text:
    Clyde CRANMORE v. STATE.
    3 Div. 646.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 16, 1983.
    Certiorari Denied Nov. 4, 1983 Alabama Supreme Court 82-1158.

      Stephen Langham, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

On July 1, 1982, appellant was found guilty of theft in the second degree for stealing irrigation pipe. He was sentenced to three years’ imprisonment.

A summary of the State’s case in chief is included herein because of appellant’s contention that the State failed to prove a prima facie case.

James Thebo testified that he was the owner of a quantity of aluminum irrigation pipe cut in 20-foot lengths which he kept in a field about a quarter of a mile from his house. He estimated that the pipe was worth $700 or more.

In early February of 1981, the witness visited the field and found that the pipe had been sawed into 10-foot sections and stacked into three piles.

Thebo said he then called the Sheriff’s office and deputies came to inspect the field. They told the witness to mark the pipe so that he could later identify it, and Thebo complied by spray painting the interior of the pipe red.

After that, Thebo, some of his friends, and on occasion, members of the Sheriff’s department set up a series of night watches on the field to see if anyone would return for the pipe.

The witness testified that on the night of February 15, he saw and identified his stolen pipe which was found slightly back in the woods and approximately 100 yards from the appellant’s rented house.

Thebo stated that he neither saw the appellant cut the pipe nor did he see the appellant take it anywhere.

State’s next witness, Jake Manning, testified that he was a friend of James Thebo. He also stated that he was familiar with the land where Thebo kept his pipe.

Manning said that on Sunday, February 8, Thebo told him that the pipe had been sawed in two and the witness then drove down to the field where the pipe was kept. He found that it had indeed been cut in two and placed in three piles on the edge of the field some 40 or 50 yards from the road.

Manning said that on Sunday night a week later, he was on watch sitting in a car upon a bank 15 or 20 feet high looking down on the road that led to the area where the pipe was kept. The witness stated he saw a car coming from the east about ½ mile away. Manning said he saw an old model Dodge sedan go down the hill toward Thebo’s property and in a few minutes it returned and drove by the bank where Manning’s car was sitting. The witness said that shortly thereafter, a red and white Dodge pick-up truck came down the hill and turned toward Thebo’s property. He said that he could not see any lights on the vehicle. Eventually the truck came back within the witness’s sight and he noticed that it had lights on and was loaded with pipe. Manning then followed the pipe-laden truck in his ear until it pulled into the driveway at the residence rented by the appellant, Clyde Cranmore. The witness stated that the truck never stopped from the time he started following it until it reached the appellant’s drive. Manning stated that the appellant’s yard had 10 or 12 people gathered in it and in addition, the car that he had seen driving toward the Thebo property was parked in the yard. Manning stated that he pulled up beside the truck and that at most he was four or five feet from it.

Manning stated that the appellant got out of the truck and asked him how he was doing and the witness replied, “All right, sir, how are you?” Then Manning left and went directly to a phone to notify deputies that the pipe had been stolen. He also called James Thebo and James Bartles to tell them where the pipe was.

The witness said that when he later returned to appellant’s house that night, Cranmore was gone and the pipe was no longer in the truck. The car which had earlier been parked in the yard was also missing. Manning instructed the deputies he had summoned to the scene to test the lights on the truck in the yard since the truck he had seen with the pipe in it had had no tail lights. The subsequent test confirmed that the truck had no tail lights and the vehicle was confiscated by Sheriff’s deputies.

Manning discussed with one of the officers on the scene where the pipe could be and the witness decided to walk up the road to look around. He subsequently found some “fresh dirt” where a truck had apparently been and about 100 yards from the appellant’s rented house the witness found between 350 and 380 feet of pipe that had been painted red on the interior.

State’s next witness James Bartles testified that he was a friend of James Thebo and was familiar with the field where The-bo kept the irrigation pipe. He stated that on the morning of February 8, he and The-bo visited that field and found fresh tracks going into it. He stated he knew the tracks were fresh since it had rained heavily the day before. He also stated that some of the pipe had been sawed up and stacked in piles around the field. Bartles testified that he and Thebo then notified the Sheriff’s department and subsequently they set up a system to watch the field which continued for eight nights.

The witness testified that on the evening of February 15, his grandfather, Jake Manning, was watching the field. At approximately 7:00 p.m., Manning phoned Thebo and Bartles to tell them that the pipe had been stolen.

The two men then started for the appellant’s residence but stopped about 50 to 75 yards from the house to wait for the Sheriff’s deputies. Bartles stated that he saw appellant get into his car and then drive, several times, by the vehicle in which Thebo and the witness were sitting. ■ The appellant returned to his house and at approximately 8:15 p.m., he and several other people who were in the house got into a car and left.

Bartles said that later that night after Jake Manning discovered the missing pipe about 100 yards from appellant’s house, the witness inspected the pipe and found it had red paint in it.

Autauga County Deputy Sheriff Saul Dearman testified that he went to Cran-more’s house on the night of February 15. He said that while there he observed a red and white pick-up truck sitting in the driveway. In addition, he noticed a fresh set of vehicular tracks where the truck had apparently pulled into the driveway and he found that the hood of the truck was still warm even though it was a cool night. The witness stated that he knocked on the appellant’s door and there was no answer, but at no time did he enter Cranmore’s house. Sergeant Roger Mullins and former deputy Jack Tant corroborated portions of Deputy Dearman’s testimony. Eventually, the officers on the scene called a wrecker and impounded the truck parked in appellant’s drive. When asked why he had the truck towed in, Dearman replied, “Because it had no keys in it and was used in commitment of a felony.” (R-91).

I

Appellant’s first claim on appeal is that the trial court erred in denying his motion to exclude the evidence, because, he contends, the State failed to prove a prima facie case. He states that there was “absolutely no showing” that he “ever had possession of any aluminum pipe” and he also claims that there was “no showing of any ‘felonious taking and carrying away’ of any pipe” by the appellant. We find no merit in this argument.

Based upon the foregoing recitation of testimony we find that the trial court did not err in denying the motion to exclude the evidence.

II

The second issue appellant raises on appeal is whether or not the trial court erred in denying his motion to suppress the pipe discovered as the result of a warrantless search of property near appellant’s rented house.

In his brief, appellant concedes that the property upon which the stolen pipe was discovered was located outside the cur-tilage of his rented property. Thus we find that the warrantless search for and seizure of the pipe which was located 100 yards from appellant’s residence was justified under the “open fields” doctrine. Skipper v. State, 387 So.2d 261 (Ala.Cr.App.), cert. denied, 387 So.2d 268 (Ala.1980). That doctrine expressly excludes open fields from the protection against warrantless searches given to persons, houses, papers and effects under the 4th amendment to the Constitution. See C. Gamble, McElroy’s Alabama Evidence § 334.01(3)(c) (3d ed. 1977).

Thus, there was no error in denying the motion to suppress the pipe.

III

Appellant next raises the issue of whether or not the trial court erred in refusing to instruct the jury to disregard certain testimony given by Deputy Saul Dearman about the truck found parked near appellant’s residence. The portion of the transcript to which appellant refers reads as follows:

“Q. [By State’s attorney] What did you do with the truck?
“A. We called the wrecker and had it towed to the sheriff’s office and impounded it.
“Q. For what purpose did you have it towed in?
“A. Because it had no keys in it and it was used in commitment of a felony.
“HON. STEVE LANGHAM: Judge, I object to that. That calls for a conclusion on the part of the witness and I wish you would instruct the jury not to consider that.
“THE COURT: You waited for the answer before you objected.
“HON. STEVE LANGHAM: Judge, it was a direct response to that answer, which would not necessarily have included a surmise on the part of this witness.
“THE COURT: Motion is denied.” (R. 91-2)

We find that the trial court should have instructed the jury to disregard Dear-man’s conclusory statement that the truck was used in “commitment of a felony,” since the deputy did not have personal knowledge of all the elements of the offense.

However, we feel that any possible detrimental effect created by Dearman’s testimony was subsequently cured by the cross-examination of the witness by defense counsel almost immediately after the offending comment was made. That portion of the record reads as follows:

“Q. Saul, you didn’t — you say used in the commitment of a felony. You didn’t see any felony committed in that pickup truck, did you?
“A. No, sir, I didn’t see it.
“Q. Just strictly hearsay. This is what Mr. Jake Manning told you, is that correct?
“A. That is correct.
“Q. Okay. So that was just conjecture on your part that there was a felony committed in that pickup truck?
“A. That is true.” (R 92)

Thus, we find the impression given the jury was corrected and rendered harmless by subsequent evidence. See, A.R.A.P. 45 and Committee Comments thereto.

IV

Appellant’s final contention on appeal is that the' trial court erred in denying his motion for mistrial based on a comment made to a juror by the district attorney outside the presence of other jurors but in front of defense counsel and the trial judge.

