author: TYSON, Judge.

text:
    Charles O. TRAHAN v. STATE of Alabama.
    1 Div. 672.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.

      S.J. Laurie, Chatom, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Charles O. Trahan was charged in two indictments with the first degree murder of Jimmy Ray Foster by shooting him with a rifle in violation of § 13A-6-2, Code of Alabama 1975 and in the second indictment with theft of property in the first degree. Upon motion of the District Attorney, the two cases were consolidated for trial. The jury found the appellant not guilty of the offense of theft of property. However, the jury found the appellant guilty of murder as charged in the indictment. Following a sentencing hearing, the trial court set sentence at life imprisonment in the penitentiary.

On the morning of October 1, 1982, Jimmy Ray Foster, the victim in the ease, had gone with his business partner, one Leon Collins, to pick up payment from Scott Paper Company for a load of logs which he had delivered to them. The two men received a check for $313.20 and then went and cashed this check, took $24.00 from the proceeds and paid a laborer, one Mike Parnell, then agreed to divide the monies three ways between Foster, Collins and the appellant, Charles O. Trahan. In route home, Foster and Collins stopped and purchased some beer and then Foster dropped Collins at his home and Foster returned to his own home. Shortly after Foster had left that morning, his wife, Donnie Foster, left home to go to a flea market which was about 100 yards away from the Foster home. After she left, the appellant, who had been living with the Fosters and Mrs. Foster’s mother, one Mrs. Creóla Roberts, also departed. The appellant left and went into Grove Hill to purchase some tags for his vehicle and then returned. When the appellant returned to the Fosters’ home only two persons were present, the victim, Jimmy Ray Foster, and his mother-in-law, Mrs. Roberts.

Upon his return, Trahan asked Foster for his part of the proceeds for the sale of the logs which they had cut during the prior week. Foster was in a bad humor and cursing and had drunk two beers. Foster told Trahan to leave the house, to get his belongings, rifles and whatever other properties he had and leave. Trahan then went into the room where he had been staying to gather up his belongings and Foster threw Trahan’s part of the money on a table, cursing.

Mrs. Roberts stated that she tried to calm the men down, but started out of the house as she was elderly, calling for her daughter. She heard a loud “boom” sound which knocked her into a chair, she stated. When she looked around she saw Foster lying on the floor and the appellant with a gun.

According to the appellant, he had returned into the room where Foster was, with his suitcase and two rifles. He stated that he dropped the .30-30 rifle, breaking the sight. He then leaned a .22 rifle he was carrying against the wall near a refrigerator and sat down at the table to see if he could repair the sight on the .30-30 rifle. He stated that the argument then developed between him and Foster over the money.

Trahan testified that he saw Foster stand up and move as though he were reaching for the .22 rifle which was against the wall. Trahan stated that he then lifted up the .30-30 rifle, cocked it and told him, “No, no,” but Foster moved toward the other gun and that, as he was holding the rifle, Mrs. Roberts bumped him and the rifle went off. Mrs. Roberts testified she was leaving the room going out of the door when the rifle went off.

The toxicologist’s testimony indicated that the victim, Jimmy Ray Foster, was shot once with a .30-30 rifle bullet which passed between his eyes and caused instant death.

Trahan, realizing that Foster was dead, testified that he became frightened, took the monies that had been given to him by Foster, grabbed the two guns and the suitcase and put them in a truck and left the premises. He later abandoned the vehicle and contacted his relatives within a two month period and subsequently turned himself in to the FBI. Trahan was returned to Washington County for trial.

I

The appellant contends the trial court erred in consolidating the two indictments for trial in this cause. Rule 15.3 Temporary Rules of Criminal Procedure of Alabama, reads as follows:

“(a) Joinder. Two or more offenses may be joined in an indictment, information, or complaint, if they:
“(i) are of the same or similar character; or
“(ii) are based on the same conduct or otherwise connected in their commission; or
“(in) are alleged to have been part of a common scheme or plan.”

Offenses which are based on the same conduct or otherwise connected in their commission may be joined as herein-above noted. Likewise, acts or declarations, which are a part of the res gestae or were substantially contemporaneous and so closely connected that they illustrate one and the other, are properly admissible as part of the res gestae or to, in effect, show one continuous transaction or to give the entire picture. Since the two offenses were so closely related and arising from the same continuous course of conduct, we see no error in the trial court’s joining the two offenses. See Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

Moreover, the same jury found the appellant not guilty of the theft of property charge. We see no error.

II

Prior to trial, the appellant filed a motion for a change of venue alleging widespread publicity concerning the offense at issue in the various media.

As noted by this court in Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983), the trial judge heard all the evidence and the arguments with reference to this change of venue motion, and determined that the climate was not one of inherent prejudice against this appellant and that a fair and impartial trial could be provided in Washington County. This determination of whether or not to grant a change of venue is a matter generally left to the sound discretion of the trial court. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Turner v. State, 410 So.2d 458 (Ala.Cr.App.1981). This is generally the law because the trial court is in the best position to weigh the evidence and “evaluate the prejudicial atmosphere” surrounding the accused’s case. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977). As was the case in Burnett, 350 So.2d at 722:

“It is to be noted that the trial judge was presiding in his own circuit and was not a visiting judge. He, in a sense, was at home and no doubt was familiar with existing sentiment in the county and the extent of any hostile atmosphere toward defendant, to the end that it might preclude him from obtaining a fair trial and an unbiased verdict. [Citations omitted.] The trial judge was in a position to evaluate any existing sentiment adverse to defendant’s right to a fair and unbiased jury panel to try his case.”

Consequently, we have reviewed the change of venue evidence in search of any clear or gross abuse of discretion on the part of the trial court and have found none. Botsford v. State, supra; McLaren v. State, 353 So.2d 24 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977). Prom our review, we have concluded that, although the appellant zealously and earnestly tried to establish, through witnesses, news media accounts, and arguments, that the “general citizenry” of Washington County was prejudiced against the appellant, himself, the evidence presented does not demonstrate any popular passion or prejudice against this appellant that might have prevented him from receiving “a fair and impartial trial.” Mathis v. State, supra; Botsford v. State, supra; McCray v. State, 395 So.2d 1057 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1062 (Ala.1981). See also, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) and Carroll v. State, 440 So.2d 343 (Ala.Cr.App.1983) and authorities therein cited.

Ill

The appellant’s contention that the jury was improperly allowed to separate during trial is without merit.

Section 12-16-9(d) states: (Code of Alabama 1975 as amended 1982).

“In the prosecution of any noncapital felony the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, provided that the court may at any time on its own initiative or on motion of any party, require that the jury be sequestered under the charge of a proper officer whenever they leave the jury box or the court may allow them to separate. A motion to separate or sequester shall not be made within the hearing of the jury and the jury shall not be informed which party, if any requested separation or sequestration. (Acts 1943, No. 384, p. 358; Acts 1982, No. 82-566.)”

There is no presumption that an accused is prejudiced by allowing the jury to separate. See, Reeves v. State, 432 So.2d 543 (Ala.Cr.App.1983).

In the case at bar, the appellant was being tried for first degree murder which is not a capital offense. The trial judge was careful at each recess and on conclusion of each day’s proceedings to carefully charge the jury not to discuss the case with anyone or to have any contact with any news media or any of their friends or acquaintances during the trial. There is no contention or showing nor was there any effort made during the trial to demonstrate that anyone contacted any of the jurors or that they were, in fact, influenced by anything written or spoken through any media. We have carefully examined this record and find that the appellant has failed to demonstrate to this court that he was prejudiced by reason of the failure of the trial court to require sequestration of the jury in this cause. Therefore, we can find no error with reference this contention. Willis v. State, 441 So.2d 1030 (Ala.Cr.App.1983).

IV(a)

The appellant calls attention to the excu-sal by the trial judge of Mrs. Lois Grimes as a juror during the course of the trial due to the death of a family member. (R. 166-167).

“THE COURT: This is Mrs. Lois Grimes. I believe your husband’s family member died today?
“MRS. GRIMES: On his side of the family-
“THE COURT: You need to go to Andalusia tomorrow; is that correct?
“MRS. GRIMES: That’s where the funeral will be.
“THE COURT: Mrs. Grimes has asked that the Court excuse her due to the death in the family and if ya’ll want to have any comment for the record, you may do so, anybody want to comment?
“MR. McPHEARSON: Judge, that’s fine with us.
“THE COURT: We have two alternate jurors. Due to the death in her family the Court feels it only fair she be excused for tomorrow. Mrs. Grimes, I’m going to excuse you. I believe John said you needed off tomorrow and Wednesday?
“MRS. GRIMES: I didn’t get to talk to him.
“THE COURT: I’m going to excuse you for this case. You will not have to come back tomorrow. If you can be back Wednesday fine, if not we will see you Thursday. We will excuse Mrs. Grimes due to the death- in her family.
“MR. LAURIE: For the record enter an objection.
“THE COURT: Show the objection, the Defendant objects to the Court excusing juror Lois M. Grimes.
“(The PROCEEDINGS WERE RECESSED FOR THE DAY.)”

As noted above, two alternate jurors were selected just before trial.

