text:
    CORAL GABLES HOSPITAL and Esis, Inc., Appellants, v. Kathryn M. TATARONIS and Division of Workers’ Compensation, Appellees.
    No. AP-60.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1983.
    Rehearing Denied Oct. 11, 1983.

      Phyllis A. Sigal of Miller, Hodges & Ka-gan, Miami, for appellants.
    Jerold Feuer, Miami, for appellees.
   PER CURIAM.

The employer/carrier in this workers’ compensation case challenges the deputy commissioner’s award of temporary total disability benefits, temporary partial disability benefits, and medical benefits. The order appealed from is affirmed except for the award of temporary partial disability benefits, and medical benefits.

The deputy commissioner erred in awarding temporary partial disability benefits for the period during which the claimant was unable to work due to her pregnancy. On remand, the deputy may receive additional medical evidence relating to the duration of this period, but at least for the time between February 1, 1982, the date of the baby’s birth, and mid-March 1982, the date claimant was released to return to work by her obstetrician, it cannot be said that the claimant was unable to work due to her industrial injury.

In addition, we must reverse the award of wage loss benefits, and remand for reconsideration and clarification by the deputy, because we are unable to determine from the record on appeal, or from the order, how the computation of wage loss benefits is to be made. Freeman v. Acme Roof Decks, Inc., 173 So.2d 685 (Fla.1965).

Finally, we must reverse the award of medical benefits. Claimant’s medical bills were paid by her group insurance carrier. At the hearing below, there was no evidence of the amount of those bills, or whether there was a causal relationship between the compensable injury and the medical benefits sought, either by introduction of the bills, or during the live testimony of the physicians. American Grinding and Equipment Company v. Rodman, 411 So.2d 917 (Fla. 1st DCA 1982).

REVERSED and REMANDED for further proceedings not inconsistent herewith.

LARRY G. SMITH, JOANOS and NIM-MONS, JJ., concur.


source: Caselaw Access Project

author: ZEHMER, Judge.

license: Public Domain

text:
    Vincent B. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. AO-145.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1983.
    Rehearing Denied Oct. 10, 1983.
    Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Appellant was charged with burglary of a dwelling and possession of a firearm during the burglary in violation of § 810.02 and § 775.087(2), Florida Statutes (1981). Following his nolo contendere plea, appellant was adjudged a youthful offender under Chapter 958, Florida Statutes (1981), and sentenced to three years minimum mandatory imprisonment in accordance with § 775.087(2). Appellant complains on this appeal that the trial court illegally imposed the three-year mandatory sentence in view of the circumstances involved. We agree.

The factual basis underlying appellant’s plea and the sentence imposed was recited by the prosecuting attorney as follows:

Your Honor, the facts would disclose that sometime between the 18th and 19th, over the evening of those days, the 18th and 19th of November, 1981, the dwelling owned by Robert McCreary, which is located at 2208 Pontiac Drive here in Tallahassee, Leon County, Florida, was burglarized by Mr. Vincent Bernard Wilson and Shelton McKinney; that while in the commission of this burglary, a .38-caliber pistol was stolen belonging to Mr. McCreary and that this .38-caliber pistol was taken by Vincent Bernard Wilson. On the 20th of November, Detective Ga-vera David of the Tallahassee Police Department and Detective Franklin of the Leon County Sheriff’s Office served a search warrant on the Defendant’s home, which was located at 1010 Saxon Street here in Tallahassee. And that search revealed — as a result of the search, they found the .38-caliber pistol belonging to Mr. McCreary in the possession of Mr. Vincent Bernard Wilson.

The trial court having just sentenced appellant as a youthful offender in two other pending cases, the court and counsel discussed the fact that whether to do likewise in this case was entirely discretionary with the court. After the state announced it had no objection to so treating appellant in this case also, the trial court adjudged appellant a youthful offender and proceeded to sentence him, over a somewhat ambiguous objection by appellant’s counsel, to three years minimum mandatory imprisonment pursuant to § 775.087(2), to run concurrently with the sentences of imprisonment imposed in the other two cases. This appeal followed.

Appellant argues that the facts recited are not legally sufficient to authorize imposition of the three-year mandatory sentence under § 775.087(2), citing Sanders v. State, 352 So.2d 1187 (Fla. 1st DCA 1977), cert. denied, 362 So.2d 1056 (Fla.1978), and Wilson v. State, 378 So.2d 1258 (Fla. 1st DCA 1979), quashed on other grounds, 395 So.2d 520 (Fla.1981).

In Sanders, supra, the defendant was found guilty of burglary of a dwelling while armed with a firearm and theft of the same firearm. He was sentenced to a mandatory three-year minimum term pursuant to § 810.02 and § 775.087(2). On appeal, his conviction of burglary of a dwelling was affirmed; however, the case was remanded for resentencing because the evidence was held insufficient to support the jury’s finding that defendant was armed with a dangerous weapon during the course of the burglary. The court reasoned that the “mere showing of theft of a gun after entering a structure, standing alone, is insufficient to prove burglary armed with a dangerous weapon.” 352 So.2d at 1188.

Similarly, in Wilson, supra, it was stated: The allegations in the information track the language of Section 810.02(2)(b), Florida Statutes (1977), alleging that appellant committed burglary of a dwelling and, while doing so, he ‘armed himself therein with a dangerous weapon ... a firearm ... ’. However, the underlying factual basis for the plea, recited at the arraignment, shows only that the defendant committed the theft of a firearm while inside the house he was alleged to have burgled. We stated in Sanders v. State, 352 So.2d 1187, 1188 (Fla. 1st DCA 1977), that ‘the mere showing of theft of a gun after entering a structure, standing alone, is insufficient to establish burglary armed with a dangerous weapon.’ If appellant cannot be convicted of first degree burglary, under the facts, it is questionable whether the mandatory minimum sentence would apply to any lesser degree of burglary.
(378 So.2d at 1260)

The facts described to the trial court at the hearing in this case show only that appellant stole the gun during the burglary and that the gun was later found in appellant’s home during a search. The state failed to indicate that any facts existed, such as whether the gun was loaded at the time of the burglary or whether appellant possessed both the gun and ammunition during the burglary, which were similar to the circumstances held sufficient to sustain imposition of the three-year mandatory minimum sentence in Mills v. State, 400 So.2d 516 (Fla. 5th DCA 1981), Fowler v. State, 375 So.2d 879 (Fla. 2d DCA 1979), and State v. Dopson, 323 So.2d 644 (Fla. 4th DCA 1976). Accordingly, this case is governed by our decisions in Sanders and Wilson.

In addition, on our own initiative, we also find it necessary to address the fundamental error in the trial court’s having sentenced appellant to three years mandatory imprisonment under § 775.087(2) after adjudging him a youthful offender pursuant to Chapter 958. Even though it was absolutely discretionary with the trial court whether to adjudge appellant a youthful offender, once the court determined to do so, it was error to impose the three-year mandatory sentence under § 775.087(2) because of the provisions in § 958.021 and § 958.05, Florida Statutes (1981). Whitlock v. State, 404 So.2d 795 (Fla. 3d DCA 1981); Patterson v. State, 408 So.2d 785 (Fla. 2d DCA 1982); Cochran v. State, 410 So.2d 595 (Fla. 2d DCA 1982).

For the foregoing reasons, we reverse and vacate the sentence. The case is remanded for resentencing of appellant consistent with this opinion.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.

      . Section 775.087(2) provides in part:
      Any person who is convicted of any ... burglary ... and who had in his possession a ‘firearm,’ as defined in subsection 790.001(6) ... shall be sentenced to a minimum term of imprisonment of three calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence.

      . Section 958.04, Florida Statutes (1981).

      . See Alexander v. State, 418 So.2d 432 (Fla. 3d DCA 1982); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981); Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980); Kohn v. State, 289 So.2d 48 (Fla. 3d DCA 1973); Hutchins v. State, 286 So.2d 244 (Fla. 3d DCA 1973); Williams v. State, 280 So.2d 518 (Fla. 3d DCA 1973).


author: PER CURIAM.

text:
    William Fenton LANGSTON, Appellant, v. Ramsay C. LANGSTON, Appellee.
    Nos. AO-250, AP-389.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    L. Ralph Smith, Jr., of Dearing & Smith, Tallahassee, for appellee.
   PER CURIAM.

We affirm the trial court’s final judgment of dissolution of marriage, the order of contempt, the order awarding attorney’s fees and assessing costs, and the final judgment for arrearages. We note, however, that nothing in this affirmance should be construed as passing upon the propriety of the trial court’s retention of jurisdiction for the purpose of enabling the wife to join third parties as defendants to these proceedings.

AFFIRMED.

ROBERT P. SMITH, Jr., NIMMONS and ZEHMER, JJ., concur.


text:
    James Wesley GODDARD, Appellant, v. STATE of Florida, Appellee.
    No. AP-106.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 10, 1983.

      Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Clyde M. Collins, Jr., Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

Section 812.019(2), Florida Statutes, imposes criminal sanctions upon “any person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of property and traffics in such stolen property.” Appellant was found guilty by jury of violating that statutory prohibition. The only issue raised on appeal which merits discussion is appellant’s contention that Section 812.019(2), Florida Statutes, was not intended to apply to him, a common thief who individually stole the goods in question and then trafficked in same. We disagree.

It is a well-settled rule that where the language of a statute is plain, unambiguous, and conveys a clear and definite meaning, resort to rules of statutory interpretation to ascertain legislative intent is unnecessary. The Legislature is held to have intended that which it plainly expressed.

We find the language of Section 812.019(2), Florida Statutes, plain and unambiguous. The word “or,” a disjunctive article, as used in the context of Section 812.019(2), Florida Statutes, prohibits the doing of either or any act so joined. Clearly, one who actually commits a theft also, at least, initiates and plans it, each act of which is proscribed by Section 812.019(2).