Since the comment was not preserved for the record, we are unable to say whether it was so prejudicial as to affect the impartiality of that juror. Without more, this affords no basis for reversal. In addition, at the time the court denied the defense motion for a mistrial and supplied the substitute remedy of making the juror in question a “second alternate,” who eventually did not participate in the deliberations, defense counsel made no further objection. Thus, the issue of whether the court’s effort to remedy the problem was sufficient, was not preserved for our review. Kendricks v. State, 378 So.2d 1203 (Ala.Cr.App.1979).

The judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ADKINS, Justice. BOYD, Justice,

license: Public Domain

text:
    Fredrick HERZOG, Appellant, v. STATE of Florida, Appellee.
    No. 61513.
    Supreme Court of Florida.
    Sept. 22, 1983.
    Rehearing Denied Nov. 21, 1983.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., and Max Rud-mann and Sharon Lee Stedman, Asst. At-tys. Gen., West Palm Beach, for appellee.
   ADKINS, Justice.

This is an appeal by Fredrick Herzog from his conviction of first-degree murder and from the trial judge’s imposition of the death sentence after the jury had recommended life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction, but direct that the death sentence be reduced to a sentence of life imprisonment in accordance with the jury’s recommendation.

Although thfe testimony of two eyewitnesses is somewhat inconsistent, the facts are as follows:

The victim, Ginger Mackert, who was defendant’s paramour, shared an apartment with defendant and his two male roommates, Alongi and Carrier. The victim had resided with the three for approximately two months, except for brief intervals when the victim would move out after arguments with the defendant.

On February 8, 1981, the defendant and victim hosted a small party to celebrate their recent engagement. Those attending the party consumed various quantities of alcohol, quaaludes, and marijuana. Later that evening, victim and defendant had an argument that resulted in the dispersal of the party. Those remaining at the apartment were the victim, defendant, Alongi, and Carrier.

The argument ceased when the victim retired to the bedroom and defendant fell asleep on the couch. The victim was apparently heavily intoxicated. Shortly thereafter Carrier and Alongi heard a banging noise, and, being concerned because of her intoxicated and despondent state, broke down the door to find the victim in the bathtub banging her head against the wall. They helped her out, and took her to her bedroom where she was placed in bed and fell asleep. During this whole time, defendant was asleep in the living room.

Sometime later, the victim got up and came out to where defendant was sleeping, and attempted to get a handgun from somewhere underneath him. It is unclear whether she actually acquired possession of the gun. Nevertheless, Carrier intervened and emptied the gun and hid it behind a refrigerator. The victim returned to the bedroom.

Later that evening, the defendant woke up; Carrier related the previous facts to the defendant who demanded the return of the gun; Carrier complied. Thereafter, the defendant went into the bedroom where the victim was, and they engaged in another argument. Carrier and Alongi left the apartment shortly after being told by the defendant to mind their own business. The argument had apparently subsided before their departure.

After one or two hours, Carrier and Alon-gi returned to the apartment. Although it was quiet at first, the defendant and victim began arguing again; this time they were in the kitchen. Carrier and Alongi, who were in their respective bedrooms, investigated and saw the victim consuming more quaaludes. Although the testimony on this point is inconsistent, the defendant was apparently inducing the victim to take the drugs.

The defendant and victim next apparently returned to the bedroom. A short while later, Carrier and Alongi joined the defendant in the bedroom. Carrier gagged the victim, and recommended that they take her to her brother’s house. Carrier testified that the victim offered no resistance when gagged. After the gag was applied and while the victim was lying on the bed, the defendant and Alongi attempted to smother her with a pillow. Alongi testified that he helped the defendant because the defendant was armed with a gun; however, the evidence on this issue is tenuous. After the suffocation attempt failed, the apparently unconscious victim was dragged into the living room whereupon the defendant, assisted by Alongi, strangled her to death using a telephone cord.

The next morning Herzog, Alongi, and Carrier discussed disposing of the body and shortly thereafter Carrier left for work. Herzog and Alongi then wrapped victim in a garbage bag and placed her in the trunk of Herzog’s car. The two men drove to Alligator Alley, drenched the corpse with gasoline, and set it afire. Victim was found smoldering February 10, 1981.

Herzog was arrested, indicted, and found guilty by a jury of first-degree murder. Co-defendant Paul Alongi entered a plea of guilty to the lesser included offense of manslaughter and was placed on five years’ probation. Carrier was granted total immunity.

The defendant’s first contention is that the trial court erred in conducting critical stages of the trial in his absence. The precise duration of defendant’s absence is in dispute. However, the only reasonable inference to be drawn from the record is that the defendant was absent during a defense motion to suppress certain photographs from introduction as evidence for the state. The relevant portion of the transcript is as follows:

Mr. Blackman: If I may, your Honor, I forgot one other thing, and I would like to mention it right now.
The Court: Do you waive the presence of your client? He’s gone.
Mr. Blackman: Yes, sir, I waive the presence of my client for this particular motion.
The state has shown me a number of pictures, a load of pictures, some of which may be relevant, but others which I think might be inflammatory.

After the trial court noted the defendant’s absence, trial counsel waived defendant’s presence and proceeded with the motion. The trial court elected not to rule on the admissibility of the photos at that time, but rather, to rule on the photos individually before they were introduced. Immediately thereafter, the court recessed for the day. There is no indication, nor is it asserted, that the defendant’s absence was not voluntary.

In asserting this argument, the defendant places heavy emphasis on our recent decision in Francis v. State, 413 So.2d 1175 (Fla.1982). In Francis, also a murder case, trial counsel waived the defendant’s presence for a portion of the jury selection and told the defendant that he could not go into the jury room where peremptory challenges were being exercised. Id. at 1178. We reversed, holding that the involuntary absence of the defendant, during a crucial stage of a trial for a capital offense, is error notwithstanding the waiver by trial counsel. Id. at 1178-79. We relied on Florida Rule of Criminal Procedure 3.180(a)(4) which recognizes the challenging of jurors as a crucial stage in the trial, thus the defendant’s presence is necessary. We also emphasized that the arbitrary nature of peremptory challenges requires the defendant’s presence to consult with counsel during the time of exercise. Id. at 1179.

Defendant’s reliance on Francis is misplaced. First, Francis involved the involuntary absence of the defendant as contrasted with the voluntary absence in the instant case. Id. at 1178. Secondly, and more importantly, the absence in the case sub judice was not during a crucial stage of the trial as defined by Rule 3.180 or constitutional principles (“where fundamental fairness might be thwarted by his absence”). Francis, 413 So.2d at 1177 (citing Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).

Hence, the absence of the defendant during the motion was not error irrespective of the waiver by defense counsel.

We are not called upon to, and do not, answer the question of whether a defendant’s involuntary absence, during a noncru-cial stage of a trial for a capital offense, would be error. Nor is it necessary that we answer the hypothetical question left open in Francis; whether the defendant’s voluntary absence, during a crucial stage of a trial for a capital offense, constitutes error. Francis, 413 So.2d at 1178. We continue to note, however, Lowman v. State, 80 Fla. 18, 85 So. 166 (1920).

As his second point of error the defendant contends that certain comments made by the court below, as well as interruptions in cross-examination constitute reversible error. Defendant concedes the lack of contemporaneous objection by him below; however, he urges that such an objection would have proved futile and does not preclude appellate review. Defendant urges that our decision in Thomas v. State, 419 So.2d 634 (Fla.1982) is controlling. Thomas, however, is inapposite. In that case defense counsel stated his desire to make a motion in response to a statement by the prosecutor. However, the trial court, anticipating what the motion was, overruled it and denied counsel’s request to further argue the issue. We held that counsel’s compliance with the court directive did not constitute waiver and counsel is not required to “pursue a completely useless course when the judge has announced in advance that it will be fruitless.” Id. at 635. (Citing Brown v. State, 206 So.2d 377, 384 (Fla.1968) (emphasis supplied)). The record in the instant case reveals nothing that should have dissuaded counsel from making a contemporaneous objection.

In the alternative, defendant argues that the comments made by the trial court are of such a nature as to constitute fundamental error and are, hence, reviewable irrespective of the lack of contemporaneous objection.

Our review of the record fails to disclose any remarks that could be deemed “so prejudicial to the rights of an accused that neither rebuke nor retraction could eradicate its evil influence.” Grant v. State, 194 So.2d 612, 613 n. 1 (Fla.1967). Hence, the failure of the defendant to object to the alleged prejudicial comments is fatal and subsequent review by this Court cannot be had. See Maggard v. State, 399 So.2d 973, 976 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Ray v. State, 403 So.2d 956, 960 (Fla.1981); Castor v. State, 365 So.2d 701, 703 (Fla.1978); Clark v. State, 363 So.2d 331, 333-34 (Fla.1978).