It is clear from examining the above colloquy that the trial judge realized that Mrs. Grimes was required to attend the funeral in her family. This was not an abuse of the discretion of the trial judge in so ruling. Winstead v. State, 53 Ala.App. 222, 298 So.2d 642 (1974), cert. denied, 292 Ala. 761, 298 So.2d 646 (1974).

The applicable Alabama Statute authorizes the trial court in its discretion to excuse jurors when they are no longer able to perform their duties. Such is clearly the case in the instance above set forth. We find no error. United States v. Smith, 550 F.2d 277 (5th Cir.1977), cert. denied Wallace v. United States, 434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105 (1977).

IV(b)

At the hearing on the appellant’s motion for new trial, his attorney presented the testimony of one Freda Nichols (R. 322-327), who was the sister of the appellant, Charles Trahan. Mrs. Nichols testified that she recognized one of the jurors who served at trial as a Mrs. Paralee Woodyard.

Mrs. Nichols testified that she recognized Mrs. Woodyard because she had seen her on five or six occasions some five or six years previously when the victim Jimmy Ray Foster and his wife, Donnie Foster, operated a small store from a trailer which they owned at that time. Mrs. Nichols indicated that Mrs. Woodyard would have known the victim in the case from having gone in the store on several occasions. In response to question, Mrs. Nichols estimated that she had seen Mrs. Woodyard in the store perhaps four or five times, maybe a half dozen. (R. 326).

The District Attorney indicated he had been unable to subpoena Mrs. Wood-yard but that, based upon the testimony presented, this was such a casual acquaintanceship that he did not believe it necessary to present any testimony on this point. The trial court found no error or prejudice by virtue of this slight acquaintanceship. We think the trial court’s ruling on the motion for new trial in this respect was entirely correct. Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973) and authorities therein cited. See also, Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969).

V

The appellant asserts as error that the trial court should not have admitted the testimony of Mrs. Creóla Roberts, the mother-in-law of the victim and grandmother of the appellant in this cause.

A preliminary hearing had been conducted in this cause at which Mrs. Roberts had testified and been cross-examined, in fact, by the appellant’s counsel, who also represented appellant on trial and on this appeal.

This point is discussed in Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837 (1950), cert. denied, 254 Ala. 74, 46 So.2d 847 (1950), where the court stated:

“The testimony of a witness at a former trial is admissible in a second trial when at the time the witness is dead, under disability, is permanently absent from the State, or becomes unavailable by reason of claim or privilege at the second trial.” (Authorities omitted).

See also, Parker v. State, 51 Ala.App. 362, 285 So.2d 526 (1973), cert. denied, 291 Ala. 795, 285 So.2d 529 (1973).

In the case at bar, Mrs. Roberts had testified at preliminary and her testimony from the preliminary hearing was read into the record, over the objection of the appellant. In this cause, the appellant’s counsel was given full opportunity to cross-examine Mrs. Roberts and did so and we find no error as this was an adequate transcription of the preliminary hearing of her testimony. Mrs. Roberts had died between the time of the preliminary hearing and the trial in chief in this cause. We see no error. Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), affirmed, 426 So.2d 896 (Ala.1982).

We are of the opinion that the appellant has failed to show here that he has “suffered prejudice”, constituting actual injury, by the use of Mrs. Roberts’ testimony at the trial in chief. See also, Bryant and Williams v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 289 Ala. 740, 272 So.2d 297 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1973).

VI

The appellant next asserts as error that, in his pretrial motion for discovery, he requested copies or that he be allowed to examined all photographs made at the crime scene or of the victim. The trial court had granted this request in its original ruling. Prior to trial, the court made inquiry of the prosecution as to whether they intended to introduce photographs of the body and of the crime scene, to which the District Attorney replied, “Yes, sir.” (R. 15). The trial court at that point directed the District Attorney to show them to the defense counsel and that they should be made available to him that day, meaning the day of trial. It was brought out in its discussion with the trial court that the District Attorney had originally requested that these photographs be available before trial and be sent to his office. However, it was only discovered a day or two before trial that the photographs had not been developed and the District Attorney then called the Mobile Crime Lab and asked that they be sent up immediately. At trial the District Attorney indicated that he received the photographs on the morning of trial, just before the trial started, and that these were made available to defense counsel for him to look over.

Moreover, these photographs were simply cumulative of the testimony and in corroboration of the testimony of Mrs. Roberts and the appellant himself. They simply showed the entrance wound on the body of the victim and the location of the furniture within the kitchen of the house where the shooting took place.

Mere gruesomeness of photographs which simply tend to corroborate the location of the wound are not to be rejected as evidence merely for these reasons. Means v. State, 51 Ala.App. 8, 282 So.2d 356 (1973), cert. denied, 291 Ala. 792, 282 So.2d 359 (1973) and authorities therein cited; Ellenburg v. State, 353 So.2d 810 (Ala.Cr.App.1977). We find no error in the admission by the trial court of the photographs, nor do we find that any prejudice resulted from the failure of the District Attorney to have these photographs available to be inspected before the morning of trial.

VII

The appellant contends that the State failed to establish a proper chain of custody as to the .30 caliber bullet fragment and jacket which had been removed from the skull of the victim.

We find from the examination of the testimony of Richard Dale Carter, the firearms examiner, that he had, in fact, received this from Dr. LeRoy Riddick who had removed the bullet from the skull of the victim. Mr. Hardin had also established that he received this from Mr. Carter. In examining this record we find that a proper chain of custody was established by the State and therefore the bullet which caused the death of the victim was properly admitted into evidence. Williams v. State, 375 So.2d 1257 (Ala.Cr.App.1979), cert. denied, Williams v. State, 375 So.2d 1271 (Ala.1979).

VIII

Appellant asserts as error that the trial court failed to give certain of his written requested charges. Record 298-299 reveals the following:

“THE FOLLOWING OCCURRED OUTSIDE THE PRESENCE OP THE JURY.)
“THE COURT: Any exceptions other than not giving your requested charges?
“MR. LAURIE: The Defendant objects to the Court’s refusal to give Defendant’s requested charges one, two, three, four, five, seven, eight, nine, ten, eleven, twelve, fifteen, sixteen and seventeen based upon the grounds that they are true statements of the law and that the Defendant is entitled to have them given to the jury in this case.
“MR. McPHEARSON: No objections, Judge, the Court was outstanding in its charge.”

As noted above, the appellant objected to the court’s refusal to give the written charges, but in no wise did the appellant state any specific grounds for his objection to this refusal.

Where a defendant objects to the trial court’s refusal or omission to charge on a particular subject, as above, the proper procedure is to request a written charge. Hollis v. State, 399 So.2d 935 (Ala.Cr.App.1981). However, upon the court’s refusal to so charge, the defendant must both call the tria] court’s attention to the specific refused written charge and set out specific grounds for his objection to the refusal of such charge. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982). Because appellant failed to set forth any grounds for his objection, this matter is not before the court for review. Allen, supra.

Moreover, we have examined the refused charges carefully, and find that they were either fully and adequately covered by the oral charge or other given charges, and were therefore repetitious, or were affirmative in nature, or invasive of the province of the jury, or not properly based upon the applicable law. Section 12-16-13, Code of Alabama, 1975. We find no error.

IX

Finally, the appellant argues that the sentence given by the trial judge was too severe and amounted to an abuse of the trial court’s discretion. The appellant states that to sentence him to life imprisonment is to impose harsh and cruel punishment.

We do not agree. It is within the permissible'limit of the statute for first degree murder to sentence the appellant to life imprisonment. It is not within the jurisdiction of this court to review sentences which are set within statutory limits. Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958); also, Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.1979), cert. denied, 367 So.2d 590 (Ala.1979).

We have carefully examined each issue raised by the appellant on this appeal and find no merit in his contentions. We have examined this record and find it free of error. The judgment of the trial court is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHAW, Justice. BOYD, Justice, OVERTON, Justice, McDONALD, Justice,

license: Public Domain

text:
    BELCHER YACHT, INC., Belcher Yacht Sales, Inc., Carl Edward Herner and Lloyds Insurance Group, Petitioners, v. Thomas J. STICKNEY, Jr., Respondent.
    No. 63182.
    Supreme Court of Florida.
    May 3, 1984.
    Rehearing Denied July 3, 1984.
    James L. Dennis of Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, for petitioners.
    Edward A. Perse of Horton, Perse & Ginsberg, and James Dougherty, Miami, for respondent.
   SHAW, Justice.

Petitioners seek review of a decision of the District Court of Appeal, Third District. Stickney v. Belcher Yacht, Inc., 424 So.2d 962 (Fla. 3d DCA 1983). The third district certified the appeal as passing on a question of great public importance. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. The question certified is:

WHETHER SECTION 767.04, FLORIDA STATUTES (1979) SUPERSEDED THE COMMON LAW AND NOW PROVIDES THE EXCLUSIVE REMEDY IN A DOG BITE ACTION BROUGHT BY AN ECONOMIC INVITEE AGAINST A BUSINESS ESTABLISHMENT WHICH OWNS THE DOG.

