author: CURRAULT, Judge.

text:
    James WATKINS v. JOHNS-MANVILLE CORPORATION et al.
    No. 84-CA-41.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      M.H. Gertler, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    William H. Howard, III, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for defendants-appellees.
    Before CURRAULT, GAUDIN and DU-FRESNE, JJ.
   CURRAULT, Judge.

Plaintiff, James Watkins, appeals a judgment granting an exception of res judicata filed by defendant, IMCO Services (IMCO) in a tort suit. The exception was granted based on a previous settlement and compromise which undisputedly disposed of plaintiff’s worker’s compensation suit.

The facts reveal that plaintiff was employed by IMCO, a division of Halliburton Company, from 1960 until 1980. In a worker’s compensation suit filed on August 8, 1980, he claimed that during the period of employment he contracted pneumoconiosis as a result of exposure to toxic fibers, asbestos, silica and other dangerous materials. On March 31, 1981, a compromise and settlement agreement was entered into in which plaintiff received Twenty-Five Thousand Dollars ($25,000).

Qn June 15, 1981, three months later, plaintiff instituted a related tort action against defendant IMCO and their executive officers.

On January 27, 1983, defendant filed a peremptory exception of res judicata based on the prior settlement and compromise. Hearing on the exception was held on May 10, 1983 and the trial court rendered judgment granting the exception on September 26, 1983.

Plaintiff subsequently perfected an appeal of the judgment alleging that the trial court erred in dismissing plaintiff’s tort suit based on a general release of plaintiff’s worker’s compensation suit when plaintiff neither consented to nor received any consideration for a release of his tort claim.

Under LSA-R.S. 23:1271, an injured employee or his dependents have the right to compromise a worker’s compensation claim. Further, a tort claim against the employer may be settled along with a contested worker’s compensation claim. Cripe v. Haynes, 350 So.2d 956 (La.App. 2d Cir.1977); Meinerz v. Treybig, 245 So.2d 557 (La.App. 3d Cir.), writ refused 258 La. 580, 247 So.2d 395 (La.1971).

Article 3071 of the Louisiana Civil Code defines compromise:

“A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be reduced to writing....”

Consideration is a necessary element of the compromise in order to bind the parties. Burns v. Fernandez, 401 So.2d 1033 (La.App. 4th Cir.1981); Dale v. Nassar, 240 So.2d 775 (La.App. 2d Cir. 1970); Hyatt v. Hartford Accident and Indemnity Company, 225 So.2d 102 (La. App. 3d Cir.1969).

As noted by appellant, the court in Biel-kiewicz v. Rudisill, 201 So.2d 136 (La.App. 3d Cir.1967) in overruling an exception of res judicata explained:

“A compromise is defined in LSA-C.C. Art. 3071 as an agreement by which the parties adjust their differences to prevent or put an end to a law suit. Collier v. Administrator, Succession of Blevins, La.App. 4th Cir., 136 So.2d 774. A compromise is a bilateral contract. ‘When one party has all to gain and nothing to lose, no compromise results.’ Comment, Compromise in Louisiana, 24 Tul.L.Rev. 282, at 285 (1940). Green v. National Life & Ace. Ins. Co., La.App. Orl.Cir., 183 So. 604.
“In some cases, a release may indeed be considered a compromise and therefore the basis for a peremptory exception. See, e.g., cases cited in Bowden v. State Farm Mutual Auto. Ins. Co., La.App. 3d Cir., 150 So.2d 655. However, in all cases found, there was something given in exchange for the execution of the release, either a payment of money, Bowden itself, or a mutual release....
“We therefore conclude that the exception of res judicata must be overruled because the unilateral ‘release’ executed herein by each plaintiff without shown or proved consideration does not constitute a binding bilateral compromise which may be the basis of res judicata.” Id. at 141.

The compromise and settlement herein provided that appellant release appellee from any and all liability in return for which he received Twenty-Five Thousand Dollars ($25,000). Appellant asserts, however, that the $25,000 is insufficient consideration to include the pending worker’s compensation action and the tort claim. In support of his contention, he cites the court to Meinerz v. Treybig, supra. There an injured employee brought an action in tort against the president of an oil exploration company for damages arising out of an industrial accident and subsequently signed a compromise settlement of both worker’s compensation claims and any tort claims for damages which he might have had against the employer and their executive officers. In calculating whether the employee had been compensated for his compromise of his tort claims, the court looked to the procedure for such calculations as set forth in Title 12 of the Louisiana Revised Statutes. Under the conditions of the settlement in Meinerz, supra, the plaintiff received the sum of Fifty-Five Dollars ($55) over and above the amount due under LSA-R.S. 23:1221(4)(i) for the loss of an eye. The court considered this sum to be valid consideration for a compromise of his tort claim.

Appellant urges this court to utilize the same procedure to determine the issue. However, in light of our review, we find that the Meinerz case is factually distinguishable. In Meinerz, the plaintiff was undisputedly entitled to worker’s compensation benefits. Thus, for the court to find consideration for the release of the tort suit, it was necessary that plaintiff receive something over and above the amount of the benefits. For the same reason, the case of Burns v. Fernandez, 401 So.2d 1033 (La.App. 4th Cir.1981), an automobile accident case cited by appellant does not apply. There the Court of Appeal affirmed the trial court’s denial of All-Star’s exception of res judicata based on a prior release in that All-Star, as insurer of the driver, already owed the plaintiff the full amount (within its limits) of her damages. Therefore, the court held that any promise by All-Star to pay part of the already existing debt gave the plaintiff nothing she did not already have, and thus was not true cause or consideration for her promise of release. Finally, Dale v. Nassar, supra, involving a release under contracts for extensive repairs, reiterates the same proposition, i.e., that an agreement is not supported by valid consideration where a party receives nothing to which it is not already entitled.

In this case, there is no evidence that appellant was unequivocally entitled to benefits under the worker’s compensation statute. Consequently, the amount of the settlement is not a basis upon which this court may overturn the exception of res judicata.

Appellant argues finally that the parties neither intended nor consented to settle anything other than the compensation action.

Louisiana law provides that compromise agreements cannot be attacked for error in law or for lesion, although they can be attacked for errors in calculation, error in the person, fraud, violence or an error on the matter in dispute. LSA-C.C. arts. 3078-3079; Condoll v. Johns-Manville Sales Corp., 448 So.2d 169 (La.App. 5th Cir.1984).

In Condoll v. Johns-Manville Sales Corp., supra, this court noted:

“A compromise agreement extends only to those matters which the parties expressly intend to settle. LSA-C.C. Art. 3073; Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir. 1975). Ordinarily, the meaning and intent of the parties to a written contract (such as a written compromise agreement) must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence, LSA-C.C. Art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir. 1982). An exception to this rule exists when there is a dispute between the parties as to exactly what matters were intended to be settled by the compromise agreement, LSA-C.C. Art. 3079, Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961); Munna v. Mangano, 404 So.2d 1008 (La. App. 4th Cir.1981).” At page 172.

Louisiana jurisprudence, however, also provides that the intent of the parties to a written contract is to be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. LSA-C.C. art. 1945; Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La. 1982); Condoll, supra.

At the hearing on the exception, the trial court reviewed the document in question and heard testimony of appellant's attorney. Appellant was absent without explanation, and thus the record lacks his testimony as to what matters were intended to be included in the compromise.

The language of the document states in pertinent part:

“... And Appearer does hereby further release said IMCO Services, division of Halliburton Company, their physicians, surgeons, officers, directors, employees, agents, successors and assigns, and any of them, of and from any and all liability for compensation, damages and expenses of any character whatsoever growing out of or on account of the Appearer’s employment with IMCO Services, division of Halliburton Company, during 1970-80, or at any other time while Appearer was employed by IMCO Services, division of Halliburton Services. Appearer declared that he does hereby grant unto IMCO Services, division of Halliburton Company, their officers, directors, employees, agents and assigns, and any one or more of them full discharge and acquittance therefor, and does hereby forever release IMCO Services, division of Halliburton Company, their officers, directors, employees, agents and assigns, and each and all of them from any and all liability to Ap-pearer.” (Emphasis added)

On the other hand, appellant's attorney testified that the compromise agreement was not intended to extend further than the compensation action. In support, he stated that it was his belief that the tort suit was also pending at the time, and at no time did the defendant file a motion to dismiss the tort suit. He further stated to the best of bis belief the judge approving the settlement was not informed that the settlement included the tort action and that all fees collected were charged under the compensation suit.

However, a review of the record indicates that the tort suit was in actuality not filed until three months following the settlement and counsel’s testimony was based on erroneous information. Consequently, in our opinion, the trial court was, not in error by relying solely on the clear and unambiguous language of the document which appellant signed, in granting the exception of res judicata, particularly in view of the fact that appellant was represented by competent counsel. '

For the foregoing reasons, we affirm the trial court judgment granting the exception of res judicata and dismissing appellant’s suit with prejudice. Costs of this appeal are to be paid by appellant.

AFFIRMED.

      . Appellee attached exhibits to his brief which included an affidavit by defendant’s attorney contradicting the testimony of appellant’s attorney. He alleges the trial court granted permission to defendant to file the affidavit subsequent to the hearing. However, as neither the affidavit nor the court’s statement in this regard can be found in the record before us, this evidence cannot be considered on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Jim BINDER v. AMERICAN CYANAMID COMPANY & Prudential Insurance Company.
    No. 84-CA-160.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.
    Norman Mopsik, New Orleans, for plaintiff-appellant.
    Wayne T. McGaw, McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., New Orleans, for defendants-appellees.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “H”, Parish of Jefferson, wherein the Honorable Thomas C. Wicker, Jr. granted defendant’s exception of prescription. Plaintiff has appealed.

