text:
    Philip C. TREADAWAY v. Allen E. AMUNDSON.
    No. 20666.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.

      Guy L. Deano, Jr., New Orleans, for defendant-appellant.
    Polaclc & Rosenberg, Samuel I. Rosenberg, New Orleans, for plaintiff-appellee.
   LOUIS H. YARRUT, Judge ad hoc.

Defendant-owner appeals from an adverse judgment in favor of plaintiff-agent for a real estate agent’s commission, less a credit for an amount paid on account of the commission by the prospective purchaser. Plaintiff-agent answers the appeal and seeks amendment of the judgment to allow him the full commission.

In pursuance of his employment plaintiff-agent obtained a signed offer for the purchase of defendant-owner’s real property on the terms and conditions set forth in the sales agreement. The agreement was subject to a loan by a building and loan, or any other lending institution, to be procured by the purchaser, on specified conditions relative to amount, term and rate of interest. A building and loan association agreed to make the loan on terms satisfactory to both parties, provided an outstanding mineral interest recorded against the property be first cancelled. This mineral interest was not cancelled up to and through the expiration date of performance fixed in the agreement. The purchaser then declined title as unmerchantable and suggestive of litigation and demanded the return of his deposit in another proceeding, to which defendant-owner was not made a party.

The District Court found, and the record amply supports its finding, that the sale was not consummated solely because defendant-owner was unable to tender a valid and merchantable title acceptable to the lending association, due to the outstanding mineral interest.

It cannot be gainsaid that a purchaser is not required to accept title to property encumbered with an outstanding adverse mineral interest.

Our jurisprudence is well-settled that a real estate agent is entitled to his commission only when he procures a purchaser ready, able and willing to take title on the terms and conditions specified by the owner. The inability of the owner to deliver valid title does not relieve him of the obligation to pay the commission, unless such inability develops after the agreement of sale and purchase is executed, and for which he is not responsible, and over which he has no control. Mathews Bros. v. Bernius, 169 La. 1069, 126 So. 556; Leaman v. Rauschkolb, La.App., 1 So.2d 338; Cotter v. Figaro, La.App., 36 So.2d 291; Walker v. Moore, La.App., 68 So.2d 222; Cox v. Green, La.App., 70 So.2d 724.

Concerning amendment of the judgment to allow plaintiff-agent the full commission, we find the facts to be these: When defendant-owner was unable to deliver valid title, the purchaser filed suit against plaintiff-agent for the return of his deposit. Defendant-owner was not made a party to that suit. That suit was compromised, whereby plaintiff-agent returned the deposit to the purchaser, who paid the former $500 on account of his commission. The District Judge allowed the contractual commission of $1,329 less a net deduction of $400, since $100 was for attorney’s fees, and rendered judgment for the balance, plus interest and attorney’s fees.

At the time of this compromise, the purchaser was exposed to a contingent legal liability for the payment of the agent’s full commission under a provision of the purchase agreement reading:

“Either party hereto who fails to comply with the terms of this offer, if accepted, is obliged to pay the Agent’s commission and all fees and costs incurred in enforcing collection and damages.”

The plaintiff-agent was entitled under his contract to one commission only, and when he accepted payment on account from the purchaser, without reservation, and without any assignment or subrogation to the purchaser for such payment, his commission was satisfied pro tanto and he can now recover only the balance as was allowed by the District Court.

Accordingly, the judgment appealed from is affirmed at the cost of appellant.

Affirmed.


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    Nelson WATSON v. T. SMITH and SON, Inc.
    No. 20777.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Rehearing Denied June 25, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      Claude F. Kammer, New Orleans, for plaintiff and appellee.
    Clem H. Sehrt, Edward J. Boyle and Dudley A. Philips, Jr., New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff sustained an injury as the result of an accident while working for defendant as longshoreman on May 19, 1955, and he brings this suit for workmen’s compensation alleging that the accident rendered him totally and permanently disabled. That there had been some disability is not contested and the suit is defended on the ground that plaintiff is not now disabled to any extent and is fully competent to return to the duties of his employment, and, alternatively, if the court should find that plaintiff actually suffers a disability at present, it is limited to and results from a recurrent ganglion of the dorsum of the left wrist which condition can be completely eliminated by means of minor surgery which defendant has recommended, tendered, and offered to plaintiff but which he has arbitrarily and unreasonably refused.

The trial judge concluded, after hearing the evidence, that plaintiff was totally and permanently disabled from doing work of any reasonable character and he gave plaintiff a judgment for compensation at the rate of $30 per week for the period of his disability, however, not beyond 387 weeks. Thirteen weeks’ compensation had already been paid by the employer. Defendant has taken this appeal.

Plaintiff’s injury occurred when a large skid slipped and forced his left hand and wrist backwards or as one of the physicians put it “jammed his wrist in dorsiflexion.” On the fourth day after the accident he was sent to Owens Clinic in New Orleans and his condition was diagnosed as a ganglion in the left wrist. We understand a ganglion to be a cystic mass situated near a joint, the mass being elevated because its sac contains joint fluid. The medical testimony is to the effect that some ganglions are of a painful nature.

On May 30, 1955, plaintiff’s ganglion was removed by surgery performed by Dr. Mark Gorney under a general anesthetic, and Dr. Gorney continued post-operative treatment until June 14, 1955. He concluded then that nothing more could be done for plaintiff so he discharged him for return to work the following day. Plaintiff never attempted to resume his employment and his testimony is that the operation failed to improve his condition. Shortly afterward he reported back to Owens Clinic, making the same complaints as before, and was referred to Dr. Daniel C. Riordan for an orthopedic examination.

Plaintiff has received no medical care whatever since the termination of Dr. Gor-ney’s treatment in June of 1955. Dr. Rior-dan, to whom he had been sent by Owens Clinic, saw plaintiff twice but only for the purpose of examination. Drs. O. L. Pollin-gue and Harry D. Morris, both orthopedists, also examined but did not treat plaintiff.

Dr. Pollingue appeared as a witness on behalf of plaintiff while Drs. Gorney, Rior-dan and Morris testified as defense witnesses. Not only do there appear in the record the usual disagreements as between plaintiff’s expert and those appearing for the defense, but it appears that the defense experts sharply disagree amongst themselves as to what the present condition of plaintiff really is. Drs. Pollingue and Riordan are of the firm opinion that plaintiff has a recurring ganglion on his left wrist which should be removed by surgical means under a general anesthetic. Drs. Gorney and Morris are as equally positive there is no ganglion.

Dr. Pollingue thought there was a limitation in the motion of the wrist due to the strain-type of injury plaintiff has sustained as well as the ganglion. He admitted that sometimes it is possible for a person with a ganglion to go to work and it could be that if plaintiff tried he might return to his long-shore duties, but he made it clear that plaintiff would experience pain as the result of the activities. However, his conclusion was that the ganglion called for surgical treatment. Dr. Riordan attributed plaintiff’s limitation of flexion of the wrist to the presence of the ganglion and because of the fact that the patient had been holding his wrist in an extended position and had not been actively exercising it. He believed that plaintiff could work and that while he might suffer discomfort at first, it would disappear altogether in due time. He and the other physicians are in accord that the duties of one’s work act as excellent physiotherapy. Dr. Gorney’s unqualified statement was that there was no reason at all why plaintiff could not pursue his occupational duties. He found no recurring ganglion and stated that there was good motion in plaintiff’s wrist and with finality dismissed plaintiff’s complaints of pain by saying that “it is of a subjective nature.” Dr. Morris thought plaintiff has some disability probably as the result of surgery and disuse of the hand and expressed the opinion that whatever limitation of movement there was would improve with actual use of the extremity.

An interesting aspect of the medical evidence is the extremely divergent views expressed by Dr. Pollingue and Dr. Gorney. They both examined plaintiff’s wrist in the courtroom during the course of the trial and under the eye of the judge. Dr. Pollingue could see the recurring ganglion while Dr. Gorney was certain there was not only no ganglion but that nothing at all was wrong with plaintiff. Dr. Pollingue perceived a limitation of the wrist and believed that plaintiff’s complaints of pain were genuine even though it did appear to him that plaintiff was “holding back” or exaggerating his condition to some extent during the examination.

Another feature of the case which we find odd is why Dr. Riordan would recommend the surgical removal of the ganglion despite his opinion that whatever defect there was in the wrist, including the ganglion, would entirely disappear in time as a result of plaintiff’s activities if only he would return to work. The doctor when interrogated about this made this statement:

“Occasionally one of those things will disappear with time, but I can’t say whether this would disappear or not.
* * * The reason that surgery was recommended on him was that I think that it would be the shortest way of getting the man over his pain which was the main thing he complained about.”

The quoted testimony is irreconcilable with a pertinent and emphatic statement Dr. Riordan had made previously. He first asserted he thought the ganglion would disappear with use of the wrist but subsequently he made the flat assertion that he is unable to say whether plaintiff’s ganglion “would disappear or not.”

There is another manifest inconsistency. Dr. Riordan estimated that it would require a period of from four to eight weeks’ time for plaintiff to attain the normal and free use of the wrist without pain if he returned to his employment, and his estimation of the time required for convalescence after removal of the ganglion by surgery would be “not less” than nine weeks. Thus, although Dr. Riordan suggested surgery because he believed it to be the “shortest way of getting the man over his pain,” it turns out that surgery would not be the “shortest way” after all. Frankly we are completely at a loss to follow Dr. Riordan’s line of reasoning.

We are certain there is a recurring ganglion on plaintiff’s wrist and we are equally as sure that plaintiff cannot do the heavy duties required of a longshoreman without pain unless his condition is corrected by the surgical operation recommended by Drs. Pollingue and Riordan. The latter’s statement that surgery would be the “shortest way of getting the man over his pain” is very significant and strongly indicates that plaintiff, if he were to attempt to go back to his occupational duties, would suffer real and actual pain not as a result of mere disuse of the wrist, but rather because the ganglion is of the painful type. We think Dr. Riordan recognized this. Therefore, we are constrained to hold that the painful condition which the ganglion occasions in effect permanently and totally disables plaintiff, within the purview of the Workmen’s Compensation Statute, LSA-R.S. 23:1021 et seq., from returning to his former or a similar occupation. The law does not expect and it does not contemplate that a workman in order to make a living must do his work in pain. See Brannon v. Zurich General Accident & Liability Ins. Co., 224 La. 161, 69 So.2d 1.

