968). Thus, this court considers the judgment of the trial court, without the presumption of correctness required by the ore tenus rule.

However, in reviewing the evidence we must apply the strict standard of review used in workmen’s compensation cases. That standard requires that we determine if there is any legal evidence, or reasonable inference therefrom, to support the trial court’s judgment. Big B Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala. Civ.App.1981). If there is any such evidence, we must affirm the trial court’s determination of the facts. Our review of workmen’s compensation claims by certiora-ri does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the findings of fact by the trial court is proper is not before us on review by certiorari. We must accept such findings if supported by any legal evidence. B.F. Goodrich v. Martin, 47 Ala. App. 244, 253 So.2d 37 (1971).

A review of the record shows no medical testimony to indicate any relationship between the dust inhaled by the claimant and the disease. In fact, all medical testimony presented establishes .that the etiology of sarcoidsis is unknown. Consequently, the trial court could find from the evidence that the claimant’s condition did not arise from the conditions of his employment. He has thus failed to meet either prong of the medical-legal test. The absence of evidence may support the trial court’s judgment.

We find no basis for claimant’s contention that we should not apply the medical-legal causation test stated in City of Tuscaloosa, supra.

We affirm the judgment of the circuit court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Alabama v. Alfred M. MASSEY and Ann H. Massey.
    Civ. 3663.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.

      Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Bill Thompson, Asst. Counsel, Dept, of Revenue and Asst. Attys. Gen., for appellant.
    Frederick G. Helmsing and Robert H. Rouse of Coale, Helmsing, Lyons & Sims, Mobile, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an income tax case.

Neither Mr. nor Mrs. Massey filed a State of Alabama individual or joint income tax return for the years 1974, 1975, 1976 and 1977. After a cash expenditure audit which was conducted by the Department of Revenue (the department), tax assessments were made final against the taxpayers for each of those calendar years. The Masseys appealed to the circuit court where an ore tenus trial was held before the court which resulted in a judgment disallowing the four annual assessments in their entirety. The department duly perfected the present appeal.

When the evidence is presented orally before the trial court in a tax case, its factual findings are presumed to be correct and will not be disturbed on appeal if the judgment is supported by the evidence, or reasonable inferences therefrom, unless the determination of the trial court is palpably wrong. Eagerton v. Courtaulds North America, Inc., 421 So.2d 104 (Ala.1982).

Under § 40-2-22 of the Code of Alabama (1975), the department’s final tax assessment is presumed to be prima facie correct upon a taxpayer’s appeal to the circuit court, and the taxpayer bears the burden of showing that the assessment is incorrect.

We have searched the record and researched the law to ascertain if the judgment was supported by the evidence, to determine whether it was palpably wrong and to find out if the taxpayers met the burden of proof that the assessments were incorrect. We affirm.

In view of the applicable ore tenus presumption, the summary of facts herein is largely restricted to that evidence which tends to uphold the decision of the trial court. Our task has been rendered less tedious because of the caliber of briefs filed by learned counsel for the parties.

We quote from the department’s brief to define the cash expenditure audit method employed by it as to the Masseys.

“Income is determined pursuant to a net worth audit as follows: To begin, it is necessary to ascertain a beginning balance. This is done by using the records provided by the taxpayer, or if none are provided, the best information available. Cash received and cash paid out during the year is then determined, again using the taxpayer’s records or the best available information, whichever the case may be.... Finally, the ending balance is determined. If the cash expenditures are more than the cash received, it is assumed that the excess was derived from currently reportable income unless it is shown that the excess expenditures came from cash on hand.”

The taxpayers admit that, while not authorized by statute, the audit procedure as here utilized is a valid audit process if the essential requirements therefor are met. Both parties correctly concur that, in using that method, the starting point for an audit must be the establishment of the amount of cash on hand held by the taxpayers as of the commencement date of the audit period. United States v. Grasso, 629 F.2d 805, 807 (2nd Cir.1980). This initial cash on hand figure must be established by the department with reasonable certainty. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

Here, a certified copy of a September 3, 1970 judgment of the United States District Court for the Eastern District of Louisiana was introduced into evidence. It awarded $154,207.07 to Mr. Massey against Williams-McWilliams and Employers Liability Assurance Corporation, Ltd. The department had demanded records from the Masseys and deemed those which were furnished to be inadequate. However, the department was informed that the source of the money which the Masseys expended during the audited period arose from the proceeds of that judgment and from the sale of a Louisiana truck line owned by Mr. Massey. The department conducted no investigation as to either of such matters but established a zero balance as being the amount of cash which the Masseys had on hand as of January 1, 1974.

Mr. Massey is deceased. Mrs. Massey testified that she married Mr. Massey in October, 1972. Without objection, she stated that her husband informed her that he had $200,000 which he received from the settlement of his industrial accident case and from the sale of his trucking business. After the settlement of his case, Mr. Massey lived from those proceeds. She further swore that her husband carried money upon his person and that he furnished cash to her as needed. Mr. Massey did not trust banks and, consequently, never had a checking account. During their marriage, neither husband nor wife were gainfully employed but Mr. Massey received $621 each month as social security disability benefits.

It is essential that the department investigate all reasonable explanations provided by the taxpayers as to cash on hand at the beginning of the cash expenditure audit period. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

“By stipulation of the parties the only element of net worth open for determination in the proceedings below was the amount of cash on hand at the beginning and end of each of the tax years in question.
“We turn first of all to a consideration of taxpayers’ contention that the Commissioner’s determination of deficiency is arbitrary and excessive and is not entitled to the usual presumption of validity. The Tax Court seems to have been of the opinion that the taxpayers could successfully attack respondent’s figure for cash on hand only by making an affirmative showing of the correct amount. In this connection the Tax Court said (R.A. pp. 311-12): ‘The deficiencies were determined upon the assumption that Thomas had no cash on hand on January 1, 1943. The burden is upon the petitioners to prove the amount of cash on hand.’ And again (313): ‘The record is at least equally consistent with the conclusion that he had no cash. The petitioners have shown no basis for a finding that they had any cash on hand at any of the critical dates, and accordingly we must sustain the respondent as to that matter.’
“We believe that these quoted passages do not correctly state the law. The presumption which favors the determinations of the Commissioner is not to be regarded as meaning that any arbitrary figure assigned to the cash on hand account without support in the record must nonetheless be treated as conclusive in the absence of an affirmative showing by the taxpayer of the correct amount.
“We think it clear, therefore, that respondent’s determination that the taxpayer had no cash on hand was sustained not because the facts of the case warrant such an inference, but merely because the taxpayer has made no affirmative showing to the contrary.
“If respondent is to be permitted to make an arbitrary guess as to the proper figure for the cash on hand account, there would seem to be no reason as a general proposition why similar guesses should not be made as to each of the constituent elements comprising the taxpayers’ net worth. Under these circumstances the entire net worth technique becomes nothing but an elaborate accounting sham lending a semblance of system and logic to a determination of deficiency which could have no greater validity than the original guesswork upon which it was based.”

Thomas v. Commissioner of Internal Revenue, 232 F.2d 520, 524 (1st Cir.1956).

If the taxpayers’ evidence was believed, it was adequate to prove that the department failed to establish a proper firm opening cash on hand figure then held by these taxpayers. Further, the trial court could have concluded from the evidence that the department did not pursue reasonable explanations provided by the taxpayers as to their source of nontaxable funds which were expended by them during the four years in controversy. Actually, if accepted by the trial court as being the truth, the evidence was adequate to establish that the social security receipts and the cash nest egg of Mr. Massey were sufficient to provide for their support and to make the cash expenditures as ascertained by the department over the four year period.

In estimating the personal living expenses of the Masseys, the department made use of an April, 1977, article from “Consumer Views” published by Citibank of New York. The examination of the department’s agent by the Masseys’ attorney cast much doubt upon the applicability to the Masseys of the specified living expenses as set forth by the article in almost every category of ordinary personal living expenses. Also, Mrs. Massey testified that their average monthly living expenses amounted to about $1,000 while the amounts charged by the audit were $20,000 for 1974; $23,000 for 1975; $25,000 for 1976; and $27,000 for 1977. Accordingly, a question was presented to the trial court as to whether the living expenses as charged by the audit were reasonably correct.

Mr. Massey traded trucks and automobiles on many occasions during the four year period covered by the audit. As to each of those transactions,.he was charged by the audit with varying amounts of cash expended as a down payment, or as the balance due on the trade, upon the vehicles being bought or traded. However, almost invariably, he financed those down payments or balances due rather than paying it in cash.

An admitted over expenditure of cash of $18,200 was made by the audit for the year 1975 as to the purchase, trade and/or sale of two Winnebago motor homes by Mr. Massey.

The Masseys were charged with a cash down payment of $12,289 upon the purchase of their home, while a purchase money mortgage from them for that identical sum of money was recorded in the probate office.

