author: ZEHMER, Judge.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellant, v. J.D. JOHNSON COMPANY, INC., Appellee.
    No. AR-224.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1983.
    Rehearing Denied Oct. 19, 1983.

      Donald H. Partington of Clark, Parting-ton, Hart & Johnson, Pensacola, for appellant.
    Robert D. Bell of Fisher, Bell, Hahn & Schuster and George Phillips, Pensacola, for appellee.
   ZEHMER, Judge.

The issue involved on appeal is whether, as a matter of law, an all-risk casualty insurance policy issued by the appellant, United States Fidelity and Guaranty Company (USF & G) provides coverage for a loss suffered by the appellee, J.D. Johnson Company, Inc. We reverse the lower court’s order granting summary judgment in favor of appellee and remand for further proceedings.

Appellee, J.D. Johnson Company, Inc. (Johnson), sells heating and air conditioning equipment at wholesale. Wade Padgett, doing business as Pensacola Heating and Air Conditioning, is in the retail heating and air conditioning business. For the past four or five years, Padgett’s firm has purchased equipment from Johnson in accord-anee with the following credit arrangement. Whenever Padgett’s firm needed equipment, one of his employees would go to Johnson’s warehouse to pick up the specified equipment. Johnson’s warehouse employee would fill out a triplicate invoice and a warranty card on which the equipment’s serial number was recorded and would give the equipment to Padgett’s employee. One copy of the invoice went to Johnson’s front office, one copy would be kept in the warehouse, and the final copy would be given to Padgett’s employee. At approximately two-week intervals, Padgett would go to Johnson’s warehouse and pay off a portion of the oldest equipment invoices. Padgett never paid off the entire bill.

Mr. Brown, president of J.D. Johnson Company, became concerned about Pad-gett’s indebtedness when he discovered invoices with amounts considerably larger than normal. Brown assembled all of the outstanding invoices charged to Padgett’s account and contacted Padgett to come in and settle his account. The total amount of the invoices was approximately $76,000. Padgett testified that neither he nor his company purchased all of the equipment shown on the invoices. Padgett stated that approximately $12,000 of the equipment was purchased by his employees for their moonlighting businesses and was improperly charged to Padgett’s account. According to Padgett, the remaining $64,000 worth of equipment was unaccounted for.

After Padgett’s refusal to pay the outstanding invoices and his denial that he had purchased most of the equipment, J.D. Johnson Company filed a claim for physical loss of the property with USF & G to recover on an all-risk casualty insurance policy. USF & G refused to pay the claim on the ground that the loss was not covered under the policy provisions. Johnson then filed suit against USF & G and the trial court granted Johnson’s motion for summary judgment on liability, finding that the loss was covered under the policy provisions.

This non-final order is appealable by USF & G. Rule 9.130(a)(3)(C)(iv), Fla.R. App.P. USF & G also noticed this appeal from the order denying its motion for summary judgment and contends that we should not only reverse but also direct entry of summary judgment in its favor. The non-final order denying summary judgment is not appealable, however, and its propriety will not be determined on this appeal. Rule 9.130(a)(3), Fla.R.App.P.; Aetna Casualty & Surety Co. v. Meyer, 385 So.2d 10 (Fla. 3d DCA 1980); Vanco Construction, Inc. v. Nucor Corp., 378 So.2d 116 (Fla. 5th DCA 1980).

USF & G sets forth two basic arguments for reversal. First, it points out that the insurance policy at issue does not provide coverage for:

Property sold by the named insured under conditional sale, trust agreement, installment payment or other deferred-payment plan after delivery to customers.

USF & G argues that all of the property at issue was sold to Padgett pursuant to a long-standing credit arrangement; therefore, the failure of Padgett to pay his debt is not a loss covered by the policy. USF & G contends that the facts are undisputed that all of the merchandise which is the subject of this lawsuit was delivered to Padgett or his employees in the ordinary course of Johnson’s business.

USF & G’s second argument relies upon the policy exclusion for losses caused by:

Voluntary parting with title or possession of any property by the named insured or others to whom the property may be entrusted if induced to do so by any fraudulent scheme, trick, device or false pretense.

USF & G argues that this policy language has been uniformly held valid and is applicable in this case because it is undisputed that all of the property in question was voluntarily delivered by Johnson’s employees to Padgett or his employees. USF & G cites specifically to Jacobson v. Aetna Casualty and Surety Company, 233 Minn. 383, 46 N.W.2d 868 (1951), and Outwest Bean, Inc. v. National Fire Insurance Co. of Hartford, 514 P.2d 782 (Col.App.Ct.1973), as support for its position.

Johnson counters USF & G’s first argument by pointing out that the uncontrovert-ed evidence in the record clearly discloses that none of the property in question was sold to Padgett pursuant to an authorized credit arrangement; a small portion of the property was obtained in an unauthorized manner by employees of Padgett for their personal use, and the remainder of the lost property disappeared in an unexplained manner. Accordingly, Johnson argues, the policy exclusion regarding credit transactions is inapplicable.

With respect to USF & G’s second argument, Johnson states that in order for there to be a “voluntary parting,” there must be an existing contractual relationship between the named insured and the third party receiving physical possession of the property. There was no valid relationship between Johnson and those unauthorized persons receiving possession of the property; therefore, there was no “voluntary parting” with such property. Johnson attempts to distinguish the cases cited by USF & G by pointing out that all such cases involved situations where there was a valid customer relationship between the parties involved.

Johnson specifically relies upon the case of Hootstein & Son, Inc. v. Hartford Fire Insurance Co., 3 Mass.App. 718, 323 N.E.2d 919 (1975). In Hootstein, the plaintiff had placed property on a loading platform so that it could be picked up by a particular trucking contractor; but while the employee in charge of the loading dock had temporarily left his position, an imposter purporting to be from the contractor drove away with the property before signing for it. The court held that under these circumstances there was no voluntary parting with possession of the property by the plaintiff. Similarly, Johnson argues, there was no voluntary parting with possession by Johnson in this case because the property was taken by persons not authorized to receive it.

In reply to appellees’ arguments, USF & G points out that Hootstein is factually distinguishable from the present case because in Hootstein the third party who received the property took it while the plaintiff’s employees were not present and no delivery of the property to the third party took place. USF & G again argues that it is undisputed that all of the property at issue in this case was physically delivered to Padgett or his employees pursuant to the long-standing credit arrangement.

Although both parties have contended in their respective motions for summary judgment that the material facts are undisputed, it is clear that certain key material facts are not agreed upon by the parties. The actual physical disposition of each item of property described in the claim is a critical factual issue which must be determined before any ruling can be made on whether coverage exists under the policy provisions. USF & G says that all of the property was physically delivered by Johnson employees to either Padgett, his brother, or his employees. In support of this statement, USF & G relies on the testimony of certain warehouse employees of Johnson. On the other hand, Padgett’s testimony is that only a small portion of the property was actually delivered to Padgett’s employees, which property they misappropriated, and that the remainder of the property cannot be accounted for. Based on this testimony, Johnson argues that the property simply disappeared from its warehouse for unknown reasons and, therefore, is a covered loss.

Johnson does not disavow the testimony of his employees; but neither does he disavow the truthfulness of Padgett’s testimony because a substantial portion of his argument is in reliance on Padgett’s testimony. Unless the parties are willing to disregard Padgett’s testimony and stipulate that each piece of equipment was in fact delivered to an agent or employee of Padgett (the record contained little, if any, evidence tracing each piece of property), essential material facts remain in dispute.

Neither party cites any helpful authority on USF & G’s argument that the loss is not covered because the property was sold pursuant to a credit arrangement. We believe that the policy provision disclaiming coverage for loss of property sold pursuant to a long-standing credit arrangement necessarily contemplates a valid sale transaction and delivery of the property incident to such sale. Property delivered by Johnson as a result of fraud or misrepresentation would not be pursuant to a valid sale transaction within the meaning of this policy provision. Cf., Security Ins. Co. of Hartford v. Investors Diversified Ltd., 407 So.2d 314 (Fla. 4th DCA 1981). Since Padgett’s testimony denies that any valid sale took place, while Johnson’s employees testify that each piece of missing equipment was sold and delivered to Padgett or his employees, disputed material facts must be resolved to decide whether this provision is applicable, precluding summary judgment for either party-

In regard to USF & G’s second contention, according to the wording of the policy exclusion, a loss will not be covered if it was caused by a “voluntary parting” with “title or possession” and the insured (Johnson) was induced to part with the property by any “fraudulent scheme, trick, device or false pretense.” The key issue is whether this exclusion is applicable in a situation where the property is physically delivered to persons who either misrepresent their identity or misrepresent their authority to take delivery of the property on behalf of a third party; or stated another way, can the “parting” be considered “voluntary” when the property is not delivered to the intended purchaser or his authorized agent or employee?

The policy does not define “fraudulent scheme, trick, device or false pretense.” It is reasonable to assume, however, that these terms contemplate circumstances or actions that would constitute common law fraud or the criminal offense of obtaining property by false pretenses. The elements of the crime of obtaining property by false pretenses have generally been described as: (1) a false representation by a person of a past or existing fact [in this case, identity or authority]; (2) knowledge by that person of the falsity of the representation; (3) intent to defraud; (4) reliance on the misrepresentation by another party [in this case, Johnson]; and (5) surrender [by Johnson] of the property to the person making the misrepresentation. See Ex parte Stirrup, 155 Fla. 173, 19 So.2d 712 (1944); Paulk v. State, 344 So.2d 304 (Fla. 2d DCA 1977). The elements of common law fraud have been similarly defined, and actionable fraud has been found in situations involving false representations regarding the identity of persons purchasing property. 27 Fla.Jur.2d, Fraud & Deceit, § 34. We construe the policy terms “fraudulent scheme, trick, device or false pretense” as including the circumstances alleged in this case where equipment was intentionally delivered by Johnson’s employees to certain persons, even though Johnson was induced to make such delivery by misrepresentations as to that person’s true identity or authority to receive such property. Outwest Bean, Inc. v. National Fire Ins. Co. of Hartford, 514 P.2d 782 (Colo.App.1973). Such “parting,” while induced by fraud, is nonetheless “voluntary.”