In view of the alternative defense, it is necessary now to determine whether the injured workman’s unwillingness to submit to the operation for the removal of the ganglion tendered by the employer is unreasonable or arbitrary. In order to decide the question all of the surrounding conditions and circumstances must be inquired into as each case involving the precise question must be decided on its own peculiar set of facts.

First let us say there is no provision of law making the requirement that an injured workman must submit to a surgical operation as a prerequisite to recovering compensation. But there are in the jurisprudence established by the Courts of Appeal of this state several cases wherein it appeared that the surgical operation was relatively simple and that the advantages to be procured thereby were so nearly certain that it was held that the claimant should be required to undergo the operation. See French v. Employers Mut. Liability Ins. Co. of Wisconsin, La.App., 70 So.2d 179; Fredieu v. Mansfield Hardwood Lumber Co., La.App., 53 So.2d 170; Leday v. Lake Charles Pipe & Supply Co., La.App., 185 So. 655.

In 1921 the Supreme Court recognized that there is such a thing as an injury curable by an operation so simple and unattended by risk that the real cause of the disability would not be so much the injury as the not making use of the easy remedy for it at hand. See Bronson v. Harris Ice Cream Co., Inc., 150 La. 455, 90 So. 759.

But the injured workman is not required to resort to a surgical operation of a serious nature and more particularly when it is doubtful that material advantages will flow from the operation and redound to the benefit of the workman. Courts are reluctant to require injured litigants to submit to surgery. See Simmons v. Blair, 194 La. 672, 194 So. 585; Fredieu v. Mansfield Hardwood Lumber Co., supra; Yarbrough v. Great American Indemnity Co., La.App., 159 So. 438.

When we come to consider the facts of the case before us, we could not hold otherwise than that plaintiff in persisting in his refusal to submit to the tendered operation is not unreasonable or capricious and that he is fully within his rights as regards the position he takes. Plaintiff has no assurance whatever that the operation even if successful would bring permanent or material salutary results. On the contrary, the weight of the expert testimony shows that the operative procedure might all have been in vain because in a goodly percentage of cases ganglions recur. Plaintiff himself had just such an unfortunate experience. In spite of all of Dr. Gorney’s skill with his surgeon’s knife, the plaintiff is now before us with his original complaints. It was clearly pointed out by Dr. Pollingue that a ganglion might recur again and again and that with each successive operation more and more fibrosis (scar tissue) would form at the site. Thus it is apparent that there exists the possibility that instead of benefiting the patient the recommended operation might in reality cause his condition to deteriorate considerably. Another reason for saying that plaintiff’s unwillingness to be operated upon is not the result of unreasonableness or caprice is that to undergo such surgery as is tendered would be to assume not merely fancied but the actual risks of a serious operation. The removal of a ganglion is not at all a simple matter. When asked if it was, Dr. Pollingue made this reply:

“I would say no. It is not one of the larger cases, by a long shot, but it is a good sized case, since the ganglion usually goes down into the joint itself, to the wrist joint.”

Moreover, it is well known that a general anesthetic is fraught with appreciable risk to one's life. See Bronson v. Harris Ice Cream Co., Inc., supra; Wolf v. Louisiana Milk Products Co., Inc., 8 La.App. 657.

The judgment appealed from is affirmed.

Affirmed.


author: LOTTINGER, Judge.

text:
    Cursey ORTEGO v. SOUTHERN INDUSTRIES CO.
    No. 4216.
    Court of Appeal of Louisiana. First Circuit.
    May 25, 1956.
    Gist, Murchison & Gist, Alexandria, for appellant.
    Tate & Fusilier, Ville Platte, Jacque B. Pucheu, Eunice, for appellee.
   LOTTINGER, Judge.

This suit was filed by Cursey Ortego against Southern Industries Company for Workmen’s Compensation for injuries sustained by petitioner while working as an employee of said company. The Lower Court awarded compensation payments at the rate of $30 per week for a period from August 3, 1953 through March 10, 1954. The defendant has taken this appeal.

The defendant admitted that petitioner worked for the company and that his weekly wage was such that his compensation payment would be $30.00 per week, if any. The petitioner admitted that his disability terminated as of March 10, 1954.

The petition alleges that petitioner was injured on July 13, 1953. His testimony is to the effect that at about 9:30 o’clock on a Monday morning, he was pulling a dolly filled with paper when he slipped and fell, striking his back and head. He immediately complained to persons with whom he was employed and was taken to the defendant’s doctor, Dr. Charles Saint. Dr. Saint examined the petitioner and told petitioner to return home and rest. Following the advice of the doctor, petitioner returned to his home in Ville Platte, riding in a car with Hillard Guillory, Conrad LaFleur, Walter Vidrine and Elius Vidrine, all of whom testified that petitioner was complaining of a back injury.

The following day, petitioner was examined by his own doctor, Dr. R. E. Dupre of Ville Platte, who diagnosed the injury as “lumbosacral strain with possible ruptured disc.” He was placed in Dr. Dupre’s hospital where he remained for six days. During this period he was given extensive medical treatment. On August 10, 1953, petitioner returned to consult with Dr. Saint, who made an appointment for him to be examined by Dr. P. M. Davis, Jr., an orthopedic surgeon of Alexandria, Louisiana. Dr. Davis diagnosed petitioner’s injury as an “acute lumbosacral strain,” and felt that he should be able to return to light work in two or three weeks, and full duty in about four weeks.

After being examined by Dr. Davis, petitioner again returned to consult with Dr. Saint. On this occasion they had words which ended when Dr. Saint told petitioner to leave his office and not return. It appears from the evidence that petitioner was not cooperative with Dr. Saint’s examination, and refused to be hospitalised in Elizabeth or Alexandria.

On this same date petitioner returned to Ville Platte where he was again hospitalized by Dr. Dupre until August 23, 1953. After his discharge from the Dupre clinic, petitioner continued to make frequent visits to the clinic through March 1, 1954. On September 3, 1953, he was sent to Dr. Meule-man for his orthopedic examination, and later returned to Dr. Meulcman for an additional examination on September 28, 1953. Dr. Meuleman also found the back injury, which was improved on his last examination of September 28, 1953.

As stated above, Dr. Dupre treated petitioner until March 1, 1954. Dr. Dupre testified that petitioner was continuously disabled from the date of the accident until such time as he went back to work sometime in March, 1954.

The Lower Court awarded compensation to petitioner in the amount of $30 per week from August 3, 1953, through March 10, 1954. The Court also awarded medical expenses in the amount of $504.27.

Several points have been raised for decision by this Court. These points are as follows:

(1). Did petitioner prove that he sustained an accident causing injury on the date and time alleged in his petition?

(2). If petitioner did sustain such injury, what was the extent and duration of disability resulting therefrom ?

(3). If petitioner did sustain such injury, is he barred from recovery because he refused to submit to a physical examination or for not going to a specific hospital suggested by defendant’s doctor ?

(4). Are the medical expenses unreasonably high, and do they include treatment for complaints not caused by the accident?

(5). Is petitioner entitled to penalties and attorney fees for the alleged arbitrary and capricious refusal of defendant to pay compensation and medical benefits?

The first question concerns the date of the accident. It was alleged in the petition that the accident occurred “on or about July 13, 1953.” The facts show, however, that the accident occurred on August 3, 1953. This date is established by the records of Dr. Saint, to whom the petitioner immediately reported after the accident, and also by the employment records of the company which show that this was the last day that petitioner worked. The defendant claims that the error in date was fatal to the petitioner’s case, in that it was conclusively shown that no accident occurred to petitioner on said date.

The Lower Court did not believe that the error was such as to mislead the defendant. The allegation in the petition states that the accident occurred “on or about the 13th day of July, 1953, in the course of his employment with the defendant, in Allen Parish, while attempting to pull a loaded dolly, your petitioner slipped and fell backwards on his back, neck and head, causing him severe pain, and he was immediately treated by Dr. Saint of Elizabeth, Louisiana.” The company records conclusively show on what date petitioner complained to the company doctor, and further show on which date the petitioner stopped working. We do not believe that the date was sacramental, particularly in view of the fact that it was alleged to have occurred “on or about” a certain date, and for the further fact that the company had full knowledge of the accident. The record shows that petitioner’s foreman made a report of the accident for the company.

Defendant cites Burk v. Gulf Refining Co., La.App., 171 So. 135, in support of its claim that the error in date was fatal. We do not believe that the holding of the Burk case would apply here. In the Burk case, the date was specific, whereas here it was alleged “on or about.” Furthermore in the Burk case it was not shown that the company had full knowledge of the accident, whereas in the instant case the defendant had complete and full knowledge of the accident alleged. We, therefore, concur with the Lower Court’s holding that the error in date was not fatal, and that defendant was in no way prejudiced by the admission of evidence indicating that the accident occurred on August 3, 1953.

As to the extent and duration of the disability, we feel that the record shows that petitioner suffered a lumbosacral strain which persisted from the date of the accident until the petitioner returned to work in March of 1954. True there was some discrepancy as to when petitioner would be able to return to work, but this discrepancy was caused by the fact that some of the doctors merely examined the petitioner on one occasion or two, and that they then stated that he should be able to return to his regular work within a certain period of time. Dr. Dupre, who treated petitioner throughout the injury testified that he was unable to return to work until such time as he actually returned to work, which was on March 10, 1954. We, therefore, feel that the Lower Court was correct in its conclusions on this point.