Plaintiff, Jim Binder, filed a petition alleging that sometime during March of 1979, while employed by American Cyan-amid Company, an acid valve he was working on broke. As a result, he suffered scars on his right arm, nose, and over his abdominal area. Plaintiff, asserting that his injuries left him permanently disabled, sought worker’s compensation against his employer and their insurer, Prudential Insurance Company.

Defendants filed an exception of prescription stating that the action had been brought over one year after the accident and had thus prescribed under LSA-R.S. 23:1209. Discovery revealed that the accident which caused the injuries plaintiff complained of occurred on February 8, 1979, making plaintiff’s action, filed February 28, 1980, twenty days late.

A hearing was held June 23, 1983 with defendants’ exception of prescription being granted October 12, 1983. Plaintiff has appealed, but makes no specifications of error. However, appellant clearly argues that because his injuries had not manifested themselves within one year from the accident, his suit was timely as it was filed within two years from the date of the accident in accordance with LSA-R.S. 23:1209. Appellant alternatively argues that if his injuries did indeed manifest themselves on the date of the accident, then he was not able to fully appreciate those injuries during that time due to certain emotional problems.

To substantiate his claim that his resultant injuries did not manifest themselves immediately, appellant produced a medical report from the Veterans Administration dated November 27, 1981, which diagnosed appellant as having dermatitis with the chief complaint being itching and irritation. This report contained a history given by appellant that in 1979 he had walked through an acid solution. This was the only medical evidence offered by appellant to support his claim and establish some causal relationship between his later medical problem and the February 8, 1979 accident.

Appellee, however, read into the record a report of Dr. Mathieu Albert, American Cyanamid’s physician, taken on the date of the accident approximately ten minutes after it had occurred. This report states that appellant had only three small spots with slight discoloration where H2S04, sulphuric acid, had hit his left hand, tip of nose and right wrist. It is evident from the record that, as a result of this accident, appellant neither missed any regular work nor required any further medical treatment other than that rendered by Dr. Albert on February 8, 1979.

In granting defendants’ exception, the trial court implicitly ruled that plaintiff’s injuries were manifested on the date of the accident, February 8, 1979; therefore, suit for compensation benefits and medical expenses had to be filed within one year of that date. Totty v. Dravo Corporation, 413 So.2d 684 (La.App. 3d Cir.1982); LSA-R.S. 23:1209.

As to the question of whether appellant’s emotional problems interfered with his full appreciation of the true extent of his problems, appellant himself testified that he was not under the care of a licensed physician for psychological problems between February 8, 1979 and February 8, 1980. Additionally, appellant was not diagnosed as having any type of nervous condition until March of 1981. There was no showing made by appellant at the hearing as to how this nervous condition, later diagnosed by Dr. Samuel Kaplin in 1981, interfered with his appreciation of whatever injuries he received from the February 8, 1979 accident. The trial court, in granting defendants’ exception, implicitly rejected any notion of such interference.

After reviewing the record, we cannot say the trial court was clearly wrong in either of the implicit conclusions reached regarding the granting of defendants’ exception.

Accordingly, for the above stated reasons, the judgment granting appellee’s exception of prescription is hereby affirmed with costs of this appeal to be shared equally.

AFFIRMED.

      . LSA-R.S. 23:1209, in full, provides:
      In case of personal injury including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.


text:
    Betty Y. PEREZ v. STATE FARM INSURANCE COMPANIES.
    No. 84-CA-49.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 11, 1984.

      Michael A. Mulé, Lobman & Carnahan, Metairie, for plaintiff-appellant.
    Jan P. Jumonville, New Orleans, for defendant-appellee.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment which granted an exception of no cause of action and dismissed a third-party suit filed by third-party plaintiff, State Farm Mutual Automobile Insurance Company (State Farm) against third-party defendants, Allstate Insurance Company, and their insureds, Ronald L. Clark and Rebecca L. Clark.

The facts reveal that on or about October 21, 1980, the original plaintiff, Betty Y. Perez, was involved in an automobile accident with a vehicle that was driven by Gregory Turcuit who was apparently uninsured and/or underinsured. Plaintiff thereafter filed a petition for damages against her own insurer, State Farm, under the policy’s uninsured motorist provisions. On December 14, 1982, State Farm filed a third-party demand against Gregory Tur-cuit, the driver of the negligent vehicle which purportedly caused the injuries.

In the meantime, on or about December 21, 1981, Betty Y. Perez was involved in another automobile accident with a vehicle driven by Rebecca L. Clark. On March 14, 1983, State Farm filed an amended third-party demand to include Rebecca L. Clark, her husband Ronald L. Clark and the Clarks’ insurer, Allstate Insurance Company in the original third-party demand. That amended third-party petition averred that the accident which occurred on December 21, 1981 aggravated the injuries alleged to have been sustained by Mrs. Perez in the automobile accident which formed the basis of the original petition. It further alleged that any and all tortfeasors responsible for both accidents would be joint tortfeasors with regard to Mrs. Perez’s ultimate injuries.

Thereafter, on January 28, 1983, Allstate Insurance Company, Ronald L. Clark and Rebecca L. Clark filed an exception of no cause of action against State Farm’s third-party petition alleging that they are not liable as a matter of law with respect to the claims made in State Farm’s third-party demand.

Hearing on the exception was held on September 1, 1983. On September 12, 1983, the trial court granted the exception and dismissed State Farm’s third-party demand against Allstate and the Clarks.

Third-party plaintiff, State Farm, subsequently perfected an appeal of that judgment alleging that it was error for the trial judge to find that third-party plaintiff failed to state a cause of action against third-party defendants for contribution since these parties were solidary obligors under Louisiana law.

In order to state a cause of action in a third-party demand under LSA-C.C.P. Article 1111, the defendant in the principal action must allege facts showing that the third-party defendant is either his warrantor or that the party is or may be liable to him for all or part of the principal demand. Toledo Bend Proprietors v. Sabine River Authority of the State of Louisiana, 395 So.2d 429 (La.App. 3d Cir.1981), writ denied, 400 So.2d 903 (La.1981); Hubbs v. Canova, 427 So.2d 875 (La.App. 1st Cir. 1982).

It is well established that the purpose of the exception of no cause of action is to test or determine the sufficiency of the petition (in this case, the third-party petition). All well-pleaded facts are accepted as true. LSA-C.C.P. Article 927; Dar ville v. Texaco, Incorporated and XYZ Insurance Co., 447 So.2d 473 (La.1984). The court is, however, mandated to allow amendment of the petition where the grounds of the objection pleaded may be removed. LSA-C.C.P. Article 934.

The allegations contained in appellant State Farm’s third-party petition state that plaintiff, Mrs. Perez, was involved in an automobile accident occurring on December 21, 1981; the petition alleges further that the accident was the sole fault of Rebecca Clark and that, as a result of the second accident, plaintiff’s injuries sustained in the first accident were aggravated. The petition proceeds to state the following:

“The accident of December 21, 1981 served to aggravate the injuries previously alleged to be sustained by Mrs. Perez in the automobile accident which forms the basis of this lawsuit. Accordingly, any and all tortfeasors responsible for both accidents are joint tortfeasors with regard to Mrs. Perez’s ultimate injuries, and therefore, and again continuing in the alternative, should State Farm be found liable to Betty Perez for any amount whatsoever, then it is entitled to contribution from Third-Party Defendants, Rebecca L. Clark, Ronald L. Clark, and Allstate Insurance Company in the amount prescribed by Louisiana Law.”

Appellant argues that solidary liability attaches under Louisiana law when the facts show that the parties are obligated to the same thing. LSA-C.C. Article 2091 states:

“There is an obligation in solido on the part of the debtors, when they are all obliged to the same thing, so that each may be compelled for the whole, and when payment which is made by one of them exonerates the others toward the creditor.”

The jurisprudence upon which appellant relies holds that under certain circumstances the obligation may be in solido even though the obligations arise from separate acts or for different reasons. Joiner v. Diamond M. Drilling Company, 688 F.2d 256 (5th Cir.1982); Hoefly v. Government Employees Insurance Company, 418 So.2d 575 (La.1982). Further, they need not be joint tortfeasors for solidary liability to attach, since the crucial element is that each debtor be obligated to the same thing. Joiner, supra; Hoefly, supra; Sampay v. Morton Salt Company, 395 So.2d 326 (La.1981).

In this respect, in one line of cases, the courts have held that the physician who negligently treats a tort victim’s injuries is solidarily liable with the tortfeasor. Joiner v. Diamond M. Drilling Company, supra; Garrett v. Safeco Insurance Company, 433 So.2d 209 (La.App. 2d Cir.1983); Berger v. Fireman’s Fund Insurance Co., 305 So.2d 724 (La.App. 4th Cir.1974); Erdey v. American Honda Co., Inc., 415 So.2d 449 (La.App. 1st Cir.1982). The physician’s liability in these types of cases is regarded as part of the immediate and direct damages naturally flowing from the original tort.