424 So.2d at 967. For reasons set forth below, we answer the question in the affirmative.

Belcher Yacht, Inc. and Belcher Yacht Sales, Inc. (Belcher) operate a marina where yachts were sold, serviced, docked, and stored. The place of business was enclosed by a chain link fence with a rear and front gate. Customers coming to the business on Sundays were instructed to use the rear gate near a guardhouse. For years Belcher had one or more dogs about the premises for security reasons and as companions for the round-the-clock security guards. Some thirty or sixty days prior to the incident that initiated the present litigation, Belcher acquired “Duke,” a mixed breed older dog with the appearance of a German shepherd. It was established at trial that Duke had “some kind of training” as an attack dog and was kept tethered on a leash between fifteen to twenty-five feet long. None of Belcher’s security guards, including Herner who was the guard on duty at the time of the subject incident, had been given any security guard training or instructions with regard to handling attack dogs.

On the morning of August 10, 1980, respondent Stickney and some companions went to the Belcher premises to take Stick-ney’s boat out for a fishing trip. After boarding the yacht, Stickney discovered that the keys were missing. He walked over to the security guard, Herner, to see if the keys had been left with a guard as was the custom. Duke, who was standing nearby, bristled and growled as Stickney approached the guardhouse. Herner came out of the guardhouse, grabbed the dog by the collar, and smacked him on the rear. The dog responded by sitting down behind Herner quietly, but as Stickney spoke with Herner the dog suddenly sprang forward, biting Stickney in the crotch and causing severe testicle injuries. A “BEWARE OF DOG” sign was prominently posted on the outside fence surrounding Belcher’s premises.

Stickney’s amended complaint stated both a statutory and common law cause of action. The defendants, in their answer, raised contributory/comparative negligence as an affirmative defense. Following the presentation of evidence, the defendants moved for a directed verdict and, after argument of counsel, the motion was granted. Separate judgments were rendered in favor of Herner and Belcher. Stickney was allowed to file one notice of appeal directed toward both judgments.

In light of Stickney’s admission that he had seen and understood the “BEWARE OF DOG” sign, the district court held that the trial court correctly determined that there was no issue of fact on the statutory claim and a directed verdict on that claim was appropriate.

We agree with the district court’s holding on this issue insofar as it applies to the dog owner, Belcher, but note that section 767.04 pertains only to the owner. It is silent as to the custodian or keeper of a dog who is not the owner. It neither creates liability on the part of Herner nor exonerates him because of the posted sign.

The district court decision addresses the issue of whether section 767.04 is an alternative to rather than an abrogation of the common law. In addressing this issue the district court recognized that Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla.1978) and Carroll v. Moxley, 241 So.2d 681 (Fla.1970), hold that section 767.04, Florida Statutes (1979), superseded the common law in those situations covered by the statute. The court then attempts to distinguish the instant case (dog bites business invitee) by pointing out that prior case law does not support the conclusions reached in Donner and Carroll.

The district court expresses concern that if Florida’s dog bite statute is considered an exclusive remedy it would vitiate needlessly the distinction between the degree of care owed by a landowner to a visitor who is an invitee and one who is a trespasser where the danger on the premises happens to be a dog. In order to illustrate the point more graphically, the court presents the “hair-raising” scenario of a dog owner posting signs inviting the public onto his land to do business, and when a member of the public accepts the invitation and is mauled by a large attack dog, the owner avoids liability because he has posted another smaller and inconspicuous sign which reads “BEWARE OF DOG.”

To assuage some of the fears raised by such a specter, we can only point out that the statute cuts two ways: it imposes absolute liability upon the dog owner when the dog-bite victim is in a public place or lawfully on or in a private place except when the dog is carelessly or mischievously provoked or when the owner had displayed in a prominent place on the premises a sign easily readable including the words “Bad Dog.” We can easily envision situations where a jury might be called upon to decide whether the victim was lawfully on the land, whether he provoked the dog, whether the sign was placed in a prominent place on the premises, whether the sign was easily readable, or whether there was in fact a sign. This is not such a case. We see no useful purpose to be served by reviewing the common law requirement of scienter (every dog has one free bite), and tracking its statutory progeny through absolute liability to the present day evolution which imposes liability with certain statutory exceptions. The district court opinion and the briefs ably track this progression. Carroll and Donner, decided thirteen and five years ago, respectively, placed the legislature on notice that section 767.04, Florida Statutes, enacted in 1949, superseded the common law on dog bites. There has been no action by the legislature to amend this law and we are not disposed to revisit the issue. In order to obviate further confusion, we expressly overrule any earlier decisions of the district courts of appeal to the contrary and recede from any decisions of this Court to the degree they appear to conflict with this opinion.

As we noted above, section 767.04, Florida Statutes (1979), applies only to the dog owner. It “supersedes the common law, only in those situations covered by the statute.” Carroll, 241 So.2d at 682. Thus, Herner is potentially liable for his alleged negligence.

Accordingly, the portion of the district court of appeal decision that relates to Belcher’s common law cause of action is quashed; the portion of the decision reversing and remanding for a new trial regard; ing Herner’s liability for alleged negligence is approved.

It is so ordered.

ALDERMAN, C.J., and ADKINS, EHRLICH and SHAW, JJ., concur.

BOYD, J., concurs in part and dissents in part with an opinion.

OVERTON and McDONALD, JJ., dissent with opinions.

BOYD, Justice,

concurring in part and dissenting in part.

I concur with the majority’s holding that section 767.04, Florida Statutes (1979), supersedes the common law and in this case absolves Belcher Yacht, Inc., and Belcher Yacht Sales, Inc., of any liability. However, I dissent to that portion of the majority opinion which holds that Carl Herner is potentially liable for his alleged negligence and its remanding the case for a new trial on Herner’s liability. Since Herner was acting as an agent, he should share the same statutory privilege as his employer.

It is axiomatic that an agent enjoys the same statutory privileges as his principal with respect to the duty of care owed to third persons. See Rollins Leasing Corp. v. Lovette, 198 So.2d 865 (Fla. 1st DCA), cert. denied, 201 So.2d 896 (Fla.1967); Restatement (Second) of Agency § 347 (1958); W. Seavey, The Law of Agency § 129 (1964). In this case the duty of care owed by Herner’s employer was reduced by statute with the posting of the sign warning visitors about the presence of a bad dog. As an employee, Herner was acting as an agent for his employer and therefore should have the same statutory duty of care. Since Herner’s employer was absolved of any liability by its posting of the sign, Herner should also be held absolved of any liability. I would therefore quash the decision of the district court of appeal in its entirety and remand with instructions that the trial court’s order directing a verdict for the petitioners (i.e., the defendants) be reinstated.

OVERTON, Justice,

dissenting.

I dissent. I recognize that the majority decision is consistent with Donner v. Arkwright-Boston Manufacturers Mutual Insurance Co., 358 So.2d 21 (Fla.1978), and Carroll v. Moxley, 241 So.2d 681 (Fla.1970), which held that chapter 767 superseded the common law in those situations covered by the statute. I believe, however, that a more reasonable construction is that chapter 767 creates a statutory alternative cause of action and was not intended to repeal the right to a common law negligence action. The unjust result in this case clearly was not the intent of the legislature when it adopted chapter 767. For a related issue, see Jones v. Utica Mutual Insurance Co., No. 61,681 (Fla. May 3, 1984) (Overton, J., dissenting).

I would answer the certified question in the negative, allow a common law cause of action, and approve the result reached by the district court.

McDONALD, Justice,

dissenting.

I dissent because I believe that the certified question should be answered in the negative and that the district court’s opinion should be approved. The only effect of posting a sign warning of a bad dog is to negate the strict liability resulting from ownership of a dangerous dog. This negation, however, should not be held to affect common law liability because all persons, including dog owners, have the duty to use reasonable care. The petitioners may have breached their duty here, and the district court correctly ruled that this theory of liability could, and properly should, be presented to the jury.

      . Liability of owners. — The owners of any dog which shall bite any person, while such person is on or in a public place, or lawfully on or in a private place, including the property of the owner of such dogs, shall be liable for such damages as may be suffered by persons bitten, regardless of the former viciousness of such dog or the owners’ knowledge of such viciousness. A person is lawfully upon private property of such owner within the meaning of this act when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon invitation, expressed or implied, of the owner thereof; provided, however, no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage; nor shall any such owner be so liable if at the time of any such injury he had displayed in a prominent place on his premises a sign easily readable including the words "Bad Dog.” § 767.04, Fla. Stat. (1979).

      . Compare with section 767.05, Florida Statutes (1979), which specifically refers to "an owner or keeper of any dog_"


author: SHAW, Justice.

text:
    DANIA JAI-ALAI PALACE, INC., Carrousel Concessions, Inc., and Saturday Corporation, Petitioners, v. Gladys SYKES, Respondent.
    No. 63394.
    Supreme Court of Florida.
    May 3, 1984.
    Rehearing Denied June 27, 1984.

      • Guy B. Bailey, Jr. and Sara Soto of Bailey & Dawes, Miami, for petitioners.
    Gilbert A. Haddad of Haddad, Josephs & Jack, Coral Gables, for respondent.
   SHAW, Justice.