Accordingly, we conclude the Section 812.019(2), Florida Statutes, is intended to apply to the common thief who also traffics in the goods which he has stolen and, therefore, affirm the judgment of conviction. However, because we recognize that the issue presented by appellant is one of great public importance, we certify to the Florida Supreme Court the following question:

DID THE FLORIDA LEGISLATURE INTEND TO PUNISH UNDER SECTION 812.019(2), FLORIDA STATUTES, THE COMMON THIEF WHO TRAFFICS IN THE GOODS WHICH HE HAS INDIVIDUALLY STOLEN, OR WAS THAT PROVISION INTENDED TO ONLY PUNISH ONE WHO ACTS AS A “RINGLEADER” IN THE ORGANIZING OF THEFTS AND TRAFFICS IN THE STOLEN GOODS.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.

      . We do not find that the evidence presented to the jury was sufficient to permit an interpretation that the thefts were committed by more than one person or that the thefts were committed by one acting under appellant’s direction.

      . It is not disputed that appellant trafficked in the goods stolen.


text:
    Nathaniel HIGGS and Dolores Higgs, his wife, Appellants, v. HOLLAND PAVING COMPANY and Employers Insurance of Wausau, Appellees.
    No. 82-826.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Rehearing Denied Oct. 14, 1983.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Sadow, Lynne & Gonzalez, North Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon D. Derrevere, Miami, for appellees.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Holland Paving Company, under a contract with the City of Miami, was responsible for providing, placing and maintaining traffic signs at all times during the street construction work contemplated by the contract, which work, arguably, if not indisputably, was not completed as of March 8, 1978, the date upon which Higgs was injured in an automobile accident allegedly caused, at least in part, by the absence of a traffic sign. Holland’s duty being thus in existence, it was entitled to the summary judgment entered in its favor only if it conclusively showed that it provided, placed and maintained a stop sign at the intersection where Higgs was injured. While there is evidence in the record to show that at 4:30 on the afternoon of the accident Holland’s employee placed a stop sign at the intersection, there is also evidence that .no stop sign was at the intersection at approximately 6:00 p.m. when the accident occurred. This latter evidence creates a genuine issue of fact as to whether Holland breached its duty to provide, place and maintain a traffic sign. As this court observed in a different context:

“The third point presented urges that the trial court erroneously excluded evidence of the absence of barricades subsequent to the end of defendant’s work day at the job site. The court reasoned that since the negligence alleged was the failure to place barricades and that since barricades might be removed by a third party that therefore the only critical time was the period immediately after the close of the working day. While this is true it is also true that the testimony as to the absence of the barricades at other times subsequent to the end of the working day has some probative value. The issue was whether or not barricades were placed at 5:00 p.m. Their absence an hour or two hours later or even at the time of the accident has a relevancy to the issue of fact as to whether they were placed at all. In the present instance, there is a conflict in the testimony as to whether the barricades were placed. This conflict makes even more important evidence which would tend to show that the barricades were never placed at all because of their absence sometime later. See II Wigmore on Evidence § 437 (3rd ed. 1940); cf. Renninger v. Foremost Dairies, Inc., Fla.App.1965, 171 So.2d 602. We therefore conclude that the objection to the evidence should have been denied.” Walton v. Robert E. Haas Construction Corporation, 259 So.2d 731, 734-35 (Fla. 3d DCA 1972).

Accordingly, the summary judgment for Holland is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Clemente C. BALA, Jr., M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 82-1431.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    Paul B. Johnson of Johnson, Paniello & Hayes, Tampa, for appellant.
    Deborah J. Miller, Miami, and Joseph W. Lawrence, II, Div. Director, Dept, of Professional Regulation, and Spiro T. Kypreos, Dept, of Gen. Services, Tallahassee, for ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant’s motion for rehearing, we deny the motion, but withdraw our earlier opinion and substitute the following revised decision in its place:

Clemente Bala, Jr., M.D., appeals an order of the Department of Professional Regulation, Board of Medical Examiners, revoking his license to practice medicine in the State of Florida. We affirm.

Bala raises three points on appeal. We reject all three. With respect to point one, see Schomer v. Department of Professional Regulation, Board of Optometry, 417 So.2d 1089 (Fla. 3d DCA 1982). As to point two, the Board, although apparently having considered matters at the hearing not supported by the evidence of record, issued an order which is supported by competent substantial evidence in the record. In other words, the order does not depend on any finding of fact that is not supported by competent substantial evidence in the record. Point three is without merit.

Accordingly, the order is affirmed.

AFFIRMED.

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


text:
    In the Interest of L.M., a child.
    No. 83-310.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 19, 1983.
    Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Attjk Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See, Larry v. State, 104 So.2d 352 (Fla.1958) and Rose v. State, 425 So.2d 521 (Fla.1982).

ANSTEAD, C.J., and HURLEY and DELL, JJ., concur.


text:
    Lewis Henry GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-421.
    District Court of Appeal of Florida, Second District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 5, 1983.

      Howardene Garrett of Garrett & Garrett, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant pled nolo contendere to charges of possession of cocaine and methaqualone. He preserved the right to appeal the denial of his motion to suppress contraband seized pursuant to a search warrant, and the state stipulated that the entry of the order denying suppression was dispositive of the case.

The affidavit for the search warrant was signed by a sheriff’s narcotics investigator and a vice control officer of the Tampa Police Department. After outlining the af-fiants’ law enforcement experience in dealing with controlled substances, the affidavit stated:

During the week of July 18, 1982, Your co-affiant was personally contacted by confidential informant 714, hereafter referred to as confidential informant. Said confidential informant advised your co-affiant that a white male known as Joe Levitz is dealing in cocaine and metha-qualone and is in possession of the cocaine and methaqualone which is now being kept at the residence described in exhibit “A” of the search warrant. Said confidential informant advised that Joe Levitz receives his supply of cocaine and metha-qualone and distributes said cocaine and methaqualone within a short period of time. Said confidential informant advised that since he has been acquainted with the white male Joe Levitz that this frequent supply and distribution has been white male Joe Levitz’s method of dealing the aforementioned cocaine and methaqualone.
During the week of July 18, 1982, said confidential informant advised your co-affiant that white male Joe Levitz was in possession of the said cocaine and metha-qualone at a residence which is located in Hillsborough County, Florida. During the week of July 18, 1982, your affiant and co-affiant personally went to the location described by the confidential informant and found the aforementioned residence by directions given by the confidential informant.
Your co-affiant offers the following to show the trustworthiness and reliability of the said confidential informant:
1. Your co-affiant has been personally acquainted with the said confidential informant for a period of six months and information provided by said confidential informant has been true and correct.
2. At the request of the co-affiant the said confidential informant has gathered intelligence information on narcotics, dangerous drug traffic within Tampa, Hillsborough County, Florida, in the past and it has been found to be true and correct.
3. Said confidential informant is familiar with cocaine and methaqualone and is a past user of said cocaine and meth-aqualone.
4. Your affiant and co-affiant personally went to the location described by the confidential informant and found the aforementioned residence by the directions given by the confidential informant.

Since the affidavit did not specifically describe how the confidential informant acquired his information, it failed to meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, in the recent case of Illinois v. Gates, -U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court substituted a totality of circumstances analysis for the rigid application of the two-prong test of Aguilar and Spinelli. Given the common sense interpretation espoused by Gates, we find that the affidavit set forth sufficient facts to establish probable cause for the issuance of the search warrant.

AFFIRMED.

GRIMES, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    SAUDI ARABIAN AIRLINES CORPORATION, and Iowa National Mutual Insurance Company, Appellants, v. Thomas Harrison DUNN, Jr., et al., Appellees.
    No. AO-97.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1983.
    Rehearings Denied Oct. 6, 1983.

      Julian Clarkson, Holland & Knight, Tallahassee, James M. McLean, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant Saudi Arabian Airlines Corp.
    John I. Todd, Jr., Jacksonville, for appellant Iowa Nat. Mut. Ins. Co.
    William G. Gentry and C. Rufus Pennington, III, Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for appellee.
   LARRY G. SMITH, Judge.

This is an appeal from a judgment entered after a jury trial in a negligence action. Appellant-defendant Saudi Arabian Airlines (Saudi) was found liable for damages for injuries sustained by appellee-plaintiff, Thomas H. Dunn, Jr., caused by the negligent operation of an automobile driven by Saudi’s employee, Hazza Saud Al-Faqeer. Saudi relies for reversal primarily upon its contention that the evidence is insufficient to support a jury finding that Al-Faqeer was its agent or employee, or, alternatively, that he was not acting within the scope of his agency or employment at the time of the accident. Saudi also asserts that it was error to allow the plaintiff to use Al-Faqeer’s deposition, taken at a time when Saudi was not a party in the litigation, to prove his employee status. Iowa National Mutual Insurance Company (Iowa), Dunn’s underinsured motorist insurer, cross-appeals the final judgment entered against it. We affirm as to the appeal and the cross-appeal.

Al-Faqeer was brought to the United States by Saudi to learn English and go to technical training school. Saudi enrolled Al-Faqeer in a special English language institute, which leased classroom and office space from the University of North Florida in Jacksonville and which was operated by Systran Corporation, under a contract with the airlines. While Al-Faqeer was going to school, Saudi paid for his tuition and books and gave him $650.00 a month toward housing and food. Saudi monitored Al-Faqeer’s academic progress and prohibited him as a Saudi technical trainee from taking any kind of flight training. After his training, Al-Faqeer planned to work for Saudi.