The burden is upon USF & G to prove facts establishing an exclusion as to each piece of property involved. Allstate Ins. Co. v. Coin-O-Mat, Inc., 202 So.2d 598 (Fla. 1st DCA 1967); 31 Fla.Jur.2d, Insurance, § 996. In view of the testimony of Johnson’s employees, USF & G presented sufficient evidence to create a question of fact for the jury, making it error to enter summary judgment for Johnson.

The order granting summary judgment is reversed and the case is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

JOANOS and WIGGINTON, JJ., concur.

      . The policy provides:
      This policy insures against all risks of direct physical loss subject to the provisions and stipulations herein and in the policy of which this form is made a part.

      . We take note that the parties’ pleadings in this case, being as general as they are, stretch “notice pleading” to its extreme limits. The complaint simply alleges that Johnson had an insurance policy in effect, that it made a valid claim for loss under the policy, and that USF & G refused to pay. The claim is not annexed, no specific property is identified, and no ultimate facts, dates, or anything else, concerning the circumstances of the loss are alleged. The answer admits issuance of the policy, denies the remaining allegations, and, for an affirmative defense, alleges that the loss is not covered by reason of the policy terms and certain exclusions. No specific policy provisions are identified and no ultimate facts are alleged showing that the exclusions relied upon are applicable. Both pleadings are clearly insufficient, and it is impossible to tell from the pleadings what specifically disputed issues are involved.
      Nevertheless, no party has questioned the sufficiency of these pleadings. We proceed to decide this case on the issues argued to us by the parties only because their memoranda of law filed with the trial judge and included in the appendix on appeal indicate that the issues were argued below. But we feel compelled to point out that specific issues should be made by the pleadings if they are intended to be appropriately preserved for appellate review. Appellate courts should not be expected to review lengthy memoranda of law filed with the trial judge to determine whether the issues on appeal were properly raised and presented.
      In view of our disposition of this appeal, we suggest that specific issues remaining in dispute for trial should be identified in appropriate amended pleadings or a pretrial order entered after proceedings in accordance with Rule 1.200, Florida Rules of Civil Procedure.

      . USF & G has cited Goodman v. Strassburg, 139 So.2d 163 (Fla. 3d DCA 1962) and Glens Falls Insurance Co. v. Fields, 181 So.2d 187 (Fla. 1st DCA 1966) for the proposition that this court may reverse and instruct the trial court to enter summary judgment in its favor. These two cases are factually distinguishable since they involved appeals from summary final judgments, not non-final orders such as entered in this case. More importantly, these two cases were decided before the present appellate rule was adopted.

      . On the other hand, if Johnson concedes by stipulation that all of the lost property was actually delivered by his employees to someone claiming to be from Padgett, as was suggested during oral argument, then the trial court may well want to revisit USF & G’s motion for summary judgment.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    ATLANTIC CYLINDER CORP., Appellant, v. Edward HETNER and Valentin Peguero, Appellees.
    No. AR-310.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1983.
    Rehearing Denied Oct. 31, 1983.
    Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for appellant.
    Edward A. White, Jacksonville, for appel-lees.
   WENTWORTH, Judge.

Appellant seeks review of an order entered in the circuit court for Duval County dismissing its complaint with prejudice. We affirm.

Appellees are the president and secretary of two U.S. Virgin Islands corporations. Acting in their corporate capacity, appellees contracted with appellant for the construction and delivery of a gas transport trailer by appellant. Upon delivery of the item appellant was paid by check, but a stop payment order was thereafter effected. Appellant sued the two corporations, upon a six count complaint, and obtained a jury verdict and judgment upon the counts alleging breach of contract and wrongful stopping payment of a check; a directed verdict was entered in the defendants’ favor on other counts. This ruling was not appealed, and the judgment was satisfied by the defendant corporations.

Appellant then sued appellees individually for the same acts involved in the prior suit. The trial court, upon motion by appel-lees, dismissed the complaint with prejudice, finding that appellant seeks to reliti-gate issues on which it was denied recovery in the former action, and that the prior judgment on the merits for the employer bars an action against the employee in these circumstances.

Although multiple active tort-feasors may be sued separately in successive actions (see Gerardi v. Carlisle, 232 So.2d 36 (Fla. 1st DCA 1969)), when there is an active employee tortfeasor and respondeat superior liability of the employer then the prosecution of an action to judgment and satisfaction against the employer precludes a subsequent separate action against the employee for the same wrongful conduct. See Phillips v. Hall, 297 So.2d 136 (Fla. 1st DCA 1974). Phillips distinguishes Gerardi and suggests that the plaintiff may elect to treat the employee’s act as that of the employer, or that of the employee himself, but not both. This “election of actions” theory of Phillips should apply in the present case. The wrongful conduct which appellant asserts on the part of the corporations is the action of appellees as officers of the corporation; such imputation of wrongful conduct should not distinguish Phillips.

In addition, the doctrine of estoppel by judgment bars the present action. In Akins v. Hudson Pulp & Paper Co., 330 So.2d 757 (Fla. 1st DCA 1976), in an alternative holding (the case also involved the exclusivity provision of the Workers’ Compensation Law), the court quoted from Gordon v. Gordon, 59 So.2d 40 (Fla.1952), to the effect that:

The principle of estoppel by judgment is applicable where the two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues— that is to say points in question — common to both causes of action and which were actually adjudicated in the prior litigation.

The court also quoted from 46 Am.Jur.2d Judgments, and indicated that:

Where suit is brought against an employer for the alleged wrong of an employee, it is held that a judgment on the merits for the employer bars an action against the employee ....

A like rule should apply as to corporations and corporate officers. Estoppel by judgment therefore bars appellant from bringing the present action to the extent that it attempts to relitigate issues adversely determined in the previous action.

As to the issue presented with respect to count four of the complaint, the Phillips’ election of actions doctrine would perhaps bar even a subsequent suit which alleges a new theory of recovery upon the same operative facts. But the present case does not require such a construction of Phillips, since contrary to appellant’s contention it appears that count four of the present complaint merely reiterates factual allegations and a theory of recovery presented in the former action. Specifically, that count alleges that:

... The aforementioned acts by the Defendants were part of a concerted effort to defraud the Plaintiff out of his posses-sory rights .... [T]he actions by the Defendants were willful, wanton and with a total disregard for the rights and property of the Plaintiff and with the sole intention of fraudently depriving the Plaintiff of possessory rights.

In the prior action appellant unsuccessfully asserted that:

The conduct of the defendant was willful, wanton and with a fraudulent disregard for rights and property of the plaintiff; and with the sole intention of depriving plaintiff of possessory rights ....

Count four of the present complaint accordingly alleges a theory of recovery unsuccessfully presented in the prior action, and since the complaints also allege the same operative facts both Phillips and the doctrine of estoppel by judgment are applicable to sustain the judgment of dismissal. Affirmed.

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


author: DANIEL S. PEARSON, Judge. FERGUSON, Judge OWEN, WILLIAM C., Jr., Associate Judge,

text:
    EASTERN AIR LINES, INC., a Delaware corporation, Appellant, v. Daniel G. GELLERT, Appellee.
    No. 80-2376.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    David Popper, Richard M. Gale, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and WILLIAM C. OWEN, Jr., Associate Judge.
   DANIEL S. PEARSON, Judge.

Eastern Air Lines, Inc. (Eastern) appeals from a judgment for Gellert for compensatory and punitive damages in an action for defamation. It asserts, inter alia, that it was entitled to a directed verdict and judgment in its favor because the evidence failed to establish that it, through its agent, made a defamatory statement of fact concerning Gellert; that, at least, Gellert was not entitled to punitive damages against Eastern; and that, in any event, it is entitled to a new trial because it was unduly restricted by the trial court in the exercise of its peremptory challenges to prospective jurors. Gellert cross-appeals, contending that if there is any insufficiency in his proof to establish Eastern’s liability for punitive damages, such insufficiency was created by the trial court’s erroneous exclusion of certain proffered evidence on the ground that it concerned matters too remote in time.

We first examine Eastern’s claim that it was entitled to a directed verdict in its favor because the evidence failed to establish a defamatory statement of fact. If Eastern is correct in this contention, it will be unnecessary for us to consider the remaining issues.

In November 1978, one David Blundy, a reporter for the London Sunday Times, called James Ashlock, the director of Eastern’s news bureau, and in a telephone interview sought Ashlock’s reaction to Gellert’s written and verbal allegations that he had been penalized by Eastern for publicly disclosing an alleged defect in the design of the L-1011-type passenger aircraft then in use by Eastern. Ashlock, who knew that his statement would be published, is quoted as having stated:

“Gellert has been complaining for years. I think you ought to know that he wrote some very odd letters to the FBI.... He said Eastern was out to get him, that we tried to crash a plane in order to kill him. He’s paranoid.”

The article further reports that when Ash-lock was then asked why Gellert was allowed to fly Eastern’s passenger jets, he replied:

“It’s awfully hard to fire anyone these days. Anyway, we have three of them in the cockpit. Know what I mean?”