This cause is before the Court on petition for review based on grounds of express and direct conflict between the decision of the district court below, Dania Jai-Alai Palace, Inc. v. Sykes, 425 So.2d 594 (Fla. 4th DCA 1982), and numerous decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Dania Jai-Alai Palace, Inc. (Dania) owns and operates a jai-alai fronton. Certain aspects of the business, including valet parking, are handled by a sister corporation, Carrousel Concessions, Inc. (Carrousel). Both Dania and Carrousel are wholly owned subsidiaries of Saturday Corporation (Saturday). Respondent Sykes arrived at the fronton on 15 December 1977. Respondent pulled into a short line of cars awaiting parking and purchased a parking ticket from a Carrousel attendant. Respondent alighted from her car and the attendant entered the car to park it. Respondent walked to the front of her car and turned right, between her car and the car ahead, toward the fronton entrance. Simultaneously, the attendant shifted the car into drive, saw respondent in the space (approximately four feet) between the two cars and attempted to brake. His foot slipped from the brake onto the accelerator and the car moved forward, crushing respondent between the two cars.

Respondent sued all three corporations. The theories of her case were that Carrousel was liable for the negligence of its parking attendant and for independent negligence, that Dania was liable under alternative rationales of premises liability, apparent agency or single business entity, and “alter ego” or “mere instrumentality,” and that Saturday was liable because Carrousel and Dania were its mere instrumentalities. At the conclusion of the evidence, the trial court directed verdicts against Carrousel on employee negligence, against Dania'on finding that the public had been led to believe the fronton was a single entity, and in favor of respondent on the issue of comparative negligence. The trial court submitted the issues of Saturday’s liability for the acts of its subsidiary corporations and the amount of respondent’s damages to the jury. The jury returned a verdict against Saturday and the two subsidiary corporations for $775,000.

On appeal, the district court affirmed the judgment against Carrousel for the negligence of its employee on the basis that there is a rebuttable presumption of negligence when the driver of a vehicle strikes another vehicle in the rear. Brethauer v. Brassell, 347 So.2d 656 (Fla. 4th DCA 1977); Lincoln v. Miggins, 249 So.2d 88 (Fla. 3d DCA 1971). We have no quarrel with the district court’s statement of the law, but find it inapplicable to the facts of this case. Petitioners were sued by respondent, who walked between the two cars, not by the driver of the car ahead which was struck from the rear. In this connection, we note that the district court reversed the trial court’s directed verdict finding that respondent was not comparatively negligent in walking between the two cars. This suggests that respondent might have prevented the accident by not walking between the cars. The basis for the rebuttable presumption is that the driver of the struck vehicle could have done nothing to prevent the collision. The presumption is inapplicable to a pedestrian who might have prevented the collision. We quash the district court’s holding on this point.

The district court affirmed the judgment against Saturday on the ground that Carrousel and Dania were mere instrumentalities of Saturday and that it was not necessary to establish fraud or other wrongdoing on the part of Saturday under the mere instrumentality doctrine. At trial, respondent’s counsel stipulated that there was no wrongdoing or fraud involving Saturday and that the theory of respondent’s case was that the mere instrumentality doctrine alone, without improper conduct, was sufficient to permit piercing of the corporate. veil. The issue of whether, as a matter of law, it was necessary to show wrongdoing or fraud on the part of Saturday in order to pierce the corporate veil was thus squarely posed. The district court recognized that there were conflicting lines of cases on this point, but relied on Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982), and the cases cited therein (Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973); Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971); Barnes v. Liebig, 146 Fla. 219, 1 So.2d 247 (1941); Mayer v. Eastwood-Smith & Co., 122 Fla. 34, 164 So. 684 (1935)), for the proposition that it is not necessary to show improper conduct in order to pierce the corporate veil. We acknowledge that there is language in this line of cases which seems to support the holding of the district court, but find on closer examination that each of them is distinguishable on fact or law from the present case.

In Vantage View, the district court reversed a trial court’s dismissal for failure to state a cause of action against a parent corporation for the acts of its subsidiary. The court grounded its reversal on the mere instrumentality doctrine alone, without improper conduct. The court’s justification for piercing the corporate veil ignores salient facts upon which it prefaced its analysis:

We said earlier that the ultimate facts alleged by appellant are: (1) the parent established the subsidiary as a mere instrumentality and a sham; and (2) the parent did so to mislead creditors and to avoid liability.

Vantage View, 421 So.2d at 733 (emphasis supplied). Thus, there was clearly an allegation of improper conduct on the part of the parent corporation. The issue which the court posed for itself was hypothetical and its answer dicta. However, its decision was correct because allegations of mere instrumentality and improper conduct clearly state a cause of action.

In Mayer, the seminal case on which the district court relied, an individual (Olds) loaned certain valuable bonds to a corporation in return for 25% of the net profits of the corporation. All of the stock of the corporation was given to Olds to hold as security for the amounts due him. When the corporation went bankrupt, Olds was sued for its debts under various theories: partnership; wholly owned corporation controlled by and run in interest of Olds; joint adventure; and undisclosed principal. All of these theories were rejected on the facts. In examining whether Olds used the corporate vehicle as a fiction to conceal his liability, we relied on Biscayne Realty & Insurance Co. v. Ostend Realty Co., 109 Fla. 1, 148 So. 560, 564 (1933).

So long as proper use is made of the fiction that corporation is entity apart from stockholders, fiction will not be ignored * * *. Where stockholders enter into a transaction in individual interests and utilize corporate name merely to mislead creditors or perpetrate fraud, legal entity will be ignored and stockholders held individually liable . The rule that corporate entity will be disregarded where name of corporation is used by stockholders in transactions to mislead creditors or perpetrate fraud on them is but a logical sequence of the principle that a corporation cannot be formed for the purpose of accomplishing fraud or other illegal act, under the guise of fiction that the corporation is legal entity separate and distinct from its members, since when fraud or illegal act is attempted, fiction will be disregarded by the court and the acts of the real parties dealt with as though no corporation had been formed.

Mayer, 122 Fla. at 42-43, 164 So. at 687. We then went on:

The overwhelming weight of authority is to the effect that courts will look through the screen of corporate entity to the individuals who compose it in cases in which the corporation was a mere device or sham to accomplish some ulterior purpose, or is a mere instrumentality or agent of another corporation or individual owning all or most of its stock, or where the purpose is to evade some statute or to accomplish some fraud or illegal purpose.
Nothing like that exists in this case. Mr. Olds was not one of the individuals composing that corporation; he owned none of the stock, and, in the end, he merely held the stock as security and never made use of or claimed any ownership in it. There is no evidence of any purpose on the part of Mr. Olds to evade any statute or accomplish any fraud. Nor did the evidence show any other illegal design or purpose. He did not direct the transaction with the plaintiff, nor is there any evidence that he even knew of any such deal until long after it was consummated.
Nor was Olds any more a joint adventurer then [sic] he was a partner. Drew v. Hobbs, 104 Fla. 427, 140 Sou.Rep. 211; Tidewater Const. Co. v. Monroe County, 107 Fla. 648, 146 Sou.Rep. 209; Willis v. Fowler, 102 Fla. 35, 136 Sou.Rep. 358.

Id. at 43-44, 164 So. at 687 (emphasis supplied).

A close reading of the above excerpt leads to several conclusions. First, Biscayne Realty & Insurance Co., on which we relied in Mayer, requires improper action on the part of the corporation or its members before the corporate veil may be pierced. Second, the reference to “or is a mere instrumentality” (emphasis supplied) is drawn from unspecified authority. Its significance goes to the factual issue of whether Olds owned all or any of the corporate stock and the legal issues or theories of whether Olds was a stockholder, a partner, a joint adventurer, or an undisclosed principal. We found that Olds owned none of the stock, held it only as security, never made use or claimed ownership of the stock, and did not commit any improper act. In other words, Olds had no relationship with the corporation under any theory that would warrant holding him liable for the debts of the corporation and had not committed any improper act. This reading of Mayer is supported by Riesen v. Maryland Casualty Co., 153 Fla. 205, 14 So.2d 197 (1943), where we directly faced the question of whether the corporate veil could be pierced without a showing of improper conduct and reiterated that in Biscayne Realty & Insurance Co.:

[T]his Court held that so long as proper use is made of the fiction that a corporation is an entity apart from its stockholders, the fiction will not be ignored, yet where stockholders enter into a transaction in their individual interest and utilize the corporate name merely to mislead creditors or perpetrate a fraud, the legal entity will be ignored and the stockholders held individually liable.

Riesen, 153 Fla. at 208, 14 So.2d at 199.

In analyzing Barnes, the Vantage View court mispereeived the issue. The issue was not whether the alter ego theory required a showing of improper conduct, but rather “whether liability of a corporation can be predicated on the alter ego theory in an action at law, or whether this doctrine is exclusively an equitable one.” Barnes, 146 Fla. at 235, 1 So.2d at 253 (emphasis supplied). Looking more closely at the Alabama case on which the Barnes court relied, we see that the two corporations were a sham, that the negligent employee worked for both corporations, and that the ambulances, hearses, and other properties of the two corporations were used interchangeably without regard to corporate identity. In other words, the stockholders and the corporations improperly disregarded the corporate identities. The Vantage View court overlooked the fact that the Barnes court also cited a Florida case which explicitly stated that wrongdoing must be shown before the corporate veil may be pierced, and that the action may be maintained at law as well as equity.