From the above matters, it was within the discretion of the trial court to conclude that the amount charged for the Masseys’ personal living expenses during the audit period was greatly excessive and that, because of erroneous cash expenditure charges placed against them for vehicles, the motor homes and the down payment on the house, the audit was incorrect to the extent that Mr. Massey’s nontaxable resources were sufficient to provide for the actual expenditures made by them during each of the four years in question. The judgment of the trial court was supported by the evidence and it was not plainly wrong. We are required to affirm.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.

      . The requirements for the successful use of a cash expenditure audit are identical to the requirements for the net worth method, which are succinctly stated in United States v. Grasso, 629 F.2d 805 (2nd Cir.1980).


text:
    E.D. SHACKLEFORD v. Stanley BRUMLEY and Mississippi Farm Bureau Insurance Company, etc.
    Civ. 3721.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.

      William W. Bedford of Bedford, Bedford & Rogers, Russellville, for appellant.
    David Neal of Fine & Associates, Russell-ville, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a negligent collision case.

The plaintiffs sought damages from Vick-ery, the operator of a farm tractor, and from its owner, Shackleford, for negligently causing a collision with resultant damages to the plaintiff Brumley. The plaintiff insurance company was Brumley’s insurer. The defendants responded with the general issue and contributory negligence. After an ore tenus nonjury trial, the circuit court rendered a monetary judgment for the plaintiffs and against the defendants. Only the defendant Shackleford appeals. We consolidate the issues here raised into three: (1) whether the evidence was adequate to authorize a recovery by the plaintiffs, (2) whether the plaintiffs were guilty of contributory negligence, and (3) whether there was competent evidence whereby the damages to Brumley’s car could be ascertained.

It is presumed that the factual determinations by the trial court, which heard and observed the presentation of the evidence, were correct. The conclusions of the circuit court will be affirmed on appeal if they were supported by credible evidence under any reasonable aspect and if they were not palpably wrong. Whitt v. McConnell, 360 So.2d 336 (Ala.1978); Wiggins v. Brown, 391 So.2d 128 (Ala.Civ.App.1980). We must search the evidence to ascertain if it upholds the judgment of the circuit court.

On July 14, 1981, Vickery was a farm worker employed by Shackleford. Vickery had been operating a cab over farm tractor at night in discing a chemical into the soil to prevent the losing of the potency of the chemical through prolonged exposure to the sun. He finished his labors, left the field and around 2:00 A.M. was driving the tractor upon the old Hackelburg to Hamilton highway in a northerly direction at a speed of from 20 to 25 miles per hour. The tractor was equipped with lights. Still attached to the tractor’s hitch or lift was the twelve foot wide disc, which had no lights upon it. The evidence was in sharp dispute as to whether reflectors were situated upon the disc. Although the disc was lifted above the surface of the highway, it did not obstruct the view of a following vehicle of the rear lights of the tractor.

Just after Vickery rounded a curve in the highway, he met Shackleford, who was driving his pickup truck in the opposite direction. Shortly thereafter, Shackleford met Brumley. Shackleford blinked his truck’s lights. Brumley described the occurrence as follows:

“Q. Tell your version of what happened.
“A. I ... started up the road and there is this pretty long curve and as I was coming out of the curve I met this truck, or pickup, and it flashed its lights, or blinked its lights, you know, like you want someone to dim their lights or something. But as I got immediately past the truck I saw the tractor and as I started going around the tractor I saw the disk sticking out and I scraped the disk and it made me lose control of the car and started sliding and that’s the last I remember.
“Q. Do you have a judgment as to how fast you were going?
“A. About fifty or fifty-five.
“Q. Could you see the disk, Stanley, until you had hit it?
“A. No, sir. I wasn’t aware that it had a disk on it.
“Q. Were there lights or reflectors or anything on the disk?
“A. No.” .

Neither the tractor nor the disc extended across the center line of the highway. Brumley struck or scraped the disc about one foot from its left end with the car’s right rear bumper.

At the conclusion of the trial, the circuit court stated:

“THE COURT: I find that it is negligence to pull a twelve foot disk down the road without lights whether it has reflectors or not. Although there was evidence of drinking involved, there was no evidence of it contributing to the accident. So I find for the plaintiff in the amount of six thousand four hundred thirty-three dollars.”

I

Much argument is contained in the briefs of counsel as to whether or not lights and/or reflectors are required by the code to be placed upon a twelve foot disc which is lifted from the road by, and attached to, the hitch or lift of a farm tractor which has observable lights and which is then being operated around 20 miles per hour upon a public highway at 2:00 A.M. However, it is not essential that we determine whether a rule of the road was here violated in that respect for negligence in the operation of a vehicle may occur upon a public highway without regard to, or without any violation of, any rule of the road. “ ‘[N]egligence’ is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or, the doing of something which a reasonably prudent person would not have done under the same or similar circumstances.” A.P.J.I., Civil § 28.01; Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973).

Under the evidence and reasonable inferences therefrom, it was within the prerogative of the trial court to find that, under that general law of negligence, the defendants did not exercise ordinary care in operating the tractor at 20 miles per hour at 2:00 A.M. upon that public highway when the trailing twelve foot wide disc was so indistinguishable in the dark as to not be reasonably noticeable to a reasonably prudent driver, approaching the rig from the rear. The remarks of the trial judge could reasonably be interpreted to mean just that. The learned trial court did not err in that regard. The evidence supports a finding of negligence by the defendants and it is not palpably wrong.

II

Brumley admitted that he had consumed four or five beers commencing about five o’clock on the prior afternoon but he denied being intoxicated at the time of the accident. His speed was disputed, being stated to have been from 50 to in excess of 55 miles per hour. Before the accident, he observed some lights upon the tractor, but did not recall seeing any flashing lights. Brumley did not blow his horn prior to attempting to pass Vickery.

The trial court expressly found that Brumley’s drinking did not contribute to the accident, which finding is supported by the evidence. Since Brumley testified that the disc was not observable and that he was not aware that the tractor had such a farm implement attached to it until he hit it, the trial court could have ascertained that he did not violate § 32-5A-82 of the code, which requires passing at a safe distance on the left of a vehicle being overtaken. Because Vickery stated that, through the tractor’s mirror, he observed that Brumley was approaching from Vickery’s rear, the trial court could have concluded that Brumley’s failure to blow his horn did not contribute to the accident.

Thus, the evidence supported the trial court’s judgment that any lack of care on Brumley’s behalf did not contribute to his injuries and damages. We find no fault with the trial court’s express or implied findings regarding contributory negligence.

Ill

The trial court’s judgment against the defendants was for $6,433. Evidence as to uncontested medical bills amounted to $2,357.

The evidence as to Brumley’s damages to his automobile was as follows: He was driving a 1978 Buick Regal. Mississippi Farm Bureau Insurance Company, Brumley’s insurer, paid him $5,000 for the car after the accident. Brumley accepted that money for the total destruction of his vehicle because “it was in pretty bad shape.” While a “high” repair estimate had evidently been obtained by his insurance company, the automobile was repairable. Nothing further was mentioned about the estimate. Three pictures of the Buick which were taken after the accident were introduced into evidence. No further evidence regarding damages to the vehicle was before the trial court. There was no evidence of cost of repairs, salvage value, or before or after values of the car.

The legal measure of damages to a motor vehicle is generally the difference in its reasonable market value before and after an accident. If it was a total loss, that is, if it was so damaged as not to be reasonably repairable, the measure of damages is the reasonable market value before the accident, less its salvage value, if any, after the accident. Smith v. Springsteen, 385 So.2d 56, 60 (Ala.Civ.App.1980); Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955). The evidence was insufficient to prove the value of the car before the accident or after the accident, or its salvage value, if any, following the accident. If the trial evidence is inadequate upon which to base an award of damages, the case must be reversed and remanded. Briggs v. Woodfin, 388 So.2d 1221 (Ala.Civ.App.1980).

The case is due to be reversed and remanded for proceedings not inconsistent with the above. In view of this court’s opinion the learned trial judge may, in his discretion, permit further proof.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ferrell S. HORN v. ALABAMA BOARD OF EXAMINERS IN COUNSELING.
    Civ. 3748.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.

      Margaret Y. Brown, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen., and Janet A. Wade, Asst. Atty. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves the refusal of the Alabama Board of Examiners in Counseling (the board) to issue a license to Mrs. Horn.

The board was created by the legislature in 1979 by Act 79-423 (the act) and is governed by and derives its authority therefrom. The act is presently codified in sections 34-8A-1 to -23, Code 1975. Section 34-8A-23 thereof (the “grandfather” clause) contains a provision which allowed the board, for a period of one year from July 18, 1979, to “grant the appropriate license upon payment of the required fee to any person submitting an application for licensure to the board who is qualified by experience to practice counseling, and who has engaged in such private practice of counseling as of July 18, 1979.”

The parties are in agreement that Mrs. Horn met all of the requirements of that “grandfather” clause and that she did not apply for a license until February 2, 1982. The board refused to issue a “grandfathered” license to Mrs. Horn because she had not applied therefor prior to July 18, 1980. Mrs. Horn then appealed to the circuit court where her complaint contended that she was not notified, either actually or constructively, of the enactment of the act which required her to obtain a license in order to practice counseling and that such lack of notice to her took away her inalienable right to work without due process of law.