Even had the record been properly preserved for review, the result in the instant case would be unchanged. The comments made by the trial court cannot be reasonably interpreted as being prejudicial to the defendant, nor did the putative interruptions in cross-examination unnecessarily limit the scope of defense counsel’s cross-examination.

Defendant’s next point of error involves statements by witnesses concerning the defendant’s involvement in illicit drug sales and use of firearms. The majority of this testimony was in direct response to defense counsel’s questions on cross-examination and, therefore, defendant cannot be heard to take issue with it on appeal.

One of the statements concerned an incident where the witness knocked on defendant’s door and was greeted by a shotgun. This statement was relevant to the general question asked by defense counsel concerning the witness’s knowledge of a secret knock to gain access to defendant’s apartment. Although this statement was somewhat unresponsive, defense counsel made no motion to have the statement stricken, and therefore, cannot argue the issue for the first time on appeal. § 90.-104(1)(a), Fla.Stat. (1981).

The remaining statements were elicited by the state from its witness, Zuffu-to, on direct examination. They concerned a previous threat by the defendant to kill the victim, a previous incident whereby the defendant attempted to induce the victim into a gun “fast-draw” contest, and testimony that Zuffuto had seen the victim with two black eyes.

Defendant urges that this is improper similar fact evidence offered by the state to show propensity or bad character and not relevant to a material issue. The defendant further asserts that the state bears the burden of proof on relevancy when this type of evidence is used.

While it is true that the state has the burden of showing relevancy, this burden only shifts to the state after the defendant has made a proper objection to its introduction. State v. Davis, 290 So.2d 30 (Fla.1974); Franklin v. State, 229 So.2d 892 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 754 (Fla.1970). The record fails to indicate any objection by defendant, and he is thereby precluded from arguing this point on appeal.

Even assuming, arguendo, that a proper objection was made, our review of the record indicates that the evidence was relevant on an issue other than propensity or bad character. See Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

As his fourth assignment of error, defendant asserts that his taped statement, given to Detective Fantagrassi, was obtained in violation of his fifth amendment right to remain silent, and was improperly introduced as evidence against him.

The putative violation occurred when the defendant, during the Miranda warning, indicated his desire to exercise his right not to answer questions. The questioning officer encouraged him to keep talking, and the defendant eventually agreed to answer the questions.' During the entire interview, defendant was represented by counsel who also explained to the defendant that he had an unconditional right to stop the questioning and go home.

At the outset we note that the defendant failed to object to the introduction of the tape as evidence. Defendant urges that this is not fatal to an appeal on this issue. He argues that the trial court’s determination of voluntariness, notwithstanding the lack of objection, serves to satisfy the policy reasons for the contemporaneous objection rule and preserves the issue for appellate review. We find this argument to be of no merit. See Wainwright v. Sykes, 433 U.S. 72, 88-89, 97 S.Ct. 2497, 2507-08, 53 L.Ed.2d 594 (1977).

Even had the point been properly preserved, the defendant’s argument has no support in the decisional law. Defendant’s reliance on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) is misplaced. The Court in Mosley stated:

If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.

Id. at 101 n. 8, 96 S.Ct. at 325 n. 8 (citing Miranda v. Arizona, 384 U.S. 436, 474 n. 44, 86 S.Ct. 1602, 1627-28 n. 44, 16 L.Ed.2d 694 (1966)).

Our review of the record indicates no evidence of overbearing by the police during the interrogation. The officer very tactfully overcame the defendant’s reluctance to answer questions without the slightest indication of overbearing. The defendant answered the questions voluntarily, under the belief that his answers were exculpatory, not because of any coercion on behalf of the interrogator.

Defendant next asserts that his fifth amendment right to remain silent was violated on two occasions: First, when a taped interview, in which defendant indicated his reluctance to talk, was played to the jury, and second, when the prosecutor objected to defense counsel’s closing arguments. Defendant concedes the lack of objection below and further concedes that this lack of objection is fatal to appeal. Simpson v. State, 418 So.2d 984 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Clark v. State, 363 So.2d 331 (Fla.1978). However, defendant invites us to reconsider our position on this issue; an invitation we decline to accept.

Defendant next contends that the evidence adduced at trial was insufficient to sustain a conviction. Defendant attacks the evidentiary sufficiency on two issues, premediation and cause of death.

We find ample evidence in the record to support a jury finding of premeditation. There is evidence that the parties had had an argument on the same day of the homicide, and that the defendant had also beaten the victim that day. In addition thereto, eyewitnesses testified as to the manner of death. After an unsuccessful attempt at smothering the victim, defendant wrapped a telephone wire around her neck and strangled her. See Scott v. State, 411 So.2d 866, 868 (Fla.1982); Phippen v. State, 389 So.2d 991, 993 (Fla.1980). There wás also testimony that the defendant had previously expressed his intention to kill the victim, and that defendant accused the victim of stealing from him. Further evidence shows that the defendant attempted to cover-up the incident by disposing of the body and making exculpatory statements to authorities. See Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed,2d 1221 (1976).

Relying on Wright v. State, 348 So.2d 26 (Fla. 1st DCA), cert. denied, 353 So.2d 679 (Fla.1977), defendant argues that there was insufficient evidence adduced at trial on the issue of cause of death. His reliance on this case, however, is misplaced. We find sufficient evidence in the record to establish cause of death. The medical examiner, a forensic pathologist, was well within the purview of his expertise and fully substantiated the underlying facts supporting his conclusion on this issue. Further, the cause of death, as determined by the medical examiner, was consistent with the testimony of the two eyewitnesses, and was inconsistent with defendant’s own assertions of innocence. Cf. Driggers v. State, 164 So.2d 200, 203 (Fla.1964) (findings of medical examiner which were not inconsistent with defendant’s explanation of how death occurred held insufficient to sustain murder conviction).

In addition to reviewing the specific arguments raised by the defendant, we have also reviewed the record pursuant to Florida Rule of Appellate Procedure 9.140(f), and we conclude that a new trial is not required.

The defendant’s final two points concern the imposition of the death' penalty. In overruling the jury recommendation of life, the trial court found that four aggravating circumstances were applicable in this case; sections 921.141(5)(b) (previous conviction of felony involving threat of violence), (5)(e) (committed to avoid arrest), (5)(h) (heinous, atrocious or cruel), (5)(i) (cold calculated manner), Florida Statutes (1981).

As to mitigating circumstances, the trial court enumerated the statutory mitigating circumstances and found none of them applicable in the instant case. The court made the specific finding of fact that defendant was the “dominant party during the commission of the crime,” thus negating section 921.141(6)(e), Florida Statutes (1981) (that the defendant was under the influence of duress or substantial domination of another person).

As to section 921.141(5)(b), Florida Statutes (1981) (previous conviction of felony involving use or threat of violence to the person), the trial court properly found this aggravating circumstance to be applicable, and it is not argued as error in this appeal.

The trial court, however, misapplied section 921.141(5)(e), Florida Statutes (1981) (crime was committed for purpose of avoiding an arrest or effecting an escape from custody). As we have previously held, this aggravating circumstance is applicable primarily in the situation where defendant kills a law enforcement officer in an effort to avoid arrest or effect escape. It may also be applicable when the factfinder determines that the dominant motive of the murder was for the elimination of witnesses. White v. State, 403 So.2d 331, 338 (Fla.1981) (citing Riley v. State, 366 So.2d 19 (Fla.1978), cert. denied, - U.S. -, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982)).

The trial court lists two facts in support of his holding that this factor is applicable. First, that “defendant transported the victim’s body to a desolate area .. . where he set fire to [it].” Second, “when interviewed by the police two months after the murder, [defendant] professed that on the night in question he went to sleep and awoke the next morning to find that she departed, thereby misleading the police authorities and avoiding detection.”

The court below cites two cases supporting its position. Welty v. State, 402 So.2d 1159 (Fla.1981); Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979). These cases, however, are inapposite. In Washington, the defendant was involved in a spree of robberies in which he summarily killed the victims. One of these victims was stabbed to death, and later buried in a shallow grave. Defendant argued that his surrender to the police and confession negated the section (5)(e) aggravating factor. We declined to accept this argument, pointing to the disposal of the body as one fact diminishing the credibility of defendant’s argument. Id. at 666.

Hence, this evidence was used by this Court not as an element supporting the section (5)(e) aggravating factor, but as evidence of the lack of credibility of defendant’s argument.

In Welty, the defendant went to the victim’s apartment with the intent to steal various items. Upon entering the victim’s apartment to commit the larceny, defendant strangled the victim and set fire to his bed. Hence, the homicide was committed for the purpose of avoiding arrest for the crimes of burglary and larceny. Had Welty’s victim’s life been sparéd, he would have been able to identify the perpetrator who had spent several hours with him earlier that evening. Id. at 1161. Therefore, that case fell within the latter category, which was articulated in White (that the dominant motive was to eliminate witnesses).