As to petitioner’s refusal to submit to a physical examination, and to accept hospitalization, by the company doctor, the record shows that petitioner returned to Dr. Saint for an examination on August 13, 1953. Dr. Saint offered petitioner hospitalization in his hospital in Elizabeth or Alexandria. Petitioner, however, refused to be hospitalized in either of those places and insisted that he be returned to Ville Platte. He further refused to be examined by Dr. Saint. The record shows that, immediately following said incident, petitioner returned to Dr. Dupre and was placed in Dr. Dupre’s clinic for further treatment. As to this point, the Lower Court said:

“In short plaintiff was obstreperous, he would not cooperate with Dr. Saint in the physical examination; he would not consent to be hospitalized at Elizabeth or in Alexandria but insisted on hospitalization in Village Platte. However, as against these facts it must be noted that plaintiff had sustained an accident while working for defendant; that he had sustained a lumbo sacral strain as a result of it; that defendant’s Dr. Davis an orthopedic surgeon of Alexandria had examined plaintiff on August 10 and-had found that plaintiff was suffering from an acute lumbo sacral strain.which would disable him for several more weeks; that Dr Saint knew that Dr. Dupre in Ville Platte had been treating plaintiff; that Dr. Saint knew that when plaintiff left his office on August 13, he was returning to Dr. Dupre’s Clinic for further hospitalization. Under these circumstances it appears- to this court that before defendant can deny all liability to the plaintiff on these grounds, defendant should put plaintiff on notice as to the effect of his actions and state positively in writing that if plaintiff refuses certain tendered treatment, that defendant intended for that reason to deny all liability.”

We feel that the Lower Court was correct in the above reasoning and its decision on said point will be affirmed.

The record shows that the medical expenses, as claimed by petitioner, were high. Dr. Dupre’s total bill was in the sum of $728.90. This included Dr. Meuleman’s examination and x-rays which totaled $55. It appears that the bill included certain treatment which was not required by petitioner’s accident. Although it was difficult to determine the amount of said treatment, the Lower Court reduced Dr. Dupre’s bill to the sum of $449.27 plus $55 for Dr. Meuleman’s services.

As to the question of penalty and attorney fees for defendant’s refusal to make compensation payments, we do not feel that same would apply to this factual situation. The law limits the payment of penalty and attorney fees to suits against insurance companies. Here the suit is against the employer company itself, and so the Lower Court was correct in refusing to allow penalty and attorney fees.

In general, we feel that the Lower Court rendered a very competent and well reasoned opinion. We have been unable to find any error therein, and, therefore, the decision, below will be affirmed.

For the reasons assigned, the decision of the Lower Court is affirmed, all costs to be paid by defendant.

Judgment affirmed.

TATE, J., was recused, and PRESTON L. SAVOY, acted as Judge ad hoc.


author: REGAN, Judge. JANVIER, Judge

text:
    Robert GREEN v. CITY OF NEW ORLEANS (Department of Public Health).
    No. 20696.
    Court of Appeal of Louisiana. Orleans.
    June 11, 1956.
    Rehearing Denied June 27, 1956.
    Writ of Certiorari Denied Sept. 28, 1956.

      Burton G. Klein, New Orleans, for plaintiff-appellant.
    Henry B. Curtis and John F. Connolly, New Orleans, for City of New Orleans, defendant-appellee.
    Frank J. Stich, Jr., New Orleans, curator ad hoc.
   REGAN, Judge.

Plaintiff, Robert Green, a colored adoptive applicant, instituted this suit against the defendant, City of New Orleans, Bureau of Vital Statistics, endeavoring to obtain a writ of mandamus compelling the defendant to change the race, as revealed in the birth certificate of Jacqueline Ann Henley, age about four and a half years, from white to colored or to show cause why such change should not be made; plaintiff then requested that a curator ad hoc be appointed by the court to represent the interest of the minor child.

No answer appears in the record on behalf of the Bureau of Vital Statistics, however, Frank J. Stich, Jr., the curator ad hoc answered and generally denied the pertinent allegations of plaintiff’s petition.

From a judgment in favor of defendant dismissing plaintiff’s suit, he has prosecuted this appeal.

The chronological facts are relatively simple. On November 2nd, 1950, Ruby Henley Preuc, a white woman gave birth to a female child, Jacqueline Ann Henley while confined in the Charity Hospital of New Orleans. Three weeks after the birth of the child Ruby Preuc brought it to the home of her sister, Mrs. Harold McBride. The identity of the child’s father was never revealed to anyone by its mother and, therefore, he is, at present, unknown. On October 11, 1952, Ruby Preuc died of a brain tumor in the Home for Incurables, where she had been confined since shortly after the birth of her child. On August 1, 1952, Mrs. McBride visited the Department of Welfare and requested it to accept the child as she felt that it was a Negro and she could no longer permit her to remain in her home, since the neighbors were beginning to comment about the medium brown color of the child’s skin. In order to facilitate this request proceedings were initiated wherein the child was declared abandoned by the Juvenile Court for the Parish of Orleans and, on October 1, 1952, it was placed in a Negro foster home where she has remained.

Plaintiff endeavored to adopt the child through the use of the facilities of the Department of Welfare, which approved his application, but an examination of the child’s birth certificate disclosed an impediment in that she was registered as white in the Bureau of Vital Statistics, and that agency refused to change the designation of the race of the child to colored. Hence this suit.

The only question posed for our consideration is one of fact and that is whether Jacqueline Ann Henley has been proven to be a member of the Negro race?

Plaintiff contends that the lower court erred in its judgment, for the reason that sufficient evidence was offered during the trial hereof to prove that the child was a Negro. On the other hand, the curator ad hoc insists that the evidence adduced at the trial was not sufficient to compel the Bureau of Vital Statistics to change the birth certificate of the child from white to that of a colored person.

We feel compelled to remark at the inception of this opinion that we were completely fascinated by the novel-like tenor of this record. The trial judge, apparently in order to afford the plaintiff the benefit of every doubt and an unimpeded opportunity to prove his case with that legal certainty which the law requires, most liberally relaxed the rules of evidence, therefore, much of the testimony that we shall refer to or quote hereinafter, insofar as plaintiff's case is concerned, will, we believe, be predicated, to a large extent, on hearsay, inferences and presumptions of fact.

Counsel for plaintiff in order to sustain his client’s contention that sufficient evidence was adduced in the trial court to prove that the child was, at least, part Negro, points to the testimony of Herbert Stanton, a Negro laborer, who related that Ruby Preuc was employed as a barmaid in a Negro saloon, a fact which everyone seems to have conceded. He further asserted that he corresponded with Ruby Preuc when she was visiting her sister in Detroit, Michigan. A letter was offered in evidence written, during this time, by Stanton to Ruby Preuc and it contained such phrases as “but you know that I’ll always love you”; “I wish you was home I miss you so” and “with love, Rock ." On Direct and cross examination he further related that he had never “gone out” with her nor had he been “intimate with her” and upon being interrogated “Did you ever meet her after work ?”, he responded “ * * * her boss used to bring her home * * * a white man.”

Counsel conceded in oral argument that the testimony of Stanton and the letter were not offered to prove parentage, but merely to show Ruby Preuc’s close association with Negroes.

Plaintiff offered in evidence the testimony of Mrs. Emma Smith, who related that birth certificates were her special assignment and that it was she who had prepared the child’s birth record. Upon being interrogated “The color and race of the father, do you ask that question?”, she responded, “No, if she is a white mother. We do not ask if her husband is white, we take it for granted he is white.” The certificate that Mrs. Smith prepares ultimately becomes the actual birth record and for that purpose it is forwarded to the Department of Public Health, a fact which was admitted by Mrs. Naomi Drake, Deputy Registrar of the Bureau of Vital Statistics for the City of New Orleans.

Mrs. Harold McBride, sister of Ruby Preuc, testified that three weeks after the birth of the baby, Ruby Preuc and the child came to her home, wherein Ruby resided until she was removed to the Home for Incurables, where she subsequently died. Sometime after Ruby Preuc was confined in the Home for Incurables and about two months before she died, Mrs. McBride visited the Department of Public Welfare and requested it to accept the child because “she didn’t fit in my family, she was too dark. * * * I told Mrs. Oberholtzer there had been remarks passed that the child possibly was a nigger.” However, Mrs. McBride, both on direct and cross examination, related that she had never seen her sister consort with Negroes “outside of work” and that she did not actually know if the child was part Negro.

Mrs. Catherine Oberholtzer testified that Mrs. McBride, when she visited her, stated that “she would like the agency to make plans for the child since she felt that she was a Negro and she could no longer keep her in the house; the child was growing darker day by day.”

Charles Collins testified that when Mrs. McBride visited his office she informed him that “ * * * she lived in an all white neighborhood and that it would sooner or later be embarrassing * * * to have the child in her household. * * * because of its color.”

The only expert witness offered to enlighten the court appeared on behalf of the plaintiff and it is on his testimony that plaintiff rests his case. Dr. Arden R. King stated that he was a professor of Anthropology at Tulane University and had done graduate work in physical anthropology and archeology. He related that the child was four and a half years of age at the time of his examination to determine if there was any possibility that she was part Negro. He testified at great length on two occasions and, in the final analysis, more briefly summarized what he had previously asserted:

“There are three characteristics which are distinctly Negro in this child. One is the lip seam, the division between the integumental lip, the skin lip above here, and the mucous lip, is clearly marked, the little ridge; and secondly, the distinctly small, delicate ears; and third, perhaps the most indicative of all, there are concentrations of pigments in diagnostic positions of the anatomy.
“While I could get these three characteristics occurring in an individual who had no Negro ancestry, it would be so rare — we have records of it — it would be so rare as not to be considered at all probable.”

Upon being interrogated “ * * * could you say positively there was some degree of Negro blood less than one-fourth, no matter how small ?”, he responded “ * * * you ask me to not be scientific, and I can not. I won’t go beyond saying extremely probable.” Dr. King concluded by asserting that if this child was nine or ten years old he would then be in a more advantageous position to determine its race.

The curator ad hoc insists that the foregoing evidence is not sufficient to compel the Bureau of Vital Statistics to change the birth certificate of the child from white to that of a colored person and, therefore, requests that the judgment refusing the writ of mandamus be affirmed.