Eastern’s position is that the foregoing statements by Ashlock are statements of opinion, not of fact, and as such cannot form the basis for an action for defamation. Of course, Eastern is correct that statements of pure opinion cannot constitute actionable defamation. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-41, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789, 805 (1974); Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); White v. Fletcher, 90 So.2d 129 (Fla.1956); Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666 (Fla. 3d DCA 1981); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980); Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976). Accord, Mashburn v. Collin, 355 So.2d 879 (La.1977). However, a statement that although ostensibly in the form of an opinion “implies the allegation of undisclosed defamatory facts as the basis for the opinion,” Restatement (Second) of Torts § 566 (1977), is actionable. The difference between the former, unactionable, pure opinion and the latter, sometimes called “mixed opinion,” is that:

“Pure opinion occurs when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener as a member of the public. Mixed expression of opinion occurs when an opinion or comment is made which is based upon facts regarding the plaintiff or his conduct that have not been stated in the article or assumed to exist by the parties to the communication.” From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981).

It is the court’s function to determine from the context “whether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct .... ” Restatement (Second) of Torts § 566, comment c. See From v. Tallahassee Democrat, Inc., 400 So.2d at 57; Mashburn v. Collin, 355 So.2d at 885-86. If Ashlock’s statement would likely be reasonably understood by ordinary persons as a statement of an undisclosed existing defamatory fact, then it was properly the jury’s function to determine whether a defamatory meaning was attributed to it by recipients of the communication, and Eastern was not entitled to a directed verdict in its favor.

Eastern contends that Ashlock’s statement about Gellert, “He’s paranoid,” was based on the earlier disclosed facts that Gellert had written some letters to the F.B.I. in which he said that Eastern was out to get him and had tried to crash a plane in order to kill him. Were this the extent of Ashlock’s statement, we would agree with Eastern that the ordinary reader would not consider the statement to suggest that Gel-lert actually suffered from the mental affliction of paranoia, but rather would consider the statement to be Ashlock’s opinion based on the disclosed actions of Gellert, that is, he’s paranoid because he goes around saying that we tried to crash a plane in order to kill him. See, e.g., Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666 (article characterizing accusations made by plaintiff as “almost paranoid” considered to be expression of pure opinion entitled to absolute constitutional protection where accusations appeared in article); Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972) (calling plaintiff “nuts” and “crazy” in context of and in response to plaintiff’s demand that gas station pay for costs incurred when attendant at defendant’s gas station allegedly added wrong fluid to brake fluid considered to be expression of pure opinion based on disclosed facts); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314 (W.D.Pa.1974) (statement by defendant company’s representative on television show that something plaintiff had said earlier on same show sounded “a little bit like the sort of paranoid thinking that you get from a schizophrenic” considered to be pure opinion in context of rebuttal of plaintiff’s accusations). However, Ash-lock’s statement goes further. When asked by the Times reporter why Gellert, whom Ashlock had just described as paranoid, was allowed to continue to fly Eastern’s passenger jets, Ashlock replied:

“It’s awfully hard to fire anyone these days. Anyway, we have three of them in the cockpit. Know what I mean?”

We think this response by Ashlock was susceptible of being reasonably understood by the ordinary listener or reader to imply that quite apart from Ashlock’s opinion that Gel-lert was paranoid because of his “odd letters to the FBI,” or because he said “we tried to crash a plane in order to kill him,” Gellert was in fact paranoid, that is, suffering from a mental affliction which would justify his being discharged were it not for it being “awfully hard to fire anyone these days,” and which would prevent Eastern from entrusting one of its aircraft to his sole responsibility (“we have three of them in the cockpit”).

Having decided that Ashlock’s statement is not pure opinion, we turn to the less difficult question of whether a statement is defamatory when, as here, it implies that the plaintiff suffers from a mental affliction incompatible with his ability to carry out the responsibilities of his occupation. The answer, of course, is that any publication, oral or written, which imputes to another a condition incompatible with the proper exercise of his trade or profession, amounts to a slander or libel per se. Campbell v. Jacksonville Kennel Club, 66 So.2d 495, 497 (Fla.1953); Layne v. Tribune Co., 108 Fla. 177, 180, 146 So. 234, 236 (1933). And, most assuredly, a publication which suggests an impairment in plaintiff’s mental faculties, even short of suggesting insanity, is one which imputes to him a condition incompatible with the proper exercise of his trade or profession if made in that context. Hoover v. Peerless Publications, Inc., 461 F.Supp. 1206 (E.D.Pa.1978) (statement to a prospective employer that plaintiff had “some mental problems” in former employment actionable per se); Demers v. Meuret, 266 Or. 252, 512 P.2d 1348 (1973) (statement “what kind of protection can you give us from this terrible mean demented old man ... he might come out and chop our airplanes up with an axe” actionable per se where words prejudiced the plaintiff, an airline executive, in his profession or trade); Cavanagh v. Elliot, 270 Ill.App. 21 (1933) (statement to plaintiff’s employer that plaintiff had a “decided complex”); Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127 (1890) (statement that plaintiff, a bank clerk, suffered mental derangement). See also Capp v. Watts, 271 S.C. 276, 246 S.E.2d 606 (1978).

We conclude, therefore, that there was evidence from which a jury properly could have found that Eastern, through its agent Ashlock, made a defamatory statement about Gellert which injured him in his occupation as a pilot for which Eastern could be held liable to Gellert for compensatory damages.

Eastern’s argument that the award of punitive damages to Gellert cannot be sustained by the proof proceeds on two separate and distinct grounds, only one of which deserves our attention. Eastern correctly contends that the record is devoid of evidence that Eastern, Ashlock’s employer, was at fault, a necessary ingredient to the assessment of punitive damages against Eastern. See Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981). To be sure, Gellert introduced no proof from which reasonable-minded jurors could con-elude that Eastern knew or should have known that Ashlock, its employee, would defame Gellert, see Life Insurance Company of North America v. Del Aguila, 417 So.2d 651 (Fla.1982), or that Ashlock was ill-trained for his position by Eastern, see Preventive Security and Investigators, Inc. v. Troge, 428 So.2d 931 (Fla. 3d DCA 1982), or lacked appropriate supervision by Eastern, see Petrites v. J.C. Bradford & Co., 646 F.2d 1033 (5th Cir.1981), or that Ashlock was negligently hired by Eastern, see Petersen v. K-Mart Corp., 402 So.2d 1215 (Fla. 5th DCA 1981), rev. denied, 412 So.2d 467 (1982), or that in some other manner Eastern departed from some standard of care or did anything which foreseeably contributed to an injury suffered by Gellert. Therefore, under Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, Eastern cannot be held punitively liable for the conduct of Ashlock. Gellert’s alternative claim that Eastern is liable for punitive damages because of its own willful misconduct fares no better, because there is simply no proof in the record that Eastern induced, directly authorized or ratified Ashlock’s statement.

This failure of proof is readily explained by the fact that the trial of this case occurred in 1980, before the Supreme Court’s decision in Mercury Motors. At the time of trial, the law in this district was that “a jury may assess punitive damages against a corporate employer when its employee, acting within the scope of his employment, has been guilty of willful and wanton misconduct, ...” Mercury Motor Express, Inc. v. Smith, 372 So.2d 116, 117 (Fla. 3d DCA 1979). But where a change in the state of the law occurs between trial and appeal, we are bound to apply the law as it exists at the time of appeal. Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467 (Fla.1978); Florida East Coast Railway Co. v. Rouse, 194 So.2d 260 (Fla.1967). Since independent proof of Eastern’s fault is now required and no such proof was adduced, the punitive damage verdict against Eastern cannot stand.

We are quick to point out, however, that Eastern does not receive a windfall merely because the law has changed between trial and appeal. See Hendeles v. Sanford Auto Auction, Inc., 364 So.2d 467; Florida East Coast Railway Co. v. Rouse, 194 So.2d at 262; Winter Park Golf Estates, Inc. v. City of Winter Park, 114 Fla. 350, 153 So. 842 (1934); Melick v. Melick, 393 So.2d 1186 (Fla. 1st DCA 1981). Gellert had a right to rely on the law which was in force when the case was tried, and in 1980 there was no need for him to prove independent fault on Eastern’s part. He will have an opportunity to do so upon the retrial of this case, which, as will be seen, is necessitated by a defect in the jury selection process.

In the jury selection process, the clerk selected twelve persons from an undisclosed number of prospective jurors seated in the courtroom. After the court and both counsel had questioned the initial twelve prospective jurors, and after the court had announced that four of them would be excused for cause, counsel were called to the bench and informed that “there will be no more questions at this time.” The court further informed counsel that they would at that point be required to exercise all of their allotted peremptory challenges which they wished to exercise, and there would be no further opportunity afforded the parties to exercise any peremptory challenges. Eastern’s counsel objected to this procedure on the ground that there were only eight available prospective jurors of the ones who had been examined on voir dire and that he should not be required to exercise or forego all his peremptory challenges without an available panel of twelve prospective jurors in the box. This objection was overruled, whereupon, apparently in accordance with the customary practice of the court, counsel for both parties submitted slips of paper bearing the names of the three prospective jurors whom each challenged peremptorily. The name of one such prospective juror appeared on both lists, resulting in only five prospective jurors being excused by peremptory challenges. This left remaining in the jury box only three of the original twelve who had been questioned. Three additional prospective jurors were seated. One of them, a juror named Hall, disclosed in response to the court’s questioning that in 1972 he had brought a claim for personal injuries, but “it went to a jury and they granted me zero.” When asked if he harbored any ill feelings against the court system, he responded affirmatively, stating that he did not believe in the jury system. Nonetheless, upon further questioning, he stated that his experience would not “spill over” into this case and that he could put it aside and be fair and impartial. Eastern’s counsel then again voiced objection to the manner in which he had been required to exercise peremptory challenges, pointing out that he had been required to do so before ever having the opportunity to question the replacement prospective jurors. He then sought to challenge prospective juror Hall for cause, and when that challenge was denied, he requested from the court an additional peremptory challenge with respect to the three new jurors who had been called to the jury box. This request was also denied, the trial court stating that the procedure of having only eight available jurors at the time of requiring all peremptory challenges to be exercised “does not violate any rule of procedure.”