On the afternoon of October 10, 1979, Al-Faqeer, who did not have a valid United States or Florida drivers license, drove the car of his cousin, Abdullah Ali Shihry, from school to an Albertsons store to buy some groceries. When driving back to the school, he lost control of the car going through a Jacksonville intersection, sent the car airborne, and landed on top of Dunn’s car, causing Dunn to suffer severe head injuries.

Dunn filed a complaint against Shihry and Al-Faqeer. Two months later, Dunn’s counsel took Al-Faqeer’s deposition, at which time it was learned that Al-Faqeer was a Saudi Arabian citizen in the United States pursuant to a technical training program of the airlines. Seven months later, Dunn amended his complaint to name Saudi as a defendant under the doctrine of re-spondeat superior. At the same time he added Allstate Insurance Company, Shih-ry’s liability insurer, as a defendant. Later, when the second amended complaint was filed, Iowa 'was added as a defendant.

Saudi filed a motion to abate for lack of jurisdiction and a motion to dismiss for failure to state a cause of action, both of which were denied. Saudi appealed the denial of the motion to abate relying on Al-Faqeer’s deposition as support for its position that as a matter of law there could be no liability under the doctrine of respondeat superior since Al-Faqeer was not acting within the course and scope of his employment at the time of the accident but was instead either “coming and going” to work or deviating from his employment. This court found that “the allegations of the amended complaint were clearly sufficient to charge appellant with legal responsibility for its alleged employee’s wrongful act while acting within the course and scope of his employment” and that Saudi’s “motion to abate for the lack of personal service, supported as it was by Al-Faqeer’s deposition, failed to make a prima facie showing that Al-Faqeer was not acting within the course and scope of his employment at the time of the accident” and accordingly affirmed the trial court’s denial of the motion to abate. Saudi Arabian Airlines Corp. v. Dunn, 395 So.2d 1295, 1296 (Fla. 1st DCA 1981).

Subsequently Al-Faqeer was terminated from Saudi because he was unreliable and was returned to Saudi Arabia.

At the trial, over Saudi’s objection, Dunn was permitted to read excerpts of Al-Faqeer’s deposition to the jury. At the conclusion of the trial, the jury returned a verdict in favor of Dunn and awarded damages in the amount of $325,000.00. The trial court entered final judgment against all defendants in this amount. Iowa filed a motion requesting the court to amend the final judgment to reflect that Iowa would not be liable to Dunn since Dunn had made a full recovery in the amount of his damages against Saudi. The trial court denied Iowa’s motion to amend the final judgment and motion to tax costs and entered an amended final judgment limiting the recovery against Allstate to $10,000.00, and the recovery from Iowa to $90,000.00.

Initially, appellant complains that the trial court erred in permitting excerpts of Al-Faqeer’s deposition to be introduced against it because it was not a party at the time the deposition was taken. Brown v. Tanner, 164 So.2d 848 (Fla. 1st DCA 1964). Saudi contends this constituted reversible error since these excerpts were the sole testimony introduced by Dunn’s counsel at trial to show that Al-Faqeer was at school on the day of the accident, that he had been buying groceries just prior to the accident and that he had been returning to school at the time of the accident, facts which are crucial to Dunn’s contention that Al-Faqeer was acting within the scope of his employment.

However, Saudi’s argument ignores the admissibility of Al-Faqeer’s deposition testimony as one of the exceptions to the hearsay rule under Section 90.803, Florida Evidence Code, Florida Statutes (1981). A statement offered as an admission against a party of which he has manifested his adoption or belief in its truth is admissible. Section 90.803(18)(b). In its previous interlocutory appeal from the trial court’s order denying the motion to abate, Saudi relied on Al-Faqeer’s deposition testimony as support for its position that Al-Faqeer was not acting in the course and scope of his employment at the time of the accident. Subsequent to that unsuccessful appeal, Saudi again adopted Al-Faqeer’s deposition testimony by asserting it as a basis for its motion for summary judgment. Under the circumstances, Saudi’s conduct amounted to an “adoptive admission” of Al-Faqeer’s deposition testimony which the trial court correctly permitted to be introduced as evidence in the trial below. Dinter v. Brewer, 420 So.2d 932 (Fla. 3rd DCA 1982). Brown v. Tanner, relied upon by Saudi, does not dictate a contrary result since it did not involve consideration of other independent evidentiary grounds for admitting the deposition.

Recognizing that the existence of an employer-employee relationship is normally one for the jury, Saudi' nevertheless contends that it was entitled to a judgment n.o.v. on this issue since as a matter of law, Al-Faqeer could not have been an agent or employee of Saudi. Al-Faqeer, Saudi argues, was not an employee, he was merely a student with a prospect of employment with Saudi if he successfully completed his school work. Saudi admits Al-Faqeer was paid a stipend and clothing allowance to cover his normal living expenses but points out that this was not subject to withholding tax. Further, Al-Faqeer did not have a payroll number, a date of hire, or a seniority date with Saudi. Saudi analogizes this case to the situation presented in Donovan v. American Airlines, 686 F.2d 267 (5th Cir.1982). There, the Secretary of Labor sought to require American Airlines to pay the minimum wage to flight attendants and reservation agent trainees on the grounds that they were “employees.” The court determined that the provisions of the Fair Labor Standards Act did not apply to these airline trainees while in training. In so ruling, the court was guided to a great extent by criteria formulated by the wage and hour administrator which provide for an analysis based upon the benefits derived by the trainee as compared to the benefits or detriments to the employer who provides the training. If all six criteria are met, there is no employment relationship under the act. Donovan, at 273.

On the other hand, to determine whether an employer-employee relationship exists in this case, we must look to the law of master and servant. At common law, four elements were considered in making a determination whether a master and servant relationship exists — the selection and engagement of the servant, the payment of wages, the power of dismissal, and the control of the servant’s conduct — the essential element being the right of control and the right to direct the manner in which the work shall be done, the payment of wages being the least important factor. When the element of control is present, the absence of monetary consideration does not preclude the existence of the master-servant, employer-employee relationship. In Re Read’s Petition, 224 F.Supp. 241 (D.C.S.D.Fla., 1963); 2 Fla.Jur.2d “Agency and Employment,” § 121, pp. 297-298. In City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956), the Supreme Court described an employer-employee relationship thusly:

An employee is one who for consideration agrees to work subject to the orders and directions of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done. Customarily, the employer determines both the method and manner in which the work is to be done as well as the time and tenure of the service, [citations omitted]

City of Boca Raton v. Mattef, 91 So.2d at 647.

It is readily apparent that the focus of the test for an employer-employee relationship under the law of master and servant is different than under the Fair Labor Standards Act. In determining an employer-employee relationship under the Act, the primary emphasis is upon the relative benefits flowing to the trainee and the employer, Donovan, supra at 271, whereas in this instance the ultimate test of the nature of the relationship is the presence of the right of control over the employee and the performance of his work. City of Boca Raton, supra at 647.

Examining the record with this in mind, we find evidence that Saudi was Al-Faqeer’s visa sponsor, and that it directed which school Al-Faqeer would attend as well as Al-Faqeer’s course of study. While in school, Saudi closely monitored Al-Faqeer’s progress and in fact took a video tape of his behavior in the classroom. The airlines sought to restrict Al-Faqeer’s out-of-class activities by prohibiting flight instruction and attempting (unsuccessfully in this case) to restrict his operation of motor vehicles. Al-Faqeer was given consideration by the airlines in the form of paid tuition and books, medical care costs, international travel expenses, and $675.00 a month toward room and board. Further, Saudi provided a “Ramadan” bonus to assist Al-Faqeer in the purchase of special foods during the time of Ramadan, extending over a period of several weeks, when there is extensive fasting. Saudi had the right to terminate Al-Faqeer and did in fact terminate him and return him to Saudi Arabia. Under the circumstances, there was sufficient evidence to submit the question of an existence of an employment relationship to the jury. Postal Telegraph and Cable Company v. Doyle, 123 Fla. 695, 167 So. 358 (1936), modified, 128 Fla. 707, 175 So. 515 (1937); Gordils v. DeVilliers, 402 So.2d 1313 (Fla. 4th DCA 1981); Lloyd v. Powell Bros., Inc., 382 So.2d 1374 (Fla. 4th DCA 1980), rev. denied, 392 So.2d 1376 (Fla.1980).

Next, appellant contends that even if Al-Faqeer were an employee of Saudi, he was not acting within the scope of that employment at the time of the accident. Appellant primarily relies on the New York case of Dinkins v. Farley, 106 Misc.2d 593, 434 N.Y.S.2d 325 (Sup.Ct.Monroe Cty.1980). In Dinkins, the employee was enrolled as a student at the Rochester Institute of Technology pursuant to an arrangement with his employer, Xerox Corporation, whereby Xerox funded the tuition pursuant to its national tuition aid program. The employee attended school after work, was not compensated for the hours he spent in class, and if he did not complete his course he was required to pay 100% of the tuition. En-route to class one evening, the employee was involved in an automobile accident. The plaintiff sought to find Xerox liable under the doctrine of respondeat superior for its employee’s alleged negligence when he was driving the car. However, the court found that the automobile accident did not occur'in the course and scope of the employee’s employment so as to render Xerox liable for the plaintiff’s injuries. Appellant submits that the Dinkins case is consistent with the Florida rule that going for meals, food or drinks is a deviation from employment. Nealy v. Ross, 249 So.2d 522 (Fla. 3rd DCA 1971); Maroney v. Edward A. Kelly & Sons, Inc., 195 So.2d 208 (Fla.1967); Morgan v. Collier County Motors, Inc., 193 So.2d 35 (Fla. 2d DCA 1966); and Ball v. I.C. Helmly Furniture Company, 132 Fla. 882, 182 So. 435 (Fla.1938).