The trial judge obviously was of the opinion that the plaintiff had failed to prove his case with that legal certainty which the law requires in cases of this nature and our examination of the record fails to disclose any error in his factual or legal conclusions. The testimony of Stanton was not offered by plaintiff to prove parentage, but merely to show Ruby Preuc’s close association with a Negro or Negroes. The inference, of course, which plaintiff desired to create by virtue of Stanton’s testimony was intimacy sufficient to create a presumption of fatherhood.

The testimony of Mrs. Emma Smith likewise was not offered to prove parentage, but to create a presumption of negligence in the Charity Hospital in failing to diligently endeavor to ascertain the race of the newborn infant before issuance of the birth certificate to the Bureau of Vital Statistics, which accepts it as such at face value.

Mrs. McBride’s opinion of the race of the child, unsupported by evidence other than appears herein, certainly was not proof thereof.

As we have related hereinabove, in the last analysis, plaintiff rests his case on the testimony of Dr. Arden R. King, who qualified as an expert in the field of anthropology, which the record informs us is the science of man in relation to physical character, distribution, origin, classification and relationship of races. As we have seen, the very utmost that Dr. King could say with respect to this child being- part Negro was that “this was an extreme probability.”

It is well recognized that anthropology is an inexact science and, therefore, Dr. King could not say with certainty that the child was part Negro and that this uncertainty was accentuated by the tender age of the child. We believe that it is also well recognized that all the methods presently in use to determine race are precarious and that their provisional findings must be accepted with the utmost caution.

The general rule that a civil case need not be proven beyond a reasonable doubt is conceded, but we know of no case wherein the courts have applied this general rule when the purpose was to change the race of a person as disclosed in a birth or death certificate.

In the relatively recent case of State ex rel. Treadaway v. Louisiana State Board of Health, on rehearing, La.App.1952, 56 So.2d 249, 250, we said “there must be no doubt at all”, and the following extract therefrom serves to point up the reason for this assertion:

“In Villa v. Lacoste, 213 La. 654, 35 So.2d 419, 421, the Supreme Court, in discussing the effect of a certificate issued by the State Board of Health, said clearly that such certificates constitute only prima facie proof of the correctness of the statements contained therein and held that such evidence as was introduced had been ‘ample to overcome the prima facie case’ made by the certificates themselves.
“We wondered whether we had accorded too great an effect to the certificate under attack here.
“In Sunseri v. Cassagne, 191 La. 209, 185 So. 1, 5, the Supreme Court, in another somewhat similar matter, held that a person who has been commonly accepted as being of the Caucasian race should not be held to be of the colored race ‘unless all the evidence adduced leaves no rcrom for doubt that such is the case.’
“The Supreme Court remanded the matter in order that further evidence might be adduced and finally held that there was no doubt, and maintained the correctness of the certificates which were there involved and which showed the defendant to be colored.
“We wondered whether the evidence here left no room for doubt.
“Thoroughly aware of the transcendent importance of our conclusion to., those involved and to others affected though not parties, we diligently endeavored to convince ourselves that there might be room for doubt.
“We interpret the language used in the Sunseri case and quoted above as indicating that the proof in such case should be even more convincing than that which is necessary in such cases as must be proved ‘beyond a reasonable doubt.’ We feel that the language used by the Supreme C-ourt means that there must be no doubt at all.
“However, as the Supreme Court found itself compelled to do when the Sunseri case was presented to it finally, Sunseri v. Cassagne, 195 La. 19, 196 So. 7, 9, we must hold that the evidence here leaves no room for doubt and that the certificate under attack should not be changed.” (Italics ours.)

The Supreme Court granted a writ of certiorari in the foregoing case, 221 La. 1048, 61 So.2d 735, 739, and having satisfied themselves that this court’s conclusions with respect to the facts and the law were correct, adopted the opinion of this court and, in the concluding paragraph of its opinion, asserted:

“Relator must show that he has a clear legal right to have the correction made. The legal certainty of the proof submitted must be such as to compel the Registrar of Vital Statistics to perform the ministerial duty of changing the recordation from ‘Colored’ to ‘White’. The proof of record falls far short of any such assumption. As the name indicates, the records kept 'by the Registrar are vital to the general public welfare. The registration of a birthright must be given as much sanctity in the lam as the registration of a property right.”

In view of the unequivocal rationale expressed in the foregoing cases we must entertain the opinion that the evidence adduced herein is not sufficient to compel the Bureau of Vital Statistics to change the birth certificate’ of the child from white to Negro at the present time. The final 'cause of law is the welfare of society. The rule that misses this aim cannot permanently justify its existence. The above jurisprudence is predicated on that major premise.

We notice that the trial court inadvertently dismissed plaintiff’s suit. We believe that plaintiff should have been non-suited by virtue of the fact that the testimony of the expert Dr. King revealed that when the child was more developed and mature, he would then occupy an excellent position to testify with greater certainty as to its race.

For the reasons assigned the judgment appealed from is amended by dismissing the plaintiff’s case as of non-suit and, as thus amended, it is affirmed.

Amended and affirmed.

JANVIER, Judge

(dissenting).

I do not retract one syllable of what was said in State ex rel. Treadaway v. State Board of Health, La.App., 56 So.2d 249,250, and I agree that, as we said there, the language used by the Supreme Court in Sunseri v. Cassagne, 191 La. 209, 185 So. 1, should be interpreted as meaning that in practically all such cases vital statistics records should not be ordered changed unless there is “no doubt at all” of the incorrectness of those records. Nor do I to any extent criticize my associates who feel that the record here leaves some possible doubt on the question of whether the little girl is a Negress.

There is a vast distinction between the facts of this case and the facts found in practically all other cases in which an effort has been made to force a change in such records. The distinction lies in the fact that here, at the very outset of our investigation, we find that the entry showing the race was made as the result of a presumption and not because of a stated fact.

In practically all cases the information as to the race, etc., is given by a member of the family and is based on knowledge or at least on a well founded belief as to the race of the parents. Here the record shows that no one gave any information as to the race of the father of the child and its race was stated as white merely because of the custom in the hospital that where a white mother gives birth to a child and there is no knowledge as to who is the father it is “presumed” that the father is white. The entry on the record of the Board of Health was made from information given by the hospital, which information was not based on knowledge but merely on the referred to presumption.

We know that the father was not white or Caucasian because on that point the anthropologist to whom I shall later refer says that he has no doubt at all. His only possible doubt was as to whether the race of the father might be something other than Negro though, as I will show hereafter, he found Negro characteristics and did not find any other characteristics. We start then with a record which we know is incorrect. I myself feel that there is no doubt at all and, being without doubt that the father was a Negro, I cannot permit myself to consent to a decree which must have a most harmful effect on the welfare of the little girl and to some extent on the public welfare as well.

There is no doubt in my mind that every person who has come into contact with this record really has no doubt at all that the little girl in question is a Negress. First of all, we notice that the aunt of the little girl (the sister of the mother) found it necessary to give up the custody of the child because she fully realized that it was a Negress. She so stated to at least two persons. Then the Welfare Association had no doubt at all of the race of the child and made arrangements for its adoption by a Negro family and only then discovered that its race had been registered as “white”.

We come to the adoptive family and find that there is no doubt at all as to the race and this is evidenced by the attempt to force a change of the records so that it might be adopted as a Negro.

In my opinion there is no doubt in the mind of Dr. King, the Professor of Anthropology at Tulane University. He said that the father of the child was of other than the white race and that the only characteristics other than Caucasian which he could possibly identify were those of the Negro race, and that in his opinion the father was of the Negro race, but, when pressed as to whether he could positively say that there was no doubt at all, he merely said that personally he believed it, but that as a scientist he realized that there was the possibility of error from a scientific point of view and that therefore he could not say that, from that point of view, there was no doubt at all.

A person of the Negro race has as much right to have such records correctly made as a person of the white race. And I cannot condemn this little girl to the humiliation and embarrassment which must ensue if this incorrect entry is to stand even for the five or six years suggested by my associates. There is no assurance that after the lapse of those five or six years another effort will be made to effect the necessary correction, and there will result the most unfortunate situation that the little girl registered as white will continue to associate with Negroes and that her social life will be only with Negroes and yet she will be unable to marry a Negro since, being registered as a white person, miscegenation laws, will make such a marriage impossible. In fact, during the five or six years suggested by my associates she will labor under the embarrassment of associating socially only with Negroes who will no doubt taunt her with being registered as “white”.

The record convinces me that she is of the Negro race and that we should so declare.

I respectfully dissent.

      . Divorced by Harry Preuc on January 5, 1949, in the State of Kansas.

      . Henley was the mother’s maiden name.

      . Herbert Stanton’s nickname.

      . An employee of the Medical Record Library of Charity Hospital.

      .An employee of the Department of Public Welfare.

      . An attorney for tfie Civil Division of the Legal Aid Bureau.


author: McBRIDE, Judge. JANVIER, Judge

text:
    Readley FOURCHEA v. MALONEY TRUCKING AND STORAGE, Inc.

      No. 20763.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Rehearing Denied June 25, 1956.