Two important principles are here involved, namely the broad discretion vested in the trial court to control the manner in which peremptory challenges are to be exercised, Peri v. State, 426 So.2d 1021 (Fla. 3d DCA 1983); Barker v. Randolph, 239 So.2d 110 (Fla. 1st DCA), cert. denied, 242 So.2d 137 (Fla.1970); Gafford v. Star Fish & Oyster Co., 475 F.2d 767 (5th Cir.1973), and the right of a litigant to have a fair opportunity to make an intelligent judgment as to the exercise of the peremptory challenges guaranteed to him by law, see Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Ritter v. Jimenez, 343 So.2d 659 (Fla. 3d DCA 1977); Minnis v. Jackson, 330 So.2d 847 (Fla. 3d DCA 1976); Saborit v. Deliford, 312 So.2d 795 (Fla. 3d DCA 1975), cert. denied, 327 So.2d 32 (Fla.1976); Ellison v. Cribb, 271 So.2d 174 (Fla. 1st DCA 1972), cert. denied, 272 So.2d 160 (Fla.1973); Barker v. Randolph, 239 So.2d 110.

Eastern was not, as it urges, entitled to have four additional prospective jurors placed in the jury box and submitted to voir dire examination before it was required to exercise any of its challenges. As pointed out by the trial judge, the parties were at that point better off than if only six prospective jurors had been placed in the jury box initially, with four more called to replace the four who had been excused for cause. Thus, there was neither error nor abuse of discretion in denying Eastern’s request in this respect. On the other hand, we do find that the trial court abused its discretion in requiring counsel to exercise all peremptory challenges that they expected to exercise at a time when there were only eight prospective jurors in the jury box, because, as was quite clearly foreseeable and indeed occurred here, the exercise of such peremptory challenges would leave fewer than six prospective jurors in the box, thereby depriving Eastern of a fair opportunity to make an intelligent judgment as to the manner in which it should exercise its peremptory challenges. While Gellert argues that Eastern should have reserved at least one challenge to exercise against the prospective jurors called to fill the vacant seats, that argument overlooks the very essence of the court’s order, that is, that no further opportunity would be afforded the parties to exercise peremptory challenges.

Thus, the court, while granted discretion over the manner in which challenges are exercised, must exercise that discretion so as not to violate the litigant’s right to have a fair opportunity to make an intelligent judgment as to exercise of peremptory challenges. See, e.g., Poole v. State, 194 So.2d 903 (Fla.1967) (error for court to refuse to permit questioning regarding mercy recommendations); Barker v. Randolph, 239 So.2d 110 (error for court to refuse plaintiff to resume questioning once panel was tendered to defendant). Here, by whatever manner the initial peremptory challenges were exercised, once the number of prospective jurors who had been examined on voir dire was reduced to less than the six required for the trial of this case, additional prospective jurors should have been seated and subjected to voir dire, after which further opportunity for exercise of peremptory challenges should have been permitted, and the process continued until counsel either exhausted their respective peremptory challenges or, having challenges left, voluntarily relinquished them and accepted the jury.

By this opinion, we do not condemn the general procedures which the court contemplated using at the outset of the case, that is, to select twelve prospective jurors, numbered one to twelve respectively, who, after a reasonable opportunity for voir dire examination by the parties, would become the panel from which the jury was selected, those with the six lowest numbers after the exercise of peremptory challenges becoming the jury. The system chosen ran into difficulty only because some prospective jurors were excused for cause. The same technique with a slightly larger original panel (thus allowing for depletion due to excuses for cause, and thereby eliminating any probability of additional prospective jurors being called to the box after all peremptory challenges had been exhausted) would adequately protect the litigant’s rights without interfering with the exercise by the court of its sound discretion in the manner in which challenges are to be exercised.

Accordingly, we reverse the judgment under review and remand the cause for a new trial.

Reversed and remanded.

FERGUSON, Judge

(concurring in part and dissenting in part).

Judge Pearson has prepared for the court a very thoughtful opinion on the issues presented. This partial dissent is filed because I disagree only with his treatment of the punitive damage question.

A jury found, apparently, that as public spokesman for Eastern, Ashlock could by his public statements make the corporation liable for punitive damages. The majority reverses, holding that Ashlock is not Eastern, and suggesting that there must be some act of negligence on the part of a person higher than Ashlock in the organizational structure in order to make Eastern liable for punitive damages. The majority relies on Mercury Motors v. Smith, 393 So.2d 545 (Fla.1981) as support for this holding.

The opinion of the Florida Supreme Court in Mercury Motors is not dispositive of the question presented here, for in that case, the corporate actor was a low-level truck driver, and the tort was a wrongful death caused by the negligent operation of his vehicle. Mercury Motors did not answer the question of whose acts constitute the acts of the corporate employer. It is axiomatic that a corporation can act only through its agents (cites omitted). Query, at what level of the organizational scheme, if at any, is an agent deemed a corporate actor for the purpose of assessing punitive damages against the corporation where the agent acts maliciously within the course and scope of his corporate duties?

Although there is no direct evidence on the point, it can be inferred, based on the authority exercised by him, that Ashlock has considerable responsibility for the corporation’s public relations function. To the extent that the majority holds, as a matter of law, that no corporate officer or employee can by his own wanton and malicious act trigger corporate liability for punitive damages, I would disagree. Whether a particular corporate position carries with it such responsibility as to make the position-holder the corporation in the doing of a particular act is, in my opinion, a question of fact to be decided by the jury.

OWEN, WILLIAM C., Jr., Associate Judge,

concurring in part and dissenting in part;

While I concur that the judgment should be reversed, I would remand to the trial court with instructions to enter judgment in favor of appellant on the holding that, as a matter of law, the alleged defamatory statement was not one of fact, but was merely a statement of pure opinion as to which no cause of action will lie.

There is no objective standard by which one can be shown to be paranoid. Thus, a statement that one is “paranoid” is necessarily a statement of opinion. For example, if the truth of the statement was an issue to be determined by the trier of fact, surely the proof would be made solely by opinion testimony of expert witnesses. How can it be said, then, that a lay person, using the term “paranoid” in its more commonly understood meaning to describe another, has made such statement as one of fact rather than one of opinion.

My dissent extends only to the foregoing issue. On all other issues I fully concur in the majority opinion.

      . Since 1972, there has been an ongoing controversy between Eastern and Captain Gellert, an Eastern pilot. The details are not essential to our disposition of the case, but for anyone interested, some of these matters are discussed in Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980), and Eastern Air Lines, Inc. v. Gellert, 431 So.2d 329 (Fla. 3d DCA 1983).

      . Where a statement casts aspersions on someone’s mental fitness, but is not made in connection with that person’s business or profession, a distinction is drawn between written and oral statements. A printed statement which derogates the plaintiffs mental condition has been held to be libelous per se. See Cowper v. Vannier, 20 Ill.App.2d 499, 156 N.E.2d 761 (1959) (statement in newspaper that plaintiff was recovering from mental illness); Kenney v. Hatfield, 351 Mich. 498, 88 N.W.2d 535 (1958) (paid printed political advertisement by judge justifying commitment of plaintiff); Wemple v. Delano, 187 Misc. 710, 65 N.Y.S.2d 322 (1946); Moore v. Francis, 121 N.Y. 199, 23 N.E. 1127 (1890). However, an oral statement which imputes impairment of a person’s mental faculties is not slander per se. See Modla v. Parker, 17 Ariz.App. 54, 495 P.2d 494, cert. denied sub nom. Modla v. Southside Hospital, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972). See generally 53 C.J.S. Libel and Slander § 25 (1948).

      . Gellert says in his cross-appeal that if he failed in his proof, that failure resulted from the trial court’s erroneous exclusion of evidence offered by him. Since Eastern’s independent fault was not an issue in the 1980 trial, we leave it to the trial court on retrial of this case to examine the proffered evidence in light of this new issue. Of course, even had Gellert proved fault on Eastern’s part, the jury was instructed on the law as it existed in 1980, that is, that if Ashlock acted maliciously, it could assess punitive damages against Eastern. The instruction itself would mandate reversal of the punitive damage award under the present state of the law.

      . Of course, where a party voluntarily exercises all peremptory challenges to which he is entitled, as a result of which there are fewer prospective jurors in the box than required to fulfill the jury complement, he cannot be heard to complain that he has then no opportunity to exercise peremptory challenges against the entire panel, including a replacement prospective juror.


author: BASKIN, Judge.

text:
    Ardis F. HEIMAN, Appellant, v. CAPITAL BANK, Caeser O. Casilelles, Heiman, Krieger, Freidin & Silber, P.A., and Consolidated Oil Company, Appellees.
    No. 82-263.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Rehearing Denied Nov. 2, 1983.

      Silver, Levy & Hershoff and Jay Levy, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Richard G. Garrett and Mark D. Bloom, Miami, for appel-lees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

Mrs. Heiman, surviving spouse of Eugene Heiman, sought to have her condominium declared exempt from forced sale under homestead provisions of the Florida Constitution, Article X, section 4. She maintained that her husband’s right to homestead protections as the head of the family, descended to her even though she took title to the condominium in her name alone. Finding that Mrs. Heiman had proved all other elements required to establish homestead, the trial court denied her petition to set aside the property as homestead, on the ground that record title was essential. We disagree and reverse.

Record title is not a prerequisite to a finding that property is homestead. Homestead status may derive from the husband’s beneficial interest as head of the family in a marital home titled in his wife’s name, Beall v. Pinckney, 150 F.2d 467 (5th Cir.1945); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917), so that upon his death the surviving wife may obtain the benefits in the form of exemption from forced sale. Mrs. Heiman is entitled to demonstrate that her husband retained a beneficial interest in the condominium sufficient to have the property designated homestead even though her name appeared on the deed. If the property qualified as homestead on the date of her husband’s death, Mrs. Heiman is entitled to the homestead exemption.