The rule is well settled in Florida that whether an employee’s tortious acts are within the scope of his employment relationship is normally to be determined by the jury, except in those cases in which a jury could reach only one conclusion that could be sustained. Tuberville v. Concrete Construction Company, 270 So.2d 431 (Fla. 1st DCA 1972). Accord, Gordils v. DeVilliers, supra; Alsay-Pippin Corp. v. Lumert, 400 So.2d 834 (Fla. 4th DCA 1981); Gold Coast Parking, Inc. v. Brownlow, 362 So.2d 288 (Fla. 3rd DCA 1978), cert. dismissed, 368 So.2d 1367 (Fla.1979).

In N. and L. Auto Parts Company v. Doman, 111 So.2d 270 (Fla. 1st DCA 1959), cert. discharged, 117 So.2d 410 (Fla.1960), this court was called upon to determine the compensability of an injury to a route salesman for a parts company. The claimant was required to travel through various communities in Georgia and South Carolina calling on customers of the company. On the day of the injury, claimant and a fellow employee drove to the outskirts of Savannah, where they registered at a motel. The two took a taxi into Savannah to see a movie after which they had a late night snack and returned to the motel. After exiting from the taxi and before returning to the motel room, the claimant was injured. In holding that the injury arose out of and in the course of the salesman’s employment, the court cited the following rule:

The general rule is that an employee whose work entails travel away from the employer’s premises is within the course of his employment at all times during the trip other than when there is a distinct departure for a non-essential personal errand. Injuries incurred during such travel and while attending to the normal creature comforts and reasonably comprehended necessities, as distinguished from those incurred in the course of amusement ventures are usually held to be compensable. Compensation in such areas is predicated on the premise that these acts do not take the employee out of the scope of employment because they are necessary to his health and comforts; that although such acts are personal to the employee, nevertheless they are expected incidents of his away-from-home employment and indirectly if not directly benefit the employer; that such acts, therefore, are not in fact deviations from the course of employment.

Ill So.2d at 271-72. Applying this rule to the facts in this case, the jury could have found that Al-Faqeer’s employment with Saudi entailed travel away from his home in Saudi Arabia to the United States; that when Al-Faqeer drove to Albertsons to buy groceries, he was attending to the normal creature comforts and reasonably comprehended necessities; that his trip to Albert-sons was not a non-essential personal errand, and thus, he was not deviating from the course and scope of his employment. Although not binding on this court, several decisions from other states support this analysis. See, e.g., Houghton v. Babcock and Wilcock Company, 189 N.Y.S.2d 436, 9 A.D.2d 575 (1959), motion for leave to appeal denied, 193 N.Y.S.2d 1025, 7 N.Y.2d 705, 162 N.E.2d 752 (1959); and Schreiber v. Revelon Products Corp., 171 N.Y.S.2d 122, 5 A.D.2d 207 (N.Y.App.Div.1958). Admittedly these cases were decided under the “arising out of and in the course of employment” standard in workers’ compensation, but they are nevertheless instructive in determining the limits of the common law doctrine of respondeat superior. Harris v. Trojan Fireworks Co., 174 Cal.Rptr. 452, 455, 120 Cal.App.3d 157, 162 (4th Dist.1981); Thurston v. Morrison, 141 So.2d 291 (Fla. 2nd DCA 1962).

The Dinkins case relied upon by Saudi is factually distinguishable. The Xerox educational program in Dinkins was voluntary. The Xerox employee was not required to take the class to retain his position or advance in his employment, and Xerox exercised no control over the choice of classes taken by its employee. The Xerox employee was required to take his courses outside working hours and received no pay for attending classes. Based upon these facts which differ substantially from the facts in this case, the trial judge in Dinkins held that Xerox could not be legally responsible for its employee’s automobile accident. In short, we cannot say based upon the facts adduced below, that as a matter of law the jury was not entitled to conclude that Al-Faqeer was acting within the course and scope of his employment when he was involved in the automobile accident injuring Dunn.

Turning now to Iowa’s cross-appeal, we affirm the trial court’s final judgment against Iowa for $90,000.00. In its brief, Iowa relies on Section 627.727(1), Florida Statutes (1981), for its contention that once Dunn proved that he had a claim against Saudi Arabian Airlines, he was no longer entitled to make an underinsured motorist claim against Iowa. Underinsured motorist coverage under Section 627.727(1) is excess over but shall not duplicate “benefits available to an insured ... from the owner or operator of the uninsured motor vehicle or any other person ... jointly or severally liable together with such owner or operator for the accident.” Under this provision, “benefits available” means benefits available to the insured under the automobile liability insurance policy of the unde-rinsured motorist. State Farm Mutual Auto Insurance Company v. Diem, 358 So.2d 39, 41 (Fla. 3d DCA 1978). In this case, the only “benefits available” was the $10,000.00 from Allstate’s automobile liability insurance policy. In that regard Section 627.727(1) provides that only the underin-sured motorist automobile liability insurance shall be set off against underinsured motorist coverage. Thus, the trial court correctly permitted a set off of $10,000.00 against Iowa’s policy limits of $100,000.00 and entered final judgment for $90,000.00. The fact that Saudi Arabian Airlines may or may not be financially responsible is irrelevant to this determination, though it may be otherwise with respect to Iowa’s subrogation rights if Dunn is able to collect his judgment against Saudi Arabian Airlines.

AFFIRMED.

JOANOS and NIMMONS, JJ., concur.

      . This court’s prior opinion shows that the court assumed Al-Faqeer to be an employee of Saudi. 395 So.2d at 1296. This court’s assumption of an employer-employee relationship was based upon arguments made by the parties in their briefs. We note also that immediately after Saudi’s appeal from the order denying the motion to abate, Saudi filed an answer to the amended complaint in which Saudi admits that it employed Al-Faqeer. Nevertheless, in this appeal the issue of an employer-employee relationship between Saudi and Al-Faqeer is vigorously contested. This apparent inconsistency is explained by Saudi’s change of position when it answered Dunn’s second amended complaint. In this answer, Saudi denied that it had employed Al-Faqeer and from this point on in the litigation, Saudi has continued to dispute the existence of an employer-employee relationship.

      . On appeal, Saudi does not dispute the finding of negligence by Al-Faqeer or the amount of damages awarded.

      . Iowa’s insurance policy afforded $100,000.00 underinsured motorist coverage to Dunn. Allstate’s insurance policy, covering Shihry’s automobile, had $10,000.00 policy limits. The trial court limited recovery against Iowa to its $100,000.00 underinsured motorist coverage and set off the $10,000.00 liability insurance. Accordingly, judgment was entered against Iowa for $90,000.00.

      .A trainee is not an “employee” under the broad definitions of the Act, 29 U.S.C. §§ 203(e)(1), 203(g), if these six criteria adopted by the wage and hour administrator are met:
      (1) the training, even though it includes actual operation of the facilities of the employer is similar to that which would be given in a vocational school;
      (2) the training is for the benefit of the trainees;
      (3) the trainees do not displace regular employees, but work under close observations;
      (4) the employer that provides the training derives no immediate advantage from the activities of the trainees and on occasion his operations may actually be impeded;
      (5) the trainees are not necessarily entitled to a job at the completion of the training; and
      (6)the employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
      Wage and Hour Manual (BNA) 91:416 (1975). These criteria were cited and relied upon by the court in Donovan, supra, at 273; Accord, Atkins v. General Motors Corporation, 701 F.2d 1124 (5th Cir.1983).

      . The words “employer-employee” are an outgrowth of the terms “master” and “servant” and are the terms now commonly used to describe the relationship. 2 Fla.Jur.2d Agency and Employment § 120, p. 297.

      . Whether or not Al-Faqeer’s activities could be classified as “work” in the ordinary sense is not determinative of his status. As the Donovan court pointed out, if trainees “work,” “presumably they are employees,” implying that if that were the only test, there would be little need to examine all other facets of the relationship. 686 F.2d at 272. As the court also recognized, however, many companies hire persons as employees and pay them while they attend company schools. Id.

      . Because there was evidence to justify a finding by the jury that Al-Faqeer was a Saudi employee, we find it unnecessary to consider appellant’s argument that there was insufficient evidence to support a verdict based on “agency.” Colonial Stores, Inc. v. Scarborough, 338 So.2d 1119 (Fla. 1st DCA 1976), aff’d. 355 So.2d 1181 (Fla.1977).

      . In deciding Dinkins, the court distinguished the decision of Makoske v. Lombardy, 47 A.D.2d 284, 366 N.Y.S.2d 475 (1975), aff’d. 39 N.Y.2d 773, 385 N.Y.S.2d 31, 350 N.E.2d 408 (1976). In Makoske, the employee-driver was an employee of Montgomery Ward attending a work related course in Saratoga Springs. The course was taught at a training school designated by the employer and the employees were required to stay at a local motel. The trainees’ lodging and meal expenses were paid by the employer. After dinner on the last day of the program, several of the employees formed a group to drive to Saratoga racetrack and, en-route, were involved in an automobile accident. The court held that the employees were not acting outside the scope of their employment as a matter of law.
      Although we note the Makoske decision, we find it unnecessary at this time to determine whether we would follow it so as to extend the umbrella of course and scope of employment to include a departure for a non-essential personal errand or amusement venture.

      . In his brief, Dunn also argues that this court’s prior opinion on the motion to abate established that the allegations of the amended complaint stated a cause of action under the doctrine of respondeat superior, and that the doctrine of law of the case precludes Saudi from rearguing this issue. We do not agree.
      Since this court’s prior decision was determined on the basis of allegations and not proof, the law of the case doctrine does not bar this court’s review of the proof presented at trial. The doctrine only applies where the same factual and legal issue is presented to the court a second time, Greenberg v. Greenberg, 397 So.2d 1032 (Fla. 3rd DCA 1981), and not where the “facts and circumstances on this appeal are materially different from those on the former appeal.” Hendrick v. Strazzulla, 168 So.2d 156, 161 (Fla. 2nd DCA 1964), cert. discharged 177 So.2d 1 (Fla.1965). Guided by these principles, we find that this court’s prior decision in Dunn, 395 So.2d 1295, does not preclude it from considering those facts which were previously unavailable to it when its review of a motion to abate was limited to allegations and not proof.


author: JOANOS, Judge.

text:
    The HORSE HAVEN and Liberty Mutual Insurance Company, v. Robert WILLIT, Appellee.
    No. AP-258.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1983.