In Foster v. Hampton, 381 So.2d 789 (La.1980) and Sampay, supra, the courts have held an employer solidarily liable with his employee for the employee’s tortious acts occurring during his employment. While not joint tortfeasors since the liability is vicarious, the courts reasoned that the parties are both obliged to the same thing and, thus, the parties are solidarily liable. In Carter v. Epsco, Inc., 681 F.2d 1062 (5th Cir.1982), ownership of an injury-causing, instrumentality was the basis for solidary liability with the manufacturer; and in Hunt v. Ford Motor Company, 341 So.2d 614 (La.App. 2d Cir.1977) a repairman of an automobile was held solidarily liable with the manufacturer for his negligence in failing to make reasonable efforts to ascertain the exact nature of an injury-causing defect and to correct it. The court found there that both parties jointly contributed to the resulting accident. Finally, in Hoefly, supra, the Louisiana Supreme Court found the victim’s uninsured/underinsured motorist carrier solidarily liable with the tortfeasor, even though their obligations arose from different reasons.

On the other hand, where the injured party is involved in separate automobile accidents, as here, the courts have refused to hold the tortfeasors solidarily liable. McCreary v. Commercial Union Assurance Company, 372 So.2d 745 (La.App. 4th Cir.1979); Bolin v. Hartford Accident & Indemnity Company, 204 So.2d 49 (La. App. 2d Cir.1967).

In this regard, appellant argues that the more recent jurisprudence previously discussed has impliedly overruled the Bolin and McCreary line of cases. While we concede that no longer must the defendants necessarily be joint tortfeasors and that the in solido obligation may arise from separate acts or different reasons, it does not necessarily follow that in solido liability is appropriate in this case. The facts in the cases cited above are distinguishable and, more importantly, some legal or natural connexity was determined to exist which obligated each for the whole of plaintiffs damages. Thus, we are not willing to concede that the rationale of the Bolin and McCreary cases have been repudiated. In this case, the facts are similar to Bolin and McCreary. Here the plaintiff was involved in two unrelated, separate automobile accidents occurring almost one year apart. Furthermore, the petition does not allege that demand has been made upon appellant for the injuries which may have occurred from the second accident, nor does the petition assert other facts which would create potential liability for any alleged aggravation of plaintiffs injuries. In our opinion, appellant is attempting, through the procedural device of the third-party action, to protect itself from the potential of being cast in judgment for damages which may have occurred from an intervening cause. However, the question of apportionment of appellant’s share of the ultimate damages plaintiff may claim is a factual one to be determined by the trial court in light of the evidence produced at the trial of the first accident. Consequently, as we find that there is no solidary liability under these facts, and that appellant’s petition has failed to state any other basis upon which relief may be granted, we hold the peremptory exception was properly granted by the trial court.

Finally, the court is mandated to allow amendment where on its face the objections of the exception can be cured. LSA-C.C.P. Article 934. Based on our findings, we are of the opinion that the defects cannot be cured.

Accordingly, after a review of the law and record, the judgment of the trial court is hereby affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.

      . LSA-C.C.P. art. 1111 states, in pertinent part:
      “The defendant in a principal action by petition may bring in any person, including a code-fendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand." (Emphasis added)

      . See Duhon v. Lafayette General Hospital, 286 So.2d 166 (La.App. 3d Cir.1973) where the separate acts of the defendant doctors' malpractice and the hospital’s negligence did not create in-sólido liability.


author: PER CURIAM.

text:
    Frank WILLIAMS, et al. v. CITY OF BASTROP, Mayor John S. Bond, and Charles Gladney.
    No. 16854-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 11, 1984.
    Rehearing Denied Oct. 26, 1984.

      Jerry L. Jones, Monroe, for appellants.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for appellees.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   ORDER

PER CURIAM.

On appellees’ motion, the appeal is dismissed.

The appeal taken in this case was not only premature in that it was taken before judgment was signed (LSA-C.C.P. Art. 1911), the judgment later signed sustaining an exception of no cause of action but granting leave to amend, which does not have the effect of dismissing plaintiffs’ suit, is not a final judgment or an interlocutory judgment causing irreparable injury and is not appealable. LSA-C.C.P. Art. 2083; Taylor v. Consol. Rail Corp., 391 So.2d 1351 (La.App. 4th Cir.1980); Spencer v. Burglass, 288 So.2d 68 (La.App. 4th Cir. 1974). A judgment sustaining an exception of no cause of action is not final unless it unconditionally dismisses the suit.

Appeal dismissed.


author: BOWLING, Justice,

text:
    David FLAKE v. RANDLE REED TRUCKING COMPANY and South Carolina Insurance Company.
    No. 54491.
    Supreme Court of Mississippi.
    Oct. 10, 1984.
    Michael H. Steele, Crawley & Ford, Kosciusko, for appellant.
    Grace Watts Mitts, Eppes, Watts & Shannon, Meridian, for appellees.
    Before BOWLING, HAWKINS and SULLIVAN, JJ.
   BOWLING, Justice,

for the Court:

This Workers’ Compensation case comes from the Circuit Court of Winston County from an order of the circuit court reversing an order of the Workers’ Compensation Commission. The commission had affirmed an order of the administrative judge. We find that the circuit court’s order of reversal was erroneous and that the unanimous order of the commission should be reinstated.

The appeal involves an area of Workers’ Compensation law that has given difficulty over the years; that is injuries to fingers and hands. Appellant, David Flake, was injured on October 15, 1980, when his left hand was caught in a loader while appellant was working around a brick-hauling truck. Appellant was seen after the accident by Dr. John T. Copeland, Jr., of Stark-ville. His examination revealed two fractures in the third or ring finger. The skin and flesh of the middle or second finger were seriously injured.

Appellant was treated by Dr. Copeland until November 7, 1980, when he was discharged from medical treatment.

On March 2, 1981, at the request of appellee, carrier, Dr. Copeland examined appellant and evaluated his injuries and disability. It was the doctor’s opinion that appellant had a thirteen percent (13%) permanent impairment of his second finger and a four percent (4%) permanent impairment of the third finger. Dr. Copeland found that appellant had an inability to either extend or flex the affected fingers to normal positions. Appellant was unable to perform what laymen call “making a fist.” Dr. Copeland found that appellant had a seventeen percent (17%) permanent disability to his left hand as a whole.

Appellant testified that he could not grip tightly with his hand because of his stiff fingers and that this often caused him to drop things he was attempting to lift. It was often necessary for him to lift things with his palms instead of trying to use his hand.

The administrative judge found that appellant suffered total disability from the date of his injury on October 15, 1980, until he was released by Dr. Copeland on November 7, 1980, but that as verified by Dr. Copeland, appellant did not reach maximum medical recovery until December 8, 1980. The administrative judge further found that because of the multiple finger injury, the permanent disability involving the injury should be handled as a seventeen percent (17%) permanent disability to the hand as a whole.

The full commission unanimously affirmed the order of the administrative judge, but amended a part of the order specifically holding that claimant achieved maximum medical improvement on November 7, 1980, after which he suffered a “seventeen percent (17%) medical impairment to the left hand.” Appellee, carrier, in its appeal to the circuit court, successfully contended that the permanent disability resulting from appellant’s injury should be a percentage of disability to the fingers only and not the hand as a whole. The circuit court agreed with appellee and reversed the order of the full commission stating:

The Full Commission Order is prejudi-cially erroneous in that it fails to follow Section 8 (c)(9)(10) and (23) of the Mississippi Workmen’s Compensation Act as interpreted and applied by the Supreme Court of Mississippi in Luker v. Greenville Sheet Metal Works, 240 Miss. 378, 127 So.2d 863 (1961), which this Court finds controlling of the issues involved herein;
FURTHER, the Court finds there is not substantial evidence upon which to base the Full Commission Order and the same should be and hereby is reversed.

The circuit court ordered that the claimant be paid on the basis of thirteen percent (13%) disability to the second finger of the left hand and four percent (4%) disability to the third finger of the left hand.

Appellee contends that the circuit court was correct in its findings of fact, as applied to the existing law set out in Mississippi Code Annotated, Section 71-3-17 (Supp.1983). Since this Court began reviewing Workers’ Compensation cases after the passage of the law by the legislature in 1948, it has been held by the Court that the Workers’ Compensation Commission’s orders should not be overturned by appellate courts unless manifest error is shown and the commission’s interpretation of the facts as applied to applicable law should be affirmed unless manifestly wrong. We recognize that during all these years the same appellate duty to review facts has been set out in the statute and appears now as MCA § 71-3-51 (Supp. 1983), where it states: “The circuit court shall review all questions of law and fact.”

We interpret this legislative mandate to mean that the appellate court has the duty to review the facts contained in the record, and to determine whether or not those facts substantiate the order of the Workers’ Compensation Commission. The appellate review of facts shall determine whether or not the commission was manifestly in error in its interpretation of those facts.

In contending that the commission erroneously found permanent partial disability to the hand rather than to the two fingers only, the appellee, carrier, and the circuit court relied principally on the Luker case, supra. There the 28-year-old worker had his hand cut in a roller used for sheet metal work. He received injuries to three fingers. Doctors disagreed on the percentage of disability of the fingers and of the hand as a whole. There, unlike the case sub judice, the commission found under the facts of that particular case, and under the medical evidence, the applicable statutes required finding permanent disability percentage of the fingers and not the hand. In that case, the court, through Justice Lee, stated: “The application of subsection 17 [now 21] appears to be within the discretion of the commission”. The Luker court then held that the commission erroneously-computed the amount of the percentage the worker was due for his disability and the judgment rendered here increased the amount of compensation. We do not find Luker in any way mandates that the commission’s order in the case sub judice is erroneous. All the Court said in Luker was that we could not hold that the commission was in error in not attributing the disability to the hand as a whole under the “facts” in the record. We held that the commission was not manifestly wrong except in arriving at the figure owed as a result of the percentage of disability. Nowhere did we even indicate that in all cases of finger injuries, the permanent disability should be decided solely on the percentage of finger impairment.