In the case of Bellaire Securities Corp. v. Brown, 124 Fla. 47, 168 So. 625, we quoted with approval from Professor Wormser’s treatise on “Disregard of the Corporate Fiction,” page 84, reading in part as follows:
“When the conception of corporate entity is employed to defraud creditors, to evade an existing obligation, to circumvent a statute, to achieve or perpetuate monopoly, or to protect knavery or crime, the courts will draw aside the web of entity, will regard the corporate company as an association of live, up-and-doing, men and women shareholders, and will do justice between real persons. This is particularly true in courts of equity, but finds many illustrations in courts of law as well, for it must not be thought that ‘Our Lady of the Common Law, ’ is not sufficiently powerful to explode sophistry or scholastic theory where used as a cloak for wrongdoing.”

Barnes, 146 Fla. at 238, 1 So.2d at 254 (emphasis in original). What the Alabama and Florida cases have in common is their holding that the corporate veil may be pierced at law as well as equity, which was the pertinent issue in Barnes. The Vantage View analysis would have us believe that this Court in Barnes adopted the view that the corporate veil may be pierced without a showing of improper conduct, based on an Alabama case which did not comment on the issue and in contradiction to a Florida case from this Court which explicitly held to the contrary. See also Riesen, issued two years after Barnes, in which it was held that the corporate entity would be respected, absent a showing of wrongdoing.

In Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971), we recognized that illegal acts of all the stockholders or members of a corporation, acting as individuals, instead of by formal corporate actions, could be grounds for revoking the charter of the corporation, but that statutes which permitted revocation of the corporate charter because of the illegal acts of less than all the stockholders or members of the corporation violated due process and were unconstitutional and void. Aztec Motel factually involves illegal acts. The prefatory comments we made, to mere instrumentality or agent of another corporation or individual owning all or most of its stock, were excerpted from Mayer merely to show that the corporate veil is not inviolate. Aztec Motel does not hold or stand for the proposition that the corporate veil may be pierced without a showing of improper conduct.

In Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973), Sapiro, the sole shareholder, conveyed the title of land to his wholly-owned corporation. The land constituted the corporation’s sole asset, and after the corporation sold the land to Levenstein, the corporation was immediately dissolved. The sale contract to Levenstein contained assurances as to the availability of adequate water and sewer facilities. It later developed that adequate water and sewer facilities were not available and, in the absence of a successor to the dissolved corporation to carry out its contractual obligations, Levenstein brought suit against Sapiro. We recognized that there could be instances “where the nature of the relationship between the individual and his alter ego, his corporation and their activity is so completely personalized that the ingredient of actual fraud is unnecessary in order for the individual to be held liable for a contractual obligation made in the name of his corporation.” Levenstein, 279 So.2d at 860. Unlike the corporation in Levenstein, both Dania and Carrousel existed at the time of trial and there is no suggestion that either was not a solvent corporation capable of meeting its obligations. Levenstein presented a different issue and problem from the issue presented here. The problem in Levenstein was the inequity of permitting a corporation to avoid contractual obligations by dissolving itself. In Levenstein we fashioned an equitable remedy appropriate to the facts and circumstances of a completely personalized corporation with one asset received from its sole shareholder which was dissolved after selling that asset. Levenstein became an anachronism with the enactment of the Florida General Corporation Act by chapter 75-250, Laws of Florida. If the Levenstein cause of action arose today, there would be no need to devise an equitable remedy or to pierce the corporate veil. Section 607.297, Florida Statutes (1983) provides a legal remedy “against such corporation or its directors, officers, or shareholders for any right or claim existing, or any liability incurred prior to such dissolution if action ... is commenced within 3 years after the date of such dissolution.”

In contrast to the above cases which offer little support for the district court decision, there is a line of cases which squarely faces the question of piercing the corporate veil and holds that doing so required a showing of improper conduct. In Riley v. Fatt, 47 So.2d 769, 773 (Fla.1950), we reversed a trial court judgment which allowed a creditor to pierce the corporate veil because:

The rule is that the corporate veil will not be pierced, either at law or in equity, unless it be shown that the corporation was organized or used to mislead creditors or to perpetrate a fraud upon them.... In the absence of pleading and proof that the corporation was organized for an illegal purpose or that its members fraudulently used the corporation as a means of evading liability with respect to a transaction that was, in truth, personal and not corporate, Fatt cannot be heard to question the corporate existence but must confide his efforts to the remedies provided by law for satisfying his judgment from the assets of the corporation, if any can be found. (Citations omitted, emphasis in original.)

In Gross v. Cohen, 80 So.2d 360 (Fla.1955), we affirmed a trial court judgment refusing to pierce the corporate veil because the evidence did not show that the corporation was actually organized or used to mislead creditors or to perpetrate a fraud upon them.

In Advertects, Inc. v. Sawyer Industries, Inc., 84 So.2d 21 (Fla.1955), we rejected the proposition that a rule could be issued against individual stockholders to show cause why they should not be personally responsible for corporate debts absent a preliminary showing

that the corporation is in actuality the alter ego of the stockholders and that it was organized or after organization was employed by the stockholders for fraudulent or misleading purposes, or in some fashion that the corporate property was converted or the corporate assets depleted for the personal benefit of the individual stockholders, or that the corporate structure was not bona fidely established or, in general, that property belonging to the corporation can be traced into the hands of the stockholders.
It isn’t sufficient merely to show that the corporation exists and that there are a limited number of stockholders doing business in good faith through the corporate entity. From a procedural standpoint we hold that a showing similar to that suggested in summary above be made before the rule nisi is issued and directed against the individual stockholders. If this requirement were not made then every judgment against a corporation could be exploited as a vehicle for harassing the stockholders and entering upon fishing expeditions into their personal business and assets.

Id. at 24. In so holding we stated the controlling law on piercing the corporate veil and delineated why it was so:

The corporate veil will not be penetrated either at law or in equity unless it is shown that the corporation was organized or employed to mislead creditors or to work a fraud upon them.
Every corporation is organized as a business organization to create a legal entity that can do business in its own right and on its own credit as distinguished from the credit and assets of its individual stockholders. The mere fact that one or two individuals own and control the stock structure of a corporation does not lead inevitably to the conclusion that the corporate entity is a fraud or that it is necessarily the alter ego of its stockholders to the extent that the debts of the corporation should be imposed upon them personally. If this were the rule, it would completely destroy the corporate entity as a method of doing business and it would ignore the historical justification for the corporate enterprise system.

Id. at 23-24.

In Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963), we held that the Florida Industrial Commission did not have jurisdiction to pierce the corporate veil. Although Roberts’ Fish Farm presented different factual and legal issues than those presented here, our remarks on the purpose of corporate entities and the rationale for the law controlling the piercing of the corporate veil are apropos:

The corporate entity is an accepted, well used and highly regarded form of organization in the economic life of our state and nation. As we said in State ex rel. Continental Distilling Sales Co. v. Vocelle, 1946, 158 Fla. 100, 27 So.2d 728, “Their purpose is generally to limit liability and serve a business convenience.” Those who utilize the laws of this state in order to do business in the corporate form have every right to rely on the rules of law which protect them against personal liability unless it be shown that the corporation is formed or used for some illegal, fraudulent or other unjust purpose which justifies piercing of the corporate veil. This is the reason for the rule, stated in all Florida cases, that the courts are reluctant to pierce the corporate veil and will do so only in a court of competent jurisdiction, after notice to and full opportunity to be heard by all parties, and upon showing of cause which necessitates the corporate entity being disregarded in order to prevent some injustice.

Id. at 721.

We conclude that the district court decision directly and expressly conflicts with decisions of this Court which hold that the corporate veil may not be pierced absent a showing of improper conduct. We decline to recede from these cases. The district court holding is quashed on this point.

At the close of the evidence, the trial court directed a verdict on the issue of Dania’s liability, finding that Dania and Carrousel were operating a close-knit operation and held themselves out to the public as a single enterprise. The district court agreed, holding that when two corporations hold themselves out to the public as a single enterprise and that enterprise involves an inherent risk to members of the public, both corporations incur tort liability for the torts of the enterprise. Stuyvesant Corp. v. Stahl, 62 So.2d 18 (Fla.1952); Orlando Executive Park, Inc. v. P.D.R., 402 So.2d 442 (Fla. 5th DCA 1981).

In its holding, the district court did not address what we consider to be the controlling question. Under the evidentia-ry facts presented to the trial court, was the court correct in taking the issue from the jury and directing a verdict against Dania? We think not.

In granting a motion for directed verdict, the Court must determine that there is no evidence to support a jury finding for the party against whom the verdict is sought. Cadore v. Karp, 91 So.2d 806 (Fla.1957). It does not lie within the province of the Court to weigh evidence or determine questions of credibility and, where there is the possibility of different conclusions or inferences from the evidence the Court should submit the issue to the jury. Bruce Construction Corp. v. The State Exchange Bank, 102 So.2d 288 (Fla.1958). See also 25 F.L.P., Verdict, § 9.