The state argues that the defendant killed the victim with the intent of avoiding arrest for the crime of aggravated battery, which occurred sometime previous to the homicide. This argument may have merit if the facts supported a finding that a previous aggravated battery had occurred, and that the motive for the homicide was to avoid arrest. However, the trial court did not so find, nor do we find evidence in the record to support such a conclusion.

As to section 921.141(5)(h), Florida Statutes (1981) (crime was especialy heinous, atrocious, or cruel), we hold that this factor is not applicable in the instant case. The trial court articulated several facts in support of this finding. First, “that the defendant beat the victim, suffocated her with a pillow and then strangled her with a telephone cord. [Second, that defendant] stashed her body in a laundry room until it could be disposed of and, [third, that defendant] has never shown remorse (having steadfastly denied his involvement).” In support of this third finding, the trial court cites Sireci v. State, 399 So.2d 964, 971 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). In Sireci, the defendant stabbed his victim fifty-five times during a robbery, and later expressly indicated his lack of remorse to a witness. We held that this lack of remorse “can be offered to the jury and judge as a factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel.” Id. at 971. We were referring here to an affirmative statement by the defendant indicating his lack of remorse. A mere denial of his commission of the offense charged, however, would not be relevant on this issue. Cf. Sullivan v. State, 303 So.2d 632, 638 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976) (defendant stated, “I don’t feel no different” when referring to the murder he committed.); Hargrave v. State, 366 So.2d 1, 5 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979) (defendant stated that he had killed before and it would not bother him to kill again). See also McCampbell v. State, 421 So.2d 1072, 1075 (Fla.1982).

As to the trial court’s finding that the disposal of the body is a factor that can be considered in determining heinousness, we have held that this evidence is irrelevant on this issue. Simmons v. State, 419 So.2d 316, 319 (Fla.1982); Blair v. State, 406 So.2d 1103 (Fla.1981); Halliwell v. State, 323 So.2d 557, 561 (Fla.1975).

As to the manner by which death was imposed, we find that in this factual context the evidence is insufficient, standing alone, to justify the application of the section (5)(h) aggravating factor. We have previously stated that this factor is applicable “where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Tedder v. State, 322 So.2d 908, 910 n. 3 (Fla.1975) (quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974)).

In the instant case, there is evidence that the victim was under heavy influence of methaqualone previous to her death. She had apparently inflicted self injury, and it is unclear what amount of punishment was inflicted by the defendant’s own hand prior to the time of the murderous acts. Further, both eyewitnesses stated that the victim was unconscious. The actual period of unconsciousness is unclear. However, she was in this state at least during the period of time between the pillow incident and the act that caused her death. It can also be reasonably inferred from the record that she was semi-conscious during the whole incident as there is evidence that the victim offered no resistance, nor did she make any statements during the attack. Cf. McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981); Hoy v. State, 353 So.2d 826 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978); Washington v. State, 362 So.2d 658 (Fla.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2063, 60 L.Ed.2d 666 (1979); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Gardner v. State, 313 So.2d 675 (Fla.1975), vacated, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Compared with the cases cited and others on this subject we find that the section 5(h) aggravating factor is without factual justification. See also Middleton v. State, 426 So.2d 548 (Fla.1982); Simmons v. State, 419 So.2d 316 (Fla.1982).

The last aggravating circumstance found by the trial court, section 921.-141(5)(i), Florida Statutes (1981), “ordinarily applies in those murders which are characterized as executions or contract murders, although that description is not intended to be all-inclusive.” McCray v. State, 416 So.2d 804, 807 (Fla.1982) (citing Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982)). The trial court found the facts supporting this factor as follows: “[T]he killing was the consummation of prior threats and arguments based on defendant’s belief that the victim had previously taken some of his money or drugs.” This finding speaks to the issue of premeditation, however, it is not sufficient to establish the requirement that the murder be “cold, calculated . .. and without any pretense of moral or legal justification.” Combs v. State, 403 So.2d at 421; see also Mann v. State, 420 So.2d 578, 580-81 (Fla.1982) (10-year-old girl abducted, skull fractured, cut and stabbed several times, not sufficient to meet section (5)(i) requirement).

Therefore, there was only one aggravating circumstance properly found applicable by the court below. That being defendant’s prior convictions for robbery and assault.

The trial court properly found that no statutory mitigating circumstances existed; however, there is no indication in the sentencing order that the court considered nonstatutory mitigating circumstances. We find evidence in the record that the jury could have considered in finding nonstatu-tory circumstances. (E.g., 1) the heated argument between the victim and defendant which culminated in defendant’s decision to kill the victim, 2) the domestic relationship that existed prior to the murder, and 3) the disposition of codefendants’ cases. McCampbell v. State, 421 So.2d 1072, 1075-76 (Fla.1982)).

We must again reiterate that a jury recommendation is to receive great weight, and, before overruling the jury, the trial court must find that the facts “suggesting a sentence of death should be [so] clear and convincing that virtually no reasonable person could differ.” Tedder v. State, 322 So.2d 908, 910 (Fla.1975); see also Barfield v. State, 402 So.2d 377 (Fla.1981).

We have reviewed the series of cases where trial courts have overruled the jury recommendations and been affirmed on appeal. See e.g., Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982); McCrae v. State, 395 So.2d 1145 (Fla.1980); White v. State, 403 So.2d 331 (Fla.1981); Johnson v. State, 393 So.2d 1069 (Fla.1980); Hoy v. State, 353 So.2d 826 (Fla.1977); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976), Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Gardner v. State, 313 So.2d 675 (Fla.1975); Sawyer v. State, 313 So.2d 680 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). We find the facts in these cases to be distinguishable from the case at bar.

Further, we have compared this case with cases involving similar facts and find that a life sentence is consistent with these decisions. See e.g., Blair v. State, 406 So.2d 1103 (Fla.1981); Chambers v. State, 339 So.2d 204 (Fla.1976).

Incidentally, there is no . evidence in the record that the jury was misled, nor did the trial court find that the jury made its recommendation based on an emotional appeal of defense counsel. Further, there is no indication that the trial court based his decision on new information, unavailable to the jury at sentencing, that would justify his divergence from the jury recommendation. Cf. White, 403 So.2d at 339-40.

Accordingly, we affirm the defendant’s conviction for first-degree murder. However, in light of the jury recommendation, we reverse the sentence and remand the cause to the trial court with instructions to impose a sentence of life imprisonment without possibility of parole for twenty-five years.

It is so ordered.

ALDERMAN, C.J., and OVERTON, MCDONALD and EHRLICH, JJ., concur.

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

BOYD, Justice,

concurring in part and dissenting in part.

I concur with that portion of the Court’s decision that affirms the conviction of murder in the first degree. I dissent, however, from that portion of the decision which orders a reduced penalty of life imprisonment. Consistency in the application of the capital felony sentencing law requires that the trial court’s determination on the matter of sentence be sustained.

There were several aggravating circumstances properly found by the trial court. The court found that the offender had previously been convicted of felonies involving the use or threat of violence to human beings, citing two previous convictions for assault and one for robbery.

The court found that the appellant committed the murder for the purpose of avoiding or preventing arrest. I agree with the majority that this finding is not supported by evidence that appellant tried to cover up evidence of the murder. Covering up evidence of a murder does not establish that the murder itself was committed for the purpose of avoiding arrest or detection for criminal activity. The evidence showed, however, that appellant’s apartment was a center for the distribution of illegal drugs. On the night of the murder, the victim began loudly and angrily shouting and screaming at appellant in a manner that might have drawn attention to the apartment and resulted in police investigation. The killing was appellant’s method of silencing her to prevent his detection and arrest as a drug dealer.

The court found that the murder was especially heinous, atrocious, or cruel. The evidence showed that first appellant severely beat the victim, then tried to suffocate her, and finally strangled her with a telephone cord. These actions fully satisfy the requirements for application of this aggravating circumstance. The evidence also showed that appellant forced the victim to ingest large quantities of a powerful (and illegal) sedative. This took away her ability to resist his attacks and, far from mitigating the heinousness, in my view adds to it. The method of killing was strangulation supplemented by beating, suffocation, and poisoning.

The court found that the appellant murdered the young woman in a cold, calculated manner without any pretense of moral or legal justification. When the victim began shouting and screaming in an uncontrollable manner, appellant’s two roommates suggested that they remove her from the apartment and take her to her brother’s home. This would have solved the noise problem they were so worried about. It was appellant alone who rejected that solution and calmly announced that he preferred to kill her. He made this decision and terminated her life just as he might have performed any other normal routine function.