The board filed a motion for a summary judgment stating that there was no genuine issue as to any material fact, that the complaint failed to state a claim, that the board was not required to give any notice as contended by Mrs. Horn, that the right to be “grandfathered” under a particular licensing statute is a mere privilege and not a vested property right, that the board had no present authority to issue a license to Mrs. Horn without Mrs. Horn’s first meeting the examination requirements of the code and that the one year limitation contained in section 34-8A-23 has expired and cannot be waived or disregarded by the board.

The gist of an affidavit of the board’s chairman was that, although not required, the board, through him, sent a press release to all state newspapers on June 20, 1980 announcing the “grandfathering” deadline. Trade publications contained articles concerning the passage of the act. A total of one hundred eighty-nine counselors met the July 18, 1980 time limitation and were licensed. In each case after July 18, 1980, each applicant was required to meet all provisions for licensure, including the successful passing of an examination prescribed by the board.

Mrs. Horn and her husband’s separate affidavits were to the effect that she never received any notice of the passage of the act and that she had no knowledge of it until around December 4, 1981. They subscribed to the Auburn/Opelika News and to the best of their knowledge there has not been any notice published therein concerning the act. They researched the files and records of the Auburn/Opelika News, the Auburn Bulletin, the Montgomery Advertiser and the Birmingham News for that period of time from July 10 to July 31,1979 and found nothing in any of those publications concerning the passage of the legislative act.

The trial court, in a well-written decision, dismissed Mrs. Horn’s complaint and she duly appealed, contending that the circuit court erred in granting the board’s motion for a summary judgment. She argues that she was entitled to a trial de novo in the circuit court and that the failure to provide to her notice of the existence of the act denied to her due process of law and deprived her of a property interest.

While it is undisputed that Mrs. Horn met and complied with all of the requirements of section 34-8A — 23 except the one year limitation, it is also without controversy that she failed to apply for a license until February 2, 1982. Her application was presented more than eighteen months after the board’s power had expired to grant a license to her under the “grandfather” clause. After the expiration of the one year time limitation which was contained in the “grandfather” section of the act, the board lacked any authority to issue a license to Mrs. Horn without her first complying with the testing requirements of the act.

In Cowart v. Kalif, 123 So.2d 468 (Fla. App.1960), the applicant applied too late to fall within the “grandfather” clause of a plumber’s licensing statute and the Florida appellate court held that a “grandfather” license should not have been issued to the applicant. Therein the following was stated:

“The time limitation upon the exercise of a right under a ‘grandfather clause’ is an integral part of the operation of the provision and may not be disregarded or waived by the administrative authority. To grant such exceptions would be to extend the right indefinitely at the unlimited discretion of the administrator of the law.”

123 So.2d at 470, 471.

Mrs. Horn lost the privilege of being licensed through section 34-8A-23 because of her failure to seek her license from the board before July 18, 1980.

The act was general in nature and statewide in application. There is no federal nor state constitutional or statutory requirement that persons who may be affected by the passage of general legislation be actually or constructively notified that such legislation has been enacted into law. There is certainly no provision in the act which requires the giving to any person of any notice in any manner. In fact, Mrs. Horn was charged with knowledge of the legislative act creating the board, its duties and responsibilities. Dixie Dairies v. Alabama State Milk Control Board, 286 Ala. 198, 238 So.2d 551 (1970). “ ‘Equity as well as law charges a party with notice of public statutes ....’” Stone v. Lacy, 245 Ala. 521, 17 So.2d 865 (1944) (citation omitted).

We have reviewed the record and find as a matter of law under the facts which were before the circuit court that there was no denial to Mrs. Horn of due process or of any equal protection right.

The trial court properly granted the motion of the board for a summary judgment for there was no genuine issue as to any material fact and the board was entitled to a favorable judgment as a matter of law. Rule 56(c), Alabama Rules of Civil Procedure.

We affirm.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED/

All the Judges concur.

      . The Alabama Administrative Procedure Act, sections 41-22-1 to -27, Code 1975, did not take effect until after the appeal to the circuit court of Mrs. Horn had already been perfected. Hence, the act is not applicable to the present case.


text:
    Jon M. OWINGS v. Walter R. GULLETT, Jr.
    Civ. 3772.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Edward W. Doggett, Florence, for appellant.
    Michael F. Ford of Martin & Ford, Tus-cumbia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an account stated case.

Dr. Owings’ amended complaint against Mr. Gullett was for an account stated and for a simple account.

Mr. Gullett moved for a summary judgment and his affidavit in support thereof was that he was attended by Dr. Owings while being hospitalized in February 1978, that he was completely dissatisfied with Dr. Owings’ services, that his condition worsened while under Dr. Owings’ care, and that he was transferred to a Birmingham hospital for further treatment. The remainder of his affidavit was as follows:

“Dr. Owings was unable to diagnose my condition or to explain the reason my condition worsened while I was under his care. For this reason, I felt then and feel now that the services rendered to me by Dr. Owings were valueless.
“After my 21 February to 1 March 1978 hospitalization, I received a statement from Dr. Owings. I responded to the statement with a letter, explaining that I thought his services were unsatisfactory and disputing his bill. A copy of this letter is attached hereto, labeled Exhibit ‘A’, and made a part of this testimony.
“Since March 1978, it has been my continuous position that I am not indebted to Dr. Owings. I have never agreed to pay his statement and I deny that I owe him any money at all. I have signed no contract or other writing agreeing to pay Dr. Owings the statement.
“More than four (4) years have passed since Dr. Owings sent me this statement and I contend that the Statute of Limitations on his claim has expired and his suit against me ought to be dismissed.”

The letter attached as exhibit “A” was dated July 6, 1978. It disputed and denied owing the doctor’s bill because of the patient’s opinion that the services rendered by the physician were most unsatisfactory and not beneficial to his health and well-being, giving therein his argument, thoughts, and reasons for his opinion.

Dr. Owings’ counteraffidavit stated that, according to normal procedures, Mr. Gullett would have received a statement from him within thirty days from the date of Mr. Gullett’s last treatment by him. The office records of Dr. Owings, which are kept in the ordinary course of his business and which are under his control and supervision, disclose that Mr. Gullett called the physician’s office on April 12, 1978 and indicated that he would bring “an insurance form to pay his bill when he obtained the form from his insurance company.” The doctor further swore that he “never received the letter dated July 6, 1978, which Mr. Gullett contends he sent to my office.” After attempting to collect by other methods and means and through other sources, Dr. Ow-ings sent a new bill and demand for payment on March 2, 1982 to Mr. Gullett, who contacted the doctor’s office about a week later and indicated that he would pay it when he “got good and ready to.”

The trial court granted Mr. Gullett’s motion for a summary judgment and entered a judgment in his favor. Dr. Owings appeals and contends that a scintilla of evidence prevented the rendition of the judgment against him.

It is without controversy that the open account claim was barred by the three year statute of limitations and no contra argument is presented to us. Accordingly, •the judgment of the trial court in granting the motion for a summary judgment in Mr. Gullett’s favor as to the open account aspect of the case is affirmed.

Much of the law governing summary judgments was recently aptly summarized in a succinct manner by Chief Justice Torbert in Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981), as follows:

“A party moving for summary judgment has the burden of clearly showing that the non-moving party cannot recover under any discernible set of circumstances and that there is no genuine issue as to any material fact. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Ragland v. Alabama Power Co., 366 So.2d 1097 (Ala.1978). The moving party must be entitled to the summary judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala.1978); Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). All reasonable inferences concerning issues of material fact are to be drawn in favor of the non-movant. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Papastefan v. B & L Construction Co., 356 So.2d 158 (Ala.1978); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).
“The burden for sustaining a motion for summary judgment is substantially increased by the scintilla of evidence rule. This rule requires that no summary judgment be granted if there is a scintilla of evidence to support the non-movant’s position. Fountain v. Phillips, 404 So.2d 614 (Ala.1981); Browning v. Birmingham News, 348 So.2d 455 (Ala.1977). The scintilla of evidence rule requires merely a gleam, glimmer, spark, the least bit, or the smallest trace in support of the non-moving party. Watkins v. St. Paul Fire and Marine Insurance Co., 376 So.2d 660 (Ala.1979).”

415 So.2d at 1041.

As to the applicable account stated law, we first quote the definition thereof:

“One definition of an ‘account stated’ is as follows:

“ ‘[A]n account stated ... is an agreement between parties who have had a previous transaction or transactions of a monetary character that the item or items of account representing such transaction or transactions and the balance struck are correct, together with a promise, express or implied, for the payment of such balance. Walker v. Trotter Brothers, 192 Ala. 19, 68 So. 345, and cases cited; Ware v. Manning, 86 Ala. 238, 5 So. 682; Jasper Trust Co. v. Lamkin, 162 Ala. 388, 50 So. 337, 24 L.R.A., N.S., 1237. See Ingalls v. Ingalls Iron Works Co., 5 Cir., 258 F.2d 750.
“ ‘... An account stated is not founded on the original liability, but on the defendant’s admission that a definite sum is due in the nature of a new promise, express or implied. Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273.’
“Martin v. Stoltenborg, 273 Ala. 456, 142 So.2d 257 (1962).
“Stated differently, ‘[A]n account stated is an account balanced and rendered, with an assent to the balance, expressed or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. (Citations omitted.)’ Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872 (1945).”