Parsons v. Reyes, 238 So.2d 561, 563 (Fla.1970) (emphasis in original). The record here indicates there was evidence which, if accepted by the jury, tended to show that Dania and Carrousel operated independently of each other. Carrousel had offices at the fronton and a written concession agreement with Dania. Carrousel exercised control of valet-parking services and food, beverage, and program sales and paid Dania for use of the premises and for the concessions. Carrousel had separate bank accounts and profit and loss statements. Carrousel dealt with independent suppliers. Carrousel had about 120 employees which it independently hired, fired, and controlled, including the parking attendant involved here. Respondent Sykes, and other patrons, received parking tickets which identified Carrousel as the parking operator. We express no opinion on what the preponderance of the evidence shows; that question is properly for the jury to determine. We have no doubt, however, that there was a jury question posed and that it was error to direct a verdict on this issue. Petitioners also assert that there is no record evidence supporting the district court’s findings that Dania and Carrousel advertised themselves as Dania Jai-Alai and that the public had no reason to suspect there was more than one entity involved. Surprisingly, respondent did not answer with citations to the record to support the district court finding. However, it is not necessary to resolve this question, as we are not reviewing the issue as to the preponderance of the evidence.

The district court cited Stuyvesant and Orlando Executive Park as supporting its decision. Neither case involved a directed verdict. In Stuyvesant, a hotel and a parking concession were involved but, unlike here, the parking was free, the parking tickets were issued in the name of the hotel, and the parking concessionaire employees wore uniforms with the name of the hotel on them. In Orlando Executive Park, the motel was one of a national chain, Howard Johnson, indistinguishable from other motels in the same chain, and presented to the public under the name of the national chain. The fact that the individual motel was owned and operated under a licensing agreement with the national chain did not preclude a jury verdict against the national chain on an agency theory. Again, we emphasize that neither case involved a directed verdict and, thus, was not subject to the stringent rules of review governing directed verdicts. We quash the district court’s holding on this point.

Petitioners also raise various issues concerning asserted improper trial court rulings and improper argument to the jury which petitioners contend denied them a fair trial. The district court found them to be meritless without further comment. In her brief, respondent concluded that the issues were meritless and declined to respond to them before this Court. This could prove hazardous as we said in Bould v. Touchette, 349 So.2d 1181, 1183 (Fla.1977), “[i]f conflict appears, and this Court acquires jurisdiction, we then proceed to consider the entire cause on the merits.”

Because these issues are mooted by our holdings on other issues, they are not likely to recur on retrial, and because there is well-settled law controlling these issues, we express no opinion on the merits. We caution respondent, and others who might appear before this Court, that answer briefs should be prepared in the same manner as the initial brief so that the issues before the Court are joined. Further, that the answer brief should omit the statement of the case and of the facts unless there are areas of disagreement, which should be clearly specified. Fla.R.App.P. 9.210.

Respondent urges that the district court erred in reversing the trial court’s directed verdict on comparative negligence. We agree with the district court that the issue of negligence on respondent’s part was a jury question and that it was error to direct a verdict on this issue.

Quashed in part, approved in part, and remanded for further proceedings consistent with this opinion.

It is so ordered.

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

      . Jefferson County Burial Soc’y v. Cotton, 222 Ala. 578, 133 So. 256 (1930).

      . We have since approved in Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983).


author: PER CURIAM.

text:
    Susan S. LEWIS n/k/a Susan Burch, Appellant, v. Robert M. LEWIS, Appellee.
    No. 83-458.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    On Rehearing Jan. 25, 1984.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant.
    Robert M. Lewis, pro se.
   PER CURIAM.

Affirmed.

ON MOTION FOR REHEARING

In the motion for rehearing counsel for appellant wife cites Whipple v. State, 431 So.2d 1011 (Fla. 2d DCA 1983), which discusses the subject of so-called “PCA’s”, i.e., per curiam affirmances without opinion, and grounds for motions for rehearing. Whether or not the rendering of our per curiam affirmance in this case on November 23, 1983, was consistent with Whipple is a fairly close question as to which the well-presented position of appellant is persuasive. In any event, especially since a conclusion might be drawn from many other motions for rehearing filed with this court subsequent to Whipple that many lawyers have been unaware of Whipple, there is another reason for the writing of an opinion in this case: to call attention to Whipple.

The parties were divorced in 1979 while the husband was attending law school. The wife received custody of their infant son. Pursuant to a settlement agreement, the husband was to pay child support of $30.00 per week for a period of three and one half years and, after being engaged in the active practice of law for one year following graduation, the husband was to pay increased child support in an amount equal to twenty-five percent of his gross annual salary.

The husband graduated from law school in 1981 and by the time of the final hearing in January 1983 was receiving an annual salary of $22,470.24. The husband filed a complaint seeking modification of his child support obligation. The evidence presented to the trial court included testimony that the husband’s expenses exceeded his income and that he was unable to make the percentage child support payments.

The trial court found that a substantial change of circumstances had occurred and, pursuant to section 61.14, Florida Statutes (1981), modified the husband’s child support obligation by ordering the husband to continue making child support payments of $30.00 per week. The trial court retained jurisdiction to review the amount of child support upon motion of either party during a period of one year.

Other facts involving details of the parties’ respective financial positions are unnecessary to this opinion.

The wife concedes that the record could support a finding of the inability of the husband to pay the agreed upon percentage amount of child support. We agree with the wife that the mere inability of the husband to pay is not enough to justify modification of support. Under section 61.14 “changed circumstances” sufficient to justify a modification of child support must be unanticipated, Coe v. Coe, 352 So.2d 559 (Fla. 2d DCA 1977); Ashburn v. Ashburn, 350 So.2d 1158 (Fla. 2d DCA 1977), and significant. Burdack v. Burdack, 371 So.2d 528 (Fla. 2d DCA 1979); Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA 1981).

Accordingly, the general issue here is whether the husband’s present inability to pay was a significant circumstance unanticipated at the time of the settlement agreement. More specifically, the issue involves whether the record would support a finding of an income level of the husband lower than that foreseen at the time of the agreement or, probably more to the point, his expenses being higher than those anticipated.

Under the facts of this case we believe those questions were for the trial court in the exercise of its discretion. We recognize the wife’s arguments, which are persuasive, that on an item by item basis no expenses of the husband were not unanticipated, i.e., that the husband’s expenses and income were foreseeable. The wife’s position, in essence, is that since no particular items of expense or income of the husband are shown by the record to have been unanticipated, we, in our per curiam affirmance, must necessarily have departed from the foregoing established principles of law.

However, the issue of foreseeability is generally for the finder of fact. We are unable to say that the trial court, which heard the evidence and observed the witnesses, had no basis to find that the husband’s inability to pay was not foreseeable. That we might well differ with the trial court in that regard is not the point. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

We recognize that this case is different from Canakaris, the facts of which concerned a trial court’s discretion to initially determine matters such as alimony and child support. Here the settlement agreement was initially approved by another trial court in connection with the dissolution decree. However, the standards of Canakaris regarding the trial court’s discretion were made specifically applicable to “a domestic relation proceeding,” 382 So.2d at 1202, and, of course, that is what is involved here. Also, under section 61.14(1) a trial court has far greater authority to judicially change a contract which is a settlement agreement subject to court approval than to review a contract in a normal commercial setting. We feel that a dissolution settlement agreement requiring one spouse to pay a fixed percentage share of that spouse’s gross income for child support, no matter how high or how low that income becomes, no matter what the spouse’s expenses may be, and no matter how much or how little the spouse with custody of the child receives as compared to the child’s needs, is subject to close scrutiny and is more vulnerable to modification on the basis of changed circumstances than is the customary type of child support settlement agreement which is designed to provide for an amount at least comparable to the child’s needs. The type of percentage provision involved here could produce a windfall to the spouse who has custody, over and above amounts needed for child support. Or, conversely, it could shortchange that spouse in providing for the child’s needs.

The wife argues that Florida case law recognizes these types of support provisions as valid, citing Mills v. Mills, 417 So.2d 298 (Fla. 1st DCA 1982); Bish v. Bish, 404 So.2d 840 (Fla. 1st DCA 1981); Spotts v. Spotts, 355 So.2d 228 (Fla. 1st DCA 1978); and Kangas v. Kangas, 420 So.2d 115 (Fla. 2d DCA 1982). However, none of those cases involved child support where the entire amount was to be based upon a percentage of the husband’s gross income and where, as here, there was, at the time of the trial court’s initial approval of the child support provision, no way to know its amount or, more importantly, its impact relative to child support needs and the husband’s financial ability. The percentage provision here was to govern the entire amount of child support some years in the future. All of those cases cited by the wife involved methods of automatic increases to otherwise fixed amounts of alimony and child support; none involved the entire amount being based upon an apparently arbitrary percentage of gross income.