      John F. Caraway, New Orleans, for plaintiff and appellee.
    Jones, Walker, Waechter, Dreux & Poite-vent and John V. Baus, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, who is 43 years old, was in the employ of defendant as a laboror in its drayage and storage business, admittedly of a hazardous nature and subject to the provisions of the Workmen’s Compensation Statute. On November 8, 1954, as he was shoving some machines off a wagon, plaintiff slipped, fell and injured his back and was sent to see Dr. John D. Andrews, the employer’s physician, who diagnosed the injury as a moderately severe lumbo-muscle strain and treated plaintiff for about five weeks therefor. Dr. Andrews, who is a surgeon, then concluded there were no further symptoms of an injury, so he sent him to Dr. H. R. Soboloff, an orthopedic surgeon, for an examination. When Dr. Sobo-loff saw plaintiff, which was in December of 1954, his opinion was that any injury plaintiff might have sustained in the accident had been cured and there was nothing to prevent him from returning to the same type of work he' had been doing when the injury occurred. Dr. Andrews discharged plaintiff on January 4, 1955, and he returned to his job and worked for a few days, although he declares his back was hurting him, and that while he was engaged in loading a bale of'cotton with a hook, the weight of the cotton fell on him. The next morning upon complaining to his employer’s representative that he could not continue to work, he was sent back to Dr. Andrews on January 26. At that time plaintiff says he told Dr. Andrews his hack had never been completely well and that his condition became worse after he returned to the job. Dr. Andrews made a full examination and discerned tenderness over the spine at the site of the third and fourth lumbar vertebrae and over the lower left lumbar musculature and that the left thigh flexion and the left straight leg raising tests were positive, and so once again he started rendering treatment to plaintiff which lasted for another six weeks. On March 9, 1955, Dr. Andrews again sent plaintiff to see Dr. Soboloff, who examined him, and Dr. Soboloff reported that he could find nothing wrong. For the second time Dr. Andrews discharged plaintiff, but some few days thereafter at the instance of a Mr. Burk, the representative of defendant, Dr. Andrews resumed the treatment of plaintiff for the reason, as he states, to eliminate all possibility that plaintiff still suffered from any residual effects of the injury.

This third course of treatment continued to April 4, 1955, and then the patient was discharged finally. Dr. Andrews admits that plaintiff was still complaining of feeling no better and of pain in his back.

Plaintiff filed this suit against Maloney Trucking & Storage, Inc., claiming workmen’s compensation at the rate of $30 per week for a period of 400 weeks under LSA-R.S. 23:1221(2), and after a trial on the merits in the lower court he recovered judgment for compensation at the weekly rate of $27.30 for a period not to exceed 382 weeks. Eighteen weeks’ compensation had been paid. The judgment also made an allowance for future medical expenses. Defendant has appealed.

After his discharge by Dr. Andrews on April 4, 1955, plaintiff sought no further medical treatment until October 18, 1955, when he went to the Charity Hospital in New Orleans. The certified copy of the hospital record shows that he was discharged about a month later for the reasons : “Symptoms are not clear. Complains of lack of compensation from insurance papers.”

The defense tendered is that plaintiff has been completely cured and is fully able and competent from a physical standpoint to return to and do any of the duties of his occupation and that the compensation already paid is all he is entitled to receive from defendant.

Plaintiff produced only one medical expert as a witness, namely, Dr. Blaise Sala-tich, who examined him on June 10, September 7 and December 1, 1955. Dr. Sala-tich testified that he found a consistent pattern of positive symptoms of an injury on all three examinations, such as, pain through the right lumbosacral region, numbness in the right lower extremity, moderate erecti-spini muscle spasm, restricted trunk movement, and positive body tests. His opinion of the X-ray showings was that there is a narrowing of the fifth lumbar vertebral interspace which gives him the impression that the patient had sustained a torsion exertion-type low back injury involving a ruptured intervertebral disc with herniated nucleus pulposus and nerve root compression. Dr. Salatich states that he found plaintiff to he cooperative in respect to his several examinations and that he felt plaintiff was sincere in his complaints. He states that plaintiff is totally disabled from returning to work.

Dr. Andrews, called by defendant, outlined his course of treatment which need not be detailed. His opinion was that when plaintiff was last discharged there was absolutely no reason why he could not return to his occupational duties.

Dr. Soboloff, the orthopedic surgeon to whom plaintiff had been sent by Dr. Andrews, stated that he not only examined plaintiff on the two occasions already mentioned, but that he also saw him in September and December of 1955. His opinion was there was no residual disability which would prevent plaintiff from returning to work. Dr. Soboloff claims he detected some inconsistent responses by plaintiff to the various tests and called plaintiff’s complaints of pain from the neck down to the feet incompatible with nature’s distribution of the nerves in the anatomy of the human body. He admitted there was atrophy of the right calf but stated that this condition resulted from the voluntary favoring of the extremity. The witness in commenting on the narrowing of the interspace between the vertebrae said that he believed this was no more than a normal condition which might be expected in a person of plaintiff’s age and it did not indicate a ruptured disc.

Plaintiff was examined by Dr. Irvin Cahen, an orthopedic specialist, on September 27 and December 2, 1955. Dr. Cahen, testifying for defendant, stated he reached the conclusion that whatever restrictions in motion were demonstrated by the plaintiff were voluntary because he gave inconsistent responses to several tests and his characterization of plaintiff’s complaints was that they were “bizarre.” The summation of Dr. Cahen’s testimony is that he found no orthopedic evidence of residual disability during either examination and he was certain there was no rupture of an inter-vertebral disc nor was there anything at all physically wrong with plaintiff. He made the statement that plaintiff did not cooperate with sincerity during the examinations.

The plaintiff testified that he had suffered pain since the accident; that he has worn a back corset; that the pain occurs in the middle back and he cannot stoop; that his right side and leg “get sleepy” and “stiff like” ; that he uses a cane while walking; and has to be assisted in arising from his bed. He declares he cannot engage in any strenuous exercise.

Plaintiff’s wife stated he had always been a regular worker but he is now disabled; since the inception of his injuries he has continually complained of back pains, and she had to procure a hard bed for him to sleep on. She says plaintiff’s back is so disabled that in the morning she has to call upon a friend to assist him in arising from bed. She also stated that they have been relegated to living off her earnings together with such assistance as their friends give them.

A woman named Lightfoot, who claims to be a practical nurse, testified that she has known plaintiff for two years and that while he had been a steady worker, he has not been able to work since he was hurt and that he now walks about with the aid of a stick. She sees him almost daily and has been called upon often to massage his back.

Auguer, a friend, testified that plaintiff was a steady and regular worker but that he knows that since April 1955 he has not been able to work. The witness stated that plaintiff complains of back pains and that he has helped him get out of bed in the mornings.

Defendant contends that the admission of the lay testimony was improper and makes the argument that the statements of laymen can be considered on the question of disability only when there is a hopeless and irreconcilable conflict in the opinions of the medical experts, and that the conflict contemplated by the jurisprudence does not exist in the instant case for the reason that the medical testimony favoring defendant’s cause is “almost one-sided,” thus leaving no room for a consideration of any lay testimony.

A court, when determining the degree of the claimant’s disability in a proceeding brought under the Workmen’s Compensation Statute, must rely to a great extent on the findings and the sworn statements of those persons trained and skilled in the callings of medicine and surgery. See Lindsey v. Twin City Motor Co., Inc., La.App., 181 So. 598, 600.

But as every court well knows, very seldom do the opinions of medical expert witnesses in compensation matters coincide .on the paramount question in the case, i. e., the extent of the claimant’s disability. Insofar as back injuries are concerned, the experts are usually more than ever sharply divided in their opinions. Dr. Cahen recognized it to be a fact that it was not uncommon for physicians to disagree in cases involving the type of back injury plaintiff complains of as respects the significance of symptoms and the time a* which the symptoms manifest themselves.

It is regrettable that these experts, to whose testimony the court naturally must look for guidance regarding a particular injury and the period of the claimant’s disability, can differ so widely in their opinions and views so as to render their opinions of so little assistance that they must all but be disregarded.

Just such a state of affairs in Lindsey v. Twin City Motor Co., Inc., et al., supra, evoked from the Second Circuit Court of Appeal the following comment:

“ * * * If the building of records such as the one under consideration continues, undoubtedly the lawmakers of this state will provide for the creation of commissions of physicians to examine injured claimants in physical injury suits and make recommendations to the respective courts regarding their findings.”

In many of the cases where there occurred an irreconcilable conflict of medical testimony as to whether the claimant is disabled from performing his occupational duties as a result of his injuries, courts have felt authorized to resort to the testimony of the claimant and his lay witnesses in order to malee a just and proper determination of the extent of the disability. See Phillips v. Yazoo & M. V. R. Co., La.App., 183 So. 43; Phillips v. Le Blanc Bros. Contracting Co., La.App., 17 So.2d 36; Jones v. Atlantic & Gulf Stevedores, Inc., La.App., 38 So.2d 653; Mc-Elroy v. Kennedy, La.App., 84 So.2d 256. If such recourse could not be had, sometimes it would be well nigh impossible to pass on the claim for compensation.

Contrary to counsel’s contention that no conflict exists in the medical testimony, a reading thereof reveals that the experts entertained divergent opinions as to whether plaintiff is a disabled workman. A comparison of the. testimony of plaintiff’s doctor with that given by the defense experts leaves us in a state of bewilderment. According to Dr. Salatich, the plaintiff was a most cooperative patient throughout the three examinations and his conclusion is that plaintiff sustained injury that absolutely destroys his ability of returning to the laboring work he was performing when the accident befell him. On the other hand, the testimony for defendant portrays a picture of a most non-cooperative individual who possesses no injuries whatsoever and who is attempting to perpetrate a fraud on the court by feigning disability.

The trial judge was unable to decide the question of the extent of the disability of the claimant on the basis of the medical evidence, and he made mention in his reasons for judgment: “The medical testimony produced by each litigant is contradictory.” We agree that this is so and, therefore, we think that the admission of the lay testimony was proper and that it became necessary to consider this testimony in order to resolve the question whether plaintiff was able to return to his former occupation.

According to our appreciation of the record, there is not the “one-sidedness” in the expert testimony as is alluded to by counsel for defendant. What we find is that the defendant was able to and did produce three physicians who swore that the plaintiff is not disabled whereas plaintiff only had one medical expert to testify on his behalf. But this does not mean that because defendant was able to present the evidence of the greater number of experts that their testimony should be accepted and that the testimony given by plaintiff’s lone expert should be rejected. Courts have said time after time that witnesses are not counted, rather their testimony is weighed. In Thomas v. Harman, La.App., 170 So. 365, 366, it was said:

“It is to be noted that plaintiff’s witnesses, * * *. This, however, does not necessarily mean that the preponderance of the evidence in the case is with the plaintiff. It is provided by the law of evidence that the testimony given should be weighed, and that its probative value is not to be determined by the number of witnesses testifying. Reed v. Andrepont (La.App.) 142 So. 184; Hudson v. Jackson Brewing Co., 4 La.App. 549; Kemp v. Wamack, 2 La. 272.”