The bank urges us to dismiss the appeal. It argues that the appeal is moot or that Mrs. Heiman waived her homestead exemption when she paid the bank’s judgment from proceeds of the sale of the condominium. We reject the bank’s request. A sale forced by an impending execution of judgment cannot be deemed voluntary for the purpose of constituting a waiver. The action is not moot because the trial court may, upon appropriate application, order restitution following our reversal of its erroneous ruling. Mann v. Thompson, 118 So.2d 112 (Fla. 1st DCA 1960). An appeal is not necessarily moot merely because a party failed to obtain a stay and the judgment has been enforced. Lonergan v. Lippman, 406 So.2d 1124 (Fla. 1st DCA), cert. denied, 418 So.2d 1279 (Fla.1982).

For these reasons we deny appellee’s motion to dismiss and reverse and remand with directions to the trial court to determine whether Mrs. Heiman demonstrated that her husband retained a beneficial interest in the condominium. If so, she is entitled to homestead protections.

Reversed and remanded.


author: PER CURIAM.

text:
    Carlos Manuel ORTEGA, a/k/a Marcus Nerey, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1562.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The judgment appealed from is affirmed upon the holding that (1) the instructions as a whole clearly and adequately enabled the jury to consider the theory of the defense: McKinney v. State, 428 So.2d 322 (Fla. 1st DCA 1983); Leonard v. State, 423 So.2d 594 (Fla. 3d DCA 1982); Scott v. State, 396 So.2d 271 (Fla. 3d DCA 1981); Marcum v. State, 379 So.2d 974 (Fla. 5th DCA 1979), cert. denied, 389 So.2d 1112 (Fla.1980); Diez v. State, 359 So.2d 55 (Fla. 3d DCA 1978), (2) the evidence was legally sufficient to support the jury verdict: Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff’d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); S.W. v. State, 431 So.2d 342 (Fla. 2d DCA 1983); Jackson v. State, 419 So.2d 394 (Fla. 4th DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982); Knight v. State, 392 So.2d 337 (Fla. 3d DCA), rev. denied, 399 So.2d 1143 (Fla.1981), and (3) jury instructions are within the sound discretion of the trial court; instructions must be complete on the subject involved: Griffin v. State, 414 So.2d 1025 (Fla.1982); Henry v. State, 359 So.2d 864 (Fla.1978); Cole v. State, 353 So.2d 952 (Fla. 2d DCA 1978).

Affirmed.


text:
    Herbert WHIPPLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1615.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Bennett H. Brummer, Public Defender, and Sanford D. Rockowitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

The jury verdict finding defendant guilty of second-degree murder is supported by competent and substantial evidence, thus it will not be disturbed. Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978).

The jury instruction on self-defense, considered in its entirety, was clear, comprehensive, and correct even though it omitted language as to the specific offense the victim was allegedly committing at the time he was killed by defendant. See Sheppard v. State, 322 So.2d 628 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 603 (Fla.1976); Bolin v. State, 297 So.2d 317 (Fla. 3d DCA), cert. denied, 304 So.2d 452 (Fla.1974).

Affirmed.


text:
    Carlos OSORIO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1720.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Bennett H. Brummer, Public Defender, and Paul & Thomson and Samuel A. Terilli, Special Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

We affirm the trial court’s denial of the defendant’s motion to suppress upon a holding that the evidence, while conflicting, was sufficient for the trial court to conclude that the defendant possessed a sufficient knowledge of the English language to give a valid consent.

We have considered the other issues raised by the appellant and find them to be without merit. See State v. Millwood, 430 So.2d 563 (Fla. 3d DCA 1983); Login v. State, 394 So.2d 183 (Fla. 3d DCA 1981).

Affirmed.


text:
    Johnny T. MILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1722.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.

      Bennett H. Brummer, Public Defender, and Steven H. Haguel, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lántz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The single issue raised by this appeal is whether the court erred by not giving an instruction pursuant to Section 90.-404(2)(b)2, Florida Statutes (1981) on the limited purpose for which similar crime evidence was to be considered, at the time the evidence was admitted. We hold that in the absence of a request by defense counsel, the court was not obligated to give such an instruction at that time. Further, no fundamental error has been demonstrated. At the close of the evidence, in accordance with Florida Standard Jury Instructions (1981) and the applicable statute, the court instructed the jury:

The evidence which has been admitted to show similar crimes, wrongs, or acts allegedly committed by the defendant will be considered by you only as that evidence relates to proof of identity on the part of the defendant.

In light of the given standard instruction, it is unlikely, contrary to what is contended, that the jury misunderstood the limited purpose for which the similar crime evidence was admitted.

Affirmed.

      . Section 90.404(2)(b)2, Florida Statutes (1981) provides:
      (2) OTHER CRIMES, WRONGS, OR ACTS.—
      (b) * * *
      2. When the evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information, [e.s.]


text:
    Terrence WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2564.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.

      Bennett H. Brummer, Public Defender and Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Sp. Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the defendant’s conviction for robbery with a firearm upon holdings that (1) assuming, arguendo, that the physical line-up procedure employed by the police was unnecessarily suggestive, this procedure did not give rise to a substantial likelihood of irreparable misidentification of the defendant under the circumstances of this case, see Grant v. State, 390 So.2d 341 (Fla.1980); and (2) the denial of the defendant’s in-trial motion for a continuance was not a palpable abuse of discretion, see Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), where the motion was made to procure the attendance of an alibi witness who had not been subpoenaed by the defense and whose testimony at best would be cumulative, see Durcan v. State, 350 So.2d 525 (Fla. 3d DCA 1977).

Affirmed.


author: FERGUSON, Judge.

text:
    Mae E. MABREY and J.D. Mabrey, Appellants, v. CARNIVAL CRUISE LINES, INC., Appellee.
    No. 83-151.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Cone, Wagner, Nugent, Johnson, Hazouri & Roth and Richard A. Kupfer, West Palm Beach, for appellants.
    Katz, Squitero & Linden and Anthony H. Pelle, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellants, plaintiffs in the trial court, claim by this appeal that the lower court erred in directing a verdict for the defendant at the conclusion of a jury trial.

Plaintiffs, Mae E. Mabrey and J.D. Ma-brey, were passengers on defendant’s luxury vessel, the “TSS Festivale”. Mrs. Ma-brey suffered injuries when she slipped and fell while on the observation deck of the ship. She brought suit against defendant cruise line claiming negligence, and her husband joined in the action seeking damages for loss of consortium and medical expenses.

Plaintiffs alleged that defendant’s negligence was the proximate cause of Mrs. Ma-brey’s injuries in that defendant (1) failed to use a non-skid surface for the deck where passengers frequently walk and where moisture accumulates; (2) failed to coat the deck with a paint that would prevent it from becoming slippery when wet; and (3) failed to have a handrail in the vicinity of the observation deck. Defendant moved for a directed verdict at the close of plaintiffs’ case, arguing that there was no evidence to show how the deck became wet or how long it was wet before plaintiff’s accident; that the defendant did post warning signs; and that no one else ever reported slipping on this deck. Further, defendant argued that there was no competent evidence to show that defendant knew, or should have known, of the allegedly dangerous condition. The court reserved ruling on defendant’s motion, and allowed defendant to present its case before submitting the issue to the jury. After the jury retired, the court orally announced that it would grant defendant’s motion for directed verdict but, for appellate purposes, it would allow the jury to reach a verdict. The jury’s verdict found defendant 100% negligent and awarded Mrs. Mabrey $80,000 in damages. No damages were awarded to Mr. Mabrey. The court then directed a verdict and entered judgment for the defendant in accordance with its earlier pronouncement. This appeal follows.

Plaintiffs claim that the trial court committed error in directing a verdict for defendant. We agree.

In Marlowe v. Food Fair Stores of Florida, Inc., 284 So.2d 490, 492 (Fla. 3d DCA 1973), cert. denied, 291 So.2d 205 (Fla.1974), we held:

The power to direct a verdict in a slip and fall case should be exercised with caution, and it should never be granted unless the evidence is of such a nature that under no view which the jury might lawfully take of it, favorable to the adverse party, could a verdict for the latter be upheld.

See also Little v. Publix Supermarkets, Inc., 234 So.2d 132 (Fla. 4th DCA 1970); First Gulf Beach Bank & Trust Co. v. Alvarez, 227 So.2d 745 (Fla. 2d DCA 1969), cert. denied, 237 So.2d 177 (Fla.1970).

The defendant contends that a directed verdict was proper in that plaintiffs failed to produce evidence as to the source of the wetness and/or the defendant’s actual or constructive knowledge of any danger posed to its passengers. First, it is evident that the defendant did have knowledge that the deck was dangerous, since it had posted at the entrance to the deck a sign warning “Slippery When Wet”. Second, this court has recognized that actual or constructive knowledge is irrelevant in cases not involving transitory, foreign substances (i.e., the typical banana peel case), if ample evidence of negligent maintenance can be shown. See 194th Street Hotel Corp. v. Hopf, 383 So.2d 739 (Fla. 3d DCA 1980). Here, plaintiffs offered testimony that the constant wetness on the deck, even on otherwise dry days, could be attributable to sea spray or to condensation caused by steam escaping from a nearby smokestack, but that nonetheless, the surface of the deck easily could have been made skid-proof if properly coated and maintained. Since there was evidence presented upon which a jury could lawfully find for the plaintiffs, even though the evidence was susceptible to different reasonable inferences, it was error to direct a verdict. Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981).

Reversed and remanded with directions to enter judgment in accordance with the jury’s verdict.