In Mills and Bish the increases were keyed to factors which had a relation to increased needs and/or abilities to pay— military retirement pay increases and cost of living increases, respectively. In Spotts, the court approved a provision involving a particular dollar amount increase of child support as equated to particular amounts of the husband’s future increased net income. The First District Court of Appeal in Spotts, approving the provision, pointed out that the amount of increase was small and would save the parties the time and expense of coming back to court each time the husband’s net income increased.

In Kangas, this court specifically said that

judgments providing for automatic changes in alimony and support payments upon the occurrence of future events have not usually found favor in Florida_ There is no evidentiary basis for the determination of future events, and there is an adequate protection for modification when changes in the circumstances of the parties do occur.

Id. at 116, citing substantial case law. In the case now before us there was certainly no evidentiary basis to know, at the time the settlement agreement was approved, whether the percentage amount would have any fair relationship to the child’s needs or to the husband’s abilities. Kangas further distinguished Mills and Spotts by saying that the methods for modification in those cases were “carefully conditioned upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.” Id. at 116. Under the percentage provision here, there was no way to preclude unfairness, and the trial court on the motion for modification could have, and obviously did, determine that it was unfair. Also, a trial court might feel in these circumstances that the parties anticipated, or were presumed to have anticipated, that the percentage would produce an amount reasonably related to the wife’s needs to raise the child and that the result was not shown to be consistent with those needs and, therefore, was unanticipated.

The wife has not raised on appeal any alleged error by the trial court in failing to properly consider the needs for child support, and other factors bearing upon the proper amount of child support, in the fixing of $30.00 per week as the amount to be paid. Apparently the wife’s contentions before the trial court, as here, were that the amount should be governed solely by the percentage specified in the settlement agreement. Upon ruling against the wife in that respect, the trial court reverted to the only other amount which had been agreed to by the parties, $30.00 per week.

Accordingly, we grant the motion for clarification and deny the motion for rehearing.

OTT, C.J., and LEHAN, J., concur.

SCHOONOVER, J., would deny the appellant’s motion in its entirety.


author: PER CURIAM. PER CURIAM. ANSTEAD, C.J.,

text:
    John ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2000.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1984.
    Rehearing Denied June 27, 1984.
    Richard L. Jorandby, Public Defender, Gary Caldwell, Asst. Public Defender, and Barbara White, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Mar-lyn J. Altman, and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with grand theft of an airplane and eventually convicted after jury trial of the lesser included offense of temporary unauthorized use of the airplane. Three points are raised on appeal, one of which we conclude merits reversal. The State attempted to impeach the appellant by demonstrating that he had been convicted of a prior crime. This impeachment was improper in accordance with Section 90.610(1), Florida Statutes (1981), re: conviction of certain crimes as impeachment. We, therefore, reverse the conviction and sentence and remand for a new trial.

ANSTEAD, C.J., BERANEK, J., and C0-CALIS, PATRICIA W., Associate Judge.

ON REHEARING

PER CURIAM.

The petition for rehearing is hereby denied.

BERANEK, J., and COCALIS, PATRICIA W., Associate Judge, concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, C.J.,

concurring specially:

I concur specially only to note that our prior opinion is in direct conflict with the Second District’s opinion in Barker v. State, 413 So.2d 482 (Fla. 2d DCA 1982). In Barker, the Second District embraced the view adopted in a number of federal circuits that a finding of guilt by a jury should logically be just as sufficient as a finding followed by an adjudication, to serve as a predicate for impeaching a witness’ veracity. However logical this view may appear, I presume the legislature was aware, when it enacted section 90.610(1) that the Florida Supreme Court had already announced:

This court has so often expressed the opinion that the word “conviction” includes the judgment of the court, as well as a plea or verdict of guilty, that such definition of the word as used in the statute or plea invoked to describe the effect of a former conviction in a subsequent cause may be said to be firmly established.

Smith v. State, 75 Fla. 468, 78 So. 530, 532 (1918). Since the Florida Supreme Court had already taken a clear-cut view of the meaning of “conviction,” I believe we are bound to construe section 90.610(1) as intending to incorporate that definition when ■this provision was passed. In addition, since the evidence code was also adopted by the Florida Supreme Court as a rule of court, it is safe to assume that the court itself was aware of its prior definition.

I also cannot agree with the Second District’s suggestion that a person who is placed on probation, with adjudication withheld, cannot be subject to impeachment, whereas a person who has entered a plea or had a verdict returned against him, will be subject to impeachment, although not adjudicated, at least until a decision is made to place him on probation or otherwise “finally” decide to withhold adjudication. Whatever logic there is to including all persons who are found guilty by a jury (or who plead guilty) within the class of persons “convicted,” that logic surely continues regardless of the fact that the same person is placed on probation by the grace of the sentencing court. As the Supreme Court in Smith I would opt for the established and clear-cut legal meaning of conviction which includes adjudication. Adopting different meanings for the same word depending on the situation can only result in confusion and inconsistency in purpose and result when anyone uses the term.


text:
    John Lee BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 83-399.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.

      Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Green, 400 So.2d 1322 (Fla. 5th DCA 1981), and McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980).

HOBSON, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: SHIVERS, Judge. SHIVERS, Judge.

text:
    FIESTA FASHIONS, INC. and United States Fidelity and Guaranty Company, Appellants, v. Matilde CAPIN and the Division of Workers’ Compensation, Appellees.
    No. AT-386.
    District Court of Appeal of Florida, First District.
    March 19, 1984.
    Rehearing Denied June 12, 1984.

      Robert H. Gregory, Miami, for appellants.
    Jerold Feuer, Miami, for appellees.
   SHIVERS, Judge.

In this workers’ compensation case, the employer/carrier appeal the deputy commissioner’s order which finds that the employer/carrier’s handling of the claim constituted bad faith and awards attorney’s fees. We affirm that portion of the order which finds bad faith, but reverse and remand on the issue of the amount of the attorney’s fees.

Section 440.34, Florida Statutes (1979), contains a sliding fee schedule. However, a deputy commissioner must consider certain listed criteria in each case and may increase or decrease the attorney’s fee if the circumstances of a particular case warrant such action. The statute embodies a legislative intent to standardize fees absent exceptional circumstances, and when a deputy commissioner departs from the statutory schedule, the order should reflect that he considered all of the relevant, prescribed factors to the extent that circumstances permit. Roundtree Transport, Inc. v. Godek, 412 So.2d 66 (Fla. 1st DCA 1982).

In the instant case, the order restates the statutory criteria and states that these factors were considered. The only specific fact mentioned, however, was the amount of time expended in prosecuting the claim, 49½ hours. The order does not elaborate on this fact or make any attempt to justify a fee which is significantly in excess of the statutory sliding scale. Cf. Florida Power & Light Co. v. Haycraft, 421 So.2d 674 (Fla. 1st DCA 1982); Godek, supra. See also Roundtree Transportation, Inc. v. Godek, 430 So.2d 974 (Fla. 1st DCA 1983) (same case as Godek, supra, on appeal after new order on remand).

The order is reversed and remanded and the deputy commissioner is directed to make specific findings of fact relative to the statutory criteria along with an explanation of why the facts would justify the fee awarded, or to award a fee based on the statutory schedule. In all other respects, the order is affirmed.

JOANOS and THOMPSON, JJ., concur.

ON MOTION FOR REHEARING

SHIVERS, Judge.

Appellants ask this court on motion for rehearing to “clarify the issue as to when a claim for ‘bad faith’ may be made and at what point it is too late to make a claim for ‘bad faith’.” Since this issue was not raised by appellants’ briefs on the hearing of this case, it was not overlooked by this court and cannot be raised for the first time on motion for rehearing. See Sarmiento v. State, 371 So.2d 1047, 1052-53 (Fla. 3d DCA 1979), approved, 397 So.2d 643 (Fla.1981), and cases cited therein.

Appellants also request that this court clarify “whether or not the ‘bad faith’ must be ‘bad faith’ that occurred prior to bringing the claim or prior to the first hearing rather than ‘bad faith’ that may have occurred after the first hearing ....” Although an argument in regard to this point was made in appellants’ briefs on appeal, this issue was never substantially raised before the deputy commissioner. Therefore, we decline to address this issue on appeal. Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982).

Motion for rehearing DENIED.

JOANOS and THOMPSON, JJ., concur.


author: GLICKSTEIN, Judge. LETTS, Judge,

text:
    John H. JAMASON, Appellant, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees.
    No. 83-1557.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Rehearing Denied July 2, 1984.
    Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for appellant.
    Talbot D'Alemberte, Miami, and L. Martin Reeder, Jr., of Steel Hector Davis Burns & Middleton, West Palm Beach, for appellees.
   GLICKSTEIN, Judge.

This is an appeal by the police chief of West Palm Beach, Florida, from a summary final judgment entered in favor of the newspapers and their employees whom he had sued for libel. We affirm.