The court was correct to overrule the jury recommendation of life imprisonment since there was no reasonable basis for it. The murder was committed calmly and not in an emotional outburst. The relationship between the parties was not shown to have had an emotional impact on appellant at the time of the murder.

The disposition of the charges against appellant’s accomplices does not properly provide any mitigation under the circumstances here. I do not believe that judicial or prosecutorial outcomes regarding accomplices should be treated as matters in mitigation. See Malloy v. State, 382 So.2d 1190, 1193 (Fla.1979) (Boyd, J., dissenting in part). However, to the extent that an accomplice’s lesser punishment is relevant to mitigation, it is only so where the accomplice is equally or more culpable in the matter than the defendant. See, e.g., Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Smith v. State, 365 So.2d 704 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977); Messer v. State, 330 So.2d 137 (Fla.1976); Slater v. State, 316 So.2d 539 (Fla.1975).

Since there was no conceivably reasonable basis for the jury to have found statutory or nonstatutory mitigating circumstances, the judge was correct to override their recommendation. Since a death sentence is the appropriate penalty under the law, I dissent.


author: PER CURIAM.

text:
    Earl ENMUND, Appellant, v. STATE of Florida, Appellee.
    No. 48525.
    Supreme Court of Florida.
    Oct. 20, 1983.
    Jerry Hill, Public Defender and W.C. McLain, Asst. Public Defender, Chief, Appellate Division, Tenth Judicial Circuit, Bar-tow, and James S. Liebman, New York City, for appellant.
    Jim Smith, Atty. Gen., George R. Geor-gieff, Director, Criminal Division and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This case is before us on remand from the United States Supreme Court following its decision on certiorari review of our earlier judgment in this case, reported as Enmund v. State, 399 So.2d 1362 (Fla.1981). The Supreme Court reversed our judgment insofar as it affirmed appellant’s sentences of death for two convictions of felony murder. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In accordance with the Supreme Court’s decision, therefore, we vacate appellant’s sentences of death. This case is remanded to the circuit court with directions to impose, for each of the two first-degree murder convictions, a sentence of life imprisonment without eligibility for parole for twenty-five years. §§ 782.04(1), 775.082(1), & 921.141, Fla.Stat. (1975). The sentencing court shall have the discretion to decide whether the two sentences of life imprisonment are to be served concurrently or consecutively.

It is so ordered.

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


author: OVERTON, Justice.

text:
    NEW HAMPSHIRE INSURANCE GROUP, Petitioner, v. David HARBACH, et al., Respondents.
    No. 62226.
    Supreme Court of Florida.
    Oct. 20, 1983.
    Rehearing Denied Dec. 19, 1983.

      Janet R. DeLaura, of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for petitioner.
    Richard D. Dixon, Indialantic, and Eric Tilton, Tallahassee, for respondents.
    Murray Sams, Jr., of Sams, Gerstein & Ward, and Marc Cooper of Greene & Cooper, Miami, for Richard Basten, amicus curiae.
    A. Dan Killian, Jr. of Corlett, Killian, Hardeman, McIntosh & Levi, and Gerald E. Rosser, Miami, for Fireman’s Fund Ins. Co., amicus curiae.
   OVERTON, Justice.

This is a petition to review a decision of the Fifth District Court of Appeal reported as Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982). We again must resolve conflicts in the interpretation of section 627.-4132, Florida Statutes (Supp.1976). The question now before us concerns the validity of an exclusion in an automobile insurance policy which denies uninsured motorist coverage to an insured who is injured while operating his own uninsured motor vehicle. The district court of appeal held that the uninsured motorist statute in existence at the time this case arose prohibited this type of exclusion in an insurance contract. We find direct conflict with Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979). A decision consistent with the district court’s decision in the instant case is State Farm Mutual Automobile Insurance Co. v. Lewis, 425 So.2d 603 (Fla. 4th DCA 1982). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We disapprove the decision of the district court and find that section 627.4132, Florida Statutes (Supp.1976), permitted an exclusion from uninsured motorist coverage for bodily injury suffered by an insured while operating a motor vehicle which he or she owned but which was not insured under the policy on which a claim was made.

The facts reflect that respondent, David Harbach, was a resident in his parents’ household. David was injured in an automobile accident while driving his personal vehicle, which was uninsured. Because the other motorist involved in the accident was underinsured, David made a claim against the uninsured motorist provision of his parents’ automobile insurance policy. His parents’ policy provided uninsured motorist coverage to David as a family member. An exclusion contained in the policy provided that uninsured motorist coverage did not apply to the injuries suffered by persons “while occupying, or when struck by, any motor vehicle or trailer of any type owned by you or any family member which is not insured for this coverage under this policy.” (Emphasis added.) On the basis of this exclusion, the petitioner insurance company denied coverage for David’s injuries.

The trial court, relying on State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980), found the exclusion valid. The district court reversed, holding that this type of exclusion was deemed invalid by this Court in Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971). In Mullis we held that an insured under a policy was entitled to uninsured motorist protection “whenever or wherever bodily injury is inflicted upon him by the negligence of an uninsured motorist.” Id. at 238 (emphasis in original). The district court also determined that section 627.4132, Florida Statutes (Supp.1976), which was enacted subsequent to the Mullis decision, was not controlling in this case and only prohibited stacking where multiple coverages were available.

If the issue of coverage was determined solely by the terms of his parents’ policy, the respondent would not be covered because of the exclusion in issue. The question here, however, is whether Florida’s statutory provisions permit this type of exclusion. We must determine whether the legislature, by enacting section 627.4132 in 1976, intended to change the rule set by this Court in Mullis in 1971. Section 627.4132, Florida Statutes (Supp.1976), reads as follows:

Stacking of coverages prohibited. — If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

(Emphasis added.) It is important to note that our decision is of limited applicability since this statute was amended in 1980 to omit reference to uninsured motorist protection. Ch. 80-364, Laws of Fla.

Petitioner contends that section 627.4132, as it read between 1976 and 1980, is controlling in this case. It is asserted that a major purpose of the statute was to prevent an insured from purchasing one insurance policy to cover one vehicle and then also obtaining coverage on another vehicle regularly used in the insured’s household without the necessity of paying a premium. Petitioner argues that our decision in Mullis does not control in this case because the legislature invalidated the rule in Mullis when section 627.4132 was enacted in 1976. According to petitioner, the adoption of this statute represented a shift in legislative policy from broadening uninsured motorist protection to restricting such protection to vehicles specifically identified in an insurance policy.

Respondent argues, on the other' hand, that the scope of the uninsured motorist protection as defined by section 627.727 and interpreted by our decision in Mullis was not changed by the enactment of section 627.4132 in 1976. Further, respondent claims that our decision in South Carolina Insurance Co. v. Kokay, 398 So.2d 1355 (Fla.1981), interpreting section 627.4132 as barring coverage where multiple coverages are issued to the same named insured, also held that the only purpose of that statute was to prohibit the stacking of multiple coverages. Therefore, respondent contends, since this is not a multiple coverages case, section 627.-4132 is not applicable here.

We conclude that section 627.4132, as written when this action arose, had two purposes. First, the statute limited an insured to the coverage contained in the policy covering the vehicle involved in the accident. Second, the statute prohibited the stacking of coverages. We concur with the reasoning of the Second District Court of Appeal in Wimpee. Section 627.4132, Florida Statutes (Supp.1976), provides that an “insured is protected only to the extent of the coverage he has on the vehicle involved in the accident.” As the court in Wimpee said, “[w]e are unable to interpret this other than to provide for no coverage when the insured has no coverage on the vehicle involved in the accident.” 376 So.2d at 21. We also agree with the Wimpee court’s conclusion that Mullis does not control in this circumstance because it was based on section 627.727, Florida Statutes (1971), the uninsured motorist statute. The Third District Court of Appeal came to the same conclusion in State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979). In addition, the legislative staff analysis of the 1980 amendment of section 627.4132 states, in part, that, under the 1976 version of the statute,

the first sentence ties UM coverage to the particular vehicle insured under a policy. Thus if a person owned two cars but only carried UM coverage on one car, he would have no coverage if injured in his car which was not covered on the policy containing UM coverage. However, the second sentence permits recovery under any applicable policy when the person is injured in someone else’s car. Thus the injured person can recover under his own policy when injured in a friend’s car which is uninsured but cannot recover under his own policy when injured in his own car which is not covered by his UM policy.

House Committee on Insurance, Bill Analysis for House Bill 1315, chapter 80-364, Laws of Florida: Florida State Archives RG 920, Series 19, Box 532, file HB 1315.

We reject the district court’s conclusion that our decision in Kokay limited the applicability of section 627.4132 to situations involving the stacking of multiple coverages. Kokay involved a factual situation different from that in the instant case and our decision rested solely on our interpretation of the last sentence of the statute, which refers to the stacking of multiple coverages. Here, we are concerned with an interpretation of the first sentence of section 627.-4132.