      . The procedure is approved, Dysart v. Hunt, 383 So.2d 259 (Fla. 3d DCA), rev. denied, 392 So.2d 1373 (Fla.1980); Freeman v. Rubin, 318 So.2d 540 (Fla. 3d DCA 1975); Ditlow v. Ka-plan, 181 So.2d 226 (Fla. 3d DCA 1965), as a matter of administration, to see if the jury will properly resolve the issues to the trial court’s satisfaction.

      . Appellants also raise the issue, prematurely, of when statutory interest should be deemed to accrue. The cases cited by appellants in their brief are admittedly analogous to the case at bar, however, none is dispositive of the precise issue under review. Instead, as appellants point out, this question is directly answered by the former Florida Appelate Rules, specifically Rule 3.15(a), which stated:
      When a judgment of reversal is entered which requires the entry of a money judgment on a verdict the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.
      The new Florida Rules of Appellate Procedure, in Fla.R.App.P. 9.340, have eliminated this language, but a 1977 Committee Note expressly provides that the omission was not intended to change the substantive law regarding money judgments as stated in former Rule 3.15(a). Thus, on remand, the trial judge must enter a final judgment, nunc pro tunc, to January 4, 1983, the date of the jury’s verdict. Under Section 55.03, Florida Statutes (1981), the judgment will bear interest at the rate of 12% from that date.
      After this opinion was prepared for release, it was brought to our attention that the Appellate Rules Committee has proposed a repromulgation of former Rule 3.15(a). That proposal was approved by the Board of Governors on September 30, 1983, and will be submitted to the Florida Supreme Court for adoption.


text:
    Freddie MILLER, as Personal Representative of the Estate of James Frederick Miller, deceased, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY; Pitney Bowes, Inc., Appellees.
    No. 83-714.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 1983.
    Horton, Perse & Ginsberg and Edward A. Perse, Samuel Spatzer, Miami, for appellant.

      Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellees.
    Before BARKDULL and DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

The deceased’s father was employed by Pitney Bowes, Inc. Pitney leased from their employees their automobiles for use in its business activities and agreed to provide insurance for its employees during the term of such lease. The employee’s son was involved in an accident with an uninsured motorist. An action was then brought against Pitney, the employer, and Liberty Mutual, the insurer. In an amended complaint the following is found.

“14. At the time the subject lease was entered into, the defendant PITNEY BOWES fully informed the defendant LIBERTY of the fact that said leased vehicles of the plaintiff and other employees similarly situated were for the business and/or pleasure use of said employees and fully informed LIBERTY that the vehicles were to be insured so as to fully cover PITNEY BOWES and its employees as if they had acquired their own family automobile liability insurance.

After the accident it was determined the employee was not fully insured, the total amount of uninsured motorist coverage being only $10,000.

The trial court dismissed the complaint as to Liberty Mutual (it having tendered $10,-000) and left a cause of action pending against Pitney. We reverse.

Under the allegations above set forth we interpret “fully cover” to include the maximum limit of uninsured motorist coverage available under the statutes of this state which under the particular policy, as referred to in the amended complaint, would be $500,000. Crompton v. Kirkland, 157 Fla. 89,24 So.2d 902 (1946); Dreka v. White-hair, 140 Fla. 802, 192 So. 321 (1939); Hopke v. O’Byrne, 148 So.2d 755 (Fla. 1st DCA 1963).

Therefore the matter is returned to the trial court for further proceedings. This is not to say that the trial court may not ultimately enter a summary judgment in favor of Liberty Mutual in the event it should appear that Pitney failed to indicate or request from Liberty full coverage as alleged in paragraph 14.

Reversed and remanded with directions.

      . Pitney elected to limit uninsured coverage to $10,000/$20,000 without notice to its employees.

      . The complaint sounded in breach of contract for failure to provide coverage promised and negligent failure to procure promised insurance.


author: MILLS, Judge.

text:
    Mitchell Glenn FRIDDLE, Appellant, v. STATE of Florida, Appellee.
    Nos. AO-474, AP-68 and AP-116.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.

      Michael Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Friddle appeals his convictions for aggravated assault with a firearm and possession of a firearm by a convicted felon. He also appeals probation revocations based on those convictions. We affirm.

Friddle was charged with aggravated assault with a firearm and with possession of a firearm by a convicted felon. At trial, Steve Schwark testified that Friddle had twice threatened him with a pistol. Another witness testified that Friddle told him that he had pulled a gun on Schwark.

Schwark’s wife, Ruth Ann, testified for the defense. She stated that she had never seen Friddle pull a gun or threaten her husband and that she was with her husband and Friddle when the crimes were alleged to have occurred.

On recross-examination, over defense counsel’s objections, the trial judge allowed the prosecutor to ask Mrs. Schwark if she had tried to bring wine to Friddle while he was in jail. Mrs. Schwark stated that it had not been proven that she had. In fact, Mrs. Schwark had been charged with introduction of contraband into a jail facility for allegedly taking a bottle of wine to Friddle while he was in jail.

The prosecutor was also allowed, over objection, to refer to Mrs. Schwark’s testimony concerning the wine incident in his closing argument.

Friddle was convicted and sentenced to prison. As a consequence of the convictions, Friddle’s probation was also revoked. The trial court denied motions for a new trial and for mistrial.

Friddle contends that the trial court committed reversible error when it allowed the prosecution to question a defense witness on charges pending against that witness and to refer to the pending charge in closing argument. Although we agree with Friddle that the trial court erred in allowing questioning and comment on a criminal charge pending against a defense witness, the error was harmless.

Generally, impeachment by reference to charges pending against a witness is not allowed. An exception has been recognized where the defense seeks to show bias of a prosecution witness by showing that the State has charged that witness with a crime. Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974). But this exception has not been extended to include impeachment of defense witnesses by reference to pending charges merely to show bias. Fulton v. State, 335 So.2d 280 (Fla.1976).

In this case, however, the witness’ bias had been clearly established before the improper cross-examination. Also, the danger of guilt by association was not great. The jury knew that Friddle was a convicted felon and that he was in jail pending trial.

Apart from the improper cross-examination, the State made a convincing showing of guilt. It is apparent from the record that Friddle was not prejudiced by the cross-examination of Mrs. Schwark or the prosecutor’s closing argument.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Clyde MILLER, Appellant, v. STATE of Florida, Appellee.
    Nos. AP-49, AQ-60.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Rehearing Denied Oct. 27, 1983.
    Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Miller appeals his conviction for burglary of a dwelling. We affirm.

The information charged Miller with burglary of a dwelling with intent to commit theft. Miller contends that the trial court erred in denying his motion for judgment of acquittal because the prosecution presented no evidence of intent to commit theft. We disagree.

There was no indication that anyone was inside the house when Miller approached it, thus negating any hypothesis of intent to commit a crime against a person. Miller carried no explosive or flammable materials indicating intent to commit arson. In addition, Miller stated that he was hungry when he approached the house and wanted to get something to eat. The circumstantial evidence excluded any reasonable hypothesis but that Miller intended to steal once inside the dwelling. State v. Waters, 436 So.2d 66 (Fla.1983).

Miller’s contention that he was entitled to discharge because the trial court did not issue a written order extending the speedy trial period is without merit. Strapp v. State, 435 So.2d 924 (Fla. 1st DCA 1983).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Leroy RIGGINS, Appellant, v. STATE of Florida, Appellee.
    No. AQ-25.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Rehearing Denied Oct. 26, 1983.
    Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED, without prejudice to appellant’s right to file a motion for correction of judgment, pursuant to Rule 3.800, Florida Rules of Criminal Procedure.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.


text:
    T.W.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. AQ-349.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Michael Allen, Public Defender, Charlene Y. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

T.W.G., a juvenile, appeals an order of adjudication and commitment for trespass and petit theft. We affirm.

T.W.G. contends that the trial court erred when it denied his motions for judgment of acquittal because the evidence was not inconsistent with any reasonable hypothesis of innocence. We disagree.

The State showed that T.W.G. was parked in his truck in a wooded lot adjacent to the Jack Rabbit Express truck terminal on the night gasoline was stolen from a truck inside the terminal. The State also showed that T.W.G. smelled of gasoline, that the gasoline cap was removed from his truck, and that there were two gasoline cans and a hose in or near his truck. There was only one set of tire tracks leading into the wooded lot.

T.W.G. testified that he and a friend had driven into the wooded lot to drink beer, but, when they were ready to leave, his truck would not start so he took a can of his own gasoline and poured it into the tank of his truck shortly before the police arrived. But that explanation is patently unreasonable in light of the unexplained can of gasoline near his truck and an apparent attempt to hide the truck with tree branches.

The fact that the State could not directly prove that the gasoline taken from the truck inside the terminal was that found in or near T.W.G.’s truck is not fatal to the State’s case. With fungible quantities, identity can often only be inferred from the circumstances.

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    W.W. GAY MECHANICAL CONTRACTORS, INC. and Risk Management Services, Inc., Appellants, v. William C. SAPP, Appellee.
    No. AQ-386.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Bette T. Miller and William J. Taylor of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellants.
    Lloyd C. Hawthorne, Live Oak, for appel-lee.
   PER CURIAM.

After reviewing the entire record we find no reversible error on a matter of law, except in the implication attributed by the carrier to the order’s reference to fees, which the carrier takes to mean fees will be paid by the carrier. To the extent, if any, that implication exists, it would of course be error, there having been no hearing on the subject, nor any findings. Disregarding the problematic implication, we find the order without error.

AFFIRMED.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


text:
    SOUTHWEST FOREST INDUSTRIES and Scott Wetzel Services, Appellants, v. James J. JONES, Appellee.
    No. AQ-399.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Bernard J. Zimmerman and Michael M. O’Brien, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Paul D. Srygley, Tallahassee, for appel-lee.
   PER CURIAM.

