author: HOBSON, Justice.

text:
    The INSURANCE COMPANY OF TEXAS, Appellant, v. John Lee RAINEY and Joseph Schlitz Brewing Company, Appellees.
    Supreme Court of Florida. En Banc.
    March 14, 1956.
    Rehearing Denied April 20, 1956.

      James A. Smith and Wicker & Smith, Miami, for appellant.
    George Kastenbaum, Miami Beach, for John Lee Rainey.
    Dixon, Dejarnette, Bradford & Williams, Miami, for Joseph Schlitz Brewing Company.
   HOBSON, Justice.

Appellee, Rainey, was injured in the course of his employment and was awarded workmen’s compensation payments. He sued the Schlitz Brewing Company as a third party tort feasor and settled the case for $7,500. Appellant, Insurance Company of Texas, is the compensation carrier for Rainey’s employer. As such compensation carrier, appellant was brought into the case for the purpose of determining its “pro rata share” of the recovery pursuant to F.S. § 440.39(3), F.S.A., which provides for a lien in favor of the employer or compensation carrier for such share “based upon such equitable distribution of the amount recovered as the court may determine”.

Appellant contended below and contends here that Section 440.39 is unconstitutional. We. had occasion to consider this section at length in Arex Indemnity Co. v. Radin, Fla., 72 So.2d 393, 395, and we will not quote the section in full because it is plain that the language actually objected to by appellant here is that which we have quoted above from subsection (3) of Section 440.39.

It is first contended that Section 440.39(3) is offensive as denying to appellant the equal protection of the laws. Appellant states that by Section 440.39(3) “the legislature has classified compensation carriers into a group by limiting their right of subrogation.” But the validity of this classification is not under attack. The only construction we can place upon appellant’s contention is that the section denies equal protection to compensation carriers because in different situations which may give rise to a right to subrogation under the section, the amount of recovery awarded as an “equitable distribution” may be different. As we pointed out in the Arex Indemnity Co. case, supra, “An endless variety of situations may arise in cases where an employee covered by compensation through his own initiative effects a recovery against a third party tort feasor.” But there is nothing in the statute which would indicate that where the situation of the parties, and the amounts involved, are the same the statute would operate differently upon compensation carriers of a particular class than upon compensation carriers of any other class. The only classification involved is the one to which appellant does not object. Equal protection demands only that the rights of all persons must rest upon the same rule under similar circumstances. State ex rel. Vars v. Knott, 135 Fla. 206, 184 So. 752; State ex rel. Lane Drug Stores v. Simpson, 122 Fla. 582, 166 So. 227; Di Lustro v. Penton, 106 Fla. 198, 142 So. 898; Louis K. Liggett Co. v. Amos, 104 Fla. 609, 141 So. 153. As the Supreme Court of the United States has stated in a recent case, “So long as the law applies to all alike, the requirements of equal protection are met.” State of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 465, 67 S.Ct. 374, 377, 91 L.Ed. 422. The right to a “pro rata share” based upon “equitable distribution” is available to all compensation carriers under the statute, and there is no denial of equal protection here.

The next contention of appellant is that Section 440.39 is unconstitutional because it is vague, indefinite, and an unlawful delegation of legislative authority to the judiciary. As we pointed out in the Arex Indemnity Co. case, supra, 72 So.2d 393, at page 396:

“We think any effort to establish a precise formula to encompass all variables that may be present in situations arising under Section 440.39(3), supra, would be a simple case of judicial legislation. The statute sets up and prescribes the standard. If the language there used is undesirable, the matter is one for legislative action.”

We further suggested in the Arex case, however, that more particularity in the standard laid down for the determination of an equitable distribution would be virtually impossible in view of the innumerable situations which can arise thereunder and call for the exercise of discretion by the court. This is not a case where rights under the criminal or penal laws are made to depend upon a vague statutory definition, as in United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284; and Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102, cited by appellant. The statute places no duty upon the appellant and lays down no standard which the appellant itself is compelled at its peril to follow, nor does it seek to impose a duty upon an administrative body of a character so vague and perplexing that many results are possible on the same essential state of facts. Compare Phillips Petroleum Co. v. Anderson, Fla., 74 So.2d 544. The statute, after all, deals with a judicial officer and authorizes him to make an “equitable distribution”. We think the term “equitable distribution” is sufficiently definite when considered with the type of problem with which we are dealing. The term “equitable lien” comes to mind and we have described it as a lien which may be “ ‘declared by a court of equity out of general consideration of right and justice as applied to relations of the parties and circumstances of their dealings in the particular case.’ ” Johnson v. Craig, 158 Fla. 254, 28 So.2d 696, 699. This is hardly a definite standard, but it is appropriate for a court of equity. As appellees point out, our statutes are replete with similar standards whose application must be governed by a sound judicial discretion. If the discre-tion vested in the chancellor or trial judge under ■ any of these statutes is abused, a remedy is provided by way of appeal.. We conclude that the constitutional attack made upon the statute must fail, and the determination of the chancellor upon this aspect of the case must be affirmed.

We next consider a cross-appeal by Rainey, plaintiff below, from an order denying his motion for attorney fees for defending against the claim of the compensation carrier, discussed above, ánd “interest” for the time the compensation carrier delayed release of a part of the settlement money which had been paid into the court.

As indicated above, the case against the third party tort feasor was settled, and as a result of’the settlement obviously any claim for true interest which might have run against the third party tort feasor in the event that a judgment had been entered and appealed was extinguished by the fact of the settlement. The “interest” sought by Rainey is not interest at all, but a penalty sought to be imposed upon the compensation carrier for presenting a bona fide legal question for adjudication. Cross-appellant has produced no authority which is in point upon this subject and we affirm the chancellor’s ruling in this regard. By this ruling, we do not mean to suggest, however, that a situation might not arise wherein the chancellor would be authorized, by reason of dilatory or other tactics on the part of the employer or compensation carrier, to take such conduct into account in reaching an “equitable settlement” under Section 440.39(3).

As for attorney fees, Section 440.-39(3) provides that the “pro rata share” to which the employer or carrier shall be entitled, based upon “equitable distribution” shall be “less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for plaintiff’s attorney, such proration of court costs and attorney’s fees to be made by the judge of the trial court upon application therefor and notice to adverse party.” Attorney fees contemplated under this section are for the prosecution of the suit against the third party tort feasor, and by the clear language of the statute it does not appear that the legislature intended to provide fees for opposing any claim which might be made in connection wtih the “equitable settlement” provided for in the statute. There is no ambiguity in the statute upon which a claim for attorney fees for such service might be resolved in favor of the appellee. Compare Lockett v. Smith, Fla., 72 So.2d 817.

Affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lee G. FLEMING and Mildred Fleming, his wife, Appellants, v. AUGUST TOBLER, Inc., a Florida corporation, and August Tobler, Appellees (two cases).
    Supreme Court of Florida. Division A.
    March 28, 1956.
    Joseph A. Wanick, A. Budd Cutler, Miami Beach, and Leonard Pepper, Tallahassee, for appellants.
    Ferrell & Young, Miami, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgment appealed from pursuant to 30 F.S.A., Rule 38 of the Rules of this Court, and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be and the same is hereby granted, and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOBSON and THORNAL, JJ., concur.


text:
    Don CRAWFORD and his wife, Irene Crawford, Appellants, v. John W. MARTIN, as Trustee of the property of Florida East Coast Railway Company, and John B. Orr, Inc., of Miami, Florida, Appellees.
    Supreme Court of Florida. Division A.
    March 28, 1956.
    W. J. Robinson, Fort Lauderdale, for appellants.
    Russell L. Frink, John B. L’Engle and Harold B. Wahl, Jacksonville, for appel-lees.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgment appealed from pursuant to 30 F.S.A., Rule 38 of the Rules of this Court, and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly Ordered, Adjudged and Decreed that the motion to affirm the judgment appealed from be and the same is hereby granted, and the judgment is

Affirmed.

DREW, C. J., and TERRELL, HOBSON and THORNAL, JJ., concur.


text:
    Mae Lankenau WIBERG, Herman Lankenau and Clyde Lankenau, Individually and as Beneficiaries under the Will of John Herman Lankenau, Deceased, Appellants, v. William P. SIMMONS, Jr., as Administrator, of the Estate of Herman Seldenburg, Deceased, Appellee.
    Supreme Court of Florida. Division A.
    Feb. 22, 1956.
    Rehearing Denied April 13, 1956.
   PER CURIAM.

Affirmed.


text:
    Jean MacFARLAND, Appellant, v. Joseph A. BOYD, Jr., Administrator C.T.A. of the Estate of Madelon Proal, Deceased, Appellee.
    Supreme Court of Florida. Division A.
    March 14, 1956.
    Rehearing Denied April 13, 1956.
   PER CURIAM.

Affirmed,


author: FOURNET, Chief Justice.

text:
    229 La. 632
    Ellis TRAPPEY v. LUMBERMEN’S MUTUAL CASUALTY CO.
    No. 42253.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Davidson, Meaux, Onebane & Nehrbass, J. J. Davidson, Jr., Lafayette, for defendant, applicant.
    McBride & Brewster, Lafayette, Wm. Harris McBride and William L. Brewster, Lafayette, for plaintiff-respondent.
   FOURNET, Chief Justice.

We granted certiorari upon the application of the defendant, showing that the decision of the Court of Appeal in this case is in direct conflict with decisions of the Court of Appeal, Second Circuit.

The plaintiff, Ellis Trappey, who had been receiving compensation at the rate of $30 per week for injuries suffered in the course of his employment as manager and supervisor of the Lafayette plant of the Trappey Beverage Company of New Iberia and Lafayette, instituted suit directly against his employer’s insurer, Lumbermen’s Mutual Casualty Company, which, upon learning that at the time of the accident the plaintiff had become a partner in the business, discontinued the compensation pajunents.

The trial court, relying on the holding in the cases of Dezendorf v. National Casualty Co., La.App., 171 So. 160, and Harper v. Ragus, La.App., 62 So.2d 167, both decided by the Court of Appeal, Second Circuit, stated that “a partner cannot be both an employer and an employee within the intent of the Workmen’s Compensation Act [LSA-R.S. 23:1021 et seq.]” and dismissed plaintiff’s suit on exceptions of no cause or right of action. On Appeal, the Court of Appeal, First Circuit, declined to follow the rationale of the cited cases and, after analyzing them, showed that the De-zendorf case was based on the doctrine of the common law treating a partnership as an aggregate of individuals, the component members being co-owners of the partnership property and holding as joint tenants, and treating the payment of wages to a partner as but the adjustment of accounts between partners; and observed that the Ragus case merely followed the Dezendorf case. The appellate court thereupon undertook to show, in a carefully considered opinion, the nature of partnership under the civil law and under the jurisprudence of this State as being an entity with legal relations separate and distinct from those of its individual members, as a result of which it concluded, we think correctly, that the plaintiff had stated a right of action against the defendant; it reversed the judgment of the lower court, overruled the exceptions, and remanded the case for further proceedings. See La.App., 77 So.2d 183.

Under our civil law system, unlike that of the common law, a partnership .is an abstract ideal being with legal relations separate and distinct from those of its individual members; as was very aptly-said by this Court more than a century ago, “The partnership once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes. ‘Une personne Active et morale séparée des associés. Fictae Cujusdam personae vicem obtinet.’ * * and, as pointed out in the opinion, “ * * * the partners are not the owners of the partnership property. The ideal being thus recognized by a fiction of law, is the owner; it has a right to control and administer the property, to enable it to fulfil its legal duties and obligations; and the respective parties, who associated themselves for the purpose of participating in the profits which may accrue, are not the owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligations of the partnership are discharged.” Smith v. McMicken, 3 La.Ann. 319, at pages 321-322; see, also, Christen v. Ruhlman, 22 La.Ann. 570; Paradise v. Gerson, 32 La.Ann. 532; Stothart v. William T. Hardie & Co., 110 La. 696, 34 So. 740; E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 84 So. 898; Brinson v. Monroe Automobile & Supply Co., 180 La. 1064, 158 So. 558, 96 A.L.R. 1206; Atkinson & Co. v. Hibernia Nat. Bank in New Orleans, 186 La. 1074, 173 So. 768. The partnership may be sued without making the individual members thereof parties defendant. Brinson v. Monroe Automobile & Supply Co., supra; E. B. Hayes Machinery Co. v. Eastham, supra. It goes without saying that the wages due to the employees of a partnership are due and payable regardless of whether the partnership operates at a profit or a loss; and while commercial partners aré bound in solido for the debts of the partnership, Article 2872, LSA-Civil Code of Louisiana, that liability does not become enforceable until the partnership has been dissolved. As pointed out in the case of E. B. Hayes Machinery Co. v. Eastham, supra, “ * * that liability does not become enforceable against the- individuals who compose the partnership, separate and apart from the firm, until it has been dissolved”; or, as otherwise stated in the opinion, “Until the debt is established contradictorily with the partnership, so long as it exists, there is no debt within the meaning of article 2872 of the Civil Code, which can be enforced against the individual partner.” It is only “* * * when the partnership has been dissolved, [in which case] it ceases to exist as a separate entity, and the liability of the partners becomes fixed.” 147 La. at pages 352, 354, 84 So. at page 900.