Mobile Rug & Shade Co. v. Daniel, 424 So.2d 1332 (Ala.Civ.App.1983).

An account is rendered when it is presented to the debtor. An account which has been rendered but which is not objected to by the debtor within a reasonable time after its rendition becomes an account stated, for the debtor’s failure to object is regarded as an admission by him of the correctness of the account. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678 (1963).

The parties evidently agree that a statement or bill for the account was presented to Mr. Gullett and, according to the doctor’s affidavit, it was sent about a month after the conclusion of his treatment by Dr. Owings. The affidavit of Dr. Ow-ings was undisputed that, on April 12,1978, Mr. Gullett called the doctor’s office and stated that he would bring an insurance form “to pay his bill” when he obtained the form from his insurer. Such presented a gleam or spark of evidence of Mr. Gullett’s assent to the account and of an express or implied promise “to pay his bill.”

A factual dispute was created as to the purported July 6, 1978 letter. Mr. Gullett’s affidavit was that he received a statement from the physician and “I responded to the statement with a letter... . Since March 1978, it has been my continuous position that I am not indebted to Dr. Owings.” In construing the affidavit against the mov-ant, it is noteworthy that he does not contend that the protest letter was mailed or otherwise presented to Dr. Owings or that Mr. Gullett’s “continuous position” was disclosed to Dr. Owings until shortly after March 2, 1982. In view of such lack of particularity and since Dr. Owings’ affidavit expressly denied ever receiving the letter of July 6, 1978, a disputed question of fact was presented as to the letter. That raised a genuine material factual issue as to whether the rendered account became an account stated because of Mr. Gullett’s failure to object to Dr. Owings about the account within a reasonable time.

Accordingly, in those two factual respects, a scintilla of evidence was presented as to the existence of an account stated. The motion for a summary judgment should not have been granted in Mr. Gullett s favor as to Dr. Owings’ account stated claim and we must reverse the judgment and remand it as to that aspect only.

Dr. Owings further raises a question as to the adequacy of the allegations of Mr. Gul-lett’s defense of the statute of limitations; however, that answer is sufficient under rule 8(c) of the Alabama Rules of Civil Procedure. Brown v. Billy Marlar Chevrolet, Inc., 381 So.2d 191 (Ala.1980).

We affirm the judgment in part and reverse and remand it in part as aforesaid.

The foregoing opinion was prepared by Retired Circuit Judge Edward N. Scruggs while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Zelma M. PENN v. Walter Lee PENN, Jr.
    Civ. 3732.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1983.
    Joel F. Dubina and John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    John S. Bowman, Sterling G. Culpepper, Jr., and William P. Cobb, II of Balch, Bing-ham, Baker, Ward, Smith, Bowman & Tha-gard, Montgomery, for appellee.
   BRADLEY, Judge.

Alimony terminated; wife appeals.

On September 4, 1981 the parties to this appeal were divorced by a decree of the Circuit Court of Montgomery County. In that decree the court divided the parties’ property and ordered the husband to pay the wife alimony in gross and periodic alimony.

On November 12, 1982 the ex-husband filed a petition to modify the divorce decree. He sought to have the periodic alimony payments terminated pursuant to section 30-2-55, Code 1975, because his ex-wife had lived openly or cohabited with a member of the opposite sex in violation of the statute.

The former Mrs. Penn denied the allegations of the modification petition and filed a petition for the rule nisi asserting that her former husband had failed to make the periodic alimony payments required by the decree.

The parties’ petitions were consolidated and heard on February 28, 1983, with all testimony, other than that of the former husband, being in the form of depositions. The trial court modified its decree of divorce and terminated the wife’s right to future alimony. Husband was ordered to pay accrued alimony from August through November 1982, the date of the hearing.

The sole issue for review here is whether appellant-wife “lived openly” or “cohabited” with a member of the opposite sex, so as to forfeit her right to periodic alimony under section 30-2-55, Code 1975.

Section 30-2-55, in pertinent part, provides:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”

Findings by the trial court based on evidence taken ore tenus come to this court clothed with a presumption of correctness. Moore v. Lovelace, 413 So.2d 1100 (Ala.1982). Appellant says, however, that only part of the evidence was orally presented to the court in the case at bar, and the remainder was presented by deposition. Therefore, no presumption surrounds the trial court’s findings. We disagree.

A decree based on evidence, part of which is presented orally and part by deposition, has the effect of a jury verdict and will not be disturbed except for plain and palpable error. Jones v. Moore, 295 Ala. 31, 322 So.2d 682 (1975).

Appellant argues that the evidence does not support the trial court’s finding that she was “living openly or cohabiting” with a member of the opposite sex. First, she contends that the record is devoid of any evidence of sexual activity between her and her male companion. Second, she says that living with her male friend for a period of about three to six months fails to establish “cohabitation” under section 30-2-55.

“[Wjhether or not a former spouse is living openly or cohabiting with a member of the opposite sex ... is a factual determination. Whether the petitioner ... has met the burden of proof is ultimately a question of fact.” Blackwell v. Blackwell, 383 So.2d 196 (Ala.Civ.App.1980).

Where the trial court determines that the petitioner has met his burden of proof, we can reverse, after considering all the evidence, only if we conclude that such determination is plainly and palpably wrong. Blackwell v. Blackwell, supra. We do not so find in the instant case.

The evidence shows that appellant bought a house in Tulare, California in April 1982. About May or June of 1982, Billy Bob Yocham moved into appellant’s house. Although there is no testimony from either party that they had engaged in sexual intercourse, there was testimony that they were “romantically involved,” and Yocham did not move out of appellant’s house until November 1982, when they learned that appellant’s former husband had filed a petition to terminate her alimony because she was openly living with a man. There is also evidence that Yocham gave appellant $158 a month, ostensibly as rent, contributed to the payment of the utilities, moved most of his possessions into her house, listed her house as his mailing address, gave appellant’s house as his address on an application for motor vehicle registration, on one occasion was observed cutting the grass, received his bank statements and telephone calls at appellant’s house, and had his grandchildren visit him at appellant’s address. These grandchildren were asked to refer to appellant as “Grandma Yocham.” There is evidence that appellant cooked for Yocham and did his cleaning and washing, and took a trip to Texas with him. Yocham also kept his three vehicles parked in appellant’s yard. There was testimony that the couple was contemplating marriage, and Yocham said that they would continue to live together once the modification proceedings had been settled.

We conclude that the trial court’s decree that appellant was “living or cohabiting” with Yocham is not plainly and palpably wrong.

Appellant’s first argument that the trial court erred in terminating her periodic alimony is based on our holding in Tucker v. Tucker, 416 So.2d 1053 (Ala.Civ.App.1982), that: “Cohabitation has been defined as some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.” She says there was no proof that she and Yocham had engaged in sexual intercourse.

Ordinarily, direct evidence of instances of sexual intercourse between consenting adults is seldom available, unless the parties admit to such activity, in cases of adultery and miscegenation; however the courts in those situations have held that such direct proof is unnecessary because sexual intercourse can be inferred from a chain of circumstances, such as living together, going together, etc. Griffith v. State, 35 Ala. App. 582, 50 So.2d 797 (Ala.Cr.App.1951); Cole v. State, 17 Ala.App. 488, 86 So. 124 (Ala.Cr.App.1920). Likewise, in the case at bar, the evidence shows a living together, a romantic interest in each other, and an intent to continue the relationship. We hold that proof of these circumstances permitted the trial court to conclude that the parties had engaged in more than occasional sexual activity and, ..therefore, had cohabited as provided by section 30-2-55, Code 1975.

As to appellant’s second contention that the evidence failed to establish that “permanency” of cohabitation envisioned by Tucker v. Tucker, supra, we note that appellant and Yocham lived together in appellant’s house for a period of three to six months, depending on which version of the evidence one wishes to believe, and both parties indicated that they intended to continue their relationship indefinitely. Based on this evidence and the other proof of the parties’ relationship, we conclude that the standard of “some permanency of relationship” has been adequately established in this case.

The decree of the trial court is affirmed.

The parties have both requested an attorney fee on appeal and their requests are denied.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Willie Earl COLEMAN v. STATE of Alabama.
    1 Div. 428.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

This case was remanded to the Circuit Court of Mobile County, Alabama, for a sentencing hearing. Coleman v. State, 424 So.2d 685 (Ala.Cr.App.1982). In strict compliance with the order of this court that a new sentencing be held, such was set at which appellant and his counsel were present.

The State introduced into evidence two certified copies of judgments of conviction showing that Coleman, the appellant, had been previously convicted in 1969 of grand larceny, for which he received a year and a day sentence and had a conviction in 1973 of receiving stolen property, for which he received a sentence of three years’ imprisonment.