      Daniel L. Hightower, of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellants.
    Dorothy Clay Sims, and J.W. Chalkley, III, P.A., Ocala, for appellee.
   JOANOS, Judge.

In this workers’ compensation case, the Horse Haven and its carrier, Liberty Mutual Insurance Company (E/C) appeal an Order of the deputy commissioner that granted Robert Willit (claimant) temporary total disability benefits and all medical care and costs “as the nature of his injury might require, including psychiatric treatment.” The E/C contends that the deputy commissioner erred in its finding that claimant is entitled to compensation for a psychiatric condition arising after a compensable accident in the absence of clear evidence showing claimant’s psychiatric condition to be a direct and natural result of the compensa-ble primary injury. We agree.

“It has long been the law in this state that for post-traumatic neurosis to be compensable, it must be the direct and immediate result of the industrial injury and not merely remotely connected with the injury.” Franklin Manor Apartments v. Jordan, 417 So.2d 1159, 1160 (Fla. 1st DCA 1982); Superior Mill Work v. Gabel, 89 So.2d 794 (Fla.1956). The deputy commissioner’s order did not contain specific findings that established a causal relationship between claimant’s compensable back injury and the hysterical or conversion reaction that followed. Nor does the record contain competent and substantial evidence that would necessarily require either award. There is evidence to support a “possibility” that claimant’s hysterical reaction was causally related to his industrial injury, but this relationship must be based upon a “reasonable medical probability — not possibility.” Scotty’s, Inc. v. Jones, 393 So.2d 657, 658 (Fla. 1st DCA 1981); Nelson v. Hebrew Home for Aged, 276 So.2d 468 (Fla.1973). For these reasons, we reverse and remand the order for further proceedings consistent with this opinion. See Scotty’s, Inc. v. Jones, supra, at 659. See also, University Inns v. Davis, 413 So.2d 128 (Fla. 1st DCA 1982).

It would be well to note, however, in view of the probability of additional medical evidence being presented below, that the “reasonable medical probability” standard may be met notwithstanding the failure of a doctor to use the “magic words” — “reasonable medical certainty” in causally relating the claimant’s hysterical or conversion reaction to his physical injury. See, Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981).

In light of this determination, the award of attorney’s fees is also reversed and remanded for further consideration.

REVERSED and REMANDED.

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


author: SCHOONOVER, Judge.

text:
    WESTINGHOUSE ELEVATOR COMPANY, A DIVISION OF WESTINGHOUSE ELECTRIC CORPORATION, Appellant, v. DFS CONSTRUCTION COMPANY and Federal Insurance Company, Appellees.
    No. 82-2738.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      John Rains and Joseph G. Thresher of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Michael K. Sullivan and John R. Young of Hamilton, James, Merkle & Young, West Palm Beach, for appellees.
   SCHOONOVER, Judge.

This is an interlocutory appeal from an order vacating a final judgment based upon a default. We reverse.

The appellant, Westinghouse Elevator Company, a division of Westinghouse Electric Corporation, filed a complaint against the appellees, DFS Construction Company and Federal Insurance Company. After receipt of the summons and complaint, the appellees’ attorney contacted the appellant’s attorney and received an extension of time for filing a responsive pleading. When the pleading was not filed within the period of the agreed extension, the appellant obtained a default from the clerk, and subsequently a final judgment was entered. The appellees then sought to have the default and judgment set aside by filing an unsworn motion alleging the existence of excusable neglect and a meritorious defense.

At the hearing on the motion, the appel-lees’ attorney argued that the unsworn motion and the proposed answer which had been forwarded to the clerk after default, but prior to final judgment, established a meritorious defense. The unsworn answer was a general denial, and no evidence was presented to support the allegations contained in the motion. After considering the motion and answer, and hearing argument of counsel, the court granted the motion and this appeal timely followed.

Even though there is a long-standing policy of liberality towards the vacation of defaults so that the merits of a cause may be reached, it is still the movant’s burden to establish both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983); Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976). Additionally, the mov-ant must demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bake Shop, Inc., 407 So.2d 275 (Fla. 3d DCA 1981).

It is not necessary for us to determine if the court properly found that the appellees had carried their burden of establishing excusable neglect, or if they demonstrated due diligence because, as hereinafter discussed, the appellees failed in their attempt to establish a meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc.

When a movant relies on a legal defense to establish a meritorious defense, it is incumbent upon him to show legal grounds constituting said meritorious defense. Abray Construction Co. v. Star Swimming Pools, Inc.; Perry v. University Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977). An unverified answer may be sufficient if the issue involved is a matter of law, not a matter of proof, i.e., an answer alleging that the statute of limitations precludes the action. Bay Convalescent Center, Inc. v. Carroll, 352 So.2d 900 (Fla. 1st DCA 1977).

However, when a movant relies upon a factual defense, he must properly set forth the facts relied upon to establish such a defense and a general denial is not sufficient. It is not permissible to allege that a defaulting party’s negligence is excusable without setting forth the facts to, support such a conclusion. Likewise, it is impermissible to allege that a meritorious defense exists without presenting ultimate facts to support that conclusion. Tremblay v. Marck, 378 So.2d 855 (Fla. 4th DCA 1979).

In the instant case, the appellees’ unverified answer was a general denial. Since they were relying upon a factual defense, their general denial in an unverified answer was not sufficient. Bay Convalescent Center, Inc. v. Carroll.

The appellees’ reliance on North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962), is misplaced. It is true in that case the movant, by affidavit, pled a general denial. However, the supreme court made it clear that they were only considering an interlocutory order of default and were not concerned with the trial court’s power to vacate a default following a final judgment.

The appellees did set forth facts in their unsworn motion, and their attorney made factual representations at the hearing on the motion. However, since the motion was unsworn, the trial judge could not rely on the facts set forth therein as the basis for making a factual determination that a meritorious defense existed. Bay Convalescent Center, Inc. v. Carroll. Additionally, the trial judge could not rely on the factual representations made by the attorneys during the course of the argument of the motion, and this court also cannot consider them on review. Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982).

Since the appellees were relying on a factual defense, the trial court erred in granting the motion to set aside the default judgment because the appellees did not set forth the ultimate facts to support that defense in a verified answer, sworn motion, affidavit, or other competent evidence. We accordingly reverse and remand with directions to vacate the order setting aside the default and final judgment.

REVERSED and REMANDED.

OTT, C.J., and GRIMES, J., concur.


text:
    Howard McGEE, Appellant, v. STATE of Florida, Appellee.
    No. AN-86.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.

      David A. Davis, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   ZEHMER, Judge.

Appellant Howard McGee seeks reversal of the trial court’s judgment and consecutive five-year sentences on each of seven counts of bail bond jumping in violation of § 843.15, Florida Statutes (1981), by willfully failing to appear at a single hearing scheduled in seven felony cases against him. McGee makes five contentions: (1) that the court erred in adjudging him guilty and sentencing him to consecutive five-year sentences on each of the seven counts; (2) that the evidence was insufficient to support a finding of willfulness; (3) that the court erred in not severing the seven counts; (4) that the court erred in denying his efforts to stipulate to the felony charges on which he had been released on bond and thereby avoid prejudicial evidence of each pending felony charge going to the jury; and (5) that the court erred in refusing to give his requested instruction on circumstantial evidence. We affirm in part and reverse in part.

After being charged in seven separate informations with some 18 felony offenses, McGee pleaded not guilty to all, posted a blanket $50,001 bail bond upon the usual conditions, and was released from jail while awaiting further hearings and trials on those offenses. McGee informed his privately retained counsel and his bondsman that he would be residing at his mother’s house in Jacksonville. Upon his attorney’s advice, McGee signed several forms for waiver of appearance at a hearing scheduled for October 1, 1981, in these cases. Thereafter, a pretrial conference was scheduled in all of the cases for October 7. McGee was represented by his attorney but did not appear at that hearing. The trial judge passed the hearing to the next day, with directions to McGee’s counsel to have McGee present. When McGee failed to appear on October 8, the court ordered the bond estreated, capiases issued for McGee’s arrest, and a forfeiture hearing set for November 4. Between October 8 and November 4, McGee’s counsel and the bondsman made a number of unsuccessful attempts to locate McGee, although contact was made with McGee’s mother at her house. McGee failed to appear on November 4 and the court scheduled the trial of one case and pretrial conferences in the other six cases for November 9, 1981. Neither McGee’s counsel nor the bondsman were able to reach McGee, and when he failed to appear on November 9, the trial court reestreated the bond and again issued capiases for his arrest in each of the seven cases.

McGee was arrested on November 24, incarcerated, and ultimately charged in a single amended information containing seven counts with failing to appear on November 9, in violation of § 843.15, Florida Statutes (1981). Each count related to one of the seven pending felony cases, all of which had been scheduled for hearing on November 9 at the same time before the same judge. Two motions to dismiss filed by McGee were denied. McGee was tried, adjudged guilty on all seven counts, and immediately sentenced to serve the maximum sentence of five years on each count, consecutively. After this sentence was imposed, each of the seven pending felony cases in which McGee had not appeared on November 9 were nol prossed by the state attorney.