We think, as did the Supreme Court of Oklahoma in the case of Ohio Drilling Co. v. State Industrial Commission, 86 Okl. 139, 207 P. 314, at page 317, 25 A.L.R. 367, that “ * * * the construction of the Workmen’s Compensation Act that a member of a partnership, who works for the partnership, and while so engaged is injured, is not an employee within the meaning of the act, is an exceedingly narrow construction of the act, * * * ” and, we might add, directly contrary to the spirit of the compensation statute of this State as recognized by the jurisprudence to the effect that its provisions should be liberally construed in order to provide the full benevolent effect intended by the lawmaker. Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677; Lemieux v. Cousins, 154 La. 811, 98 So. 255. It cannot be gainsaid that the plaintiff was performing services for the partnership, for which he received wages like all the other employees of the Trappey Beverage Company; and to now deprive him of compensation would not only be contrary to the basic principles upon which the compensation laws of, this State were founded — the intent being to abolish the rules of the .common .law as they applied to the injured workman, and establish in their stead a system whereby the loss is recognized as an element of the cost of production to be charged to the industry rather than to the individual employer, Puchner v. Employers’ Liability Assur. Corp., 198 La. 921, 5 So.2d 288; Speed v. Page, 222 La. 592, 62 So.2d 824—but would ignore the purpose and object of the act, these being to provide funds to sustain the injured employee while he cannot provide for himself. Barr v. Davis Bros. Lumber Co., 183 La. 1013, 165 So. 185.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

      . According to a stipulation in the record, Trappey’s Beverage Co. is a commercial partnership composed of H. W. Trappey, Bernard Trappey, A. F. Trappey, R. J. Trappey, George Trappey, Jr. and Ellis Trappey.

      . In Dezendorf v. National Casualty Co., La.App., 171 So. 160. it was held that the plaintiff, who was a member of the partnership, could not legally be an “employee” so as to be entitled to recover compensation from either the partnership or its insurer; in doing so the Court of Appeal noted it was adopting the rule which prevailed in other States of the Union with the single exception of Oklahoma,


author: McCALEB, Justice.

text:
    229 La. 640
    LIQUEFIED PETROLEUM GAS COMMISSION v. E. R. KIPER GAS CORPORATION.
    No. 42435.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Fred S. LeBlanc, Atty. Gen., Joel B. Dickinson, Asst. Atty. Gen., for plaintiff-appellant.
    Lemuel C. Parker, Baton Rouge, for defendant-appellee.
   McCALEB, Justice.

Plaintiff, an administrative agency of the State, seeks recovery of a $200 penalty which was assessed against defendant corporation for violation of certain rules and regulations established by it for the control of dealers handling liquefied gas.

The corporation’s principal defense is that the penalty is illegal because plaintiff Commission has never been organized and established in accordance with the provisions of Section 28 of Article 6 of the LSA-Constitution, as added by Act 563 of 1950. This defense was asserted in limine by an exception of no right or cause of action and, upon referral of the exception to the merits of the case, was reiterated in the answer, along with other defenses. After a trial, the judge sustained the exception and dismissed the suit. Hence this appeal.

Our appellate jurisdiction being invoked solely on the ground that the legality of the penalty imposed by plaintiff is in contest, consideration of the case is limited to that particular issue. City of Shreveport v. Aaldrup, 198 La. 893, 5 So.2d 143 and State Farm Mut. Auto. Ins. Co. v. Ott, 221 La. 1061, 61 So.2d 872. See, also, State v. Bonner, 193 La. 400, 190 So. 625; State ex rel. Chehardy v. New Orleans Parkway Commission, 215 La. 779, 41 So.2d 678 and State v. Dunning, 224 La. 204, 69 So.2d 16.

The claim of' illegality of the penalty rests on the premise that plaintiff .Commission has never been validly constituted in that only three members have .qualified whereas the Constitution ’ provides that the Commission be composed of five persons..

The Commission contends that it was not essential that the full complement of its membership be appointed in order for it to organize and function and that it sufficed' for all purposes that a majority of the membership has been qualified, as such majority constituted a quorum for the transaction of its business.

The pertinent part of Section 28 of Article 6 of the Constitution ■ reads:

“There is hereby created a .Commission, to be known as the Liquefied Petroleum Gas Commission, with power to sue and be sued and with its domicile in the City of Baton Rouge, Louisiana; said Commission to consist of five members, one of whom shall be the Secretary of State, who shall serve as ex-officio member by virtue of his office ; two members are to be appointed by the Governor; and two members . are to be appointed by the Governor from a list containing six' or more names selected in the manner hereinafter provided by a majority vote of the Liquefied Petroleum Gas Dealers,' as that term is herein defined. . In de-. fault of such nomination by the Liquefied Petroleum Gas Dealers the Governor shall make the appointments. All appointments by the Governor shall be Subject to confirmation by the Senate. * * *
“The two members first selected by the dealers shall each serve, for a term of three years and their successors shall each serve terms of • five years'; the Secretary of State shall serve for a term corresponding with the term of his official office; the two members appointed by the Governor shall each serve for a term of five years. A majority of the membership shall constitute a quorum for the transaction of all business.”

The facts, as stipulated 'at the trial, are that the entire membership of five authorized by the constitutional provision has never been completed and that the Commission has functioned and operated by a quorum consisting- of the Secretary of State and two members appointed by the Governor. The other two members, who were to be appointed by the Governor from a list containing six or more names selected by vote of the Liquefied Petroleum Gas Dealers, have not been ‘ appointed. This was probably due to the failure of the Liquefied Petroleum Gas Dealers to comply with the Constitution by selecting and furnishing the Governor with a list of nominees. While the Governor had the right to make the appointments, in the event of the dealer’s default, he has not seen fit to exercise this power.

The district judge, in sustaining the exception of no right or cause of action, expressed the view that, since the Governor did not fill the complement of the Commission by appointing four members, a legal body has never come into existence and all of the acts of the three 'members are nullities.

We think this is error. The Commission was created and given legal existence by the Constitution. The appointment of the members of the Commission was but a necessary step in the organization of this legal entity so that it might perform the ’ functions for which it Was established. Hence, the question is not whether a body corporate was created but whether the entity so created could function through appointment of a less number than its entire membership.

Since the constitutional amendment declares that “A majority of the membership shall constitute a quorum for the transaction of all business”, it clearly appears that the Commission is specially authorized and empowered to operate and function with only three members. This power would seem to encompass the right to organize the Commission at inception so that its functions could be performed. Indeed, no good reason occurs to us for denying a public board the right of organizátion prior to the time its entire membership has been selected and qualified provided, of course, that a sufficient number of members, authorized by law to act for the body, have been appointed and qualified.