After these two convictions were placed in evidence before the circuit court, the appellant was sentenced to life imprisonment pursuant to the provisions of § 13A-5-9(b)(3), which requires that the appellant be imprisoned “for life or for any term of not less than 99 years.”

A supplemental transcript showing this resentencing, including the certified copies of the two previous convictions, was filed in this court.

I

The appellant now contends that this mandatory sentencing under the Alabama Habitual Offender Statute is unconstitutional as being cruel and unusual punishment, by retroactively imposing additional punishment for offenses previously committed. This contention has been expressly rejected by this court in the following cases: Seritt v. State, 401 So.2d 248 (Ala.Cr.App.1981), cert. denied, 401 So.2d 251 (Ala.1981); Smith v. State, 401 So.2d 251 (Ala. Cr.App.1981), cert. denied, 401 So.2d 257 (Ala.1981); Bates v. State, 405 So.2d 1334 (Ala.Crim.App.1981), cert. denied, 405 So.2d 1339 (Ala.1981).

Upon consideration of the supplemental transcript which includes the two certified copies of the two previous felony convictions, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    Johnny Lee BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 62002.
    Supreme Court of Florida.
    June 9, 1983.
    Rehearing Denied Oct. 11, 1983.

      James B. Gibson, Public Defender and Lynda Campbell, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, Fifth District, (Bell v. State, 411 So.2d 319 (Fla. 5th DCA 1982)), which expressly and directly conflicts with decisions of this Court in Borges v. State, 415 So.2d 1265 (Fla.1982), and State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner (hereinafter defendant) was charged by information with trafficking in illegal drugs, sale of a controlled substance, and possession of a controlled substance. He was convicted on all counts and sentenced to fifteen years on the trafficking count, ten years on the sale count, and five years on the possession count.

Defendant appealed the convictions and sentences and the Fifth District Court of Appeal affirmed the convictions and vacated the sentences for sale and possession of illegal drugs.

In the instant case, defendant was convicted of the greater offense of trafficking in illegal drugs as well as the lesser included offenses of sale and possession of a controlled substance. Defendant argues that the affirmance of his convictions on the lesser included offenses is in direct conflict with this Court’s decision in Borges. We agree.

In Borges we held that the crimes for which Borges was convicted were separate and distinct and that none of the crimes was a lesser included offense of any of the others. Consequently, multiple convictions were appropriate in that case. Borges, 415 So.2d at 1267. We went on to hold that multiple sentencing for those convictions was proper given the legislative intent made manifest in section 775.021(4), Florida Statutes (1977).

The district court’s reliance on State v. Hegstrom in affirming the convictions below is misplaced. We did not intend to hold in Hegstrom that the double jeopardy clause of amendment 5, United States Constitution, or article I, section 9, Florida Constitution, permits a defendant to be convicted of both a greater and a lesser included offense provided no sentence is imposed for the lesser included offense. As we have stated before, the explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed. Id. at 1267. We recede from State v. Monroe, 406 So.2d 1115 (Fla.1981), to the extent it is in conflict with this conclusion.

For double jeopardy purposes lesser included offenses are tantamount to the greater offense charged if all the constituent essential elements of such lesser offenses are included within the elements of such greater offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Conversely, offenses are separate and distinct if each contains an essential element that the other does not. This is a reciprocal rule; hence, the conclusion that lesser included offenses are not separate because they have no element that is not also necessarily a part of the proof of the greater offense. However, a mere recitation of the Blockburger rule for determining when offenses are distinct or “the same” cannot alone give guidance to the courts attempting to apply the rule.

Whether offenses are “the same” depends upon which offense-defining test is used to give teeth to the Blockburger rule.

In a pure sense of the definition, two offenses are “the. same” if they are identical in law and fact. That is, that one statute has been violated once. Of course merely labeling statutes does not, and cannot, make offenses distinct when in fact they are identical. The legislature, even though it has the power to define offenses and punishments, is limited in that power. U.S. Const, amend. V; art. I, § 9, Fla. Const.

Under the required evidence, or statutory elements test, offenses are “the same” if elements constituent in one statute are sufficiently similar to elements of another. This test describes a labeling under different statutory sections of essentially the same crime. Such legislative legerdemain surely cannot be employed to contravene a constitutional right not to be twice placed in jeopardy for the same offense. See Stewart, J. in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

Under the alleged evidence test, offenses are “the same” if there is sufficient similarity between allegations of two indictments or informations or even two counts within a single indictment or information. This test necessitates scrutiny of the charging instruments to determine if repetitious charges have been brought.

Finally, under the actual evidence or same evidence test, offenses are “the same” if there is sufficiént similarity in the evidence actually presented either at two trials or among two or more counts in a single trial.

Courts have used varying combinations of the above tests justifying such practice on flexible notions of fairness or justice, but such an ad hoc approach to double jeopardy issues is unresponsive to the original policies to be protected.

At common law, the slightest variance between allegation and proof was fatal to the prosecution. It was a reaction to this pedantry of the pleading system that spawned the same evidence test. Thus, without legislative intent evidenced to the contrary, necessarily lesser included offenses could be prosecuted in subsequent prosecutions after a technical acquittal on the greater charge because proof of the lesser would not convict of the greater offense. (That is, the offenses were not “the same”.) Conversely, collateral estoppel would bar reprosecution for the greater offense if there was an acquittal on a necessarily lesser included offense. Most importantly, however, was that a conviction of the greater offense barred reprosecution on any lesser included offenses.

Considering the above principles derived from the common law, and even being mindful of the policies underlying the prohibition against double jeopardy it is understandable why judges and commentators speak of double jeopardy primarily in the context of multiple prosecutions and separate proceedings. However, one must be careful to remember the fact that at the time the framers of the double jeopardy clause were writing, joinder of causes was impermissible, and therefore the only way a person could be punished multipliciously was out of multiple trials. Multiple trials would necessarily entail multiple judgments of conviction on which the multiple punishments would be based. Therefore, no mention was made in early cases or commentary concerning the evils of multiple convictions because to say no multiple punishments was in essence to say no multiple prosecutions and convictions for the same offense. Current case law and commentary seems to have lost sight of these original, valid policies in favor of blanket assertions of legal doctrine lacking in principle or historic support.

Arguments that multiple convictions in a single trial setting do not produce detrimental effects, and therefore do not punish multipliciously, are misplaced unless we are willing to close our eyes to the realities of the criminal justice system. Convictions for lesser included offenses clearly have detrimental effects on the person convicted.

Parole release dates are adversely affected due to consideration based on the number of convictions. Also, the multiple convictions on the lesser included offenses may be used as impeachment evidence in subsequent criminal proceedings. Finally, further conviction of crime would expose the defendant to enhanced sentence under habitual offender statutes.

The federal courts have addressed the question of whether the multiple punishment concept applies to convictions as well as sentences in single trial settings. The old Fifth Circuit Court of Appeal ruled that a conviction without a sentence is not harmless. United States v. Buckley, 586 F.2d 498 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). Buckley held that where a defendant was improperly convicted for a lesser included offense, the appropriate procedure is to vacate both the conviction and the sentence on the included offense, while allowing the conviction and sentence to stand on the greater offense. Indeed, the Supreme Court, in United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976), reached a similar conclusion when it vacated a conviction and sentence for the lesser included offense of receiving proceeds of a robbery which was obtained together with a conviction on the robbery charge. Finally, in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977), the Supreme Court held that a person tried and convicted for a crime which has various incidents included within it cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.

Although Harris involved multiple prosecutions, the reasoning can and should be applied in a single trial, multiple-count situation, since each count must be considered as if it were a separate indictment or information. Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982).

If two statutory offenses have the exact, same essential constituent elements, or when one statutory offense includes all of the elements of the other, those two offenses are constitutionally “the same offense” and a person cannot be put in jeopardy as to both such offenses unless the two offenses are based on two separate and distinct factual events.

If the prosecution is based on a different statutory offense from, but the same factual event as, that resolved in a prior, or another prosecution, double jeopardy does not bar the proposed prosecution or punishment. See Preston v. State, 397 So.2d 712 (Fla. 5th DCA 1981).

The latter principle was involved in Missouri v. Hunter, - U.S. -, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Defendant Hunter was convicted of first-degree robbery and armed criminal action. The separate statutes did not contain the exact same elements nor did one of the statutory offenses contain all of the elements of the other. The prosecutions were based on different statutory offenses containing different elements. Although the factual event was the same, double jeopardy did not bar the prosecution.

The mere existence of two statutory offenses does not establish that the legislature intended each to be independently convietable and punishable when both are committed in a single course of conduct. In the present case, the legislature has codified the distinctly different statutory offenses of sale of illegal drugs and possession of illegal drugs. Also it has determined that another offense, trafficking in illegal drugs, is committed when either or both of the offenses of sale or possession of a certain amount of illegal drugs is effected. By including sale and possession of drugs within the trafficking statute, it is- apparent that the legislature intended to facilitate trafficking prosecutions through the use of alternative methods of proof rather than attempting to provide for multiple convictions and punishments for criminal conduct which is basically unitary.