McGee’s argument that the evidence was insufficient to prove the requisite willfulness under § 843.15, Florida Statutes, is without merit. The argument is premised primarily on his contention that he had signed waivers of appearance so that his counsel could appear for him without the necessity of McGee also being personally present. McGee further contends that the evidence fails to show that he ever received actual notice that his presence was required at any of the hearings, including the hearing on November 9. To counter this argument, the state did not contend that McGee had actual notice, but introduced evidence to prove that McGee had deliberately and willfully taken action to evade all communications from his counsel and from the bondsman, thereby avoiding receipt of any notice of hearings. The evidence indicated that it was part of a strategy devised by McGee and his retained counsel to delay the bringing of these charges on for hearing and trial in order to prevent revocation of McGee’s nearly completed parole. No useful purpose will be served by a lengthy recitation of the facts and inferences argued by McGee, for the record is amply sufficient to establish a deliberate course of conduct by him to avoid receiving such notices.

There are few Florida decisions construing § 843.15, Florida Statutes, and none dealing with this theory of willful evasion; but the decisions that construe and apply substantially similar provisions in the federal bail bond jumping statute, 18 U.S.C., § 3150, are persuasive. The federal courts have repeatedly held that receipt of actual notice by the defendant is not necessary in order to prove the required willfulness. “A defendant’s failure to appear because he purposefully engaged in a course of conduct designed to prevent him from receiving notice to appear can clearly be as ‘willful’ as when he receives and deliberately ignores a notice to appear.” United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir.1971); United States v. Bright, 541 F.2d 471, 476 (5th Cir.1976), reh. denied, 544 F.2d 518 (5th Cir.1976), cert. denied, 430 U.S. 935, 97 S.Ct. 1560, 51 L.Ed.2d 780; United States v. De-Pugh, 434 F.2d 548 (8th Cir.1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328. We believe the reasoning underlying that rule to be valid and agree that it should be applied to prosecutions under § 843.15, Florida Statutes. Accordingly, we find no error in the trial court’s having submitted this issue to the jury and having accepted its verdict of guilty.

McGee’s next contention, that the court erred in not severing the seven counts for separate trial, is also without merit. Each count arose out of a single failure to appear for hearing on November 9, and the evidence in support of each count was the same. No abuse of discretion by the trial court has been shown. Menendez v. State, 368 So.2d 1278 (Fla.1979); Eagle v. State, 249 So.2d 460, 465-66 (Fla. 1st DCA 1971). This argument is made, for the most part, because of McGee’s perception that he was prejudiced by having the jury informed of the 18 substantive offenses on which he was being held. But the basis of this severance argument is inconsistent with the proof and his contention, discussed infra, concerning the illegality of his conviction and imposition of a separate sentence on each of the seven counts.

McGee further argues that he could not and did not receive a fair trial because the state refused McGee’s offer to stipulate that he was being held on felony charges and insisted on proving those felony charges by introducing copies of the seven informations in evidence. McGee points out that he desperately, but unsuccessfully, attempted to avoid such prejudice by filing a motion in limine to exclude this evidence. This tactic by the state of introducing the seven informations does present problems of fairness, as discussed in Fouts v. State, 374 So.2d 22 (Fla. 2d DCA 1979), the decision principally relied upon by McGee. But we believe McGee’s argument based on Fouts is not viable in view of the more recent decision by the Supreme Court in Parker v. State, 408 So.2d 1037 (Fla.1982), and we simply refer to our discussion of these cases in disposing of a similar argument made in one of McGee’s recent appeals in a related case. McGee v. State, 435 So.2d 854 (Fla. 1st DCA 1983), opin. denying rehearing.

The failure of the trial court to give McGee’s requested instruction on circumstantial evidence is not reversible error. The opinion and order of the Supreme Court approving the standard jury instructions in criminal cases, 431 So.2d 594, accepted the committee’s recommendation to dispense with an instruction on circumstantial evidence in accordance with the rule in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), with the proviso that the trial judge could, in his or her discretion, give such an instruction if it appeared to be necessary under the peculiar facts of a particular case. We find no abuse of discretion in failing to give the instruction in this case.

McGee’s principal argument, that he was illegally convicted and illegally given consecutive sentences on seven separate offenses of bail bond jumping because he failed to appear at a single hearing on November 9, requires reversal of the judgment and sentence as to six of the seven counts of the information. The purpose of § 843.15 is to punish those who, while released on bail, do not obey the requirements of the court to appear before it or some other judicial officer at a specified time and place. The gravamen of the offense is the failure to appear at the time and place specified, not how many offenses or cases are pending and scheduled for disposition on that particular occasion. Hence, McGee committed only one statutory offense and the multiplication of McGee’s failure to appear on a single occasion into seven separate offenses and sentences violated McGee’s constitutional right to protection against double jeopardy. Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982).

The state argues, however, that McGee did not properly and timely raise the defense of double jeopardy by motion to dismiss in the trial court, citing Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980), and Williams v. State, 397 So.2d 438 (Fla. 3d DCA 1981). The state also urges that the convictions and sentences should be upheld under State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We do not agree for the following reasons.

Counsel for McGee filed motions to dismiss but did not assert double jeopardy as a ground for dismissing the clearly multiplici-tous information. Why this ground was omitted in view of counsel’s later asserted objection leads one to speculate that counsel for McGee had misconceived the purpose of the double jeopardy clause as precluding multiple sentencing rather than prosecution in one trial on multiple charges which amount to no more than one offense. By no stretch of the imagination, however, can one conclude that McGee knowingly and intentionally waived his rights under the double jeopardy clause to be convicted and sentenced for only one offense for failure to appear.

In any event, when the trial court adjudicated McGee guilty and imposed seven consecutive five-year sentences at the conclusion of the trial, McGee’s counsel objected, arguing that McGee had committed only one offense. Thereafter, McGee’s counsel filed a motion for new trial and a motion to correct the sentence on the ground of double jeopardy. These motions were vigorously argued to the court at a subsequent hearing. Although denying the motion for new trial, the trial judge was so uncertain about the double jeopardy question that he granted the motion to correct sentence, vacated the consecutive sentences previously imposed, and rescheduled the case for sentencing. At the next hearing, the issue was vigorously argued again. At no time did the state ever suggest to the trial court that the double jeopardy defense had been waived and should not be considered. In effect, McGee’s counsel sought vacation of and, as a logical consequence, dismissal of the convictions and sentences as to six of the seven counts, although his motions did not use these precise words.

However, the trial court ultimately decided to find McGee guilty of seven offenses and to resentence him to seven consecutive terms on the strength of the Supreme Court’s decision in Borges v. State, 415 So.2d 1265 (Fla.1982). The difficulty with the trial court’s having relied upon the Borges and Hegstrom decisions to sustain the multiple convictions and sentences in this case is simply that McGee did not, by reason of his conduct on this one occasion, commit separate offenses under one statute or violate two statutes; he committed only one offense under one statute involving a single event not separated in time from any other offense charged. Miles v. State, supra.

Moreover, in Bell v. State, 437 So.2d 1057 (Fla.1983), the Supreme Court provided much needed clarification of its opinions in Borges and Hegstrom. The court held in Bell that by enacting § 775.021(4) the legislature did not intend separate convictions and punishments when, in fact, only one crime has been committed, and, further, that both conviction and sentence must be vacated if imposed in violation of the double jeopardy clause, without distinction as to whether obtained in a single trial or by successive prosecutions. Applying the Bell definition of double jeopardy, we conclude that McGee was proven to have committed only one offense under a single statute and his convictions and sentences on six counts of the information must be reversed and vacated.

We are mindful of the state’s contention based on Chapman that as a general rule the defense of double jeopardy is waived if not raised by motion to dismiss under Rule 3.190(b), Florida Rules of Criminal Procedure. However, we note that in Chapman the defendant raised the defense for the first time on appeal. In the cases cited by the court in Chapman, the double jeopardy defense was apparently never raised before the trial court imposed sentence after adjudication of guilt. Rule 3.190(c) authorizes the trial court to entertain a motion to dismiss on grounds of double jeopardy at any time. In view of this provision of the rule, we believe that the objections and arguments presented by McGee’s counsel before final adjudication and imposition of sentence were sufficiently timely to preserve this defense and avoid waiver under the rule. We will not permit form to override substance or procedural technicalities to defeat fairness and justice. The efforts of defense counsel were not insufficient because the magic word “dismiss” was not used as dismissal was the manifest purpose and ultimate objective of counsel’s arguments to the trial court before it lost jurisdiction of the case.

Moreover, the trial court actually granted McGee relief on grounds of double jeopardy, and the state never objected to McGee’s counsel raising this ground in the trial court. Thus, the state itself may be said to have waived “its technical objection” based on untimeliness in asserting this defensive matter. See State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978). Also, there is authority to the effect that an appellate court should correct fundamental error for violation of the double jeopardy clause irrespective of whether a motion to dismiss was filed in the court below. Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981).

Appellant’s conviction and sentence on the first count of the information is AFFIRMED. As to the second through seventh counts of that information, the convictions are REVERSED and the sentences are VACATED. The case is REMANDED for entry of judgment and sentence in accordance with this opinion.

ROBERT P. SMITH, Jr., and WENT-WORTH, JJ., concur.

      . Section 843.15, Florida Statutes, provides in part:
      Whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for his release and, in addition, shall:
      (a) If he was released in connection with a charge of felony or while awaiting sentence or pending review by certiorari after conviction of any offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084....

      . Count One of the Amended Information for “Bail Bond Jumping” charged that:
      HOWARD MCGEE on the 9th day of November, 1981, in the County of Duval and the State of Florida, having been charged with a felony in the Circuit Court of the Fourth Judicial Circuit of Florida, in and for Duval County, Florida, Case Number 81-5407, and having been released pursuant to Chapter 903 Florida Statutes, willfully failed to appear before the Court as required, contrary to the provisions of Section 843.15, Florida Statutes.
      Counts Two through Seven were identical but for the single exception that the case number in each count was different.
      We do not quote these allegations as models of clarity for charging an offense under § 843.-15, for it is impossible to determine exactly what was required of the defendant regarding his appearance on November 9. We suggest the type of specificity alleged in the information quoted in Miles v. State, 418 So.2d 1070, n. 1 (Fla. 5 th DCA 1982) as preferable.