This is the view of the Supreme Court of California in People ex rel. Hoffman v. Hecht, 1895, 105 Cal. 621, 38 P. 941, 943, 27 L.R.A. 203 with which we are in complete ags cement. In that case, the properly constituted authorities ordered an election of a Board, consisting of fifteen freeholders to prepare and propose a charter for the City and County of San Francisco. This election was held but two of the fifteen members were unable to qualify. The question presented was whether the remaining thirteen members, who were regularly elected, could constitute a legal board with authority to act. The court answered this question in the affirmative, reasoning:

“If a majority possesses all the authority of the whole, then such majority must be competent to its exercise. For all practical purposes, the majority becomes the full board. It is the receptacle — the reservoir — of all the authority conferred upon the whole, and,, its action, it is submitted, cannot be stayed by the nonaction, failure to qualify, absence, death, or want of eligibility of the minority.
;jí sj: % ifc jf:
“Under the doctrine which was formerly upheld by many of the courts, that all the members of a board, committee, or commission múst meet and deliberate, though' a majority could decide, the contention of appellant in support of the theory that the presence and action of all the members is necessary to an organization may be upheld. The concensus of modern opinion, however, is believed to be that, where a majority -may act, such majority may organize and act.”

Counsel for defendant would differentiate the Hecht case from this one on the ground, that, there, the people had actually elected the fifteen board members and thus had done everything that could be done whereas, here, the Governor has not fully exerted his power of appointment.

We see no merit in this postulation as. it is difficult to perceive any real difference between the two cases. If an appointee cannot qualify, the appointment is just as ineffective as though no appointment is made. ■ In either case, the right of those-legally appointed, constituting a quorum of the entire membership, to organize the-Commission and exercise its functions is just the same.

Counsel for defendant also refer to Section 1 of Act 63 of 1950, reenacting Section 1841.1 of Part 1 of Chapter 10 of Title 40 of the LSA-Revised Statutes to read that the five members of the Commission created by the constitutional amendment shall meet and organize as soon after the effective date ■ of said amendment as circumstances permit. From this, it is contended that the Commission could not lawfully organize with less than its full complement of members.

We do not so viewrthe provision. The statement therein that the five members of the Commission shall meet and organize was not intended to and did not preclude a lesser number from meeting and organizing as long as there was a quorum present con-formably with the constitutional provision, which vested in a majority of the membership the right to transact all business.

Forasmuch as 'the District Court has not passed on the other questions raised in the case, of which we are without appellate jurisdiction, a remand is in order.

The judgment appealed from is reversed and the case is remanded for further proceedings in accordance with law and consistent with the views herein expressed. Costs of this appeal are to be paid by defendant.

HAWTHORNE, J., absent.

      . We.were informed by counsel during oral argument that the Governor filled the vacancies after the decision of the trial judge herein.

      . From a procedural standpoint, the Judge should have dismissed plaintiff’s demand on the merits as the question of the legality of the penalty was not properly triable on an exception of no right or cause of action. An exception of no cause of action addresses itself to the sufficiency in law of the petition and is triable on the face of the papers. Kennedy v. Perry Timber Co., 219 La. 264, 52 So.2d 847, and cases there cited. Here, evidence was required in order to determine the question raised by the exception.
      And, while evidence is receivable under an exception of no right of action, it may be admitted only for the purpose of showing that a plaintiff is without capacity to .sue or lias no interest in the subject matter of the proceeding. Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 and cases there cited. The claim in this case is that the penalty is null and not that plaintiff has no capacity to sue or is without interest in enforcing its assessment.

      . It is also well-settled in this country that vacancies in membership, resulting from death, resignation or incapacity, would not affect the legality of the acts of a public body as long as they are authorized by a majority of its membership constituting a quorum. Shoshone Highway Dist. of Lincoln County v. Anderson, 22 Idaho 109, 125 P. 219 and Swedback v. Olson, 107 Minn. 420, 120 N.W. 753 and authorities there cited.

      . Act 63 of 3950 is not an enabling act for the establishment of the Commission, as counsel apparently regard it. It is the-constitutional amendment that creates the Commission and provides for its powers and functions. : Act 63 of 1950 is merely an adjunct thereto providing for the internal operations of the Commission and specifying in detail various fees and penalties it may assess. The statute was validated by the constitutional amendment, but only insofar as its terms are not inconsistent with the limitation imposed on the powers of the Commission enumerated in the amendment, the provisions of which would unquestionably be self executing without need of legislative enactment. See, Miller v. Greater Baton Rouge Port Commission, 225 La. 1095, 74 So.2d 387.


text:
    229 La. 651
    Howard F. WALLACE v. REMINGTON RAND, Inc., et al.
    No. 42210.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    McClendon & Benton, J. F. Mclnnis, Minden, for plaintiff-relator.
    Theus, Grisham, Davis & Leigh, by J. C. Theus, Monroe, for defendants-respondents.
   McCALEB, Justice.

This is a suit by an employee, who was totally and permanently disabled in an industrial accident while engaged in the performance of his duties, to recover from his former employer and its compensation insurance carrier the maximum compensation benefits payable under the Employers’ Liability Act, Chapter 10 of Title 23 of the Revised Statutes, Sections 1021-1351.

The defendants do not contest the fact of plaintiff’s employment in a hazardous occupation, the accident arising out of and in the course thereof, the ensuing disabling injury and its permanency within the meaning of the law; their sole defense is that his claim is barred by the prescription of one year, the accident having occurred on June 4, 1952 and the suit not having been brought until January 22, 1954.

Plaintiff contends that prescription has not run as its course was interrupted by the payment to him of weekly wages, for labor not commensurate therewith, from the date of the accident until October 28, 1953, and that, in these circumstances, the payments are to be considered as at least partial gratuities given by his employer in lieu of compensation.

The district court upheld plaintiff’s position and awarded him compensation, giving defendants credit for the wages paid in lieu of compensation. But, on appeal, the Court of Appeal for the Second Circuit resolved that, notwithstanding that plaintiff was paid his regular wages for the performance of lighter work, such payments did not interrupt the running of prescription because the prescriptive provision of the statute, R.S. 23:1209, envisioned that “ * * * there must at least be an implied understanding between the interested parties that the payments made to the employee shall be in lieu of compensation” in order to produce such effect. See 76 So.2d 87, 90. We granted certiorari at plaintiff’s behest and the matter has been argued and submitted for our determination.

Plaintiff is 36 years old and has been engaged in millwright and automotive mechanical work since his youth. From 1942 until the end of the War, he worked as a millwright for the Louisiana Ordnance Plant, following which he was engaged in other mechanical work until September of 1951, when he rejoined Remington Rand, Inc. as .a millwright. At about 2:00 p. m. on June 4, 1952, during the course of his duties, plaintiff lifted a small motor, while standing in an awkward position, and felt a snap in his back followed by a severe pain. He did not report the accident or go to the infirmary provided by his employer at that time but, on advice of a fellow workman, lay flat on his back for 'a short interval and, when the pain had subsided somewhat, resumed work during the rest of the day. Plaintiff says that he did not regard the injury as serious; that, when he went home, he took aspirin and applied heat to his back with an infra-ray light; that he thereafter continued on the job and that, about a week later, he reported to the Company’s infirmary where a doctor strapped his back and heat was applied under a diathermic machine. However, the doctor in charge of defendant’s infirmary (who did not testify) evidently did not believe that plaintiff suffered a disabling injury because he was immediately returned to the job after his back had been strapped. Thereafter, plaintiff continued to perform the duties of a millwright in the defendant’s employ until October 26, 1953, or for a period of over 70 weeks'. During this time, he received regular wages (he worked on an hourly basis) ranging from $72 to $247.50 weekly. Shortly after the accident, Mr. Raleigh T. Grounds, the foreman in charge of the section in which plaintiff worked,' learned of the injury and gave instructions to plaintiff’s immediate superior to have him perform only the lighter duties required of a millwright, that is, that he be relieved of lifting and carrying heavy machinery.