We feel compelled to state again unequivocally that our previous decisions in Borges and Hegstrom were not intended to permit multiple convictions for lesser included offenses in single trial settings, although it appears that even we have been less than consistent on the issue. Cf. State v. Monroe.

The schedule of lesser included offenses adopted by this Court lists sale and possession of a controlled substance as category one lesser included offenses of trafficking in illegal drugs. In the Matter of Use by the Trial Courts of Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, 431 So.2d 594 (Fla.1981). In a single count indictment or information on a charge of trafficking, a trial judge, being satisfied that there is sufficient evidence to support the trafficking charge, must so instruct the jury on that charge. Also, the judge must instruct on the lesser included offense of sale and possession if evidence exists of these offenses.

The jury then must be further instructed that it can convict of either the greater offense or one or more of the lesser included offenses, but not both. Fla.Std.Jury Instr. (Crim.) 2.08. The fact that a single indictment or information charges both the greater and the lesser included offenses should not change the result regarding the propriety of multiple convictions. To hold otherwise would allow prosecutors to obtain multiple convictions based on a charging decision, an unjust result which we decline to legitimize.

In conclusion, based on an appreciation of the history of the policies behind protecting against double jeopardy for the same offense, and motivated by a desire for consistency and fairness, we hold that once it has been established that an offense, whether charged or not, and whether in single or separate proceedings, is a lesser included offense of a greater offense also charged, then the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses.

That portion of the district court’s opinion affirming the conviction and sentence as to the trafficking offense is approved, but the convictions relating to both the sale and possession offenses should be reversed. The cause is remanded to the district court of appeal for entry of an order in accordance with these views.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON and McDONALD, JJ., concur.


author: ADKINS, Justice. EHRLICH, Justice, ALDERMAN, Chief Justice, dissenting. OVERTON, Justice, McDONALD, Justice,

text:
    U.S. CONCRETE PIPE COMPANY, etc., et al., Petitioners, v. Dorothy BOULD and Edward Simonsen, Jr., etc., et al., Respondents.
    No. 57165.
    Supreme Court of Florida.
    July 7, 1983.
    Rehearing Denied Oct. 11, 1983.

      Richard A. Sherman of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for petitioners.
    Sam Daniels of Daniels & Hicks, Miami, for respondents.
   ADKINS, Justice.

By petition for writ of certiorari, we have for review a decision of the District Court of Appeal, Fourth District, which allegedly conflicts with decisions of this Court and the district courts of appeal on the same point of law. The case below, Hartford Accident & Indemnity Co. v. U.S. Concrete Pipe Co., 369 So.2d 451 (Fla. 4th DCA 1979), held that the instructions given to the jury allowed a finding of active negligence on the part of the corporate employer, thereby imposing punitive damages against the employer and relieving its insurer from liability for the punitive damages. Pursuant to Article V, Section 3(b)(3), Florida Constitution (1972), we accepted jurisdiction of the case on grounds of conflict with Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla.4th DCA 1972).

The facts of the case are set out in previous decisions of this Court and the Fourth District Court of Appeal. Petitioner U.S. Concrete Pipe Co. was insured by respondent Hartford Accident & Indemnity Co. An automobile accident caused by the negligence of one of petitioner’s employee-drivers resulted in two deaths. After trial, final judgments for compensatory and punitive damages were entered against the driver and U.S. Concrete. The district court reversed those judgments as excessive. Touchette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1975). This Court quashed that opinion and mandated the reinstatement of the trial court’s judgments. Bould v. Touchette, 349 So.2d 1181 (Fla.1977). Upon remand, the district court entertained two interlocutory appeals from post-judgment orders of the trial court. One of those appeals forms the basis of this review.

The pleadings sought recovery against U.S. Concrete on the theory of the respon-deat superior doctrine and also for negligence in retaining an unfit driver in its employment. The trial court’s instructions to the jury contained the following references to punitive damages:

Under the law of Florida, liability for punitive damages may be imposed upon an employer for the acts of his employees when those acts are of a character to warrant the imposition of such damages upon the employee, as where the employee has acted wantonly or willfully or with a reckless indifference to the rights of others. An employer may be liable in punitive damages for the acts of his employee done in the scope of his employment, if he has failed to exercise due and reasonable care in retaining him as an employee.

The jury awarded $800,000 punitive damages but did not specify whether U.S. Concrete was held on its vicarious liability or because of its alleged negligent employment of the truck driver. During the course of the trial, Hartford neither objected to the charge given nor requested any further instructions on this question, special interrogatories to the jury or special verdict forms.

The fourth district interpreted the above instruction to describe “active negligence for which U.S. Concrete would be liable as opposed to vicarious liability by reason of the relationship of master and servant.” Hartford Accident & Indemnity Co. v. U.S. Concrete Pipe Co. 369 So.2d at 453. No instruction was given regarding punitive damages on a theory of vicarious liability alone. The court concluded that the jury imposed punitive damages against U.S. Concrete solely due to the company’s active negligence in retaining the negligent employee.

U.S. Concrete construes the instruction as allowing the jury to assess punitive damages against it only on a vicarious basis, without finding the company guilty of willful or wanton misconduct. The petitioner argues that Hartford had the burden of establishing the facts necessary to avoid its contract of insurance. According to U.S. Concrete, public policy and case law forbid insuring against willful, wanton and malicious conduct, but not the negligent conduct of which the company is accused.

Hartford contends that it carried the requisite burden of proof and that no conflict exists between the decisions of the district court below and Travelers Insurance Co. v. Wilson. Furthermore, the respondent claims that U.S. Concrete is bound by the doctrine of law of the case by failing to challenge the trial court’s instruction in the previous appeal.

This last point raised by respondent has no merit. The doctrine of law of the case is limited to rulings on questions of law actually presented and considered on a former appeal. 3 Fla.Jur.2d Appellate Review §§ 421-22 (1978), and cases cited therein. The order granting judgment in favor of U.S. Concrete against Hartford for punitive damages was the subject of a post-judgment interlocutory appeal, which this Court directed the fourth district to entertain in our previous opinion. Bould v. Touchette 349 So.2d at 1187. Since the former appeal addressed the excessiveness of the punitive damage award, questions pertaining to the liability for payment of the award were not at issue in the ease. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 548 (Fla.1981); Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128, 1130 (Fla. 1st DCA 1977). The obligation of the insured or the insurance company to pay the punitive damages was properly raised in this appeal.

Florida public policy prohibits liability insurance coverage for punitive damages assessed against a person because of his own wrongful conduct. Commercial Union Insurance Co. v. Reichard, 404 F.2d 868 (5th Cir.1968); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir.1962); Travelers Insurance Co. v. Wilson; Nicholson v. American Fire and Casualty Insurance Co., 177 So.2d 52 (Fla.2d DCA 1965). The Florida policy of allowing punitive damages to punish and deter those guilty of aggravated misconduct would be frustrated if such damages were covered by liability insurance.

However, Florida public policy does not preclude insurance coverage of punitive damages when the insured himself is not personally at fault, but is merely vicariously liable for another’s wrong. 31 Fla.Jur.2d Insurance § 876 (1981). As stated in Sterling Insurance Co. v. Hughes, 187 So.2d 898 (Fla.3d DCA), cert. denied, 194 So.2d 622 (Fla.1966):

However, it is generally held that there is a distinction between the actual tort-feasor and one only vicariously liable and that therefore public policy is not violated by construing a liability policy to include punitive damages recovered by an injured person where the insured did not partid-, pate in or authorize the act.

Id. at 900 (footnote omitted).

Travelers Insurance Co. v. Wilson involved a claim for punitive damages against an insured owner of a motor vehicle based on his vicarious liability. The fourth district ruled that public policy did not bar insurance coverage of punitive damages awarded on a vicarious theory, where the owner committed no willful or wanton misconduct. The decision emphasized that the punitive damages must be assessed against the insured solely on the basis of vicarious liability arising out of ownership, and not because of any active wrongdoing or misconduct on his part which itself justifies imposition of punitive damages, to shift the burden to the insurance carrier. 261 So.2d at 548.

Punitive damages cannot be assessed for mere negligent conduct, but must be based on behavior which indicates a wanton disregard for the rights of others. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). Even gross negligence, by itself, will not support an award of punitive damages. Florida Power Corp. v. Scudder, 350 So.2d 106 (Fla.2d DCA 1977), cert. denied, 362 So.2d 1056 (Fla.), appeal dismissed, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). In Clooney v. Geeting, 352 So.2d 1216 (Fla.2d DCA 1977), the plaintiff alleged that an employer knew its employee was not physically or mentally able to drive its truck. The court held that this knowledge was not sufficient to sustain a claim for punitive damages because the allegations did not show the necessary malice or wanton, willful or outrageous conduct. “[GJross negligence is not enough to give rise to punitive damages — there must be a wilful and wanton disregard for the rights of others.” Id. at 1219.