In its opinion in Bean v. Higgins, Inc. (Columbia Casualty Company) 230 La. 211, 88 So.2d, 30, 32, the Supreme Court said:

“ * * * Mere numerical numbers of experts is not sufficient for a determination of a decision in any case. * * * ”

All that a compensation claimant is required to do to be successful in his suit is to establish the legitimacy of his claim by a clear preponderance of the evidence and with the same legal certainty as any other plaintiff. The trial judge must have believed that the probative value of Dr. Salatich’s testimony was no less than that of the three experts who appeared for the defense else he would never have concluded: “The medical testimony produced by each litigant is contradictory.” The fact that judgment was rendered in favor of plaintiff makes it certain that the judge was of the opinion that the lay testimony supported Dr. Salatich’s opinion as to plaintiff’s disability and that plaintiff had therefore fulfilled the requisite of law that he prove his case by a preponderance of the evidence.

To prove a case by a preponderance of the evidence simply means evidence must be produced which is of greater weight or is more convincing than that which is offered in opposition to it. Edwards v. Shreveport Creosoting Co., Inc., 207 La. 699, 21 So.2d 878.

We are unaware of any law providing or any authority holding that the testimony of a single witness may not constitute a preponderance of evidence in a suit brought by an injured workman for compensation. The general rule as stated in Wigmore on Evidence, Vol. 4, 2d Ed., p. 308, is:

“Credibility does not depend on numbers of witnesses. * * *
“In general, the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence * * (Italics by the author.)

Defendant intimates that plaintiff “injected a conflict into the medical testimony” by presenting against defendant’s experts a physician who is unskilled and unqualified. We refuse to believe that Dr. Salatich was called as a witness in order that plaintiff would have in the record “some” testimony which would conflict with the defendant’s evidence, thus opening the door to the admission of lay testimony.

We have carefully read and analyzed Dr. Salatich’s testimony, and we find not a word therein that could be considered self-contradictory or which appears to be improbable or inconsistent. There certainly is nothing in the testimony which destroys its effect and no reason can be assigned which would require the application of the maxim falsus in uno, falsus in omnibus.

We paid close attention to the oral argument made by counsel for appellant and have carefully sifted what is said in their brief, and we can only say that they have failed to point out to us any defects either in the testimony of Dr. Salatich or the evidence given by lay witnesses who testified as to plaintiff’s disability.

The only seeming inconsistency is Dr. Salatich’s statement that a patient with a ruptured disc lists to the side involved. The medical text used by the defendant in attempting to impeach the witness does not convince us that Dr. Salatich’s opinion was medically unsound. The text, which Dr. Salatich claimed is obsolete, shows that case studies reflect that “usually” there is a listing away from the involved side, while Dr. Salatich stated that the latest theory is that listing to the involved side is the most usual.

Under our jurisprudence there is a presumption which exists in favor of the correctness of any judgment appealed from. The Supreme Court has said that the burden rests on the appellant to demonstrate to the court that the trial judge’s decision is erroneous and not justified by the law and the evidence. Davis v. Horne Lumber Co., 213 La. 429, 34 So.2d 914. To reverse the judgment it is necessary for the appellate court to point out errors in the findings of facts by the judge below sufficiently important to justify a reversal. Wilcox v. B. Olinde & Sons Co., Inc., La.App., 182 So. 149.

The Supreme Court has laid down a formula for determining whether a judgment is to be reversed when there exists an irreconcilable conflict in the testimony. Where there is this conflict the reviewing court is not to reverse the trial court’s judgment when the evidence of the successful party, if considered by itself, is sufficient to sustain the judgment. Rhodes v. Sinclair Refining Co., 195 La. 842, 197 So. 575.

In an earlier case, Thomason v. Kansas City Southern Ry. Co., 122 La. 995, 48 So. 432, the Court said in effect, if there be testimony in the record which, if believed, would justify the conclusions of the trial judge touching a certain fact, conclusions in respect to that fact will be adopted unless manifestly erroneous.

In Ford v. Ford, 142 La. 235, 76 So. 622, in a syllabus the Court said that although appellate courts are required by the Constitution of Louisiana to decide questions of fact as well as of law in civil cases, an appellate court is constrained to defer largely to the better judgment of the trial judge regarding a question of fact when the conflict in the testimony cannot be reconciled or explained on any other theory than that the witnesses on the one side or the other committed perjúry.

All of the above pronouncements, it seems to us, have particular application to the instant case.

If we use the formula set forth in Rhodes v. Sinclair Refining Co., supra, we would have before us the testimony of Dr. Salatich and the lay witnesses, and this taken by itself would present a perfect case for the plaintiff, as the testimony goes to show beyond any doubt that he sustained a serious injury which still exists and which has destroyed his physical ability to return to his occupation.

On the basis of Thomason v. Kansas City Southern Ry. Co., supra, the judgment cannot be reversed for there is testimony in the record which upholds the trial court’s conclusion as to the fact of plaintiff’s disability.

Furthermore, under Ford v. Ford, supra, we could only reverse the judgment on the theory that Dr. Salatich and plaintiff’s other witnesses were guilty of giving perjured evidence. We are unwilling to say they did. In Shaddinger v. Albeanese, La. App., 11 So.2d 624, 627, we said:

«* * * jn such circumstances, grave injustice might be done these witnesses by not concurring in the finding of the district judge in the absence of a feeling of reasonable certainty that the evidence given by them was unworthy of belief. * * *

Counsel for defendant point out that the defense experts are all reputable and well-qualified medical practitioners, and we concede that the testimony of each of the doctors shows that he is of eminent standing in his respective medical specialty. On the other hand, Dr. Salatich’s qualifications come in for violent attack, and we are referred to Smith v. W. Horace Williams Company, Inc., La.App., 84 So.2d 223, 227, wherein he appeared as an expert medical witness on behalf of the plaintiff. It is true, as we pointed out in that case, that Dr. Salatich has not been admitted to membership in the American Board of Orthopedic Surgery, but as we said:

“ * * * that fact in our opinion would not justify refusal to accept his testimony as an expert in that specialty to which he has devoted himself since his graduation in medicine, though it might affect the weight which should be given to his opinions when contradictory to opinions of those who have qualified for admission in that well recognized group of specialists. * * * ”

We did not reject Dr. Salatich’s testimony in the cited case, although the opposing witnesses, just as they are in the instant case, were members of the American Board of Orthopedic Surgery. We affirmed the judgment in favor of plaintiff on the basis there was no manifest error in the judgment saying:

“ * * * However, in view of the finding of the District Judge we think that it would not be proper to say that there is manifest error and therefore we hesitatingly apply the well established doctrine that the finding of a District Judge on a question of fact should not be disturbed unless manifestly erroneous.”

In the Smith case we also discussed the fact that Dr. Salatich had laid much stress on the number of “cases” which he had “won” in various courts as compared with the few which he had “lost,” but we do not think that because the doctor considered that when he appeared as a witness he “won” or “lost” the cases that this would constitute grounds for saying here that when he testified he was giving perjured testimony.

Aside from the testimony adduced on behalf of plaintiff, other circumstances in the record tend to indicate that plaintiff still suffers a residual as the result of his accident. When plaintiff went to him for the second time, Dr. Andrews admits there was tenderness over the spine at about the third and fourth lumbar vertebrae and also over the lower left lumbar musculature. Dr. Andrews also mentioned that the left thigh flexion, test and the left straight leg raising test were positive and it was because of these findings that he resumed the giving of treatments to plaintiff. We cannot overlook the probability that when Dr. Andrews discharged the plaintiff the first time the discharge was premature. The three-eighth-inch atrophy of plaintiff’s right leg was attributed by Dr. Soboloff to disuse of the member; however, the doctor admitted that the atrophy could be a symptom in nerve root compression cases. Dr. Soboloff conceded, also, that according to the record of Charity Hospital, plaintiff had pains in the back and “once or twice he had muscle spasm,” which indicated to him that the physicians at the hospital found a significant amount of obj ective symptoms.

We are impressed, as was the trial judge, by plaintiff’s good work record. He was in the employ of defendant for twenty years and worked steadily. He asserted no previous claims for compensation. It appears he was held in respect by his employer, so much so that it was at the instance of Mr. Burk of the defendant company that Dr. Andrews started in the third course of his treatment of plaintiff.

Whenever there is conflict in the testimony that cannot be reconciled, it becomes necessary to pass primarily upon the question of the veracity of the witnesses. To do that the trial judge is in the more advantageous position because of his having the opportunity of hearing the witnesses and of observing their demeanor while on the witness stand. In this case the judge had the additional advantage of observing plaintiff’s condition. The Supreme Court said in Successions of Scardino, 215 La. 472, 40 So.2d 923, 927;

“ * * * And that more advantageous position is the reason for the well recognized doctrine that where the credibility of witnesses is involved the finding of fact of the trial judge must be given great weight and should not be disturbed unless manifestly erroneous.”

The judge, in speaking of the lay witnesses, observed, “They appear to be truthful,” and in referring to plaintiff said his “statements to all doctors were consistent” and his “appearance in court is such that the court believes he is unable to return to the duties he was performing on November 8,1954.”

The only error we can find is the allowance for future medical expenses. The Workmen’s Compensation Statute makes no provision for medical expenses the injured workman might incur at some future time. However, we believe that plaintiff’s right to assert any claim in the future for whatever amount he may incur for his treatment in connection with his injuries should be reserved. See Boykin v. We Hope Gas & Oil Co., Inc., La.App., 2 So.2d 528; Rosenquist v. New Amsterdam Casualty Company, La.App., 78 So.2d 225; Wilson v. New Amsterdam Casualty Company, La.App., 86 So.2d 556.