Plaintiff testifies that, although he was in constant pain, he did all the work required of him and, at times when no other fellow employee was present to give him a hand, he would lift the motors and other equipment. During the latter part of 1952, plaintiff .consulted a doctor in Minden, Louisiana, who gave him temporary relief, but, in the early part of 1953, while engaged in night work at the plant, plaintiff wrenched his back when he stepped in a hole and, from then on, the pain in his back, radiating down his leg, was more or less incessant. Still he worked on until October 26, 1953. At one o’clock on that day, plaintiff says that the pain was so unbearable that he asked his foreman to take him to the hospital. When he arrived there, infra-ray heat treatments were again applied for about 30 minutes and then plaintiff was taken back, to the shop where he worked for the rest of the day with an electric heater placed on a stool beside him. That evening plaintiff returned to the hospital and consulted Dr. Potts, who X-rayed his back (apparently for the first time), strapped it and told him to come again bn Wednesday, October'28, 1953. Upon plaintiff’s return, Dr. 'Potts reported that he had not “found a thing about the X-ray” and sent him to Shreveport to consult Dr. Carson Reed, an orthopedic surgeon, who diagnosed plaintiff’s ailment as a ruptured or herniated disc in the area of the fifth lumbar vertebrae. On December 2, 1953, a mileogram was made on plaintiff which conclusively confirmed Dr. Reed’s prognosis. An operation was performed on December 4, 1953, which until now has not proved successful, and plaintiff has been fitted with a back brace which he has been instructed to wear for an indefinite period of time. At the last examination, made on February 5, 1954, Dr. Reed thought that it would require from nine to twelve months for plaintiff to reach a maximum improvement and said that it was then impossible to state definitely the ultimate extent of his recovery.

It is clear from the foregoing facts that, whereas plaintiff’s present total disability stems from the accident of June 4, 1952 and whereas the injury sustained in that accident may have been of such severity as to incapacitate many men, it did not disable plaintiff at inception for he continued to perform all labor required of him until October 26, 1953, when the resultant pain from the injury became so pronounced that he had to stop work. Obviously, insofar as its effect on plaintiff was concerned, the accident of June 4, 1952 did not produce immediate disability as neither he nor his employer believed him to be disabled.

Therefore, we agree with defendants and the Court of Appeal that the money paid plaintiff from the date of the accident until October 26, 1953, when he could no longer work, was fully earned— indeed earned under great stress — for,-while plaintiff’s foreman instructed his immediate superior to put him on lighter duties, the fact remains that he performed practically all the work required of a millwright with his employer’s approval as its own physician did not consider that the injury was serious enough to take him off the job. -

But our conclusion that plaintiff earned the wages paid him and that no part of the payments can be regarded as compensation or in lieu thereof, contrary to the mistaken theory under which plaintiff’s counsel instituted the suit, does not necessarily warrant a holding that the plea of prescription of one year is well founded. And the circumstance that plaintiff has brought the suit under a misapprehension of fact and law, that the wages paid during the period when he was working were at least partially in lieu of compensation, does not preclude him from maintaining his claim if it is not prescribed, as our Employers’ Liability Act is paternal legislation subject to liberal construction by the courts, it being specially provided therein (see R.S. 23:1317) that the courts shall not be bound by technical rules of evidence or procedure. Accordingly, the question remains whether plaintiff’s action is prescribed under R.S. 23:1209.

R.S. 23:1209 provides for two periods of limitation. Initially, it prescribes a period of one year from the date of the accident within which suit must be brought. This prescription is interrupted by the making of compensation payments and it does not begin to run again until after the last compensation payment is made. The other limitation, which was provided by the amendatory Act 29 of 1934, is also a prescription of one year, coupled with a peremption of two years. It declares “Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the "expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.” .(Italics ours.)

This court has but recently considered and construed the quoted provision in two cases, Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 and Johnson v. Cabot Carbon Company, 227 La. 941, 81 So.2d 2. The facts of the Mottet case are practically parallel with this one. .There, plaintiff, a glass cutter, was injured'on January 27, 1946 while lifting heavy glass. His injury was diagnosed as neuritis but he did not stop work. During September of 1946, he visited Johns Hopkins Hospital in Baltimore, Maryland and was examined by an orthopedic physician who found -that he was suffering from a partial thinning of the fifth lumbar intervertebral space and, on his return to work, he was changed from cutting heavy glass to light glass at his own request as the latter did not entail as much strain in weight lifting. Fie continued cutting light glass until March 11, 1947, when his condition became so painful that he was forced to cease work entirely. In attempting to defeat plaintiff’s action as prescribed, defendant urged that the one-year limitation beggn to run on January 27, 1946, when the accident occurred. The Court of Appeal sustained this contention but we rejected it on certiorari, holding that prescription did not begin to run until the injury developed and that “the injury did not develop into total disability until March 11,, 1947; at which time the plaintiff could no longer pursue his trade as a glass cutter”. ...

In the case at bar, there is not the slightest doubt that, from a practical aspect, plaintiff’s injury did not develop into total disability until October 26, 1953, when the pain in his back became so intense that he could no longer continue his employment. True enough, the law did not require plaintiff to work during those 70 tedious weeks following the accident enduring the pain that he must have continuously experienced and perhaps a man qf less fortitude would have immediately stopped working and demanded compensation for total permanent disability. But for us .to presently cqnclude that the, injury developed on the day of the accident would be dealing in conjecture and the commencement of prescription cannot be- decided on that basis. What may be a disabling injury to one man may not be to another and the plain purpose of the amendment to the compensation law by Act 29 of 1934 is to provide a reasonable period of limitation in cases like this, where the injured workman continues on at his job and earns his wage, even though he does not perform all of the duties formerly assigned to him. It is to be remembered that the statute does not countenance an unseasonable delay for filing compensation claims in any case as it provides a peremption of two years from the date of the accident within which all suits must be instituted.

The court, in Mottet v. Libbey-Owens-Ford Glass Co., supra [220 La. 657, 57 So.2d 219], construed the language of R.S. 23:1209 that “the limitation shall not take effect until the expiration of one year from the time the injury develops”, to mean that prescription does not begin to run until the time the workman is unable to substantially perform the duties of his employment. This is a fair interpretation of the statute and in keeping with the beneficent object of its enactment. Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer. In the case at bar, it is obvious that manifestation of plaintiff’s incapacity did not occur until October 26, 1953.