The facts in the present case do not show that U.S. Concrete was guilty of a willful and wanton disregard for the rights of others. In addition, the jury instructions referred to liability for failure to exercise due and reasonable care, i.e., negligence. This means that the jury verdict does not support a finding of wanton or willful misconduct. The trial court’s charge seeks to impose punitive damages on U.S. Concrete because of its employee’s willful and wanton behavior and its simple negligence and not because of willful and wanton misconduct of U.S. Concrete. See Mercury Motors Express, Inc. v. Smith, 393 So.2d at 549. The decision of the fourth district below concluded that the jury imposed punitive damages against U.S. Concrete solely for the company’s active negligence in retaining the employee. This holding is in conflict with the weight and trend of Florida public policy and case law.

The liability of an insurer for punitive damages assessed against an employer and a negligent employee-driver was discussed in Morrison v. Hugger, 369 So.2d 614 (Fla.2d DCA 1979). The employer’s insurance company attempted to avoid the payment of punitive damages as being against public policy or illegal. The district court noted that since either position taken by the insurer is an affirmative defense, the burden of proof rests on the insurance company to demonstrate that the coverage was inapplicable. The insurer must therefore establish that the jury awarded punitive damages against the insured on the basis of the insured’s own conduct, rather than on the basis of vicarious liability. Because the facts supported the insurance coverage and because it was impossible to tell upon which basis the jury rendered its verdict, the court placed the judgment for punitive damages on the insurance company.

In Universal Underwriters Insurance Corp. v. Reynolds; 129 So.2d 689 (Fla.2d DCA 1961), the jury was instructed that it could return damages for both personal injuries (covered by the policy) and consequential damages (not covered by the policy) and both were included in a general verdict. In other words, the verdict was not broken down so as to designate the portion for personal injury and the portion for consequential damages. Since only a portion of the verdict was covered by the policy, the insured had the burden of showing which portion of the verdict was within the coverage of the policy. On the other hand, in the present case and in Morrison v. Hugger, the entire amount was classified as punitive damages. The only question is whether coverage existed for any portion. The issue in this case and in Morrison is one of coverage, while the issue in Reynolds was one of allocation.

The critical question here is whether the burden was upon Hartford to demonstrate non-insurability. This question was settled in Phoenix Insurance Co. v. Branch, 234 So.2d 396 (Fla. 4th DCA 1970), when the court stated the general rule as follows:

The burden of proving an avoidance of the action on the basis that the loss is not covered, since it comes within a specific exclusion contained in the policy is upon the insurer.

Id. at 398 (citations omitted).

If a judgment includes elements for which an insurer is liable and also elements beyond the coverage of the policy, the burden of apportioning or allocating these damages is on the party seeking to recover from the insurer. On the other hand, if the evidence raises a question as to whether the entire claim is beyond the coverage of the policy, the burden is upon the insurer to show that there is no coverage. Non-insurability is a defensive matter, with the burden resting on the insurer.

A similar situation arose in Commercial Union Insurance Co. v. Reichard, 404 F.2d 868 (5th Cir.1968), where the trial judge ruled that the burden of proof was upon the insurer. The United States Circuit Court of Appeals agreed that if the jury could have based the verdict for punitive damages on either the vicarious liability of the employer or the employer’s own misconduct, it would have been impossible to determine from the verdict which theory produced the award. It was unnecessary to determine who had the burden to prove the impossible, as the instructions did not charge the jury that it could find the employer subject to punitive damages on account of his hiring a dangerous employee. In other words, the instruction to the jury limited the recovery for punitive damages to the claim based upon vicarious liability.

In the present dispute, if the instruction given by the trial court allowed the jury to award punitive damages for negligent hiring or on vicarious liability, the burden fell upon Hartford to request additional instructions or to use special verdicts. Neither was done, so Hartford cannot complain at this point. The record fails to show that the trial court committed error in entering judgment against Hartford.

For the above reasons, the decision of the district court of appeal is quashed and the cause is remanded with instructions to reinstate the order of the trial court requiring the insurance company to pay the punitive damage award.

• It is so ordered.

BOYD, EHRLICH and SHAW, JJ., concur.

EHRLICH, J., concurs with an opinion, in which ADKINS, BOYD and SHAW, JJ., concur.

ALDERMAN, C.J., dissents with an opinion.

OVERTON, J., dissents with an opinion.

McDONALD, J., dissents with an opinion, in which OVERTON, J., concurs.

EHRLICH, Justice,

concurring.

This case requires the Court to address the impact of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), on the previously established Florida case law allowing insurance to cover punitive damages imposed under a theory of vicarious liability. Morrison v. Hugger, 369 So.2d 614 (Fla.2d DCA 1979); Travelers Insurance Co. v. Wilson, 261 So.2d 545 (Fla.4th DCA 1972); Sterling Insurance Co. v. Hughes, 187 So.2d 898 (Fla.3d DCA), cert. denied, 194 So.2d 622 (Fla.1966).

Long before our holding in Mercury Motors, this Court had acknowledged the vicarious liability of an employer in punitive damages for the willful, wanton or malicious acts committed by his employee in the course of his employment. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). To recover punitive damages from an employer under the doctrine of respondeat superior, plaintiff had only to plead and prove the employer-employee relationship, that the acts were willful, wanton or malicious in nature and that they were performed within the scope of employment. Nichols v. McGraw, 152 So.2d 486 (Fla. 1st DCA 1963). The employer’s liability was predicated solely upon the master-servant relationship; no separate acts of the employer were at issue. See Travelers Insurance Co. v. Wilson, Sterling Insurance Co. v. Hughes; but see Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977).

Mercury Motors, in effect, added one more ingredient to the recipe for vicarious liability for punitive damages. Now a plaintiff must also plead and prove “some fault” on the part of the employer. 393 So.2d at 549. But Mercury Motors did not purport to change the nature of the liability-

(3) Before an employer may be held vicariously liable for punitive damages under the doctrine of respondeat superior, there must be some fault on his part. (4) Although the misconduct of the employee, upon which the vicarious liability of the employer for punitive damages is based, must be willful and wanton, it is not necessary that the fault of the employer, independent of his employee’s conduct, also be willful and wanton. It is sufficient that the plaintiff allege and prove some fault on the part of the employer which foreseeably contributed to the plaintiff’s injury to make him vicariously liable for punitive damages.

Id. (emphasis supplied). The additional element of employer’s fault does not itself create a direct liability for punitive damages.

Hartford Accident and Indemnity Company asserts that vicarious liability predicated on any degree of fault on the employer’s part would invoke the public policy against allowing a wrongdoer to insure himself against liability for punitive damages. I think this misinterprets the effect of both Mercury Motors and the public policy.

The purpose of punitive damages is, as the name indicates, to punish one whose wrongdoing surpasses mere mistake, negligence or thoughtlessness and to deter others from similar misconduct. When a tort-feasor has acted with wanton or willful disregard of the safety of others, punitive damages are imposed as a measure of society’s disapproval of such conduct. If the burden of paying that penalty may be shifted to an insurer (and ultimately to society at large), the wrongdoer has no impetus to “learn his lesson” and change his behavior. Thus, Florida has followed the general rule that insurance may not cover punitive damages. See also Nicholson v. American Fire & Casualty Insurance Co., 177 So.2d 52 (Fla.2d DCA 1965); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir.1962).

At the same time, Florida has acknowledged an exception to this rule when the punitive damages are imposed on the basis of vicarious responsibility for the acts of another. Travelers Insurance Co. v. Wilson; Sterling Insurance Co. v. Hughes. See also Annot., 16 A.L.R. 4th 11 (1981). The rationale underlying this exception is obvious. When an employer’s liability for punitive damages arises solely from the fact that he relies upon employees, there can be no action to punish or deter. Certainly no social policy will be furthered by hindering the growth of businesses beyond that to which one man can personally attend. Without liability insurance coverage, a businessman can ill afford the risk of delegating responsibility to employees who may eventually commit some willful, wanton or malicious tort in the scope of his employment.

Nor is the situation changed by Mercury Motors’ addition of the element of “some fault” on the employer’s part. “Some fault” does not necessarily rise to the level of misconduct for which society demands punishment and deterrence. The existence of any liability insurance is a recognition that no one is infallible. When decisions are made, the possibility always exists that the choice will be an unfortunate one. When damages arise from that choice and when hindsight shows the choice to have been unreasonable or imprudent so as to make the decision-maker liable for those damages, that liability may be covered by insurance. Businessmen must daily make decisions and entrust responsibility to employees in order to keep the enterprise functioning. If “some fault” or simple negligence in making a managerial decision could result in an uninsurable liability for punitive damages arising from the acts of an employee, there is a genuine fear that few undertakings could survive the risks inherent in doing business.

This is not to say that an employer may always shift the responsibility to pay punitive damages to his insurer. If the employer’s fault is in the nature of willful and wanton disregard for the safety of others, the employer should be punished for his misconduct and public policy would prohibit shifting the liability away from the wrongdoer onto an insurance carrier. But in that case the punitive damages are imposed for the employer’s active negligence and his liability should not be characterized as vicarious. The nature of the liability must obviously depend upon the facts of each case and would require proper pleading and proof. See Dayton Hudson Corp. v. American Mutual Liability Insurance Co., 621 P.2d 1155 (Okl.1980).