Although we recognize that there may be a basis for disagreement on how section 627.4132 was intended to operate, we find that the reasoning of the Second District Court of Appeal in Wimpee and the Third District Court of Appeal in Kuhn should prevail. We conclude that the exclusion in the respondent’s parents’ policy is valid and that under section 627.4132, as written between 1976 and 1980, there is no uninsured motorist protection when the vehicle involved in an accident was not covered by the insurance policy on which the uninsured motorist claim is made.

For the reasons expressed, we quash the decision of the district court and direct reinstatement of the trial court judgment.

It is so ordered.

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

McDONALD, J., concurs in result only.

ADKINS, J., dissents.


author: OVERTON, Justice. BOYD, Justice,

text:
    Sergio ALVAREZ, et al., Petitioners, v. ALLSTATE INSURANCE COMPANY, Respondent.
    No. 62290.
    Supreme Court of Florida.
    Oct. 20, 1983.
    Edward A. Perse of Horton, Perse & Ginsberg, and Bernard Butts, Miami, for petitioners.
    W. Thomas Spencer of Spencer, Taylor & Homer, Miami, for respondent.
    Murray Sams, Jr. of Sams, Gerstein & Ward, and Marc Cooper of Greene & Cooper, Miami, for Richard Basten, amicus curiae.
    A. Dan Killian, Jr. of Corlett, Killian, Hardeman, McIntosh & Levi, and Gerald E. Rosser, Miami, for Fireman’s Fund Ins. Co., amicus curiae.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982). The district court certified this case as being in direct conflict with the Fifth District Court of Appeal’s decision in Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.1983). For the reasons expressed in that decision, we approve the decision of the district court in the instant case.

It-is so ordered.

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

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

BOYD, Justice,

dissenting.

Article V, section 3(b)(4) provides in part that this Court may review any decision of a district court of appeal “that is certified by it to be in direct conflict with a decision of another district court of appeal.” The decision before us was rendered without an opinion of substance, but with a statement certifying that the decision directly conflicts with another district court decision. We cannot tell from the face of the reported decision below what principle of law is in question. I believe that it is important to an exercise of our discretionary jurisdiction that we be able to tell from the face of the decision whether the district court’s certification of direct conflict is accurate. I do not interpret article V, section 3(b)(4) as allowing us to look at the record of the case in order to make that determination.

When the 1980 amendment to article V was proposed, the people of Florida were told that it would end the practice of looking into the record of a case to determine conflict of decisions. In order to create conflict, a decision must be accompanied by an opinion expressing, discussing, commenting upon, or relying upon a principle of law.

I therefore dissent on the ground of lack of jurisdiction.


text:
    Russell VETTER, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 63137.
    Supreme Court of Florida.
    Oct. 20, 1983.
    Edward A. Perse of Horton, Perse <& Ginsberg, and Bernard Butts, Miami, for petitioner.
    Betsy E. Hartley of Talburt, Kubicki & Bradley, Miami, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of, Appeal reported as Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla. 3d DCA 1982). The district court certified this case as being in direct conflict with the Fifth District Court of Appeal’s decision in Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla.1983). For the reasons expressed in that decision, we approve the decision of the district court in the instant case.

It is so ordered.

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

BOYD, J., dissents with an opinion.

ADKINS, J., dissents.

BOYD, Justice,

dissenting.

Article V, section 3(b)(4) provides in part that this Court may review any decision of a district court of appeal “that is certified by it to be in direct conflict with a decision of another district court of appeal.” The decision before us was rendered without an opinion of substance, but with a statement certifying that the decision directly conflicts with another district court decision. We cannot tell from the face of the reported decision below what principle of law is in question. I believe that it is important to an exercise of our discretionary jurisdiction that we be able to tell from the face of the decision whether the district court’s certification of direct conflict is accurate. I do not interpret article V, section 3(b)(4) as allowing us to look at the record of the case in order to make that determination.

When the 1980 amendment to article V was proposed, the people of Florida were told that it would end the practice of looking into the record of a case to determine conflict of decisions. In order to create conflict, a decision must be accompanied by an opinion that at least makes some statement about the law.

I therefore dissent on the ground of lack of jurisdiction.


text:
    BAPTIST HOSPITAL OF MIAMI and Corporate Group Service, Appellants, v. Delores PORTER and Division of Workers’ Compensation, Appellees.
    No. AQ-127.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1983.
    George O’Brien, Miami Shores, Steven Kronenberg of Adams, Kelley, Kronenberg & Rutledge, Miami, for appellants.
    Robert I. Spiegelman and Edward Schroll, Miami, for appellees.
   PER CURIAM.

We find substantial competent evidence supporting the deputy’s ultimate finding that claimant is entitled to temporary total and temporary partial benefits and so affirm his award. See Holiday Care Center v. Scriven, 418 So.2d 322, 325 (Fla. 1st DCA 1982). However, we remand this cause for further proceedings so that the deputy may complete his incomplete findings regarding the specific dates for which such benefits, respectively, have been awarded.

AFFIRMED but REMANDED.

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


author: ZEHMER, Judge.

text:
    Joseph P. INGLETT, Appellant, v. Flora Flo INGLETT, Appellee.
    No. AQ-306.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1983.

      Russell R. Stewart, Panama City, for appellant.
    Richard Ogburn, Panama City, for appel-lee.
   ZEHMER, Judge.

Joseph P. Inglett, the husband, appeals from a final judgment of dissolution of marriage. He contends that the court reversibly erred in ordering him to pay permanent alimony to his former wife, Flora Flo Inglett, and in ordering that he provide her with medical insurance coverage equivalent to that afforded under his present group policy. We affirm the permanent alimony award, but reverse, in part, the order concerning medical insurance.

In the final judgment, the trial court made findings that “the wife, for the reasons reflected by the evidence, is entitled to permanent alimony, and husband is well able to provide the wife with the same.” There is competent and substantial evidence in the record to support this finding by the trial court, and the husband has failed to show that the court abused its discretion in awarding the permanent alimony adjudged. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In the final judgment, the trial court also found that:

The Wife has had numerous health problems and is in need of medical and hospital insurance. The Husband currently has such coverage on the Wife through his employer, and, the Husband has agreed during the final hearing to maintain such medical and hospitalization coverage on the Wife. (Emphasis added.)

As a result, the court ordered, in paragraph 6 of the judgment:

For so long as Husband is required to pay alimony as set forth in this agreement [sic], he shall maintain such medical and hospital [sic] on his Wife as is presently available to him through his employer. If Husband changes employment or if the medical and hospital coverage is reduced or cancelled, he shall secure the equivalent coverage on the Wife. (Emphasis added.)

The court’s finding, implemented by its order, that the husband agreed to maintain medical and hospitalization coverage on the wife even if his group coverage were changed or cancelled is not supported by the evidence. On the contrary, the husband, when questioned whether he would continue to carry his former wife on the group medical insurance plan maintained through his present employment, answered as follows:

Q. After your divorce, can you carry your wife, your former wife?
A. I have no idea. I have to find out from the insurance company, but I have no intentions of taking her off of it unless, of course, it requires me or the insurance company requires me.
Q. If you can’t maintain her on that policy, do you have any objection to taking out an equivalent with that with someone else to cover her?
A. Me? Yes, I will not do it.
Q. So, if she was dropped from the policy, that amount would go down weekly, the amount for your insurance?
A. It would drop down $18 I believe.
(Emphasis added.)

The transcript clearly reflects that the husband only agreed not to drop his former wife from his present medical insurance policy with his present employer. He was uncertain whether the policy could cover her after the dissolution, and he emphatically refused to agree to obtain equivalent coverage from some other source if his present coverage were reduced or cancelled or if the wife were no longer permitted to be covered. The evidence also indicates that the wifes present employer provides group medical insurance but that the wife had not applied for such insurance. The record did not indicate that the wife would be unable to obtain coverage with her employer.

The effect of the trial court’s judgment requiring the husband to “secure the equivalent coverage,” being based upon a supposed agreement by the husband to do so, is not supported by the record. Even though the court could, in its discretion, order the husband to pay a reasonable amount for medical insurance premiums as part of the alimony award, Cyphers v. Cyphers, 373 So.2d 442, 445 (Fla. 2d DCA 1979), it was error for the court to require the husband to secure equivalent medical coverage without regard to the cost thereof in the absence of his agreement to that effect. Therefore, the final judgment must be modified to delete the last sentence (emphasized above) in paragraph 6 of the judgment.

The evidence indicates that the husband is now paying $18 per month for the medical insurance. Under the court’s continuing jurisdiction, the wife may, should the husband’s present group medical coverage on the wife be cancelled or reduced, reapply to the court for additional alimony to cover her medical insurance premiums and the court may grant the application in such amounts as the court determines to be reasonably appropriate and within the financial means of the husband, having due regard for the present cost of such coverage.