The applicable sections of MCA § 71-3-17 are (c)(21) and (23). Section 21 states:

Two (2) or more digits: Compensation for loss of two (2) or more digits, or one (1) or more phalanges of two (2) or more digits, of hand or foot may be proportioned to the loss of the use of the hand or foot occasioned thereby, but shall not exceed the compensation for loss of a hand or foot.

Section 71-3-17 (c)(23) provides:

Partial loss of partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.

The Louisiana Court of Appeals in Burandt v. Slicky’s Pizza Parlor, 377 So.2d 905 (La.1979), in a case similar to the case sub judice, reached the same result as the Workers’ Compensation Commission did here and found that the trial court properly awarded benefits for a hand disability rather than applying the schedule for partial loss of use of finger or fingers.

We are of the opinion that in reviewing the “facts” of the record as applied to the applicable quoted statutes, the circuit court erroneously held that the facts resulted in the commission’s order being manifestly in error. The commission found that under the particular facts of this particular claim, as shown by the undisputed testimony by appellant regarding his hand disability and the medical proof, that the disability rating should be to the hand as a whole. The record does not reveal facts that would justify either the circuit court or this Court reversing the commission’s opinion. We therefore find that the circuit court was in error and that the order of the Workers’ Compensation Commission be and it is hereby reinstated. The cause is remanded to the commission for further proceedings not inconsistent herewith.

REVERSED, RENDERED AND REMANDED TO THE COMMISSION.

WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


author: PER CURIAM. McDONALD, Justice,

text:
    Tommy S. GROOVER, Appellant, v. STATE of Florida, Appellee.
    No. 63375.
    Supreme Court of Florida.
    Sept. 6, 1984.
    Rehearing Denied Nov. 28, 1984.
    Michael E. Allen, Public Defender and Glenna Joyce Reeves, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Barbara A. Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   PER CURIAM.

This cause is before the Court pursuant to jurisdiction granted in article V, section 3(b)(1), Florida Constitution, for review of death penalties imposed following convictions of first-degree murder. We affirm the convictions and sentences.

On February 6, 1982, Tommy S. Groover, Robert Parker, and his wife, Elaine Parker, forced Richard Allen Padgett to leave a nightclub, where he had been drinking in the company of his girlfriend, Nancy Sheppard. Parker was enraged because Gro-over had supplied Padgett with drugs Gro-over was selling for Parker, but Padgett had not paid for them. Padgett was taken to Parker’s junkyard and beaten; then he was taken to a wooded area and shot. His throat was cut and his body was thrown in a ditch.

Groover and the Parkers melted the barrel of the handgun, then went to a bar. At the bar a young woman, Jody Dawn Dalton, attached herself to Groover and, with Parker’s permission, accompanied the group as it went to dispose of the gun and to pick up another woman, Joan Bennett, who could tell them where Nancy Sheppard lived. Later, as the group drove in Elaine’s car toward Donut Lake, Groover asked Dalton to perform fellatio on him; she complied. Moments later, Elaine caused a fight between Dalton and Bennett by accusing Bennett of “messing around” with Groover. The two women got out of the car and fought. Either during this fight or later, Dalton’s clothing was removed. At the lake, she was shot five times, her body anchored with cement blocks and thrown in the lake. Bennett testified that Groover had kicked and beaten Dalton before shooting her. Groover claimed that Parker had shot Dalton while Groover remained in the car.

Next, the group picked up Nancy Sheppard at her home and Billy Long at his and drove to the scene of the Padgett murder. Long was given a gun and shown Padgett’s body in the ditch. He was told that unless he killed Sheppard, his body would lie in the ditch, too. Sheppard was taken to the ditch. Upon seeing her boyfriend’s corpse, she fell to her knees and began to cry. Long then shot her and Parker stabbed her. Groover allegedly screamed from the car, “She’s still breathing! Shoot her again! Shoot her again!” Parker took Sheppard's necklace and class ring from her body and her body was thrown into the ditch with Padgett’s.

Groover was originally charged with the Padgett and Sheppard murders. Pursuant to a negotiated plea bargain, he was allowed to plead guilty to the Padgett murder only, with a binding recommendation by the state of imposition of a life sentence. In exchange, Groover was to cooperate with the state in preparation of its cases against Robert and Elaine Parker on all three murders. To this end, he made two inculpatory sworn statements. Later, after changing attorneys, Groover withdrew his guilty plea. He also sought to suppress his earlier statements.

At trial, Groover’s statements were admitted as part of the state’s case-in-chief. Bennett and Long also testified about Gro-over’s active participation in the Dalton and Sheppard murders. Groover took the stand in his own behalf and urged a defense of duress arising from his fear of Robert Parker.

The jury convicted Groover of first-degree murder on all three counts. It recommended death for the murder of Jody Dalton and life imprisonment for the Padgett and Sheppard murders. The judge sentenced Groover to death for the Padgett and Dalton murders and to life for the Sheppard murder.

In challenging the convictions, Groover raises several issues, only one of which merits detailed discussion. Citing Florida Rule of Criminal Procedure 3.172(h) and section 90.410, Florida Statutes (1981), Groover claims the sworn statement made May 17 which was admitted into evidence in the state’s case in chief was a statement made in connection with a negotiated plea, and therefore the statement was inadmissible. This Court has not heretofore considered whether a sworn statement made in fulfillment of a negotiated plea bargain — as opposed to a statement made to induce or to enhance negotiations — is a statement made in connection with a plea for purposes of the rule or of the statute. Florida’s limitation on the use of such statements is derived from the analogous federal rule and this Court has looked to judicial gloss of the federal rule in construing the state version. See e.g., Bottoson v. State, 443 So.2d 962 (Fla.1983); Anderson v. State, 420 So.2d 574 (Fla. 1982). Federal Rule of Criminal Procedure 11(e)(6), the federal counterpart to Florida Rule of Criminal Procedure 3.172(h), was adopted to promote plea bargaining by allowing a defendant to negotiate without waiving fifth amendment protection. “The most significant factor in the rule’s adoption was the need for free and open discussion between the prosecution and the defense during attempts to reach a compromise.” United States v. Davis, 617 F.2d 677, 683 (D.C.Cir.1979) (emphasis added). This Court has applied the federal courts’ narrow construction of Rule 11(e)(6) to Florida Rule of Criminal Procedure 3.172(h) by adopting the two-tiered analysis from United States v. Robertson, 582 F.2d 1356 (5th Cir.1978), for determining whether a statement falls within the ambit of the exclusion. Anderson, 420 So.2d at 577. The first tier of this analysis is “whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion.” 582 F.2d at 1366. (Emphasis supplied.) When an agreement has been reached, further statements cannot be made in the expectation of negotiating a plea. Nor does the policy of fostering frank discussion between prosecution and defense require extending protection to statements made in fulfillment of an agreed-to bargain.

In a strikingly similar case, United States v. Stirling, 571 F.2d 708 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978), one defendant agreed to plead guilty to one charge and to testify truthfully before the grand jury in exchange for dismissal of any other counts charged. He testified immediately after agreeing to the bargain and before entry of his plea. The indictment returned was unsatisfactory to him on various grounds. Therefore, he withdrew from the plea agreement and pleaded not guilty. The Second Circuit upheld the trial court’s refusal to suppress the grand jury testimony, noting:

The plea agreement had already been reached by the time Schulz went before the Grand Jury. The negotiations were over. All Schulz had to do was live up to his end of the bargain. His failure to do so justly exposed him to prosecutorial use of his Grand Jury testimony.

571 F.2d at 731-32. The court went on to note that the plea agreement had expressly warned Schulz that any information he provided would be used to prosecute him if he breached the plea agreement. The record clearly shows that this same warning was an express feature of the plea bargain Gro-over entered. We find no error in the admission of this statement.

We have considered all other issues raised relative to the guilt phase and have independently reviewed the entire record of all three convictions and find no error which would require reversal. The three convictions for first-degree murder are affirmed.

Groover asks this Court to remand the sentence on grounds that the findings of fact in the same trial judge’s sentencing order for Robert Parker, Groover’s co-conspirator, were tantamount to a finding of the statutory mitigating circumstance that Groover acted “under extreme duress or under the substantial domination of another person.” § 921.141(6)(e), Fla.Stat. (1981). A copy of the Parker sentencing order was made a part of the record on appeal.

In sentencing Parker, the judge noted that he had threatened Groover with death if the drug debt was not repaid. The court found that Parker’s participation in the murders was “major and predominant.” We recognize that threats of death or grievous bodily harm may in some instances support a finding of “substantial domination” or “extreme duress,” but we do not find that such threats require finding this factor in mitigation. The trial judge fully explained his refusal to find in Groover’s favor on this issue.

The defendant claimed that he acted under extreme duress and domination of Robert Parker — but other than his own testimony — the evidence was to the contrary. Witnesses stated that defendant and Mr. Parker were friends of long standing and both dealers in drugs. On various occasions during the hours of the crime each of them was armed while the other was not. Had defendant been threatened at any time by Parker, he had the opportunity and weapons with which to escape or to defend himself.
The evidence of this seven-day trial belies defendant’s contention of duress and/or dominance of Parker or any other person. In fact, it was the action of defendant in trying to collect the drug debt from Padgett which set the entire sequence of homicidal events into motion.

We find no contradiction between the findings that Groover was threatened and that he never availed himself of any opportunity to escape the threat, but rather participated fully' and willingly in all three murders.