This cause is before us on appeal from an order of Deputy Commissioner Michael J. DeMarko awarding claimant temporary total disability compensation and remedial psychiatric medical care. We commend the deputy for the clarity and completeness of his order, which fully sets out the factual and legal bases for his decision. The first sentence of paragraph B of the decretal portion of the deputy’s order is amended as follows:

Provide to the Claimant remedial psychiatric medical care under the supervision of Dr. Amin as the nature of his injury and the course of his recovery may require, in the manner and for the time provided by law.

Lake Highland Nursing Home v. Everett, 397 So.2d 380 (Fla. 1st DCA 1981). As amended, the order is affirmed.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Antoinette MATSON, Appellant, v. HOBEAU FARMS, LTD. and Corporate Group Service, Inc., Appellees.
    No. AR-236.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant.
    Jack A. Langdon of Jones & Langdon, P.A., Gainesville, for appellees.
   WIGGINTON, Judge.

Claimant appeals from the order of the deputy commissioner denying her claim for benefits on the basis that the ruptured disc in claimant’s neck stemmed from an automobile accident and was not causally related to her earlier industrial accident. We reverse.

The deputy’s finding of no causal relationship does not comport with logic and reason in light of the unanimous medical testimony that claimant’s condition following the industrial injury was exacerbated by the automobile accident, and that the injury sustained in the latter accident could not stand alone. Moreover, there is no basis for the deputy’s finding that the tingling sensation in claimant’s hands and arms began only after the automobile accident. Claimant’s testimony was consistent with that of the medical testimony that her symptoms after the automobile accident were those same symptoms she had experienced after the work-related accident. Finally, claimant’s remarks to her physicians that her symptoms from the industrial accident had subsided by the time of the automobile accident were only probative of simple matters such as the existence and location of pain, sequence of events, and other factors within her actual knowledge and sensory experience, but were insufficient, standing alone, as evidence to defeat a finding of causal relationship between the industrial accident and her ruptured disc, a condition not readily observable or discoverable without medical examination. McCall v. Dick Burns, Inc., 408 So.2d 787, 792 (Fla. 1st DCA 1982); Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Under the circumstances, it was incumbent upon the deputy to defer to the opinion of the physicians.

There is competent and substantial evidence comporting with logic and reason in the record to support a finding of causal relationship, and therefore of compensability. The deputy’s order is REVERSED and the cause REMANDED for further proceedings on the issue of the benefits claimed.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.


text:
    Jeffrey Jerome WALKER, Appellant, v. Bob GRAHAM, L.L. Wainwright, R.L. Dugger, D.E. Watson, and T.L. Barton, Appellees.
    No. AR-247.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Jeffrey Jerome Walker, pro se, for appellant.
    Jim Smith, Atty. Gen., and Harry F. Chiles, Asst. Atty. Gen., Tallahassee, for appel-lees.
   PER CURIAM.

AFFIRMED. Cook v. Hanberry, 592 F.2d 248 (5th Cir.), cert. denied, 442 U.S. 932, 99 S.Ct. 2866, 61 L.Ed.2d 301 (1979); North v. State, 217 So.2d 608 (Fla. 1st DCA 1969).

MILLS, SHIVERS and ZEHMER, JJ., concur.


text:
    Otis MORGAN, Deceased, Otis Darrell Morgan, Claimant, Appellant, v. JSD ENTERPRISE, d/b/a Mirror Mart, and Liberty Mutual Insurance Company, Appellees.
    No. AR-288.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1983.
    Harry Goodmark of Goodmark & Good-mark, P.A., West Palm Beach, for appellant.
    Walter E. Beisler of Beisler & Wells, West Palm Beach, for appellees.
   WIGGINTON, Judge.

Appellant, the son of Otis Morgan, deceased, appeals the deputy commissioner’s order finding that the deceased’s suicide is not compensable, thereby precluding appellant from receiving workers' compensation death benefits for dependents pursuant to section 440.16, Florida Statutes. Substantial competent evidence supports the deputy commissioner’s ruling and therefore we affirm.

Appellant also has placed in issue the question of whether he is a dependent child of the deceased. The deputy commissioner found, in appellant’s favor, that appellant is a dependent. Thus, appellant’s purpose in raising the issue for review is unclear. However, in light of our affirmance of the deputy commissioner’s ruling that the suicide is not compensable, we will not address the question of dependency as it is now moot for purposes of this case.

AFFIRMED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


text:
    Thomas Joseph DOLAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-284.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    As Corrected on Denial of Rehearing Dec. 21,1983.
    G. Russell Petersen, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Robert L. Bogen and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have carefully reviewed the voluminous record and considered each of the several points on appeal, facilitated by the excellence of appellate briefs and argument. As to each of appellant’s points we conclude either that no error exists or, where error is made to appear, that it was harmless, with the exception of that part of the sentence which imposed a fine “jointly and severally” upon several individuals. Appellant could have been fined a sum not in excess of $10,000 under Section 775.-082(3)(c), Florida Statutes (1981). We vacate the present fine and remand for imposition of an appropriate fine which shall not be joint and several.

Accordingly, we affirm in part and reverse in part and remand.

Upon remand, the imposition of an appropriate fine is a sentencing under the provisions of Section 775.083 Florida Statutes (1981), and Dolan at such time is entitled to the sentencing rights articulated in State v. Scott,-So.2d-(Fla.1983, Case No. 63,146, opinion filed October 6, 1983) [8 FLW 401].

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


text:
    William Ralph CARUSO, Appellant, v. STATE of Florida, Appellee.
    No. 81-408.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    As Corrected on Denial of Rehearing Dec. 21,1983.
    Jane D. Fishman of Kay & Silber, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have carefully reviewed the voluminous record and considered each of the several points on appeal, facilitated by the excellence of appellate briefs and argument. As to each of appellant’s points we conclude either that no error exists or, where error is made to appear, that it was harmless, with the exception of that part of the sentence which imposed a fine “jointly and severally” upon several individuals. Appellant could have been fined a sum not in excess of $10,000 under Section 775.-082(3)(c), Florida Statutes (1981). We vacate the present fine and remand for imposition of an appropriate fine which shall not be joint and several.

Accordingly, we affirm in part and reverse in part and remand.

Upon remand, the imposition of an appropriate fine is a sentencing under the provisions of Section 775.083 Florida Statutes (1981), and Caruso at such time is entitled to the sentencing rights articulated in State v. Scott,-So.2d-(Fla.1983, Case No. 63,146, opinion filed October 6, 1983) [8 FLW 401].

HERSEY, GLICKSTEIN and WALDEN, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Anthony GONZALEZ, Appellee. STATE of Florida, Appellant, v. Salustiano CRUZ, Appellee.
    Nos. 81-535, 81-699.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Margaret Good, Asst. Public Defender, West Palm Beach, for appellee Gonzalez.
    James I. Cohn, Fort Lauderdale, for ap-pellee Cruz.
   HERSEY, Judge.

Anthony Gonzalez and Salustiano Cruz were charged with burglary by an information which alleged that these appellees “did unlawfully and stealthily enter a structure located at 315 Southeast Sixth Avenue, Fort Lauderdale, property of Fort Lauder-dale Historical Society, Inc., (Florida Non Profit Corporation) d/b/a Pioneer House, without the consent of said owner or said occupant, with intent to commit an offense therein, contrary to Fla.Stat. 810.02(1), Fla. Stat. 810.02(3) and Fla.Stat. 810.07.”

Gonzalez filed a motion to declare Section 810.07, Florida Statutes (1979), unconstitutional. That motion was denied and no appeal has been taken from that ruling.

Both appellees filed motions to dismiss the information for failure to allege intent to commit a specific offense. Those motions were granted and the state brings this appeal.

We reverse on the authority of State v. Waters, 436 So.2d 66 (Fla.1983) and remand for further appropriate proceedings.

LETTS and GLICKSTEIN, JJ., concur.


text:
    OCEANIC INTERNATIONAL CORPORATION, Appellant, v. LANTANA BOATYARD, INC., a Florida corporation, Appellee.
    No. 82-110.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Rehearing Denied Nov. 4, 1983.
    John L. Avery, Jr., Jupiter, for appellant.
    David H. Baker of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for ap-pellee.
   PER CURIAM.

This case was previously before the court and is reported as Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981). In accord with our mandate, the trial court recomputed damages “by substituting a commission of $3,000 per boat for the original five per cent per boat,” and entered a final judgment in favor of Oceanic International Corp. for $51,000. During the present appeal, both parties agreed that there was a $1,000 error in the sum due appellant and that, if affirmed, the final judgment should be for $52,000. Accordingly, as modified, the final judgment on mandate is

AFFIRMED.

ANSTEAD, C.J., HURLEY, J., and SHA-HOOD, GEORGE A., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Mario Lopez ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1411.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    Raymond J. Takiff of Law Offices of Raymond J. Takiff, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and sentence for trafficking in marijuana. Defendant asserts that the state’s case against him was composed entirely of circumstantial evidence, that the court made numerous errors on evidentiary matters, and in regard to the order of closing argument. While it is true that most of the state’s evidence was of a circumstantial nature, we find that evidence to be most compelling and convincing. Two marijuana-laden boats owned by defendant were found washed ashore on the Florida coast shortly after a reported air drop of marijuana in the Bahamas. Substantial evidence was presented as to the defendant’s direct involvement in the trafficking scheme although it was never shown that he was actually on one of the boats while it traversed the ocean. Such evidence was not necessary. The evidence presented by the state was completely consistent with guilt and totally inconsistent with any reasonable hypothesis of innocence. See Pinder v. State, 366 So.2d 38 (Fla. 2d DCA 1978), approved 375 So.2d 836 (Fla.1979), and Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982). We have reviewed all other allegations of error and find them to be without merit. The defendant’s conviction and sentence are affirmed.

AFFIRMED.

DELL, J., concurs.