      . 18 U.S.C., § 3150, provides in pertinent part: Whoever, having been released pursuant to this chapter [18 USCS §§ 1341 et seq.], willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both....

      . This view was consistent with State v. Hegstrom, supra.

      . The transcript reflects the following discussion by the trial judge:
      Had I this Borges case at the time it was argued before I would not have set aside the consecutive sentences. I did not have the advantage of having that case at that time. As I have stated earlier, I have read it, and reread it, and reread it, and reread it. At one moment I thought it meant one thing and the next day I thought it meant something else. I have convinced myself I was correct in the first instance. Therefore, based on this case, and if I’m wrong then the Supreme Court can simply tell me I’m wrong or the DCA, I’m going to — since I have set aside the previous judgment, rather than reinstating it I’m just going to resentence, that is, I will find him— adjudicate him guilty on all seven counts in Case No. 82-761, and I will sentence him to a period of five years on each of the seven counts, each to run consecutively to the other.

      .In Bell v. State, the Court, discussing the test for double jeopardy in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), said:-
      In a pure sense of the definition, two offenses are ‘the same’ if they are identical in law and fact. That is, that one statute has been violated once.
      437 So.2d at 1058.


text:
    WEST FLORIDA DISTRIBUTORS and Federal Insurance Company, Appellants, v. Sharon A. LARAMIE, Appellee.
    No. AO-107.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.

      Bernard J. Zimmerman and Michael M. O’Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    W. Dennis Brannon of Dewrell, Blue & Brannon, Fort Walton Beach, for appellee.
   JOANOS, Judge.

This is an appeal from a deputy commissioner’s order awarding death benefits to the employee’s widow despite a claim that the employee was driving while intoxicated when he was killed. We affirm.

The employee, Gilbert Laramie, a liquor salesman for employer, was killed when he was thrown from his automobile. He had been traveling in clear weather at about 10 p.m., and was clocked by Florida Highway Patrol Trooper Gilbert at 80 m.p.h. just before the accident. He was not observed weaving or changing speed erratically. Two of his wheels left the pavement and as the car swerved to get back on the road, he overcorrected and lost control of the car, according to Gilbert. His blood alcohol level was .22%, and there were traces of vali-um. His widow claimed workers’ compensation benefits. Laramie was on the road from having seen a customer to see another when the accident occurred.

Employer supplies wine and liquor to bars and package stores. The testimony of another salesman and representatives of employer was that it was a common practice for the salesmen to have drinks with their customers. There was also testimony by several people who saw Laramie the evening of the accident at up until about 9 p.m., to the effect that he did not appear to be intoxicated, and that he had a high degree of tolerance for alcohol.

Ricky Weeks, a salesman with employer, said employer encouraged them to drink with customers for public relations purposes, but did not encourage them to become intoxicated. He last saw Laramie at 9 p.m. and he did not appear drunk. He had no trouble walking or speaking and Weeks was not concerned for him. David Hogle, employer’s wine manager, said drinking with customers enhanced the sale-man’s relationship with the customer, and employer never put a limit on when to drink with a client. They did not suggest that salesmen drink to intoxication, no policy allowed them to drink to excess, and it was not acceptable to drink to excess. They probably would not fire a salesman who inadvertently became intoxicated, it is one of the hazards of the trade. Curtis Johnson, sales supervisor, said the salesmen have to know their product and it may be to their advantage to drink with customers, but he never told any of his men to get drunk. Kenneth Russell, a bar owner, said there’s a difference between a salesman having a drink with a customer and becoming intoxicated. He has not seen any of the salesmen become intoxicated.

A highway patrolman who investigated the accident, Pittman, put in his report that the accident was a direct result of Laramie’s intoxication. The pathologist who did the autopsy, Dr. Clemmons, said with .22% blood alcohol, even with a greater than average tolerance, driving ability would be impaired.

Section 440.09(3), Florida Statutes, provides, in part:

No compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee .... If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee’s blood, it shall be presumed, in the absence of substantial evidence to the contrary, that the injury was occasioned primarily by the intoxication of the employee.

The deputy commissioner’s findings are summarized as follows. He found there was little evidence, other than Laramie’s intoxication, to account for the accident. The highway had been straight and level and no other car was involved. Laramie’s car left the road and he overcompensated when returning. The most likely explanation was found to be that his reflexes were dulled due to the amount of alcohol in his blood stream. Laramie’s widow failed to overcome the presumption of intoxication of Section 440.09(3) Florida Statutes. The deputy commissioner further found that the claim cannot be barred, however, because the employer is estopped from asserting intoxication defense since the employer encouraged and practically insisted on use of alcohol on the job and that Laramie’s supervisors did not respond with unqualified “no” when asked if it was company policy to encourage salesmen to become inebriated during the course of employment. The supervisors at least impliedly recognized that liquor salesmen might occasionally cross the line between slight intoxication and more. They recognized intoxication while on duty as a hazard of the trade. When seen last, Laramie was not obviously drunk. Employer cannot be allowed to encourage a course of conduct, then refuse to face the consequences. The deputy commissioner concluded that an estoppel exception should be recognized. Under § 440.09(4), the benefits were reduced 25% for willful refusal to observe safety rules required by statute. He further found that the law governing excess speed is a safety rule which Laramie violated. The combination of intoxication and excessive speed constitutes willful disregard of a statute, therefore benefits are reduced by 25%.

On appeal the employer and its insurance carrier (E/C) argue that they should not be estopped from asserting the defense of intoxication because the employer encourages salesmen to have a social drink with customers, since the employer does not encourage or condone salesmen becoming intoxicated. E/C further argue that to allow this estoppel would alter employee-employer relationships and obviate the purpose of Section 440.09(3), to discourage employees from drinking on the job. Appellee argues that the employer’s express approval and consent to the salesmen drinking with customers made the special hazard of intoxication incidental to the employment, and points out that the employer set no clear parameters to the drinking with customers.

The deputy commissioner’s determination that the primary cause of the accident was intoxication is supported by competent substantial evidence. In addition, we approve of the application of estoppel to the intoxication defense in this case.

Appellant relies upon two cases from other jurisdictions in its argument against an estoppel, Hopper v. F.W. Corridori Roofing Co., 305 A.2d 309 (Del.1973), and Smith v. Traders and General Insurance Co., 258 S.W.2d 436 (Tex.Civ.App.1953). Hopper is readily distinguishable. In Hopper an 18 year old employee suffocated by regurgitation as a result of intoxication. He had attended an office Christmas party at which he had been cautioned against drinking. While the Industrial Accident Board awarded death benefits, determining the employer was estopped from raising the intoxication defense, having made liquor available to a minor in violation of the law, the Supreme Court of Delaware reversed, holding that the statutory intoxication defense was a clear and unequivocal statement of public policy creating a complete defense for intoxication. As part of its rationale, the court noted it did not appear the employer had served or given liquor to the employee, but had merely made liquor available at a social event attended by adults and a minor. “Nor does it appear that the employer-host knew or should have known of any propensity for such harm as was suffered by the employee in this case by reason of the availability of intoxicating liquor at the social event.” Hopper at 311. In reaching this result, the court found support in the Smith case.

In Smith, the Texas court found that intoxication was a complete defense and “[t]he fact that the employer of Smith may have originated and participated in the drinking of intoxicants with Smith has no bearing on the situation.” Smith at 438. The Smith case involves a statute described as “draconian” by Larson, in that it denies compensation benefits for intoxication regardless of causation. See Larson Sections 34.32, 34.35 (n. 51.3). Unlike Texas, the Florida statute requires that the intoxication be the primary cause of the injury. That distinction in statutory language may or may not be meaningful in our situation where the evidence supports the deputy commissioner’s determination that the intoxication was the primary cause. Nevertheless, we are unpersuaded that the harshness of the Texas attitude should be made applicable to the situation before us.

On the other hand, appellee relies on McCarty v. Workmen’s Compensation Appeals Board, 12 Cal.3d 677, 117 Cal.Rptr. 65, 527 P.2d 617 (1974), in which the employer was estopped from asserting a statutory defense to an injury “ ‘caused by the intoxication of the injured employee’ ” because the employer tolerated or encouraged drinking in the course of the employment. To satisfy the elements of estoppel, quoting an earlier case, Tate v. Industrial Accident Commission, 120 Cal.App.2d 657, 261 P.2d 759 (1953), the McCarty court stated “the employer’s tacit approval and consent amount ‘to an implied representation that the employer will not hold it against the employee if he drinks, and will not deprive him of his job or of compensation benefits if he does so.’ ” McCarty 261 P.2d at 622.

Given the deputy commissioner’s findings of fact in this case, which are supported in the record, we find the rationale of the McCarty case more persuasive as to the situation before us and adopt it. Under the circumstances, the employer impliedly represented that the employee would not be deprived of his job or of compensation if he should become intoxicated. The employer is therefore estopped from raising the intoxication defense.

The factual setting of this case is unique and our opinion should not be construed to provide for an estoppel of the intoxication defense in significantly different circumstances.

In all respects the deputy commissioner’s order is AFFIRMED.

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


text:
    Marion CARDWELL, Appellant, v. LEON KELLEY’S NURSERY and Florida Farm Bureau, Appellees.
    No. AP-276.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.