Neither do we find error in the trial judge’s override of the jury’s recommendation that Groover receive a life sentence for the Padgett murder. No mitigating circumstances were found concerning Gro-over’s participation in any of the homicides. The Padgett murder was found to have been committed by one previously convicted of violent felony (the Dalton and Sheppard murders), to have been committed during the commission of a kidnapping, to have been especially heinous, atrocious and cruel, and to have been cold, calculated and premeditated. In the face of the existence of these four aggravating circumstances, we find nothing in the facts of this case upon which the jury could rationally have based the recommendation of a life sentence. See Tedder v. State, 322 So.2d 908 (Fla.1975).

We have considered all other objections raised to the penalty phase and have compared the facts of this case to others in which the death penalty has been appropriately assessed and find no grounds for vacating the sentence.

Accordingly, the convictions and sentences in this case are affirmed.

It is so ordered.

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

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

McDONALD, Justice,

concurring in part/dissenting in part.

I agree that Groover was properly convicted on three counts of first-degree murder. I also agree that the death penalty imposed for the Dalton homicide is proper and should be affirmed.

Because the jury recommended a life sentence on the Padgett murder, I feel that only a life sentence should be imposed for that homicide.

      . Florida Rule of Criminal Procedure 3.172(h) provides:
      Except as otherwise provided in this Rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

      . Section 90.410, Florida Statutes (1981), provides:
      Offer to plead guilty; nolo contendere; withdrawn pleas of guilty. — Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

      (Emphasis supplied.)

      . Because we find no contradiction between the two sentencing orders, we do not need to look behind the order to the record of Parker’s trial to see what, if any, differences in evidence could support the findings of fact in that order.
      Nor do we express any view on the propriety of doing so. We will save that issue until we are presented with sentencing orders which are, in fact, facially irreconcilable.


author: OVERTON, Justice. ALDERMAN, Justice,

text:
    James Wesley GODDARD, Petitioner, v. STATE of Florida, Respondent.
    No. 64490.
    Supreme Court of Florida.
    Sept. 6, 1984.
    Rehearing Denied Nov. 27, 1984.

      Gwendolyn Spivey, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for respondent.
   OVERTON, Justice.

This is a petition to review Goddard v. State, 438 So.2d 110 (Fla. 1st DCA 1983), in which the district court certified the following question to be of great public importance:

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[?]

Id. at 112. The district court upheld Goddard’s conviction under the statute. We disagree, answer the question in the negative, and hold that section 812.019(2), Florida Statutes (1983), applies only to the organizer, or “ringleader,” of a theft and not to the single thief who simply traffics in the goods he has stolen. Such a thief should be charged under the “Theft” statute, section 812.014, Florida Statutes (1983), and the “Trafficking in stolen goods” statute, section 819.019(1), Florida Statutes (1983).

The facts leading to this certified question are as follows. A number of items were discovered missing from a stainless steel equipment and parts plant which primarily stored its large pieces in an outdoor area. A friend of the plant’s owner, aware that some stainless steel parts had been missing, alerted the owner when he noticed a truck carrying stainless steel elbows. The owner returned to the plant and discovered that additional items were missing. He subsequently located the missing materials at a local scrap dealer who testified that he purchased the stainless steel from Goddard. Receipts and other evidence of the sale were introduced at the trial. A teenager, allegedly with Goddard at the time of purchase, testified that he helped transfer the steel to Goddard’s truck after Goddard had bought the stainless steel from a black man. Goddard testified that he had purchased the stainless steel at his home from a black man, but that he did not know the man’s last name or how to contact him. Goddard claimed he did not realize the metal was stolen.

Instead of being charged with theft under section 812.014 and trafficking in stolen property under section 812.019(1), Goddard was charged with a violation of section 812.019(2), which provides that “[a]ny person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of property and traffics in such stolen property shall be guilty of a felony of the first degree _” At the charge conference the prosecutor advised the trial judge that there were no lesser included offenses to the charge under section 812.019(2). Defense counsel raised no objection. In its final argument, the state asserted that because Goddard stole and then sold the stainless steel parts, he had violated section 812.019(2).

After deliberating for approximately four hours, the jury advised the judge it could not reach a verdict. The judge then gave the Allen charge. In the middle of the Allen charge, the jury expressed some confusion' regarding the distinction between dealing in stolen property and actually stealing and trafficking in property. After the jury had resumed deliberations, the state asked that it be recalled for instruction as to the definition of “theft.” Over defense counsel’s objection, the court recalled the jury, repeated the prior instructions concerning the elements of the offense charged, and instructed the jury as to “theft.” The jury returned a verdict of guilty as charged and Goddard was sentenced to fifteen years’ imprisonment. Goddard’s motion for a new trial was denied.

On appeal, the district court of appeal held that section 812.019(2) was unambiguous and prohibited “the doing of either or any act so joined,” and that “one who actually commits a theft also, at least, initiates and plans it, each act of which is proscribed by Section 812.019(2).” 438 So.2d at 110. The district court concluded that the statute “is intended to apply to the common thief who also traffics in the goods which he has stolen.” Id. In so holding, the district court noted that the evidence was insufficient “to permit an interpretation that the thefts were committed by more than one person or that the thefts were committed by one acting under [Goddard’s] direction.” Id. at 110 n. 1.

Section 812.019(2) is one of eleven sections comprising the Florida Anti-Fencing Act as adopted by the legislature in chapter 77-342, Laws of Florida. The Act mandates that its provisions are not to be construed strictly, but rather “in light of their purposes to achieve their remedial goals.” Fla.Stat. § 812.037 (1983). Thus, to determine whether section 812.019(2) applies to the common thief who traffics in the goods that he has stolen or whether it applies solely to those individuals who orchestrate thefts and control fencing operations, the legislative history of that section and the Act as a whole must be examined. The sections of the Act pertinent to this discussion are section 812.014, entitled “Theft;” section 812.019, “Dealing in stolen property;” and section 812.025, “Charging theft and dealing in stolen property.” The applicable provisions of 812.014, “Theft,” are as follows: ,

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit therefrom.
(b) Appropriate the property to his own use or to the use of any person not entitled thereto.
(2)(a) If the property stolen is of the value of $20,000 or more, the offender shall be guilty of grand theft in the first degree, punishable as a felony of the second degree, as provided in ss. 775.082, 775.083, and 775.084.
(b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
1. Valued at $100 or more, but less than $20,000.
(c) Theft of any property not specified in paragraph (a) or paragraph (b) is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.-082 or s. 775.083....

Section 812.019, entitled “Dealing in stolen property,” provides as follows:

(1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.-082, 775.083, and 775.084.
(2) Any person who initiates, organizes, plans, finances, directs, manages, or supervises the theft of property and traffics in such stolen property shall be guilty of a felony of the first degree, punishable as provided in ss. 775.082, 775.083, and 775.084.

Section 812.025, entitled “Charging theft and dealing in stolen property,” reads as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Under the statutory scheme of the Florida Anti-Fencing Act, a thief who steals property valued at more than $100, but less than $20,000, subjects himself to punishment for a third-degree felony under section 812.014. An individual who sells property he knows is stolen is subject to a second-degree felony penalty under the “trafficking” provision, section 812.019(1). The harshest penalty, a first-degree felony, is imposed under section 819.019(2) on the individual who initiates, organizes, plans, finances, directs, manages, or supervises the thefts and traffics in stolen property. Section 812.025 supplements these provisions by providing that a defendant may be charged with both theft and dealing in stolen property, but cannot be found guilty of both crimes.

The legislative history of chapter 77-342 reveals that the Florida Anti-Fencing Act was adapted from a model theft and fencing act developed by G. Robert Blakey and endorsed by the National Association of Attorneys General (NAAG). According to the NAAG, one of the model act’s primary purposes is to facilitate the prosection and conviction of “white collar” fences who often escape punishment because they never come into contact with stolen goods. Commentary on the model act’s counterpart to section 812.019(2) states:

The model, recognizing the sophisticated nature of organized crime, extends not only to a person who “traffics in” stolen property, but to one who “initiates, organizes, plans, finances, directs, manages or supervises” the theft or trafficking. This is directed at the person who, although he may be responsible for a theft or a fencing operation, has no direct contact with the property. He is therefore insulated from the prosecution under most present laws.
The penalties are higher for a person who organizes or directs the fencing operation than for the person who merely traffics in stolen property. This differential is in accord with the economic realities of major fencing operations. The penalties are graded according to the offender’s role, but not according to the value of the property-involved.

National Association of Attorneys General, Legislative Responses to Dealing in Stolen Goods (1975) (emphasis added). It thus appears that the “remedial goal” of section 812.019(2) is to discourage organized theft by imposing a harsher penalty on the individual who actually organizes thefts and traffics in stolen goods than on the common thief who simply steals and then sells those goods.

To adopt the view of the state and the district court of appeal would permit a thief who steals and sells a $25 petit theft item to be convicted and sentenced for a first-degree felony on the same basis as a major fencing operation organizer. In light of the model act’s carefully graduated penalties and commentary, and the legislative history, such a result could not have been the reasonable intent of the legislature. We conclude that an individual who steals and traffics in only his own stolen goods is subject to theft and trafficking charges under sections 812.014 and 812.-019(1), but may not be charged with “organizing” under section 812.019(2).

In the instant case, Goddard went to trial charged only with a section 812.019(2) violation. Apparently, the prosecutor, defense counsel, and trial judge were not aware that a section 812.019(2) charge necessarily includes the offense of trafficking in stolen property under section 812.019(1). See Fla. Std. Jury Instr. in Crim. Cases 257, 266 (S.Ct.Comm.1981). An offense is deemed “necessarily included” in the offense charged- when the greater offense cannot be committed without necessarily committing the lesser offense.