For the foregoing reasons, the judgment of the Court of Appeal is annulled and it is now ordered that there be judgment herein in favor of plaintiff, Howard Wallace, and against the defendants, Remington Rand, Inc. and the Travelers Insurance Company, in solido, for compensation at the rate of $30 per week commencing October 26, 1953 for the duration of his disability, not exceeding 400 weeks, with interest at the rate of 5% per annum on each past due installment from its due date until paid.

It is further ordered that all accrued amounts with interest from the due date of each installment at the said rate, until paid, be paid in a lump sum and that the fee of the attorneys for plaintiff be fixed and approved at a sum equivalent to 20% of the amount collected under this judgment, provided that the maximum attorney’s fee shall not exceed the sum of $1,-000, said fee to be paid out of the award made to plaintiff.

It is further ordered that the plaintiff have judgment against defendants in solido for the sum of $500, for medical expenses, and the right to bring suit against defendants for future medical expenses occasioned by his injury is reserved to him. All costs are to be paid by defendants.

MOISE, J., absent.

      . According to the testimony, a millwright is an erector of machinery whose duties at defendant’s plant entailed the installation of machines used in the production and loading of ammunition. Some of these machines are heavy; some arrive completely assembled; others are assembled on the job. On occasion, the millwrights are required to push these machines and also to lift heavy objects.

      . It is alleged in defendants’ answer that plaintiff was examined on June 18, 1952 by Dr. S. E. Potts, a physician in the employ of Remington Rand, Inc., for a back sprain; that Dr. Potts at that time reported that plaintiff was suffering no disability because of liis back condition and that, following the examination, he discharged plaintiff as able to perform the same duties he was undertaking at the time of the accident.

      . These orders were given without the knowledge or consent of the officials of Remington Rand, Inc. Mr. Rex D. Per-ritt, Goneral Foreman of the General Maintenance Department (only witness placed on.the stand by defendants), testified that he did not instruct anyone to give plaintiff light work; that plaintiff earned the wages of a millwright and that no one ever reported that his work was unsatisfactory.

      . When asked by Ms counsel -whether he ■was aware after Juno 4, 1952. that he might have ■ some right to compensation under the law, plaintiff replied “No, I’ll just be frank with, you. I have never drawed Compensation in my life; I have worked hard all my life and wasn’t aware of it, of the thoughts”.

      . It was stipulated between opposing counsel that, if Dr. Garson Reed had been called to testify, he would have stated that it was his opinion, from the history given him by plaintiff in December of 1953, that the accident of June 4, 1952 was the cause of the herniated disc and • that it was further his opinion that plain- . tiff was totally disabled after the aeci-■dent from performing any work requiring heavy lifting, stooping or bending of his back, as such movements would cause him severe pain and discomfort. This opinion of Dr. Reed is highly speculative for the testimony shows that plaintiff did, on occasion, lift heavy , rnachin-’cry and generally perform' the work required of him as a millwright, without complaint for many months following the accident. '


text:
    229 La. 664
    Joseph S. GUERRIERO v. Elmer J. DAVIDSON.
    No. 42265.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Albin P. Lassiter, Monroe, for defendant-appellant.
    Joseph S. Guerriero, George Fink, Monroe, for plaintiff-appellee.
   McCALEB, Justice.

Plaintiff see^s to recover an attorney’s fee for services rendered defendant in a certain lawsuit brought against the latter by his former wife for the rescission of a community property settlement on the ground that he had fraudulently concealed some $30,000 community assets. This litigation was ultimately compromised by defendant’s payment of $7,500 to his former wife for which she also agreed to waive any and all future claims for alimony. Plaintiff is demanding $2,500 in recompense for his services on a quantum meruit basis and, in the alternative, alleging that defendant had agreed to pay him a fee of $1,000 if he could bring about a compromise which would include settlement of future alimony, requests recovery of that sum should it be found that there was a conventional agreement.

Defendant, while admitting the employment of plaintiff and the termination of the litigation by compromise as above set forth, denies any indebtedness for an attorney’s fee, maintaining that plaintiff had been paid for all professional services rendered in the litigation as it was covered by a $300 per year retainer fee, which was raised to $500 per year in 1950 and for which plaintiff allegedly agreed to handle all leg-al matters including personal litigation.

After a trial on the foregoing issues, there was judgment for plaintiff on the main demand in the sum of $2,500. Defendant has appealed.

Since it is conceded by defendant that plaintiff was employed and performed the legal services, the only questions for determination are (1) whether the parties agreed that the services would be included in the yearly retainer’s fee paid to plaintiff and (2), if not, the amount of compensation to which plaintiff is entitled.

Plaintiff testified that the $300 annual retainer, which was later raised to $500, was limited to services rendered in relation to defendant’s used car business and that defendant promised to pay him a minimum fee of $1,000 for his services rendered in the litigation with defendant’s former wife. Defendant’s contention to the contrary evidently did not impress the trial judge nor do we think it is reasonable to believe that plaintiff, agreed to handle the personal litigation of his client, in addition to his business affairs, for a small yearly retainer of $500. Hence, we conclude that plaintiff has not been recompensed for the services rendered in the litigation between defendant and his former wife.

On the other hand, we are of the opinion that the judge erred in allowing recovery on a quantum meruit as it appears from plaintiff’s own testimony that he agreed to a fee of $1,000 and wrote defendant on two occasions demanding payment of that sum. If we are to believe plaintiff’s testimony (which we must in order for him to recover at all), there was a conventional obligation on the part of defendant to pay him $1,000 and no more.

But, apart from this, plaintiff could not recover more than $1,000 on a quan-turn meruit basis since that was the value he placed on his own work. Hence, it matters not 'that two other lawyers, testifying for plaintiff, gave the opinion that the services were worth $2,500. It has been held that, when an attorney sends a bill to his client for services rendered, he is concluded as to the value of his services in the absence of a showing of error or special conditions respecting prompt payment and the like. Succession of Flower, 3 La.Ann. 292 and Carey v. Sentell, La.App., 64 So.2d 451, certiorari denied June 1st 1953.

The judgment appealed from is amended by reducing the amount thereof to $1,000 and, as thus amended, it is affirmed. The costs of this appeal are to be paid by plaintiff.


author: PONDER, Justice.

text:
    229 La. 668
    STATE of Louisiana v. Ernest Paul DUGAN.
    No. 42625.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    J. Minos Simon, Lafayette, for defendant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., L. G. Pecot, Dist. Atty., Franklin,' Knowles' M. Tucker, Asst. Dist. Atty., New Iberia, Nathan A. Levy, Asst. Dist. Atty., Franklin,' for appellee.
   PONDER, Justice.