      J. Michael Matthews, Altamonte Springs, for appellant.
    Lamar D. Oxford, Orlando, for appellees.
   PER CURIAM.

We find substantial competent evidence supporting the deputy’s ultimate finding, on appellant’s wage-loss claim, that “the Claimant has not demonstrated an adequate work search during the time that he was out of work after reaching maximum medical improvement and being released to return to work” in August 1981. Therefore there is no error in the deputy’s denial of wage-loss benefits from May until August 1982.

Nor, considering the nature of claimant’s disability and the promising opportunity of rehabilitating employment secured for claimant by Crawford Rehabilitation Services, did the deputy err in denying claimant reassignment to another rehabilitation provider. Contrast Viking Sprinkler Co. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982).

As the deputy’s order is sustained without regard for the admissibility of written reports of rehabilitation counselors other than he who testified, we do not reach that issue.

AFFIRMED.

ROBERT P. SMITH, BOOTH and WIG-GINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    TRI-BRITTON, INC. and Florida Farm Bureau Insurance Company, Appellants, v. Charles CONLEY, Appellee.
    No. AR-195.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1983.
    Keith A. Mann, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
    Joseph Y. Barrs, of Barrs, Williamson & Levens, Tampa, for appellee.
   WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order finding appel-lee entitled to temporary total disability benefits for the periods between April 15, 1981 and January 11, 1983, during which appellee was not working. Substantial competent evidence supports the award with the exception of the period from December 1,1981 to January 14,1982. During that time, appellee was not working due to circumstances unrelated to his injury. Therefore, the award of temporary total disability benefits for that period is reversed. See Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982) and Golden Gem Growers, Inc. v. Crow, 434 So.2d 41 (Fla. 1st DCA 1983). The remainder of the deputy commissioner’s order is affirmed.

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


text:
    Alejandro MEDINA and Zulema Medina, individually and as the parents and next friends of Javier Medina, a minor, Appellants, v. VARIETY CHILDREN’S HOSPITAL, a Florida corporation and Mt. Sinai Hospital of Greater Miami, Inc., et al., Appellees.
    Nos. 81-1814, 81-1865.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Adams, Ward, Hunter, Angones & Adams, Jeanne Heyward, Miami, Adkins & Hardy, Coral Gables, for appellees.
    Before NESBITT, DANIEL S. PEARSON, and FERGUSON, JJ.
   PER CURIAM.

A jury awarded damages of $25,000 to an infant and one parent for substantial injuries suffered by the infant as a result of medical negligence. The jury verdict and final judgment must be set aside because the record affirmatively demonstrates that the verdict was improper or that the jury was influenced by considerations outside the record. It is also apparent that the jury was deceived as to the force and credibility of the evidence owing to improper rulings on evidentiary matters. We address briefly some of the errors committed so that they will not be repeated in a new trial.

First, when a trial judge believes that an attorney’s conduct is improper, it is error for him to criticize or take any disciplinary action against the attorney in the presence of the jury. Instead, such action should be taken only at a side bar conference out of the hearing of the jury, or upon excusing the jury. Florida Motor Lines Corporation v. Barry, 158 Fla. 123, 27 So.2d 753 (1946); Seaboard Coast Line Railroad Co. v. Wiesenfeld Warehouse Co., 316 So.2d 567 (Fla. 1st DCA 1975), cert. denied, 328 So.2d 846 (Fla.1976); Skelton v. Beall, 133 So.2d 477 (Fla. 3d DCA 1961).

Second, medical treatises cannot be used to bolster the testimony of a physician on direct examination. See Tallahassee Memorial Regional Medical Center v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981); see also § 90.706, Fla.Stat. (1981).

Finally, at least as to defendant Variety Children’s Hospital, plaintiff should have been permitted to call Dr. Meneia, a physician/agent of that hospital, as an adverse witness so as not to be bound by the witness’s unfavorable testimony. See Smith v. Fortune Insurance Co., 404 So.2d 821 (Fla. 1st DCA 1981).

Because the errors already addressed require a new trial, we need not discuss the more difficult issue, i.e., that the jury verdict was an impermissible compromise. It is extremely unlikely that another jury will return a similar verdict on retrial.

Reversed and remanded for a new trial on issues of liability and damages.


author: JORGENSON, Judge.

text:
    HEFTLER CONSTRUCTION COMPANY, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 82-838.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Lewis M. Kanner, Miami, for appellant.
    Jim Smith, Atty. Gen., and Barbara Sta-ros Harmon, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

As a partner under a January 1, 1971, partnership liquidation plan Heftier Construction Company’s subsidiary, Heftier Realty Company, received a partnership asset in kind in the form of real estate. On November 2, 1971, the Florida Income Tax Code [the Code] went into effect. In 1975 Heftier Construction Company conveyed the asset received under the 1971 partnership liquidation plan. In computing its Florida income tax for its fiscal year ending July 31, 1976, Heftier subtracted from its reported income the amount received upon conveyance of the asset. Heftier contends that the amount was realized as income at the liquidation of the partnership prior to the effective date of the Code, rather than at conveyance, and was therefore not subject to the Florida tax. Additionally, in reporting income for its fiscal years ending July 31, 1976, July 31, 1977, and July 31, 1978, Heftier carried over and subtracted a net operating loss resulting from a subtraction of foreign source income on its July 31, 1975, return. The Department of Revenue assessed income tax deficiencies for all the above subtractions. Following a hearing before a Division of Administration Hearing Officer, the Department of Revenue upheld the assessments. Heftier appealed to this court. We affirm.

I

Realization of Income

Section 220.02(4)(a), Florida Statutes (1975), provides that income “shall be deemed to be created for Florida income tax purposes at such time as said income is realized for federal income tax purposes.” The Supreme Court of Florida has adopted the definition of income contained in Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521 (1920):

“Income may be defined as the gain derived from capital, from labor, or from both combined,” provided it be understood to include profit gained through a sale or conversion of capital assets .... [It is] not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and com ing in, being “derived,” that is received or drawn by the recipient (the txpayer) for his separate use, benefit and disposal; that is income derived from property. Nothing else answers the description.

Department of Revenue v. Leadership Housing, Inc., 343 So.2d 611, 614 (Fla.), cert. denied mem., 434 U.S. 805, 98 S.Ct. 35, 54 L.Ed.2d 63 (1977) (quoting Macomber, 252 U.S. at 207,40 S.Ct. at 193, 64 L.Ed. at 529). Realization occurs when the taxpayer receives actual economic gain from the disposition of the property: this is the taxable event. S.R.G. Corp. v. Department of Revenue, 365 So.2d 687 (Fla.1978).

Section 220.02(3), Florida Statutes (1975), provides that concepts of law which have been developed in connection with federal income tax laws shall be used to the greatest extent possible in imposing the Florida income tax. For purposes of federal income tax a partnership does not own property separate and apart from the ownership of its partners; the partners own at all times the partnership assets as well as the business and are never separated therefrom. Crawford v. Commissioner, 39 B.T.A. 521 (1939). Partnerships, therefore, are not taxed as separate entities; the partners are individually liable for any federal income tax owed as a result of partnership activity. I.R.C. § 701 (1975). It follows, then, that when partnership assets are distributed in kind under a partnership liquidation plan no gain or loss is realized by the partners. Cora-Texas Manufacturing Co. v. United States, 222 F.Supp. 527 (E.D.La.1963), aff’d, 341 F.2d 578 (5th Cir.1966); Crawford, 39 B.T.A. at 525; I.R.C. § 731 (1975). The partner receiving an asset in kind realizes no gain or loss on the asset until he sells or otherwise disposes of it. Cora-Texas Manufacturing Co., 222 F.Supp. at 530; Treas. Reg. § 1.731-1 (1975).

Applying these fundamental principles to the present facts, Heftier did not realize any gain or loss when it received as its share of the partnership liquidation plan the asset and did not realize any gain or loss until the asset was conveyed in 1975, subsequent to the effective date of the Code. The conveyance of the asset was, therefore, a taxable event for the purpose of the Florida income tax.

II

Loss Carryovers

Section 220.13(l)(b)2.b., Florida Statutes (1975), provides that income derived from sales outside the United States or from sources outside the United States on interest, royalties or compensation for services shall be subtracted from taxable income. Section 220.13(l)(b)l.c., Florida Statutes (1975), provides that net operating losses shall be deemed net operating loss carryovers “and treated in the same manner, to the same extent, and for the same time periods as are prescribed for such carryovers in” section 172 of the Internal Revenue Code (1975). The Code does not expressly provide for the carryover of net operating “losses” resulting from the subtraction of foreign source income. The Code only provides for net operating loss carryovers to the extent they are provided for in section 172 of the Internal Revenue Code.

For federal income tax purposes “net operating loss” is defined as the excess of deductions allowed by the Internal Revenue Code over gross income. I.R.C. § 172(c). Deductions allowed by the Internal Revenue Code do not include the deduction of foreign source income. It follows, therefore, that allowing for the carryover of net operating losses to the extent provided for in section 172 of the Internal Revenue Code would preclude for Florida tax purposes the carryover of a net operating “loss” resulting from the subtraction of foreign source income.

Heftier argues that such a carryover is not expressly prohibited by statute. This argument is without effect. “[T]he rule is that exemption provisions will not be enlarged by construction, nor can they rest upon implication. Taxation is the rule; exemption is the exception which must be created by clear and definite terms.” Orange State Oil Co. v. Amos, 100 Fla. 884, 130 So. 707, 709 (1930). An examination of the statutes in light of this rule demonstrates that the Florida Legislature expressly provided, during the years in question, for the subtraction of foreign source income. Our legislature did not choose to provide for the carryover of net operating “losses” resulting from such subtraction. The “loss” resulting from Heftler’s subtraction of foreign source income on its 1975 return, therefore, could not be carried over to successive years.

The order assessing the tax deficiencies is accordingly affirmed.