Although under the facts of this ease Goddard could not be properly convicted for violation of section 812.019(2), the record reveals that the elements have been fully established for a conviction under the necessarily included offense of trafficking in stolen goods, proscribed by section 812.-019(1). Reduction of an offense to a necessarily included offense by an appellate court is consistent with the authority of a trial judge to consider the sufficiency of the evidence upon a motion for a new trial. In that circumstance, if the trial court finds the evidence does not sustain the verdict for the offense charged but does sustain a finding of guilt of an offense necessarily included, the trial court must adjudge the defendant guilty of the necessarily included offense. Absent prejudicial error, a new trial is not required because the defendant has been afforded fair notice of the charge against him and the opportunity to prepare an adequate defense. There is no prejudice because, in defending against the greater offense, which encompasses each element of the lesser offense, the defendant has inevitably defended against the necessarily included offense.

We summarily reject Goddard’s contention that the giving of the Allen charge was error. We also find no error on the part of the trial court in the reinstruction of the jury on the offense charged together with the “theft” definition. We quash the decision of the district court of appeal and remand with directions to remand to the trial court for resentencing under section 812.019(1) in accordance with the views expressed in this opinion.

It is so ordered.

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

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

ALDERMAN, Justice,

dissenting.

I would approve the decision of the district court of appeal, and, based upon the unambiguous language of section 812.-019(2), I would hold that this statute is intended to apply to the common thief who also traffics in the goods which he has stolen. Like the district court, I conclude that “one who actually commits a theft also, at least, initiates and plans it.” Goddard v. State, 438 So.2d 110, 111 (Fla. 1st DCA 1983).

McDONALD, J., concurs.

      . We have jurisdiction, article V, section 3(b)(4), Florida Constitution.

      . The house bill summary explains that the bill is "an adaptation of the Model Theft and Fencing Act ... found in the Michigan Law Review [Blakey & Goldsmith, Criminal Distribution of Stolen Property, 74 Mich.L.Rev. 1511 (1976)].” Summary on House Bill 2149, 1977 Florida Laws. Prior to publication in the law review, the act was submitted for review to the Committee on the Office of the Attorney General.

      . For example, prior to the adoption of the Anti-Fencing Act in 1977, Florida’s larceny statute proscribed the stealing and receiving of stolen goods, but did not expressly encompass the arrangement of thefts or the selling of stolen goods. See § 812.011 et seq., Fla.Stat. (1976).

      . This publication is available in the Florida Legislative Library, Q814/N3.

      . Fla.R.Crim.P. 3.620. Rule 3.620 is substantially the same as former section 920.06, Florida Statutes (1969), which was repealed by chapter 70-339, section 180, Laws of Florida, as having been superseded by the rule.


author: BOYD, Chief Justice.

text:
    Aubrey Arthur LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 61967.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 26, 1984.
    H.T. Smith, Miami, for appellant.
    Jim Smith, Atty. Gen., and Sharon Lee Stedman and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for appellee.
   BOYD, Chief Justice.

This case is an appeal from the judgments of conviction of crimes including capital-felonies for which sentences of death were imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. Because we find that the trial court committed prejudicial error in the conduct of the trial, we reverse the convictions and order a new trial.

Appellant was indicted on five counts of first-degree murder and six counts of kidnapping. At the trial, after the presentation of all the evidence, the final arguments, and the instructions to the jury, the jury began its deliberations at 4:24 on a Friday afternoon. At 6:50 p.m. that same day, the jurors sent the judge a note saying that they were not yet able to reach a unanimous verdict. When the judge announced his intention to allow the jurors to go to their homes for the weekend, defense counsel objected. Notwithstanding the defense objection, the judge called the jury in and directed that it reconvene at ten o’clock on Monday morning. The judge admonished the jurors against reading, viewing, or listening to news reports about the trial. When the court reconvened on Monday the defense renewed its objection to the jury having been allowed to separate for the weekend. Defense counsel also moved for a mistrial. The court denied the motion, following which the defense asked the court to conduct individual voir dire of the jurors. The court then asked the jurors if they had discussed the ease with anyone or allowed it to be discussed in their presence and whether they had read, seen, or heard any news reports about the case. Each juror responded in the negative to each question. The jury then resumed deliberations at 10:43 a.m. on Monday and at 2:10 p.m. it returned verdicts finding appellant guilty on all five charges of first-degree murder and six counts of kidnapping.

Appellant argues that the trial judge erred in allowing the jury to separate for the weekend in the midst of its deliberations. Appellant says that there was prejudice inherent in the action because of the myriad of influences to which a juror might be subjected when allowed to go about his personal business for a weekend in the midst of deliberations. Appellant relies heavily on the fact that there was pervasive pre-trial publicity and that all of the jurors had previously heard about the case and also on the circumstance that appellant’s co-defendant had been tried and convicted only a week before appellant’s trial.

Appellant relies on the decision in Raines v. State, 65 So.2d 558 (Fla.1953). There the trial court, after the jury had begun its deliberations, allowed the jurors to separate and go to their homes for the night. As the Supreme Court noted specially in its opinion, the recess was taken after “the case had been fully submitted to the jury” and after the jury had deliberated for one and one-half hours. The Court said that the question of whether the trial court had erred turned on the interpretation of sections 919.01 and 919.02, Florida Statutes (1953). The Court reasoned as follows:

There was no objection raised when the jury was dispersed, nor were counsel consulted. There is no showing in the way of evidence that defendant’s rights were prejudiced but trials should not be conducted in a way that defendant has good reason for the belief that he was deprived of fundamental rights. The opportunity was open for tampering with the jury and the temptation to do so was such that we are not convinced that the appellant’s trial was conducted with that degree of fairness and security that the bill of rights contemplates. A fifteen hours absence under no restraint whatever leaves too much room to question the bona fides of everything that took place during that time.... It imposes too great a burden on the defendant to produce evidence of prejudice to his rights under such circumstances. We think this error calls for reversal.

65 So.2d at 559-60.

The Court in Raines relied specifically on two statutory provisions relating to criminal procedure. Section 919.01(1), Florida Statutes (1953), provided:

After the jury shall have been sworn they shall sit together and hear the proofs and allegations in the case, which shall be delivered in public and in the presence of the accused; and after hearing such proofs and allegations the jury shall be kept together in some convenient place until they agree on a verdict or are discharged by the court, and the sheriff or a bailiff shall be sworn to take charge of the jury.

Section 919.02 provided:

Unless the jurors have been kept together during the trial the court may, in its discretion, after the final submission of the cause, order that the jurors may separate for a definite time to be fixed by the court and then reconvene in the courtroom before retiring for consideration of their verdict.

These provisions were repealed by chapter 70-339, section 180, Laws of Florida, after the adoption of the Florida Rules of Criminal Procedure, which superseded all conflicting rules and statutes. See Chapter 919, 23 Fla.Stat.Ann. 358, Historical Note (1975). The substance of these two former procedural statutes is now contained, with modification, in Florida Rule of Criminal Procedure 3.370. See Fla.R.Crim.Pro. 3.370; 34 Fla.Stat.Ann. 84, Author’s Comment (1975). Rule 3.370 provides:

(a) Regulation of Jury. After the jurors have been sworn they shall hear the case as a body and, within the discretion of the trial judge, may be sequestered.
(b) Separation after Submission of Cause. Unless the jurors have been kept together during the trial the court may, after the final submission of the cause, order that the jurors may separate for a definite time to be fixed by the court and then reconvene in the courtroom before retiring for consideration of their verdict.

While rule 3.370 provides for trial court discretion to allow the jurors to separate after final submission of the cause and before retiring to deliberate, it does not specifically contemplate such a separation in the midst of deliberations. Nor does section 918.06, Florida Statutes (1979), which provides the court with discretion to either sequester the jury or allow them to separate when they “leave the jury box,” specifically allow for such a separation during deliberations. Thus there is no specific authority by statute or rule for the action of the trial court judge.

The right of a defendant to have the jury deliberate free from distractions and outside influences is a paramount right, to be closely guarded. Durano v. State, 262 So.2d 733 (Fla. 3d DCA 1972). For example, where an overnight recess was taken in the midst of jury deliberations, after the giving of an Allen charge to the deadlocked jury, and the jurors were allowed to separate without admonitions, it was held that the trial court was required to examine the jurors the following day to inquire into their conduct during their absence and as to the possible influence of exposure to media coverage and other matters. Diaz v. State, 435 So.2d 911 (Fla. 4th DCA 1983).

Where the jury has not been sequestered during trial, the judge has the discretion to allow the jury to separate after the taking of all the evidence and the giving of instructions and before they begin deliberating. Fla.R.Crim.Pro. 3.370(b). There is no requirement of sequestration prior to final retirement for deliberations. Simmons v. State, 214 So.2d 729 (Fla. 3d DCA 1968). But thereafter, especially in a capital case where there has been extensive pre-trial publicity, we believe that different principles should apply.

There is no automatic rule requiring sequestration of the jury during the trial of a capital case, the matter being a discretionary one to be governed by the necessities of each such proceeding. Ford v. State, 374 So.2d 496 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). However, to allow the jurors to disperse for a weekend after they have begun their deliberations raises serious questions about their ability to reconvene and resume deliberations completely free from outside influences. Even in the trial of a noncapital felony, the separation of the jury prior to the rendering of the verdict has been recognized to be an irregularity which may call for the granting of a new trial. Smith v. State, 40 Fla. 203, 23 So. 854 (1898). It should be noted that Smith, a noncapital case, was decided before the advent of electronic communications and entertainment in the home on a mass basis.