It is ordered, adjudged and decreed that the portion of the judgment appealed from which runs in favor of plaintiff “for all medical and incidental expenses up to Five Hundred ($500.00) Dollars, subject to a credit of Two Hundred Eighty-nine ($289.00) Dollars already paid” be and the same is hereby reversed, and the judgment is amended so as to reserve plaintiff’s right to make claim for whatever medical expenses he may incur in the future in connection with his injuries, and as thus amended and in all other respects, the judgment is affirmed. Defendant is to pay the costs of this appeal.

Reversed in part; amended and affirmed in part.

JANVIER, J., dissents with written reasons.

JANVIER, Judge

(dissenting).

There is not that substantial conflict in the medical evidence which should be found if we are to resort to and depend solely upon lay evidence. The medical testimony is, in my opinion, overwhelmingly to the effect that plaintiff can return to work with no disability. Why then should we look to the evidence of pastors, relatives and friends for a determination of a medical question ?

I respectfully dissent.


author: CARROLL, Associate'Justice.

text:
    STATE of Florida ex rel. Rose MILLER, Petitioner, v. Thomas J. KELLY, Sheriff, Dade County, Florida, as Custodian of the Dade County Jail, Respondent.
    Supreme Court of Florida. Special Division B.
    June 6, 1956.
    Ray Sandstrom, Lakeland, for petitioner.
    Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., John D. Marsh, Dade County Solicitor and Glenn C. Mincer, Asst. Dade County Solicitor, Miami, for respondent.
   CARROLL, Associate'Justice.

In the exercise of original jurisdiction, this court issued a writ of habeas corpus, on the petition of the state on relation of. one Rose Miller, who sought thereby to." obtain release from the second six months, of a one year jail sentence which she wasi serving.

At the outset we are confronted with a defense of res adjudicata asserted in the' response, consisting of a contention that this action may not be brought because a' judgment of remand continues in force rendered in an earlier habeas corpus action sued out by this relatrix which involved the same question or cause.

Section 79.10, F.S.19SS, F.S.A., provides a judgment in habeas corpus “shall be conclusive until reversed in the manner hereinafter provided for, and no person remanded by such judgment while the same continues in force shall be at liberty to obtain another habeas corpus for the same cause, * * The right of appeal from such a judgment is secured by the next section, 79.11.

The record here shows that Rose Miller was tried in the Court of Crimes in Dade County on two counts contained in one information. On December 10, 1953, she was convicted on both counts. The two offenses were among those specified in Chapter 796, F.S.1953, F.S.A., relating to prostitution, being those set out in Section 796.07(2) (a) and (3) (c). For each of those offenses the statute provided penalties including imprisonment for not more than six months. Section 796.07(5).

The sentence imposed by the Court of Crimes was for one year. This single sentence necessarily covered both offenses, but there was no express direction by the court that the sentences for the two offenses (of six months maximum each) should be served consecutively. Section 921.16, F.S.1953, F.S.A., provided that where a person is charged and convicted on two or more counts originating in one information, as was the case here, “the terms of imprisonment shall he served concurrently unless the court expressly directs that they or some of them be served consecutively.”

The judgment of the Court of Crimes was appealed to the Circuit Court, which affirmed. Relatrix here contends that the appeal did not involve the sentence, hut that the appeal dealt only with questions as to the judgment. A petition for certiorari .thereon to this court was dismissed.

Relatrix began serving her sentence on January 6, 1955. After serving six months of the sentence (less gain time earned) she filed a petition for habeas corpus in the 'Circuit Court. A present contention by relatrix that the Circuit Court habeas corpus did not involve the effort to avoid the balance of the sentence prompts close inspection of that petition, the main allegations of which were as follows:

“That on the 24th day of February, 1953, an Information was filed by the ■County Solicitor against the relator ■charging her with the violation of ■Chapter 796.07(1) (a), and (3) (c).
“That on the 10th day of December, 1953, the relator was duly tried and ■convicted under said statute in the Court of Crimes in and for Dade County, Florida; that the maximum sentence provided for by the violation of said statute is imprisonment for not more than six (6) months.
“That your relator was sentenced for the violation of Chapter 796.01, said sentence being a maximum of one (1) year.
“That your relator has completed the serving of six (6) months in the Dade County Jail.
“That your relator avers that her restraint and the deprivation of her personal liberty is illegal and wrongful and she, therefore, prays that this Honorable Court will grant its most gracious Writ of Habeas Corpus * * *”

After hearing, the Circuit Court on June 8, 1955, granted a final judgment remanding relatrix to the custody of the sheriff. The basis for the judgment Was not Stated other than the recitation that “after taking testimony and hearing argument of counsel the court is of the opinion that the relator is not illegally and wrongfully restrained and deprived of her liberty.” That judgment included a grant of a request for permission to appeal to the Supreme Court, but without supersedeas. No appeal was taken.

One week later, on June 15, 1955, rela-trix filed her petition for habeas corpus here, and the court issued the writ and granted release on bond pending hearing.

An inspection of the petitions for habeas corpus in the circuit court and in this court shows that each challenged the correctness and legality of the sentence, and particularly the last six months of the sentence. Moreover, the circumstances existing in June of 1955, when the two' writs were sought, were such that it is abundantly clear that both involved the same subject matter. These included the facts that questions concerning the trial and the judgment had been set at rest by an appeal; that the first six months of the one year sentence had been served, which was a sufficient term if the sentences for the two offenses were to be served concurrently; and that only a week elapsed between the judgment in the first habeas corpus and the filing of the petition for the second one here, with no showing of any new or added facts occurring during that short interval. Thus the same limited matter remained for consideration under her circuit court habeas corpus filed on June 6, 1955 and decided June 8, 1955, and under the habeas corpus filed for her in this court June 15, 1955.

On those facts and for those reasons we hold that the defense of res adjudicata is established on this record and Section 79.10, F.S.1955, F.S.A., enjoins this second application for habeas corpus.

The writ issued herein is ordered quashed, and the relatrix Rose Miller is remanded to the custody of the respondent.

DREW, C. J., and THOMAS and ROBERTS, JJ., concur.


author: THORNAL, Justice.

text:
    WALTER DENSON & SON and Virginia Mutual Insurance Company, Petitioners, v. John D. NELSON and Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Division A.
    May 30, 1956.
    Marks, Gray, Yates & Conroy and Harry T. Gray, Francis P. Conroy and Lloyd C. Leemis, Jacksonville, for petitioners.
    Nathan Bedell, Jacksonville, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   THORNAL, Justice.

Petitioners, who were the employer and insurance carrier in a workmen’s compensation proceeding, seek review of an order of the Florida Industrial Commission affirming an award in favor of respondent Nelson, the employee.

The primary question for determination is whether Chapter 28241, Laws of Florida 1953. which amended Section 440.28, Florida Statutes, F.S.A., by extending from one to two years after date of last payment of compensation the period of time within which an award could be modified, is applicable to a claim pending at'the time of the passage of the 1953 Act.

On July 25, 1952, pursuant to a stipulation, the Deputy Commissioner awarded to Nelson, the employee, compensation for an injury arising out of and in the course of his employment on the basis of a finding of permanent partial disability of 12% percent of the body as a whole. The award was paid in a lump sum on December 17, 1952. On July 1, 1953, Chapter 28241, Laws of Florida 1953, became effective. This A.ct amended Section 440.28, Florida: Statutes, F.S.A., by increasing the period' during which an award might be modified from one year from the date of last payment of compensation to two years from the same date.

On October 6, 1954, the employee petitioned for modification of the award and after hearing, the Deputy Commissioner, on August 30, 1955, modified the award of July 25, 1952, by granting to the employee added compensation based on an additional 12Yz percent permanent partial disability of the body as a whole. At the hearing on application for modification, the employer objected to modification of the award on the ground that at the time the original claim was made the period for applying for modification was one year from the date of last payment of compensation. The objection was denied.

On appeal the full Commission agreed with the Deputy that the claim for modification was governed by the 1953 amendment and affirmed the award. It is this order that is subjected to review by petition for certiorari.

The petitioners claim that the 1953 amendment should operate only prospectively and should not control cases theretofore adjudicated. The respondent-employee contends that the date of last payment was December 17, 1952; that the one year allowed by the Act then in effect had not expired when Chapter 28241, Laws of Florida 1953, became effective on July 1, 1953; hence, he contends that the period for applying for modification was extended for an additional year and that the 1953 Act was applicable to his situation.

In holding that the Deputy and the full Commission ruled correctly we point out that the 1953 Act took effect before the expiration of the one-year period allowed under Section 440.28, Florida Statutes, F.S.A., before the amendment. The rule of this case would not be applicable if the one-year period had expired prior to the effective date of Chapter 28241, Laws of Florida 1953. Although not strictly a statute of limitation, we are of the view that the provisions relative to the period within which applications for modification of workmen’s compensation awards may be made are certainly in the nature of statutes of limitation and are sufficiently analogous that rules applicable to the latter may appropriately be applied.

In an exceedingly helpful annotation to Davis & McMillan v. Industrial Accident Commission, 198 Cal. 631, 246 P. 1046, 46 A.L.R. 1095, we find on page 1101, the following statement of the general rule, to-wit:

“The several states have full power to alter or amend laws providing the mode and manner of dispensing justice in their respective judicial tribunals as they may consider best calculated to promote the ends of justice, provided that in so doing they do not impair the obligation of contracts; and ordinarily statutes of limitation do not have this effect, inasmuch as they act only on the remedy. Debtors and parties to contracts have no vested interests in particular limitation laws existing at any special time. It has appropriately been said that limitation statutes are not to be considered as elements entering into contracts, because the parties do not look forward to a breach of their bargains, but to the performance. 17R.C.L. 680.
“As limitation laws prescribing the time within which particular rights may be enforced relate to remedies only, it is well settled by the authorities that the legislature has the power to increase the period of time necessary to constitute limitation, and to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations.” (Emphasis ours.)