The trial judge patiently took the time to tell us in the summary final judgment which route he took to arrive at the destination in question, saying:

The grounds upon which this Summary Judgment is granted are:
1. The aforementioned articles were fair and accurate summaries of sworn testimony given by a police officer in a deposition taken in a judicial proceeding.
2. The articles were privileged as neutral reports or republications about a matter of great public concern.
3. The articles are protected by the principles of free speech embodied in the First Amendment and Plaintiff, as a public official, has been unable to offer any evidence, much less clear and convincing evidence, of actual malice.
The news items referenced in Paragraphs six through eleven of the Complaint essentially reiterate the information reported in the news article written by Mr. McEvoy and referenced in Paragraph 5 of the Complaint and attached as Exhibit A. This Court has already entered summary judgment for Defendants on Mr. McEvoy’s article and the same legal principles set forth in that Order apply here.
Plaintiff’s attempt to show actual malice based on the deposition testimony of reporters Wharton and Krueger is misguided. Those reporters testified they did not “believe” Jamason was guilty of taking bribes. However, it is apparent from the depositions and affidavits of those witnesses that they had no objective basis for determining the truth or falsity of Aurilio’s allegations as stated by Nazzaro. Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.1977). The actual malice test does not impose liability on the basis of subjective opinion or uninformed impressions, but requires Plaintiff to show Defendants knowingly published a lie or recklessly disregarded the truth. Plaintiff’s evidence in this case falls far short of that standard.

The record established that in the course of discovery in certain criminal eases that arose out of an investigation of organized crime, a defendant’s lawyer deposed Agent James Nazzaro of the Palm Beach County Sheriffs Department’s Organized Crime Bureau. Nazzaro testified at his deposition that a confidential informant had told him there was official corruption among local police departments, naming Chief Ja-mason, as well as a recently retired sheriff’s department inspector, and another police chief from a city in Palm Beach County as corrupt officials. The informant had given information that these men were “on the take.”

The Evening Times investigative reporter, George McEvoy, knew of an ongoing investigation of organized crime and gambling in Palm Beach County; and that at least one local law enforcement official had been implicated. When the Nazzaro deposition was filed in court, McEvoy obtained a copy of it from an assistant state attorney and made copies of excerpts from the deposition. Before publishing any stories about the allegations, McEvoy questioned the assistant state attorney and a sergeant of the Organized Crime Bureau concerning them. The sergeant was in charge of the Bureau which was investigating the allegations of the confidential informant, Linda Aurilio, the wife of a person associated with a gambling operation. McEvoy knew Aurilio’s information had been the basis for certain wiretap authorizations. The sergeant indicated to McEvoy that Aurilio’s information had generally proved accurate; but they did not believe her allegations against Jamason. The assistant state attorney and the sergeant urged McEvoy not to publish anything about the bribery allegations against Jamason because they had no evidence to support them.

The following day McEvoy published a news article in The Evening Times, headlined “Top-Ranked Policeman Took Bribes from Gamblers, Informant Claiming.” Chief Jamason’s picture appeared on the face page of the article. The article quoted directly from Nazzaro’s deposition that Au-rilio had information Jamason was on the take. The article did not mention Aurilio’s convictions for prostitution or that she had been involved in other crimes. Six additional articles on the same subject were thereafter published by the two newspapers.

Before publication of the first article, McEvoy met with four high level editorial personnel of the two newspapers and with general counsel of the publisher. McE-voy’s story reasonably could have appeared the previous day; but the consensus of those with whom McEvoy consulted was that the butts of the allegations should have a chance to comment and their comments should appear in the same article. The sergeant and the assistant state attorney would not comment for publication on the ground the investigation was in process; however the two police chiefs’ denials of the allegations were obtained and featured prominently in a box just below the headline. The cutline below Jamason’s picture said “Chief Jamason ... flat denial.” The retired inspector could not be reached for comment.

In the follow-up stories, Aurilio’s prostitution record, her participation in a methadone program, her status as a murder suspect, and attempted impeachment of her by the gambling ring defendants were reported. When the investigating sergeant subsequently testified he believed Jamason innocent, the newspapers prominently reported this testimony.

Chief Jamason, having been accused by a confidential informant of what should be— by appropriate criminal penalty — one of the worst of all allegations against a public official; namely, that he is “on the take,” claims that he should have recourse against the newspapers and their employees for having reported, in essence, what the deposed witness said he had been told.

Assuming the falsity of the informant’s statement for the purpose of this opinion, Jamason’s salvos were fired in the wrong direction; namely, at those who accurately reported the deposition testimony of the witness, Nazzaro, who answered, “Right,” when asked:

Q. But did she [Aurilio] give you information that Chief Jamason is on the take, [name] is on the take, and [name] is on the take; is that correct, Sir?

It was Aurilio who verbalized the accusation — and the appropriate focus of appellant’s claim — not those in this chain of information who respectively responded to a specific question asked under oath during pre-trial discovery in a criminal proceeding and accurately reported such response. Under such circumstances the law properly does not provide a remedy for an arguably innocent party against others who are unquestionably free of wrongdoing. The law explains this 'common sense freedom from recovery in such setting by considering that reporting as privileged. In the case before us, the witness — having subjected himself to a number of sanctions once taking the oath to tell the truth — repeated under oath what was said to him about the appellant police chief, admittedly a public official. Nazzaro’s testimony was absolutely privileged. See Farish v. Wakeman, 385 So.2d 2 (Fla. 4th DCA), dismissed, 394 So.2d 1151 (Fla.1980); Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977).

Appellees’ privilege was qualified; that is, it was incumbent upon them to report what appeared in the deposition in an accurate, fair and impartial manner. See Walsh v. Miami Herald Publishing Co., 80 So.2d 669 (Fla.1955), which said succinctly:

This statement merely means that the report of judicial proceedings must be correct.

Id. at 671. The newspaper of 1984 has a number of roles known best to its owners and operators. For the rest of us in society who know little of their operations, newspapers serve two extremely valuable services — to provide information to the public quickly and correctly in the news columns and to serve as the conscience of the community on their editorial pages. When an affidavit, pleading, deposition or oral testimony emanates from the county courthouse in a judicial proceeding, it is incumbent upon the media that their report of its contents be clearly accurate. Whether the press reports the item on page one with a banner headline or on the last page of the last section is an editorial decision, not a legal one. Accordingly, if Citizen Kane were running the Daily So-and-So and desired to equate someone’s accusatory testimony in a judicial proceeding with the proclamation of the end of World War II, that is a matter for the editor’s discretion not a jury’s. Thus, while the editorial board of a responsible newspaper should inspire us daily to commit our individual energy in the direction of making the world better than it is, the editor must answer to his own sense of fairness in deciding how prominently to report what occurs in the courtroom.

Actual malice, as discussed by the trial court, which of course is the threshold which public officials must meet in seeking recovery for libel, comes into play in the reporting of a judicial proceeding only when the press strays or deliberately bolts outside the hound’s tooth requirement of accuracy. The rule emerged in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which equated actual malice with knowledge of the falsity of the published statement or with reckless disregard of its truth or falsity. Frankly, we fail to see how actual malice is pertinent to an accurate report of a judicial proceeding. Accordingly, we do not see the appropriateness, in the setting here, of a lengthy intellectual massage on the law of actual malice, other than to say that there is clearly none of that venom in the record of this case. Far less “clean” reporting than occurred in this case has passed muster under the actual malice test. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970); Tavoulareas v. Washington Post Co., 567 F.Supp. 651 (D.D.C.1983). Moreover, we feel it unnecessary to venture into a discussion of neutral reporting of matters of great public concern, discussed in Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977). This case concerns only the accurate reporting of an occurrence in a judicial proceeding. The newspaper, had it wished, could have devoted the entire issue to the statement without any effort to neutralize the accusation by giving the accused the opportunity to deny. The question then becomes how well does the editor sleep with his own conscience, which again is our concern as human beings desirous of a fair world, not as judges resolving a legal issue. Newspaper editors should be, in today’s world, the modern Diogenes, making sure that only an honest man holds office as a public official. In doing so, the editor is the surrogate for the rest of us who extend our trust to all in public employment at every level.

In closing, we observe that bribery or other corruption of or by a public servant is, for reasons known only to the legislature, just a third degree felony punishable with a maximum term of five years — and no mandatory minimum. It strikes us that if the stakes were substantially higher, newspapers would have far less to print about public officials exchanging pin stripes for pen stripes.

ANSTEAD, C.J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially.

I have sympathy for Chief Jamason but I cannot rule for him. I think the Evening Times showed bad taste in publishing that which it had good reason to suspect was untrue knowing full well it would embarrass a public official. However, bad taste is not libel and all the citations in Judge Glickstein’s opinion, to which I would add one more, mandate our decision. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

      . McEvoy’s deposition reflects his testimony that he "knew” Aurilio was not available nor was her statement. Specifically, he said that he had been informed there was an ongoing investigation; and that he believed that "the Federal people had -her.” Appellant’s counsel controverted the latter contention at the time of deposition, indicating that she was not in protective custody.

      . We find no merit in appellant’s contention that the published articles by using the words "bribe” and "bribery” changed the meaning of Nazzaro’s words. "On the take" means "taking a bribe.”

      . Nazzaro did not recall if Aurilio was under oath when she made the subject statement about Jamason.

      . See section 838.016, Florida Statutes (1983).

      . See section 775.082(3)(d).