In the instant case, the court gave admonitions to the jurors before the weekend recess and examined them prior to the resumption of deliberations on Monday. However, the issue in this case is whether the weekend recess in the midst of deliberations rendered the jurors so susceptible to the operation of improper influences as to have been reversible error even with admonitions before and voir dire after the recess. The Raines decision recognized that some situations carry such an inherent danger of improper influence that courts should remedy the error without requiring the accused to show that any such improper influences actually operated upon or affected the jury. More recent decisions have properly applied this principle and illustrate its continued validity. Armstrong v. State, 426 So.2d 1173 (Fla. 5th DCA 1983); McDermott v. State, 383 So.2d 712 (Fla. 3d DCA 1980); Kennick v. State, 107 So.2d 59 (Fla. 1st DCA 1958).

The question of whether jurors may be allowed to separate and go to their homes (and about 'their personal business) for an extended period of time after they have begun deliberating has been resolved in a variety of ways by courts of the various other jurisdictions. See Annot., 72 A.L.R.3d 248 (1976 & Supp.1983). However, the courts of a majority of states have held, either by statute, court rule, or the common law, that such a separation, especially in capital eases and where the defendant objects, is prejudicial error. See, e.g., Kimoktoak v. State, 578 P.2d 594 (Alaska 1978); Hughes v. State, 437 A.2d 559 (Del.1981); Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977); People v. Ritzert, 17 Ill.App.3d 791, 308 N.E.2d 636 (1974); Bales v. State, 418 N.E.2d 215 (Ind. 1981); Walker v. State, 410 N.E.2d 1190 (Ind.1980); White v. Maxwell, 174 Ohio St. 186, 187 N.E.2d 878 (1963); Gibson v. State, 512 P.2d 1399 (Okla.Crim.App.1973); Gonzalez v. State, 593 S.W.2d 288 (Tenn. 1980); O’Neil v. State, 642 S.W.2d 259 (Tex.Crim.App.1982); State v. Smalls, 99 Wash. 2d 755, 665 P.2d 384 (1983).

The reason for such a rule is of course, quite simply, to safeguard the defendant’s right to a trial by an impartial jury. This right is fundamental and is guaranteed by the sixth amendment to the United States Constitution and article I, section 16 of the Florida Constitution. There is no way to insulate jurors who are allowed to go to their homes and other places freely for an entire weekend from the myriad of subtle influences to which they will be subject. Jurors in such a situation are subject to being improperly influenced by conversations, by reading material, and by entertainment even if they obey the court’s admonitions against exposure to any news reports and conversations about the case they have been sworn to try. The Supreme Court of Washington explained the problem this way:

Jurors might be subjected to any number of prejudicial influences whenever the jury is allowed to separate. A juror allowed to return to his home overnight might be prejudiced by any of the myriad influences on his life. Who can say how a juror might be influenced by contact with his family and friends, or exposure to the various news and entertainment media during an evening at home?
In our opinion, jurors are especially sensitive to prejudicial influence during deliberations. While still hearing evidence, it is probably easier for jurors to keep an open mind. Moreover, the impact of potentially prejudicial influences will be dissipated by subsequent evidence, the arguments, and instructions. But when the jurors have heard all the evidence, and have been focused onto the issues before them by the arguments of the parties and instructions, the potential for prejudice increases substantially.
... A chance remark by a juror’s spouse or a program watched on television during the juror’s 12 hours at home would have more immediacy than the evidence. There is a very real possibility that the juror’s recollection of the evidence or perception of it might be distorted by such influences received subsequent to the conclusion of the evidence.
Of course, it is usually impossible to determine whether such influences actually prejudice a juror against the defendant in a particular case. The juror himself may well be unaware of the subtle influences which affect his decision. For this reason, admonition and instruction of the jury is probably ineffective in ameliorating the prejudicial effects of separation during the deliberations. For this reason also, the use of juror affidavits to prove a probability of prejudice is of dubious value; a juror cannot swear to being prejudiced by influences of which he is unaware.

State v. Smalls, 99 Wash.2d at 765, 665 P.2d at 390-91.

We therefore find' that the trial court erred and that the error prejudiced appellant’s right to a fair trial. We hold that in a capital case, after the jury’s deliberations have begun, the jury must be sequestered until it reaches a verdict or is discharged after being ultimately unable to do so. A separation of the jurors after commencement of deliberations will generally be grounds for a mistrial, save for exceptional circumstances of emergency, accident, or other special necessity. Such a strict rule appears to be necessary in order to keep the attention of the jurors properly focused and concentrated on their deliberations.

The judgments of conviction are reversed and the case is remanded for a new trial.'

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    The MIAMI HERALD PUBLISHING COMPANY, Petitioner, v. Aurelio ANE, Respondent.
    No. 63114.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 27, 1984.

      Talbot D’Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami, and Richard J. Ovelmen, Gen. Counsel, Miami, for petitioner.
    Francisco R. Angones and Christopher Lynch of Adams, Ward, Hunter, Angones & Adams, Miami, for respondent.
    Parker D. Thomson, Sanford L. Bohrer and Charles V. Senatore of Thomson, Zed-er, Bohrer, Werth, Adorno & Razook, Miami, and Barry Richard of Roberts, Bag-gett, LaFace, Richard & Wiser, Tallahassee, amicus curiae for Florida Press Ass’n.
    George K. Rahdert and Patricia Fields Anderson of Rahdert, Anderson and Richardson, St. Petersburg, amicus curiae for Apalachee Pub. Co.
   PER CURIAM.

Our jurisdiction in this cause, under article V, section 3(b)(4) of the Florida Constitution, is pursuant to a question certified by the Third District Court of Appeal in Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982):

[Wjhether a plaintiff [who is neither a public official nor public figure] in a libel action is required under Florida law to establish as an element of his cause of action that the defendant published the alleged false and defamatory statements sued upon with “actual malice” as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) [i.e., either with knowledge of [their] falsity or with reckless disregard of [their] truth or falsity] when the alleged false and defamatory statements relate to an event of public or general concern.

Id. at 378. The district court correctly answered the question in the negative, and we approve its decision.

The events preceding the publication by the Miami Herald of a newspaper article falsely indicating that the Monroe County Sheriff’s office had said that respondent Ane was the owner of a beer truck containing marijuana are recounted in detail by the district court. Ane had no connection with the truck.

Prior to New York Times in 1964, Florida common law governed all defamation actions, and defendants who did not establish either a privilege or truth as an affirmative defense were subject to strict liability. If a privilege applied to the defendant, the plaintiff could overcome the privilege by proving that the defendant acted with express malice. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897). Express malice encompasses “ill will, hostility, evil intention to defame and injure.” Montgomery v. Knox, 23 Fla. 595, 606, 3 So. 211, 217 (1887).

The United States Supreme Court in New York Times held that

[t]he constitutional guarantees [first and fourteenth amendment] require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

376 U.S. at 279-80, 84 S.Ct. at 726. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 164, 87 S.Ct. 1975, 1996, 18 L.Ed.2d 1094 (1967), the Court expanded first amendment protection of defamatory falsehoods published about public officials to include public figures — those persons “intimately involved in the resolution of important public questions, or [who], by reason of their fame, shape events in areas of concern to society at large.” At that point, the common law of defamation was undisturbed when the plaintiff was neither a public figure nor a public official.

In Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), a plurality of the Court would have expanded first amendment protection to “all discussion and communications involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Id. at 44, 91 S.Ct. at 1820. However, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974), the Court expressly rejected the Rosenbloom plurality view:

The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest [in compensating individuals for harm inflicted on them by defamatory falsehoods] to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of “general or public interest” and which do not.... We doubt the wisdom of committing this task to the conscience of judges....

At the same time, the Court precluded liability without fault:

We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

Id. at 347, 94 S.Ct. at 3010 (footnote omitted). The Court also held that there can be no recovery by a private defamation plaintiff of presumed or punitive damages in the absence of a showing of New York Times malice. Id. at 349, 94 S.Ct. at 3011. Defamation plaintiffs who do not prove such malice by clear and convincing proof are limited to recovery for actual injury.

Clearly under Gertz the negligence standard of fault upon which the Miami Herald was found liable is sufficient and consistent with the full protection of the first amendment to the United States Constitution. The plaintiff is a private individual, not a public figure or public official. The Herald argues that this Court should hold that under Florida law there is a privilege to defame on matters of public or general concern. This is the same argument which the Rosenbloom plurality advocated and the Gertz court rejected when it declined to require state and federal judges to analyze publications in order to determine which are of general or public interest and which are not. The effect of Gertz is to treat all matters published as matters of general or public interest and to reject the proposition that these matters are quali-fiedly privileged. We agree. Florida’s concern for individual reputation is reflected in article I, section 4, of the Florida Constitution. This Court has not previously held that there is a qualified privilege for a newspaper or a private person to defame a private person merely because the defamatory communication is directed to a matter of public or general concern, and we decline to do so now. In our prior cases additional factors have been considered. For example, in Layne v. Tribune Co., 108 Fla. 177, 181, 146 So. 234, 238 (1933), a newspaper had a privilege to publish an apparently authentic news dispatch received from and attributed to a generally recognized reputable news service agency (such as the Associated Press or Universal Press) in the absence of a showing that the publisher acted in a “negligent, reckless, or careless manner” (emphasis added). In Abram v. Odham, 89 So.2d 334 (Fla.1956), the plaintiff publisher of political prognostications injected himself into a gubernatorial campaign and made derogatory remarks concerning a political candidate, giving the candidate a privilege to defend his candidacy and the publishing company a privilege to publish an accurate account of the candidate’s remarks. And in Gibson v. Maloney, 231 So.2d 823, 826 (Fla.1970), the privilege applied to make “ ‘fair comment’ on a public matter relating in part to an individual who had by choice made himself newsworthy and a part of the passing scene.” We found the plaintiff to be a public figure under both the common law and New York Times standards.