The defendant was charged with the possession and sale of marijuana. He was tried, convicted, and sentenced to serve seven and one-half years in the state penitentiary. He has appealed.

During the course of the trial, his counsel reserved thirty-one bills of exception to the rulings of the trial judge. The bill of exception' which has given us most concern is Bill of Exception No. 2, taken to the ruling of the trial judge overruling a motion for a bill of particulars wherein counsel for the defendant requested to be informed as follows:

I.

To what person does the indictment refer when it charges that defendant allegedly sold marijuana.

H.

To what person does the Bill of Information intend to refer or mean when it charges that defendant allegedly delivered a narcotic drug. ■ ■ '

V.

At what place in the Parish of Iberia did this alleged crime take place and at what time.

The hill of information charged the defendant with unlawfully possessing, having under his control, selling, and delivering a narcotic ‘drug, to-wit: Marijuana, as defined by LSA-R.S. 40:961 in • violation of LSA-R.S. 40:962. It will be observed that it is not set forth in the indictment the time and place where the offense was committed and it is not set forth therein to whom the marijuana was sold.

Under our law a defendant is presumed to be innocent until his guilt is established beyond a reasonable dotibt and he is entitled to be informed Of the nature and cause of the accusation in order to prepare his defense. . Whenever an : accused ■ is charged under the short form of indictment with an offense or charged under a statute so general in its terms as not to afford him sufficient information to reasonably prepare his defense, he should be afforded, under a bill of particulars, this necessary information. The provisions of the law providing for the furnishing of a bill of particulars in such cases is not an idle gesture. The purpose of a bill of particulars is to afford an accused a reasonable amount of information in order that he may properly prepare his defense, and to limit the scope of proof and restrict the introduction of evidence. State v. Bessar, 213 La. 299, 34 So.2d 785. It is. well settled that the granting of a bill of particulars is within the sound discretion of the trial judge but the trial judge cannot arbitrarily refuse to order the state to furnish essential particulars necessary for the preparation of a defense.

It has been held where a short form of indictment is used in a prosecution which does not sufficiently set forth the facts to inform an accused of the nature and cause of the accusation in order to enable'him to prepare his defense that an accused is entitled, upon timely request, to such details in a bill of particulars. State v. Holmes, 223 La. 397, 65 So.2d 890. The same rule applies when an accúsed is charged under the language of a statute which is so general in its terms that it does not sufficiently inform the accused of the nature and cause of the accusation. An accused should always be afforded sufficient information to prepare his defense and the refusal of the trial judge to order the state to furnish the essential particulars is an abuse of discretion. We have arrived at ■this same conclusion in State v. Butler, 229 La. 788, 86 So.2d 906.

Since we have arrived at the conclusion that there is merit in the foregoing bill of exception, it is not necessary to recite and discuss the other bills of exception.

. For the reason^ assigned, the conviction and sentence are set aside and the.defendant is granted a new trial.

McCALEB, J., concurs in the decree.


author: MOISE, Justice.

text:
    229 La. 673
    STATE of Louisiana v. Herbert REINHARDT.
    No. 42633.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.
    David A. Neuhauser, Milo B. Williams, New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., James C. Garrison, Asst. Dist. Atty., New Orleans, for appellee.
   MOISE, Justice.

Herbert Reinhardt was charged in the Criminal District Court for the Parish of Orleans, in a Bill of Information, with having committed the crime of gambling as defined by LSA-Revised Statutes 14:90, in that he did unlawfully and intentionally conduct and directly assist in the conducting, as a business, at a location in the 2600 block of Thalia Street, in the City of New Orleans, of a lottery, whereby a person risked the loss of a thing of value in order to realize a profit.

The accused was tried, found guilty, and sentenced to pay a fine of $350 and to serve six months in the parish prison, and he prosecutes this appeal from his conviction and sentence.

The factual pattern of this case is that the accused was tried before a judge and not by a jury.

Seven Bills of Exceptions were reserved during the course of the trial.

Bills of Exceptions Nos. One, Two, and Three were reserved to the trial judge’s permitting the offering in evidence of defendant’s signature on an Appearance Bond in a previous prosecution — No. 142-249 of the Criminal District Court for the Parish of Orleans.

The State contends that the purpose of referring to the previous prosecution was to lay a predicate for the introduction of the Appearance Bond signed by the defendant in the earlier case as a basis for a handwriting comparison.

Bill of Exceptions No. One was reserved to the ruling of the trial court admitting the testimony of Officer Felix Palmisano, who testified that he recognized the defendant and that the defendant was the same man against whom he had signed an affidavit in Case No. 142-249, supra.

Defendant’s counsel argues that this case does not fall within the enumerated exceptions provided for in LSA-Revised Statutes 15:445 and LSA-Revised Statutes 15:446, and that the evidence of another offense was inadmissible in the trial. These provisions of the LSA-Revised Statutes relate to prior crimes committed by a defendant and that such is admissible for the specific purpose of showing intent, knowledge or system.

In State v. Wideman, 218 La. 860, 51 So.2d 96, 99, we held:

“ * * * While as a general rule evidence of one offense cannot be offered in proof of another offense, this rule is subject to several well known exceptions, among them the one that permits the introduction of such evidence when it ‘tends to identify the accused as the perpetrator of the crime charged.’ State v. Hicks, 180 La. 281, 156 So. 353. See, also, State v. Johnson, 111 La. 935, 36 So. 30; State v. Ferrand, 210 La. 394, 27 So.2d 174, 167 A.L.R. 559, and State v. Mattio, 212 La. 284, 31 So.2d 801.”

The following syllabus from the case of State v. Wales, 168 La. 322, 122 So. 52, 53, is germane to the issue here:

“Reception of evidence, in robbery prosecution, tending to show the independent crime of stealing the automobile with which the robbery was committed, held not erroneous, where the testimony of the owner of the automobile aided substantially in establishing identity of perpetrators, their preparation for the crime, and their rapidity of movement; * *

In State v. Montgomery, 170 La. 203, 127 So. 601, 602, we held:

“ * * * But, whenever the evidence of the commission of another crime, other than the crime for which the defendant is on trial, is relevant to the question of his guilt or innocence of the crime charged, the evidence of the commission of the other crime should not be excluded merely because of its prejudicial effect. * * * ”

In State v. Bryan, 175 La. 422, 143 So. 362, 367, we held:

“ * * * It is true that the evidence tended to prove the commission of other crimes like the one charged; but evidence that is relevant to some issue in a criminal prosecution is not rendered inadmissible by being prejudicial to the defendant.”

Also see, State v. Palmer, 227 La. 691, 80 So.2d 374.