The final judgment is AFFIRMED in part, REVERSED in part, and REMANDED with directions to modify the final judgment in accordance with this opinion.

MILLS and SHIVERS, JJ., concur.


author: FRUGE, Justice. HAMITER, Justice PER CURIAM.

text:
    216 La. 519
    RED RIVER COTTON OIL CO. et al. v. TEXAS & P. RY. CO.
    No. 39205.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Jan. 9, 1950.
    Peterman & Burden, Alexandria, for defendant and appellant.
    Stafford & Pitts, Alexandria, for plaintiffs-appellees.
   FRUGE, Justice.

Defendant, the Texas and Pacific Railway Company, is appealing from a judgment in favor of the Red River Cotton Oil Company and its four insurers in the aggregate amount of $31,573.08, representing the value of four freight-car loads of copra destroyed in a fire at the oil company’s mill.

The undisputed facts of the case are that the copra was part of a consignment shipped from the Philippine Islands to New Orleans by steamship and from New Orleans to Alexandria, Louisiana, on the defendant railroad. When the cars arrived in Alexandria, on Sunday, February 9, 1947, they were moved by defendant’s switch engine onto the spur track which serves the plaintiff’s mill. It appears that the spur track although owned by the railroad, was maintained for the exclusive use of the plaintiff under a spur track agreement. The track enters the wire fence enclosing the mill grounds through a double gate about 687 feet from the switch point. The gates are kept locked when the mill is not operating and the plaintiff keeps the key. On the day in question, following the customary procedure, the engineer halted the train at the gates and blew the whistle as a signal for the oil mill employees to open them. The gates were opened and, at the direction of the oil mill employees, the cars were pushed into the oil mill enclosure, weighed one by one on the oil mill scales, and spotted on the track at the place designated by the oil mill employees. The switch engine was backed out and the gates were closed and presumably locked.

The oil mill was shut down on Sunday until 6 p.m. and the copra was not unloaded. At about 3:30 a.m. on Monday a fire broke out in the oil mill adjacent to the cars and four of the cars with their cargo were destroyed. There is some dispute as to the cause of the fire but we agree with the trial judge that it remains unknown. It is agreed that the free time for unloading had not elapsed.

The copra was shipped from New Orleans to Alexandria under bills of lading which, together with the applicable tariffs and classifications lawfully on file with the Interstate Commerce Commission, constitute the contract between the parties. V. Rivera S. En C. v. Texas & N. O. R. et al., 211 La. 969, 31 So.2d 180.

The common law development of the carrier’s liability as an insurer has been presented recently in detail by this court in the opinion by Chief Justice Fournet (then senior associate justice) in the Rivera case, supra. Undoubtedly, if that liability still attaches, the defendant is answerable for the loss. We have here the problem of determining whether, under the bills of lading, that liability was still in full force and effect when the loss occurred, or whether, by the delivery of the cars into the custody of the plaintiff, the -liability had ceased. The question is one of the intent of the parties as expressed in the bills of lading.

The pertinent parts of the bills of lading are quoted as follows:

“Contract Terms and Conditions
“Sec. 1, (a) The carrier or party in possession of,any of the property herein described shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided.
“(b) * * * The carrier’s liability shall be that of warehouseman, only, for loss, damage, or delay caused by fire occurring after the expiration of the free time allowed by tariffs lawfully on file (such free time to be computed as therein provided) after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination, or tender of delivery of the property to the party entitled to receive it, has been made * * *.
“Sec. 4, (a) Property not removed by the party entitled to receive it within the free time allowed by tariffs, lawfully on file (such free time to be computed as therein provided), after notice of the arrival of the property at destination or at the port of export (if intended for export) has been duly sent or given, and after placement of the property for delivery at destination has been made, may be kept in vessel, car, depot, warehouse or place.of delivery of the carrier, subject to the tariff charge for storage and to carrier’s responsibility as warehouseman, only, * * *

We are of the opinion that this case is controlled by the case of Michigan Central Railroad Company v. Mark Owen and Company, 256 U.S. 427, 41 S.Ct. 554, 65 L.Ed. 1032, in which the Supreme Court of the United States held that the carrier liable for the loss of goods under similar circumstances when shipped under a similar bill of lading.

In that case the car in question had been placed on a public siding or team track. The consignee had broken the railroad company’s seals, inspected the cargo, found it to be intact and begun unloading it. Before the cargo was completely unloaded, part of it was stolen. The bill of lading for the shipment provided in Section 1, “The carrier or party in possession, of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided.”

In Section 5 it was provided:

“Property not removed by the party entitled to receive it, within forty-eight hours exclusive of legal holidays, after notice of its arrival has been duly sent or given, may be kept in car, depot, or place of delivery of the carrier subject to a reasonable charge for storage and to carrier’s responsibility as warehouseman only * * *

Counsel for the railroad contended that the provision thus quoted was not to apply in cases where there had been a delivery of the car to the consignee and the consignee had assumed complete control of it, and that its liability had ceased. In disposing of this contention the court stated:

“The bill of lading is definite, as we have pointed out, in its provisions and of the time at which responsibility of the company shall be that of warehouseman, and by necessary implication, therefore, until that responsibility attaches, that of carrier exists.” [256 U.S. 427, 41 S.Ct. 556]

Defendant in the instant- case has attempted to distinguish the Michigan case from the case at bar by pointing out that in the instant case the cars had been placed on a private spur track within the locked enclosure of the consignee’s premises.

Although the Supreme Court did say in the opinion that the shipment had not been delivered, we do not believe that this statement formed the point upon which the decision turned. As we interpret the decision it rests upon the proposition that the bill of lading indicated an intention on the part of the parties thereto to fix the liability of the carrier as that of an insurer until the operation of Section 5 of the bill should convert it to that of warehouseman.

A similar intent is indicated by the terms of the instant bill of lading quoted above, especially when considered with the report of the hearing before the Interstate Commerce Commission at which the present bill of lading was originally adopted and prescribed for all carriers within the commission’s jurisdiction. See In the matter of Bills of Lading, 52 I.C.C.R. 671 (1919). The report reveals that the commission’s action was taken after a hearing in which the major carrying, as well as the major shipping, interests of the country were represented, the purpose of all concerned being to establish a uniform bill of lading which would be fair and acceptable to both the shipping and carrying interests.

Prior to the hearing the shippers and carriers had met in -committee and agreed upon most of the terms of the 'bill. At the hearing the arguments were presented pro and contra the disputed clauses. We have studied that report in an effort to determine the intent of the parties to that hearing in submitting, supporting or opposing the various clauses which were in contest and to determine the purpose of the commission in adopting the provisions which it adopted and which make up the standard form of the bill of lading which is the immediate predecessor to the bills presently under consideration.

The .first clause in the bill of lading adopted by the commission was agreed upon by both shippers and carriers as follows :

"Sec.- 1. The carrier, or party in possess sion of any of the property herein described shall be liable for any loss thereof or damage thereto except as hereinafter provided. * * * ”

In effect it prescribes a general and absolute liability for loss, which, of course, will remain in force as long as the contract is in force, with the exceptions thereafter provided. This was in keeping with the carrier’s common law liability as an insurer, first laid down by Lord Holt in the case of Coggs v. Bernard, 1 Smith’s Leading Cases 369. The next clause with which we are concerned deals with one of the exceptions to the general liability, namely, the change from the general and absolute liability prescribed in the first clause to that of a warehouseman, which change would occur at the expiration of the free time after notice of arrival and placement for delivery. The terms are exactly the same as those used in the bills of lading in the instant case. From examination of the report of the hearing we conclude that it was well understood by everyone concerned that this clause, which was submitted by the carrier in substantially the same form as adopted, was to have the effect of removing the uncertain and nebulous aspect of the law as to the point at which the carrier’s liability as an insurer ended. In the first place, as the commission pointed out in yielding to the carrier’s insistence that this clause be adopted, there were three rules which prevailed in various jurisdictions in the United States as to the time when the carrier’s liability terminated. Moreover, termination of liability was in many instances dependent on the uncertain concept of “a reasonable time” from notice and placement for delivery. We think the carriers were deliberately sacrificing their defense of “delivery”, which so often was determined against them, in an effort to fix a definite time limit to their liability. We cannot agree with defendant’s position that this clause was to apply if, and only if, the car and cargo remained in the possession of the carrier during the time prescribed.