Today’s decision reaffirms Florida’s recognition of the vicarious liability exception to the general rule that an insurer may not pay punitive damages. The facts of this case bring it within that exception, thus Hartford is liable for the punitive damages assessed against petitioner.

ADKINS, BOYD and SHAW, JJ., concur.

ALDERMAN, Chief Justice,

dissenting.

This case presents a dilemma. On the one hand, public policy generally precludes insuring against punitive damages. This is because such damages are intended to punish a defendant for his willful and wanton misconduct. He is not allowed to escape punishment by insuring against this risk. On the other hand, under our holding in Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), an employer may be held vicariously liable for punitive damages arising from the willful and wanton misconduct of its employees through the doctrine of respondeat superior if there is “some fault” on its part. In that situation, however, the employer can insure against the risk of vicarious liability for punitive damages.

In the present case, the majority concludes that the employer’s insurance company must pay the punitive damages award because the employer was not guilty of a willful and wanton disregard for the rights of others. At most, it was guilty of simple negligence and thereby became only vicariously liable for punitive damages resulting from its employee’s willful and wanton misconduct. I agree that if we retain the holding of Mercury Motors and its predecessors, then the conclusion of the majority is appropriate. An employer should be permitted to insure against any vicarious liability for punitive damages that may result from his simple negligence.

But why should an employer be held vicariously liable for punitive damages? If he is not guilty of willful and wanton misconduct, there are no public policy reasons to subject him to liability for punitive damages. Likewise, no public policy reasons are served by shifting to an insurer (and ultimately to society at large) the burden of paying an award of punitive damages based upon the vicarious liability of an employer. Either alternative is inconsistent with the purposes of punitive damages.

Certainly, the purpose of punitive damages is not to compensate the plaintiff, and any benefit the plaintiff receives from such an award is only incidental. In fact, the plaintiff has no right to punitive damages. St. Regis Paper Co. v. Watson, 428 So.2d 243 (Fla.1983). He has been fully compensated for his injury by the award of compensatory damages. From the point of view of the plaintiff, punitive damages are merely a windfall. The windfall is even greater when .plaintiff is permitted to look vicariously to the “deep pocket” of the employer.

I believe the only logical solution to the dilemma posed by these conflicting principles would be to hold that there is no vicarious liability on the part of an employer for punitive damages. To accomplish the purposes of punitive damages, the punishment should fall squarely on the shoulders of the wrongdoer. If an employer has been guilty of willful and wanton misconduct, he may be directly punished. If he has not been guilty of willful and wanton misconduct, he should not be held vicariously liable for punitive damages.

This is a matter of great importance in the area of tort litigation in this state, and I am hopeful that The Florida Bar’s recently created Tort Litigation Review Commission will carefully study this question and make a recommendation to the legislature to eliminate an employer’s vicarious liability for punitive damages.

OVERTON, Justice,

dissenting.

I dissent from the majority opinion. The majority view makes a charade of punitive damage legal principles and places the punishment for the wrongdoing on the public rather than on the wrongdoer. This decision has nothing to do with punishment. Neither the insurer nor the insured is guilty of willful or wanton misconduct, but the insurance company is required to pay the punitive damage award and the public is required to pay increased premiums while the one who engaged in the willful and wanton misconduct is not punished in any way. Establishing as a matter of public policy that additional damages beyond compensatory damages may be recovered against an employer’s insurance company for the willful and wanton misconduct of an employee should be left to the legislature. We should not camouflage such additional damages as punitive damages when the wrongdoer goes unpunished for the willful and wanton misconduct which caused the injury.

In his concurring opinion, Justice Ehrlich argues that where the employer is guilty of only simple negligence, it should be able to protect itself by shifting to its carrier the responsibility for paying punitive damages assessed because of the willful and wanton misconduct of an employee. I recognize that an employer should be able to protect itself from its simple negligence, but now, under the majority opinion, we find it is proper to advise a jury that they may assess punitive damages against the employer “as punishment and as a deterrent” for the conduct of its employee. In this type of circumstance, what evidence should be allowed to establish the financial condition of the employer? Should the limits of the insurance policy be part of the financial information submitted to the jury? We advise the jury that they “may consider the financial resources of such defendant in fixing the amount of such damages.” Since the purpose of punitive damages is both punishment and deterrence, it apparently would be proper to argue to the jury that they should award an amount of punitive damages sufficiently in excess of the policy limits so that the award would in fact be a punishment or a deterrent to the employer for his employee’s conduct. The problem is that in this situation punitive damages are being assessed against someone other than the wrongdoer.

My solution is to apply punitive damages, as they were originally intended, against the person or entity which committed the willful and wanton act. I would prefer to reconsider and recede from Mercury Motors but, given that decision, if punitive damages are going to be assessed in a case like this, and if the purpose of these damages is punishment and deterrence, they should be assessed against the employer rather than its insurance company. For that reason, I concur with Justice McDonald.

McDONALD, Justice,

dissenting.

In Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), this Court held that a corporate employer is not vicariously liable for punitive damages caused by the willful and wanton conduct of a driver of its vehicle unless, in addition to the driver’s misconduct, there is some fault or negligence by the employer. This separate fault of the employer, if coupled with wanton conduct of the employee, need not be of a willful or wanton nature to make the employer liable for punitive damages. We could, and perhaps should, have gone further and held that an employer was not liable for punitive damages arising from the willful and wanton misconduct of a driver of its motor vehicle unless the employer himself was guilty of some flagrant misconduct.

The instruction given by the trial judge in this case'was consistent with Mercury Motors. It followed the urging of plaintiffs’ counsel and was predicated upon a recitation of 25 C.J.S. Damages § 125(4) (1966). The plaintiffs’ complaint alleged that the employer knew its driver was tired due to excessive driving. They also urged at trial that, because of his history of accidents, the employer negligently' retained him as a driver. It was upon one of these allegations, coupled with the wanton conduct of the driver, that the jury predicated its award, which this Court affirmed. Bould v. Touchette, 349 So.2d 1181 (Fla.1977). It was urged in Bould that the punitive damages were improper because they were excessive and shared no rational basis with the compensatory damages. Those contentions were rejected.
Hartford’s policy of insurance provides: The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage.

Its policy specifically neither includes nor excludes punitive damages. I have a problem equating “punitive damages” to “damages because of bodily injury” and even without public policy ^considerations question coverage for punitive damages since those damages do not arise from bodily injury or property damage but rather as punishment for misconduct. In any event, since there was some complicity of U.S. Concrete Pipe which caused it to be subject to the punitive damages award, I am persuaded that the better view would be to hold that public policy prevents insurance protection for liability for punitive damages in this type of situation. To support this conclusion I cite with approval and adopt Nicholson v. American Fire & Casualty Insurance Co., 177 So.2d 52 (Fla.2d DCA 1965). That decision in turn cited Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir.1962), which I approve. I recognize that public policy does not prevent insurance coverage for punitive damages in instances where the liability is purely vicarious. I distinguish this by saying that in this case the jury found, as it was required to do, some personal involvement of the employer with the employee’s wanton conduct when it sent an employee who, because of his physical condition or driving habits, was prone to being involved in an accident. I repeat the following language in Northwestern:

The policy considerations in a state where, as in Florida and Virginia, punitive damages are awarded for punishment and deterrence, would seem to require that the damages rest ultimately as well [as] nominally on the party actually responsible for the wrong. If that person were permitted to shift the burden to an insurance company, punitive damages would serve no useful purpose. Such damages do not compensate the plaintiff for his injury, since compensatory damages already have made the plaintiff whole. And there is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, and considering the extent to which the public is insured, the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the insured.

Id. at 440-41. I would hold that U.S. Concrete Pipe alone, without the aid of insurance, should pay the punitive damages award.

OVERTON, J., concurs.

      . I am not unmindful that the bottom line of the Court’s holding brings into irreconcilable conflict two principles, namely, that punitive damages are designed to punish, but that when punitive damages may be insured against, there is no punishment. How is U.S. Concrete being punished when Hartford had to pay the puní-tive damage award? It isn’t, and the punitive damage award simply becomes an enhancement of damages to the plaintiff. This conflict can only be resolved by a holding that there can be no vicarious liability for punitive damages.

      . Fla.Std.Jury Instr. (Civ.) 6.12 reads as follows:
      If you find for (claimant) and find also that [the defendant] [any defendant whom you find to be liable to (claimant)] acted with malice, moral turpitude, wantonness, wilfulness or reckless indifference to the rights of others, you may, in your discretion, assess punitive damages against such defendant as punishment and as a deterrent to others. If you find that punitive damages should be assessed against [the] [any] defendant, you may consider the financial resources of such defendant in fixing the amount of such damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant in different amounts].

      . Id.

      In Bould v. Touchette, 349 So.2d 1181 (Fla.1977), we noted that the punitive damages award here amounted to 6.2% of the net worth of U.S. Concrete Pipe and was consistent with the policy of hurting, but not bankrupting, one for conduct resulting in punitive damages.