Our examination of the authorities cited to support this rule leads us to the conclusion that it is thoroughly sound and one generally recognized by both the numerical weight'of authority and-the better-reasoned decisions'. '

Similarly, in an exceedingly comprehensive annotation to Nelson v. Cambria Coal Co., 178 Tenn. 389, 158 S.W.2d 717, 160 S.W.2d 412, 165 A.L.R. 1, on page 506 of the annotation, we find summarized the decisions of the courts with reference to the effect of' amending statutes on the lengthening of time available for review in workmen’s compensation cases. Here, again, it appears to us that the better-reasoned rule is that if the period allowed by an existing statute has not run when the amending statute takes effect, then if-the amending statute lengthens the period allowed, it' will be applicable to a pending case. While a different rule probably would apply if the amending statute reduced the period theretofore allowed, we are-not called upon to pass on this problem in the case before us.

Ordinarily statutes of limitation are construed as being applicable only to the remedy and not to the substantive right. Parties to a contract, in the absence of a specific provision in the contract, have no vested interest in particular limitation- laws until the period prescribed by the statute of limitation has run. The Legislature has the.power to. increase, a prescribed period of limitation .and to make it applicable to existing causes of action provided the change in the law is effective before the cause of action is extinguished by the force of a pre-existing statute.

We are confronted with two allegedly conflicting decisions of this court. Petitioners rely for reversal on Daytona Beach Boat Works v. Spencer, 153 Fla. 540, 15 So. 2d 256. Respondents contend that the order of the Deputy and the full Commission is sustained by Corbett v. General Engineering & Machinery Co., 160 Fla. 879, 37 So.2d 161.;

The Daytona Beach Boat Works case did deal with a 1941 amendment to Section 440:28,' Florida Statute^,' F.S.A. Prior to 1941 the Act permitted a modification of an award '“at any'time within two years from the- date of- injury”. ;.In 1941 it was-ámended to permit .a .re-opening or modification of an award - “at: any time prior to one year after the date of the last payment of compensation.” The- court'construed the amendment as diminishing the time for making application to .modify and with this construction determined that the pre-exist-ing Act would be applicable to the situation there presented. However, an examination of th? facts reveals that the application to modify was actually barred by both the pre-existing Act as well as the amendment. Furthermore, in the Daytona Beach Boat Works case' there was a lump sum award to cover. compensation for a p’eriod of 26 weeks. The employee contended that the period allowed f<or modification would begin to run, from the end of the 26 weeks rather than from the date of the lump sum payment. The point actually settled by the case was that the period would start on the date of actual payment. While we do not recede from the rule of Daytona Beach Boat Works v. Spencer, supra, we do hold that it was applicable to the particular factual situation there presented and that the rule of the decision, to-wit, the determination of the date on which the period for modificátion begins to run does not adversely ’affect our holding in the instant case. In' fact we have followed it.

. Although Corbett v. General Engineering & Machinery Co., .supra, involved the section of the Workmen’s Compensation Act, F.S.A. § 440.19, .covering the period within which the initial presentation of a claim might be made,, .rather than the period for. a; request for modification, we think that the. rule there-announced is equally applicable to the case- before us. There the period for filing of claim was extended from one -to two years after -the time of injury. The rules which we have above announced were applied and it vyas- held that .the extended period was available to claimants whose claims had not been barred by,the r one-year period theretofore existing when the amendment .extending the time became effective. - ,

We have carefully examined the other-questions raised by-the-petitioners but inas-'

much,.as ■ they have, been answered by the_ rules of this decision aboye announced, we feel that no useful purpose would be served in’ discussing them in detail.

Finding no error m the ruling of the Ijieputy and-the full. Commission, the prayer of the petition for. certiorari. is there-iere —

. Denied.

’ DREW.' C. T.. and TERRELL and HOBSON, JJ., concur. ■


author: HOBSON, Justice.

text:
    STATE of Florida, Appellant, v. Kermit Gaston TINDELL, Appellee.
    Supreme Court of Florida. En Banc.
    June 8, 1956.

      George A. Brautigam, Miami, for appellant.
    Carr & O’Quin, Miami, for appellee.
   HOBSON, Justice.

Appellee, Tindell, was indicted by the Dade County Grand Jury, charged with manslaughter and, pursuant to Chapter 30227, Laws of Florida 1955, was arraigned in the Dade County Circuit Court. He pleaded not guilty and moved to quash the proceedings, contending that Chapter 30227 was unconstitutional as violative of Section 24 of Article V of the Florida Constitution, F.S.A., which provides for a Criminal Court of Record, and Section 25 of Article V, which pertains to the jurisdiction of the Criminal Court of Record and provides “the said Courts shall have jurisdiction of all criminal cases not capital which shall arise in said counties respectively.’'

The question of the constitutionality of Chapter 30227 was certified to this court, but we declined to answer the question on the showing then made. State v. Tindell, Fla. 1955, 82 So.2d 746.

The Circuit Court held the statute unconstitutional and ordered the proceedings quashed and the cause transferred to the Criminal Court of Record.

Chapter 30227 reads as follows:

“An Act relating to all counties having a population of four hundred ninety thousand (490,000) or more, according to the last federal census, in each judicial circuit of the State of Florida providing that homicides, either murder or manslaughter, shall be presented to the grand jury, and shall be prosecuted by the state attorney upon an indictment in the circuit court having jurisdiction and venue of said offense.
“Be it Enacted by the Legislature of the State of Florida:
“Section 1. In each judicial circuit of the State of Florida, which embraces and includes a population of more than four hundred ninety thousand (490,000) people, according to the last preceding federal census, all homicides, either murder or manslaughter, shall be prosecuted by the State Attorney.
“Section 2. All homicides, either murder or manslaughter shall be presented to the Grand Jury of the county in which the offense occurred and shall be prosecuted upon indictment in the Circuit Court of the county in which the offense occurred.
“Section 3. This Act shall take effect from the time it becomes law.”

The grounds upon which the circuit judge held the above statute unconstitutional do not appear in his order. The State, as appellant, seeks to re-establish the constitutionality of the statute. No brief has been filed by appellee, a practice of which we do not approve.

The principal and controlling question with which we are immediately confronted arises because the title of the act refers to “all counties having a population <of four hundred ninety thousand (490,000) or more, according to the last federal census, in each judicial circuit of the State of Florida” whereas Section 1 of the body of the act refers to “each judicial circuit of the State of Florida which embraces and includes a population of more than four hundred ninety thousand (490,000).” Thus the body of the act appears to have been intended to operate upon a class of persons broader than the title of the act would indicate. Since the title of an act defines its scope, the body of the act can contain no valid provision beyond the range of the subject stated in the title. This principle is written into our law in Article III, Section 16 of the Florida Constitution. As expressed by this court, speaking through Mr. Justice-Whitfield, in Seaboard Airline Railway v. Abe Simon & Co., 56 Fla. 545, 548, 47 So. 1001, 1002, 20 L.R.A.,N.S., 126:

“The body of the act should not contain and operate upon a subject affecting a class that is broader and more comprehensive than the one expressed in the title of the act; but the subject covered by the body of the act may be more restricted, if included within the subject expressed in the title, when the title is not misleading. The title may be broader than the act; but the act should not be broader than the title. Otherwise the subject embraced in the act may not be expressed in the title, as required by the provision of the organic law.”

This is also the law of other jurisdictions. See Luman v. Hitchens Bros. Co., 90 Md. 14, 44 A. 1051, 46 L.R.A. 393; Sutherland v. Board of Trustees of Bishop Independent School District, Tex.Civ.App., 261 S.W. 489; and 50 Am.Jur., Statutes, Section 183.

The fatal defect which we have noted results from a comparison of the title of the act with the first section of the body thereof. The next question is whether or not any provisions of the act can be saved and made operative. To bring Section 1 into harmony with the title, it would be necessary to write into that section a provision which would make it clear its applicability would be limited to counties, as distinguished from judicial circuits, having a population of more than 490,000 people. It is obvious that we cannot perform this legislative function, and we must therefore consider and declare Section 1 invalid in its entirety.

The next question is whether or not Section 2 of the act can stand alone. It is at once evident that it cannot, for it would become an act applicable to all counties of the state which would require all homicides to be presented to the grand jury and prosecuted in the circuit court. Upon no reading nf the statute can we assume that the legislature intended so broad a result. We must conclude that the legislature intended the act to be entire and not severable.

In holding, as we do, that the determination of the trial judge, finding the act unconstitutional, must be affirmed, we express no opinion on the merits of the type of legislation here sought to be enacted. It is sufficient for the disposition of this case to hold that the errors of draftsmanship which we have noted are sufficient to require a declaration that the act is repugnant to Article III, Section 16, of the Florida Constitution.

Affirmed.

DREW, C. J., and TERRELL, THOMAS, THORNAL and O’CONNELL, JJ., concur.

ROBERTS, J., not participating.


author: ROBERTS, Justice.

text:
    Lawrence P. BUTZ, Appellant, v. Elwood J. RINEHEART, Appellee.
    Supreme Court of Florida. Special Division B.
    March 28, 1956.
    Rehearing Denied June 7, 1956.

      Shackleford, Farrior, Shannon & Stall-ings, G. T. Shannon and Vernon W. Evans, Jr., Tampa, for appellant.
    Dye & Dye, Dewey A. Dye and Dewey A. Dye, Jr., Bradenton, for appellee.
   ROBERTS, Justice.

This is an appeal from an order granting a new trial to plaintiff after the jury had returned a verdict in favor of defendant. The grounds of the trial judge’s order were (1) undue emphasis on the law of contributory negligence in his charge to the jury, and (2) an erroneous, charge on the law of the road, given at the request of the defendant.

We agree with the trial judge that his earlier charge on the law of the road was more appropriate in the circumstances of this case, and that it was error, under the facts here present, to give the charge requested by the defendant. This charge, and the repetition of the charges relating to contributory negligence, could reasonably have misled the jury to the plaintiff’s detriment; and the trial judge properly exercised his discretion in granting a new trial.

Affirmed.

DREW, ,C. J., . and TERRELL, ROBERTS and O’CONNELL, JJ., concur.