ANSTEAD, C.J., dissents without opinion.


author: DELL, Judge. HURLEY, Judge,

text:
    STONEWALL INSURANCE COMPANY, Appellant, v. Edward HETER, Appellee.
    No. 82-1494.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 1983.
    See also, 399 So.2d 504.
    Clark J. Cochran, Jr., of Hainline, Billing, Cochran & Heath, P.A., and Nancy Little Hoffman of Law Offices of Nancy Little Hoffman, Fort Lauderdale, for appellant.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood, and Jon E. Krupnick of Krupnick & Campbell, P.A., Fort Lauder-dale, for appellee.
   DELL, Judge.

Stonewall Insurance Company appeals from final summary judgments which determined liability in favor of the appellee on his claim for excess uninsured motorist coverage and determined the limits of such coverage.

Appellee, Edward Heter, sustained personal injuries while driving his own car in the course of his employment with Buning the Florist, Inc. (Buning). Buning carried three layers of liability insurance: a policy with Lumbermen’s Mutual Insurance Company (Lumbermens) which included uninsured motorist coverage with limits of $15,-000/$30,000, a policy with Northeastern Fire Insurance Company (Northeastern) with limits of $235,000/$470,000 but no uninsured motorist coverage because Buning had rejected such coverage with this carrier, and an umbrella policy with appellant which afforded liability coverage up to $3,000,000 but made no mention of uninsured motorist coverage. After the adverse motorist’s insurance carrier became insolvent, appellee filed suit against Lumber-mens, Northeastern and appellant claiming uninsured motorist benefits. Appellee voluntarily dismissed Lumbermens and the trial court entered a summary judgment in favor of Northeastern because of Buning’s rejection of uninsured motorist coverage with that carrier.

Appellant and appellee filed motions for summary judgment. Appellee submitted an affidavit wherein he averred that his employer required him to use his personal automobile to drive to various suppliers to purchase flowers and that his employer promised to pay for repairs and maintenance to the vehicle as well as fuel necessary for its operation. He also asserted that his employer had “hired” his vehicle. The trial judge entered a final summary judgment determining that appellant’s umbrella insurance policy afforded uninsured motorist coverage to appellee and also determined that such coverage would begin at $10,000, the amount of the retained limits under the policy, rather than the stated lower limits of $250,000.

Appellant makes several alternative arguments in support of its contention that appellee did not come within the insuring provisions of its policy. First, appellant argues that appellee did not come within the policy definition of either a named insured, a designated insured or an additional insured. Second, appellant contends that coverage could only be based upon the finding that appellee’s vehicle constituted a “hired vehicle.” Therefore, even if this finding is correct, the exclusionary language of the policy excluded appellee from coverage as the owner of the hired vehicle. Finally, appellant contends that even if coverage could be found under appellant’s policy, the trial court erred in determining that the coverage began at $10,000 rather than at $250,000.

The definition section of appellant’s insurance policy contains the following language:

II. DEFINITIONS:

A. Insured — the unqualified word “Insured” includes the Named Insured and also includes:
(1) except with respect to liability arising out of ownership, operation, maintenance, use, loading and unloading of automobiles, aircraft or watercraft— any director, stockholder, officer, or other employee of the Named Insured, while acting within the scope of his duties as such, and any organization or proprietor with respect to real estate management for the Named Insured. If the Named Insured is a partnership or joint venture, any partner or member thereof but only with respect to his liability as such;
(2) ....
(3) with respect to any automobile owned by the named insured or hired for use by or on behalf of the Named Insured, .... The insurance afforded by this subdivision (3), with respect to any person or organization other than the Named Insured does not apply:
(a) ....
(b) ....
(c) with respect to any hired automobile, aircraft or watercraft, to the owner or lessee thereof, other than the Named Insured, or any employee of such owner or lessee.

Appellant relied upon Trinity Universal Insurance Co. v. Cincinnati Insurance Co., 513 F.2d 915 (6th Cir.1975) and USF & G v. Perry, 361 So.2d 594 (Ala.App.1978), in which the courts held that the mere provision of gasoline for an employee’s vehicle used in company business did not make the car a hired vehicle for insurance purposes. In those cases, however, the company use of the car was occasional and non-compulsory. Here, Buning required appellee to supply a car for daily company use as a condition of employment. The record demonstrates sufficient evidence to support the trial court’s conclusion that appellee’s automobile constituted a “hired vehicle” within the meaning of the policy.

Appellant alternatively argues that even if we construe appellee’s automobile as a “hired automobile” that paragraph II A(3)(c) excludes appellee from coverage because of his ownership of the vehicle. Obviously such a construction would place appel-lee in the proverbial “Catch 22” situation. Paragraph (3) affords coverage to any vehicle “owned by the named insured” or “hired” for use by or on behalf of the named insured. Paragraph (3)(c) purports to exclude coverage from any person or organization other than the named insured with respect to any “hired vehicle.” However, the language of the policy removes the operation of the exclusion from the named insured or any employee of such “owner or lessee.” Appellant argues that it did not intend to extend coverage to the owner of a vehicle leased by the named insured or to the employees of that lessor. We find this contention reasonable, but here the appellee is an employee of the named insured and coincidentally the owner of a vehicle “hired” by the named insured. The policy is at least ambiguous in that it fails to clearly address this situation and the trial judge so found. In addition, the language of the policy can be fairly construed to afford coverage to an employee under these circumstances. Since we have concluded that the trial court properly found that appellee’s vehicle constituted a “hired vehicle” then Buning logically became the lessee of that vehicle. The policy affords coverage to an employee of such owner or lessee. Therefore it is apparent that the trial court correctly found that appellant’s policy afforded coverage to ap-pellee.

Lastly, we agree with appellant’s argument that the trial court erred when it established the amount of the retained limits ($10,000) as the floor of appellant’s excess uninsured motorist coverage. The trial court’s conclusion is in direct conflict with this Court’s opinion in First State Insurance Company v. Stubbs, 418 So.2d 1114 (Fla. 4th DCA 1982), pet. for review denied, 426 So.2d 26, 29 (Fla.1983), which involved facts parallel to the case sub judice and wherein this Court found that

the court erred by requiring First State to shoulder a heavier burden than would have been imposed by the statute in the first instance. First State’s excess policy provided a bottom limit of $100,000 for bodily injury coverage, yet the trial court went below this figure and established a $10,000 base. We think this was incorrect. First State’s uninsured motorist coverage is coextensive with its liability coverage and, therefore, we hold that First State’s excess indemnity policy provides underinsured motorist coverage for any damages sustained by Mr. Stubbs over and above $100,000.

Id. at 1115-1116.

We hold that appellant’s liability under its uninsured motorist coverage extends only for such damage sustained by appellee that exceeds the sum of $250,000 to the extent of its stated limits of liability in the amount of $3,000,000. We recognize that the trial court did not have the benefit of our opinion in First State when it entered its order determining that the excess uninsured motorist coverage would begin at $10,000.

Accordingly, we affirm the summary judgment which determined uninsured motorist coverage in favor of the appellee and reverse the order of the trial court which determined that appellant’s excess insurance would take effect at $10,000 the amount of the retained limits of the policy.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GLICKSTEIN, J., concurs.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

I,too, conclude that the owner exclusion clause in the Stonewall policy is ambiguous. Consequently, I concur that it is inoperative against employees of Buning the Florist, the named insured.

Subsection (3) of the definitional portion of the policy is the only possible source of insurance coverage in this case. It states, in general terms, that any person who uses an automobile, owned or hired by Buning the Florist, is insured under the policy if the automobile is used with Buning’s permission. The owner exclusion clause modifies subsection (3) by excluding certain individuals from coverage. It states, “with respect to any hired automobile, [the insurance afforded by subdivision (3) does not apply] to the owner or lessee thereof, other than the Named Insured, or any employee of such owner or lessee.”

The wording of the owner exclusion clause is deceptively simple, yet its application is confoundedly complex. To illustrate, applying the clause by its plain meaning, it produces the following results in these scenarios:

1. A person using a hired automobile is excluded from coverage if he is the owner of the automobile, unless he is Buning the Florist, the named insured, in which event this exclusion does not apply.
2. A person using a hired automobile is excluded from coverage if he is the lessee of the automobile, unless he is Buning the Florist, the named insured, in which event this exclusion does not apply.
3. A person using a hired automobile is excluded from coverage if he is an employee of the owner of the automobile, unless the owner is Buning the Florist, the named insured, in which event this exclusion does not apply.
4. A person using a hired automobile is excluded from coverage if he is an employee of the lessee of the automobile, unless the lessee is Buning the Florist, the named insured, in which event this exclusion does not apply.

Applying these formulations to the case at bar, it is apparent that # 1 and # 4 conflict. Mr. Heter, as the automobile’s owner, is excluded from coverage under formulation # 1. However, as an employee of Buning, the named insured and also the lessee of the automobile, Mr. Heter is covered. Such an irreconcilable conflict constitutes an ambiguity which should be construed against the insurer. “Where two interpretations may fairly be made, the one allowing the greater coverage will prevail.” Travelers Insurance Co. v. C.J. Gayfer’s & Co., 366 So.2d 1199, 1201 (Fla. 1st DCA 1979). Accordingly, I concur in the determination that owner exclusion clauses are not operative against employees of the named insured. See Carolina Casualty Insurance Co. v. Underwriters Insurance Co., 569 F.2d 304 (5th Cir.1978); Wellman v. Liberty Mutual Insurance Co., 496 F.2d 131 (8th Cir.1974); Trinity Universal Insurance Co. v. Farmers Mutual Automobile Insurance Co., 309 F.2d 283 (7th Cir.1962); Maryland Casualty Co. v. Continental Casualty Co., 189 F.Supp. 764 (N.D.W.Va.1960); contra Providence Washington Insurance Co. v. Alaska Pacific Assurance Co., 603 P.2d 899 (Alaska 1979).