As can be seen by the above examples, the common denominator of our “fair comment” qualified privilege has always been that the plaintiff was a government official, political candidate, or otherwise a public figure due to fame, associations, or similar considerations. Moreover, under Florida common law, the privilege was always defeated by express malice, a lesser standard than the actual malice urged by petitioners. Petitioner would have us expand a lesser privilege into a much greater one and apply it to all manner of communication, to the detriment of private citizens. We are committed to robust and open debate, but find that the first amendment adequately provides the necessary protection. After Gertz, newspapers have more protection than ever before. We find that reasonable care is not too much to expect and that it encourages responsible reporting while allowing breathing room for mistakes to occur. We hold that it is sufficient that a private plaintiff prove negligence and answer the certified question in the negative.

Petitioner contends that the articles were not defamatory and the newspaper was not negligent. Having independently examined the whole record, See Bose Corp. v. Consumers of United States, Inc., — U.S. -, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), we agree with the district court that there was sufficient evidence on both issues upon which the jury could have reasonably found for the plaintiff.

Finally, petitioner argues that the damage award is erroneous because it was based on mental anguish and personal humiliation only, rather than injury to reputation. Actual damage to reputation is not required under Gertz, however, as long as there is evidence of some actual injury, of which injury to reputation is but one example. Time, Inc. v. Firestone, 424 U.S. 448, 460, 96 S.Ct. 958, 968, 47 L.Ed.2d 154 (1976).

The decision of the district court is approved.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN and SHAW, JJ., concur.

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

McDONALD, Justice,

dissenting.

We should hold that private individuals who bring libel actions arising from news reports of general or public interest must prove that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for the truth before a recovery is warranted. If the news media is to perform its role fearlessly and responsibly in our free society, it should not have to defend its inadvertent and unintentional errors. If, on the other hand, there is proof that a member of the news media published a defamatory falsehood, with knowledge of its falsehood or with reckless disregard for the truth thereof, it should be accountable. This test, in my judgment, is a substantial safeguard for the rights of the citizens and when balanced with the desire and need of a free and unnecessarily encumbered press is adequate.

The countervailing views are succinctly articulated by the judges of the Third District Court of Appeal. I congratulate all of them for their scholarly intellectual analysis. I simply cast my vote for Judge Hen-dry’s views because I think that in today’s society it is the one to follow. The standard, for libel purposes, for news stories of current events of public or general concern should be the same as that which exists for accounts of actions of public officials.

EHRLICH, J., concurs.

      . Crowell-Collier Publishing Co. v. Caldwell, 170 F.2d 941 (5th Cir.1948), was cited for the proposition that "[t]he defendant publishing company gave a fair and accurate account of the remarks made by the defendant Odham at a political rally, in accordance with its qualified privilege to publish matters of great public interest." Abram v. Odham, 89 So.2d at 336. Caldwell did indeed speak of a qualified privilege to publish matters affecting the interest of the general public, but went on to state:
      A majority of the courts have held that the privilege of public discussion is limited to comment or opinion and does not extend to false assertions of fact. A minority have held that even false statements of fact concerning officers and candidates are privileged if they are made for the public benefit and with an honest belief in their truth.

        Caldwell, 170 F.2d at 943 (emphasis supplied) (footnote omitted).
      The Caldwell court found that the Layne holding showed that Florida has aligned itself with the minority, but, referring to Layne, “making plain the narrowness of the way and the straitness [sic] of the path when truth, though unwittingly, is forsaken, the court declares that wantonness, recklessness, or carelessness in making such publication would be an abuse of the privilege.” Id. (emphasis added) (footnote omitted). Clearly the minority view recognizing the qualified privilege applies to publications about public persons and could, at least in some instances, be defeated by carelessness (negligence).

      . This holding is consistent with our prior decisions. Firestone v. Time, Inc., 322 So.2d 69 (Fla. 1976).

      . In Time, Inc. v. Firestone, the Court stated: Petitioner has argued that because respondent withdrew her claim for damages to reputation on the eve of trial, there could be no recovery consistent with Gertz. Petitioner’s theory seems to be that the only compensable injury in a defamation action is that which may be done to one's reputation, and that claims not predicated upon such injury are by definition not actions for defamation. But Florida has obviously decided to permit recovery for other injuries without regard to measuring the effect the falsehood may have had upon a plaintiff's reputation. This does not transform the action into something other than an action for defamation as that term is meant in Gertz. In that opinion we made it clear that States could base awards on elements other than injury to reputation, specifically listing "personal humiliation, and mental anguish and suffering” as examples of injuries which might be compensated consistently with the Constitution upon a showing of fault. Because respondent has decided to forego recovery for injury to her reputation, she is not prevented from obtaining compensation for such other damages that a defamatory falsehood may have caused her. (Id.)


author:
PER CURIAM.
      McDONALD, Justice,

text:
    The TRIBUNE COMPANY, Paul Hogan, Joseph Registrato, and William Sloat, Petitioners, v. Leonard D. LEVIN and General Energy Devices, Inc., Respondents.
    No. 63217.
    Supreme Court of Florida.
    Sept. 13, 1984.
    Rehearing Denied Nov. 27, 1984.

      Sanford L. Bohrer and Charles V. Sena-tore of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for petitioners.
    0. Stephen Thacker of Wilder & Thacker, Clearwater, John R. Ferguson of Peabody, Lambert & Meyers, and C. Michael Deese of Webster, Chamberlain & Bean, Washington, D.C., for respondents.
    Parker D. Thomson of Paul & Thomson, Miami, amicus curiae for The Miami Herald Pub. Co.
    Joseph W. Little, Gainesville, for amicus curiae.
   PER CURIAM.

We have before us Tribune Co. v. Levin, 426 So.2d 45 (Fla. 2d DCA 1982), pursuant to a certified question of great public importance from the Second District Court of Appeal: whether the negligence standard [as applied in Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982) ] is appropriate as a basis of recovery in a defamation suit brought by a private plaintiff against a newspaper. We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

The Tampa Tribune published two articles about Levin’s personal activities and his business activities with General Energy Devices, Inc., a solar heating manufacturer. Levin and the company as co-plaintiffs brought a libel action and got a jury award of compensatory and punitive damages. After a jury poll revealed that not all the jurors agreed regarding the punitive damages award, the trial court struck that portion of the verdict and entered judgment on the compensatory award. The district court affirmed, finding that the trial court properly instructed the jury on the negligence standard, and that actual malice on the part of the newspaper was not required for the plaintiffs to recover compensatory damages. In so holding, the Second District Court agreed with the Third District Court in Miami Herald Publishing Co. v. Ane, 423 So.2d 376 (Fla. 3d DCA 1982). In Ane the Third District Court of Appeal certified the following question:

[Wjhether a plaintiff [who is neither a public official nor public figure] in a libel action is required under Florida law to establish as an element of his cause of action that the defendant published the alleged false and defamatory statements sued upon with “actual malice” as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) [i.e., either with knowledge of [their] falsity or with reckless disregard of [their] truth or falsity] when the alleged false and defamatory statements relate to an event of public or general concern.

Ane, 423 So.2d at 378. In our decision today in Ane, 458 So.2d 239 (Fla.1984), we answered the certified question therein in the negative and approved the district court’s application of the negligence standard. Accordingly, we answer the instant question affirmatively and approve the decision of the district court.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN and SHAW, JJ., concur.

McDONÁLD, J., dissents with an opinion, in which EHRLICH, J., concurs.

McDONALD, Justice,

dissenting.

I believe that a commercial enterprise engaged in marketing and selling goods or services to the public, for libel purposes, is on the same footing as a public figure or public official. Hence, such a commercial corporation, or a person conducting such a public commercial enterprise, should have no action for libel arising from a news account of that concern’s public undertakings unless there is proof that the news account was published with actual malice or reckless disregard of the truth.

The rights afforded a private person for his private affairs should not extend to a commercial enterprise dealing publicly. The public has a right to know of the character and activities of such a business undertaking. It becomes a matter of public concern. The media can and should address and report the conduct of those concerns dealing commercially with the public. The United States Supreme Court in Bose Corp. v. Consumers Union of United States, Inc., — U.S. -, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), had no difficulty in recognizing that a manufacturer and seller of sound equipment was a “public figure” for libel purposes. That court applied the New York Times standard in that instance. I see no difference between the activity of these plaintiffs dealing with solar energy in commercial trade and that of Bose’s dealing in sound equipment. Both had voluntarily ventured into the public light by “going public” with their products.

In our free enterprise system a free and open exchange of information serves the best interest of the public. The reporting of commercial events should not be inhibited by visiting a law suit on the news media because of an inadvertent error in a news story, even when accompanied by negligence. In my view the standard adopted by the majority in this case will greatly retard investigative reporting of commercial enterprises. It should not be.

There was no proof of actual malice or reckless disregard for the truth on the part of the Tribune or its reporter. Judgments should be entered for these defendants.

EHRLICH, J., concurs.

        New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).