Our view is supported by the proposal of the carriers, adopted by the commission with unimportant modifications and appearing as adopted in Section 4(a) of the instant bills of lading, to the effect that the consignee could leave the cargo in the cars in which it was shipped after the expiration of the free time, “subject to the tariff charge for storage and to carrier’s responsibility as warehouseman only.” It is not suggested by the defendant, that the railroads did not intend to charge demurrage fees if the cars were under the control of the consignee at the expiration of the free time. This clause would certainly apply regardless of custody and control and the liability as warehouseman would certainly attach. We think that if, as is obviously the case, it is intended that the contract should remain in effect until the demurrage charges become operative, then the general liability prescribed in the first clause of the contract must remain in effect unless lifted by some specific provisions of the contract. This view is further 'borne out by the carriers’ efforts to introduce a clause which would terminate their liability for shipments placed for delivery on private spur tracks, at the time when the cars were uncoupled. The commission refused to adopt that provision.

The Matter of Bills of Lading was again considered by the commission in 1921 and reported in 64 I.C.C.R. 357. We refer to this report for two reasons. In the first place, we-find that our appreciation of the effect of the bill of lading adopted by the commission at the earlier hearing was shared 'by at least one group of carriers, for the commission notes at page 360 that the western carriers complained of “Extending -carrier’s liability as insurer during ‘free time’ and after ‘placement’ for delivery.”

Our second reason for referring to this report is that we find there an explanation for the change which represents the only material difference between the bills of lading in the instant case and the one originally adopted by the commission in 1918 that is insofar as pertinent to the issues of this case. We refer to the insertion of the words “as at common law” in the general liability clause. (Compare the quotation of the clause in the instant bills with that of the bill originally adopted by the commission.) Defendant apparently regards this phrase as a reference to the common law to determine liability, not only as to its extent in the sense of coverage or the causes of loss which are included in the liability, but also as to the extent in the sense of duration or the time during which the liability attaches. We think the change was made in response to the objection of the western carriers to the “use of the first sentence of the current bill, requiring the carriers to contract that they will insure aga-inst everything not specifically exempted by the conditions.” That is, after the insertion of the phrase “as at common law” if a loss was due to a cmtse which would not have rendered the carrier liable at common law, it would not be liable under the bill of lading, even though this was not specifically excepted therein. The provisions with respect to the time at which the liability ceased were not changed despite the carriers’ protests.

Defendant has cited texts and cases in other jurisdictions to support its defense. The texts are inapplicable as they all refer to the liability at common law whereas here we are dealing with a contractual obligation. The same thing is true of Arthur v. St. Paul & D. Ry. Co., 38 Minn. 95, 35 N.W. 718; Black v. Ashley, 80 Mich. 90, 44 N.W. 1120; Whitney Manufacturing Co. v. Richmond & D. R. Co., 38 S.C. 365, 17 S.E. 147, 37 Am.St.Rep. 767; Rothchild Bros. v. Northern Pac. Ry. Co., 68 Wash. 527, 123 P. 1011, 40 L.R.A.,N.S., 773. So far as the records of those cases appear either there was no bill of lading or, if there was, it had no stipulation as to the duration of the carrier’s liability as an insurer. The bill of lading in Vaughn v. New York, N. H. & H. R. Co., 27 R.I. 235, 61 A. 695, specifically excluded the loss by fire from the carrier’s liability. In Ward v. Pere Marquette Ry. Co., 231 Mich. 323, 204 N.W. 120, the court was deciding whether there had been a conversion of the goods by the carrier’s delivering them to the wrong paity. It was admitted in Gus Datillo Fruit Co. v. Louisville & Nashville R. Co., 251 Ky. 566, 65 S.W.2d 683, that the carrier’s liability as an insurer had ceased. It is possible that the other two cases cited by defendant, Southern Advance Bag & Paper Co. v. Terminal R. Ass’n, Mo.App., 171 S.W.2d 107 and Queen Ins. Co. v. Galveston, H. & S. A. Ry. Co., Tex. Civ.App., 290 S.W. 286, are contrary to our holding in the instant case. The terms of the bills of lading are not quoted but'they are referred to as standard bills of lading and the facts are similar to the case at- bar. If this is true, we can only say tha.t we do not feel free to ignore the plain language of the contract between the parties to this suit, in order to follow the cases cited.

The defendant complains strongly of the court’s ruling out certain testimony which was sought to be introduced in support of defendant’s allegation that the fire started as a result of the faulty operation of the defendant’s mill. The court refused to allow the defense attorney to question witnesses as to what they had been told by the mill laborers as to the origin of the fire. This was obviously hearsay and was properly excluded. The court also refused to allow the defendant to introduce a statement made and signed by the then secretary-treasurer of the oil mill. As we understand the statement thus excluded it could have amounted to no more than a guess by the witness as to the cause of the fire, and would not have been very persuasive. We do not think the defendant was prejudiced by the ruling.

The defendant has made a final plea as to the harshness of the law which directs an affirmance of the judgment. It is not a law but a contract and we must interpret it as it was written.

Defendant has not questioned here the amount of the damages.

Judgment affirmed; defendant is to bear the costs of this appeal.

HAMITER, J., dissents and will assign written reasons.

HAMITER, Justice

(dissenting).

It cannot be-gainsaid that the cars in question, together with their contents, were delivered to plaintiff prior to their destruction. At the time of the fire they were in the full custody and control of plaintiff, to the exclusion of every one else; they were neither actually nor constructively possessed by defendant. The custody and control was so complete in plaintiff, by virtue of the cars’ being under lock and key managed by the latter, that the defendant could not have, prevented the loss even had it received timely notice of the commencement of the blaze in the warehouse.

Unless there be contractual provisions to the contrary governing this case (the delivery having taken place), the defendant is not responsible. Generally speaking, the liablity of a common carrier as an insurer of the property entrusted to it for transportation “ * * * endures from the shipment of the goods until their arrival at their destination, and continues thereafter until, but only until, the carrier has made an actual delivery of the property, in good condition, or has done that which may be considered an equivalent to, or a substitute for, such delivery.” American Jurisprudence, verbo Carriers, Section 667.

The majority opinion holds the defendant responsible on the theory that the bills of lading (admittedly contracts between the parties) render the carrier liable as an insurer- -when, as in this case, the fire occurs during the stipulated free time for unloading. But those bills of lading, I maintain, are inapplicable here. They, with reference to the contracted liability during free time, pre-suppose possession, custody and control of the goods by the carrier at the time of the loss; that which, as above shown, this defendant did not enjoy.

That the bills of lading contemplate only a loss occurring before delivery clearly appears from the provisions thereof quoted in the majority opinion. Thds, Section 1 (a) states: “The carrier or party in possession * -/ * * shall be liable * In Section 1(b) we find: “ * * * after placement of the property for delivery at destination, or tender of delivery of the property to the party entitled to receive it, has been made * * *.” And'in Section 4(a) it is said: “Property not removed by the party entitled to receive it within the free time * * * after placement of the property for delivery at destination has been made * * The emphasized language, obviously, would not have been used in the contracts if the liability of the carrier were intended to continue after the effecting of delivery. (Italics mine.)

The case of Michigan Central Railroad Company v. Mark Owen and Company, 256 U.S. 427, 41 S.Ct. 554, 556, 65 L.Ed. 1032, which the majority holds to be controlling of this litigation, is readily and easily distinguishable in that therein the goods were stolen prior to their delivery. To quote from the opinion rendered in that case: “* * * The property here was not delivered; access was only given to it that it might be removed, and 48 hours were given for the purpose. Pending that time it was within the custody of the railroad company, the company having the same relation to it that the company acquired by its receipt and had during its transportation.”

The cars containing the goods in the Michigan case, the opinion therein further shows, were located on a public delivery track of the railroad; hence, they were available to the carrier for inspection and even removal if and when it saw fit. The same cannot be said about the cars of copra in the instant case, which, at the time of their loss, were under lock and key and exclusively' controlled by plaintiff.

I respectfully dissent.

On Application for Rehearing.

PER CURIAM.

The defendant, Texas and Pacific Railway Company, strenuously urges on application for rehearing that under the facts in the instant case the railroad had made delivery of the shipment of copra before the fire occurred, and that under the terms of the bill of lading all liability of the railroad had ceased. After careful consideration of this contention of defendant, we are of the opinion that the railroad was in possession of the crops, and that a placement for delivery only had been made, for the reason that the copra was still in the cars of the railroad company. If no fire had occurred and the shipment had not been unloaded within the free time, there is no doubt that the consignee would have been liable for tariff charges for storage under the terms of the bill of lading. It is conclusive to us that under this 'bill of lading, as long as the copra remained in the cars of the railroad, the railroad was to be either a carrier or a warehouseman to the consignee, and, since the free time had not elapsed, it was a carrier under the provisions of the bill of lading. We adhere to our original opinion that the Michigan Central case is controlling here.

Rehearing denied.

HAMITER J. adheres to the reasons assigned in his dissenting opinion.