We agree with the following holding made by the trial judge in his per curiam:

“Appellant Reinhardt was charged and prosecuted on the theory that he was employed as a vendor of lottery plays or lottery wagers. As a vendor of said lottery plays or lottery wagers it was the business of appellant Reinhardt to make a record of the numbers selected by the player and upon which numbers the player was making his bet or bets with the lottery company represented by Appellant Reinhardt. The police, at the scene of the arrest, seized a record consisting of several pages setting out the various lottery plays or lottery wagers.
“The State was seeking to, prove by the testimony of Palmisano and other witnesses that the lottery plays or lottery wagers seized at the scene of the arrest were in the handwriting of Appellant Reinhardt.
“In order to make this proof it was necessary for the State to introduce in evidence a known sample of the handwriting of Appellant Reinhardt. The only known. and provable sample of Reinhardt’s handwriting available, to the State for introduction in evidence was Reinhardt’s handwriting on an appearance bond in a case in which the witness Palmisano had arrested Reinhardt in 1953. In this case the witness Palmisano had not only made the arrest of Appellant Reinhardt' but had also signed the affidavit in the Criminal District Court against Appellant Reinhardt. Consequently the only witness available to the State to,identify Appellant Reinhardt with the prior case to prove Reinhardt’s handwriting on the appearance bond was the witness Pal-misano and in order to so identify Appellant Reinhardt the witness Palmi-sano had to testify that he had arrested Appellant Reinhardt, that he had signed the affidavit against him in the Criminal District Court, which affidavit was presented to Palmisano for identification, and that Appellant Reinhardt-was the same person he so named as defendant in that affidavit.
“By this method of proof Appellant Reinhardt’s handwriting was proven to be on the appearance bond in this prior case. Appellant Reinhardt’s handwriting was also proven to be on the appearance bond in the case at bar and it was these two samples of handwriting known to be the handwriting of Appellant Reinhardt which enabled the court to make a comparison between the handwriting on the two appearance bonds and the handwriting of the person who recorded the lottery wagers which were seized by the police at the scene of the arrest.- * * * ”

Bill of Exceptions No. Two was reserved to the trial judge’s permitting the introduction in evidence of the affidavit preferred against the defendant in Case No. 142-249, supra.

Defendant contends that he did not put his reputation at issue and that there were no endorsements on the reverse side of the affidavit to show that he was ever prosecuted for the offense charged in Case No. 142-249, supra.

'The same reasoning urged in refusing Bill of Exceptions No. One is applicable to Bill of Exceptions No. Two.

Bill of Exceptions No. Three was reserved to the trial judge’s permitting the offering in evidence of an Appearance Bond filed in Case No. 142-249, supra. This Appearance Bond bore the signature of the accused, Herbert Reinhardt. Defendant’s counsel contends that the signature on the Bond had not been identified as the signature of the defendant, Herbert Reinhardt.

The Bond Clerk, John Costa, testified that all bonds were signed in front of him, and Officer Felix Palmisano testified that he recognized the defendant as the man against whom the affidavit had been preferred in Case No. 142-249, supra.

The trial judge, who had to weigh the sufficiency. of the evidence, declared that defendant’s signature on the Appearance Bond filed in Case No. 142-249, supra, had been identified. We agree with him.

Bill of Exceptions No. Four was reserved to the trial judge’s admitting in evidence certain lottery paraphernalia found by the police when they arrested the defendant for the offense set forth in the present Information. Defendant’s counsel contends that the paraphernalia was not connected with the offense; that it was not identified as lottery paraphernalia; and that it was not actively or constructively connected with the defendant.

The trial judge held that the paraphernalia was identified as lottery equipment by Lt. Joseph McDonald, who testified as an expert witness. With respect to defendant’s contention that the paraphernalia was not connected with the offense charged, the learned trial judge made the following observation :

“With reference to Paragraph I that the lottery records had not been connected with the date of the alleged offense, the Trial Court respectfully submits that it is not of the essence of the offense, and it was not necessary for the State to" show that the gambling statute was violated by Appellant Reinhardt on the precise daté laid in the Information.
“The circumstantial evidence in the case showed beyond any question that the lottery records were lottery operations of a recent date, if they were not actually current business as of the date of the arrest.
“Sometime in February of 1955, the District Attorney of Orleans filed gambling charges against all known lottery operators in the Parish of Orleans. These prosecutions were on Federal gambling tax records and on the records of the Employment Security Division of the Department of Labor of the State of Louisiana.
“The lottery records seized by the police in this case contained no date, which was quite new and unusual, and the lottery lists were not stamped with the name of a lottery company. The lottery lists were identified by a series of lines or a code marking.
“The expert witness, McDonald, testified that these lottery records were made subsequent to the prosecutions of February, 1955, above referred to. Consequently, these lottery records, beyond any doubt or question whatsoever, were dated circumstantially as recent lottery operations. The fact that a code marking instead of the name of the lottery company issuing the list identified the list showed that this lottery operation was intended to defeat the force and effect of the Federal and State records as evidence against the lottery operator. The records were further dated, circumstantially, by the fact that they were found by the police on a table in a rear room of the premises. The police officer had just knocked on the front door and Appellant .Reinhardt had left the premises by a rear door going to the front. Appellant Reinhardt had just left the room where these lottery records, were, found by the police on the table.
“The next .circumstance is the!'fact that Appellant Reinhardt was th.en and there the holder of a gambling stámp as a lottery agent. The Trial Court believes that all of these circumstances taken together establish beyond any doubt-that the lottery records were of a recent date, and the evidence very strongly, if not conclusively,, show that the lottery records were current business as of, the date of the arrest, to-wit: April 11, 1955.'”

See, also, Article 438, Code of Criminal Procedure; LSA-Revised Statutes' 15:438.

There is no merit in Bill of Exceptions No. Four.

Bill of Exceptions No. Five was reserved to the trial judge’s admitting in evidence an application for information as to whether the defendant purchased a wagering stamp from the United States Government; a letter from the United States Treasury Department, Internal Revenue Service, New Orleans, Louisiana, stating that Herbert Reinhardt was the owner of a wagering stamp, which letter was written and certified to by D. F. Palmisano, Chief Returns Processing Branch; and a bill for $1 for the information furnished.

It is the contention of defendant’s counsel that the above documents were inadmissible, unless the authors thereof were produced to testify and be cross-examined.

Section 6107 of the Internal Revenue Code of 1954, 26 U.S.C.A., provides:

“In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.”

The letter, written by the Chief of the Returns Processing Branch stating that the defendant had paid a special tax for a wagering stamp covering the period of July 1, 1954 to June 30, 1955, inclusive, was properly certified to and bore the seal of the Internal Revenue Service of the United States Treasury Department. It was given as of public record and was proof that defendant possessed a wagering stamp. Further, we find the following statement in the record:

“It is admitted that if Mr. Gurvich was here he would testify that he obtained these documents; that he saw Mr. Palmisano sign them, and he saw the original records, and he went there with a copy of a letter from the District Attorney’s Office to get these signed by Palmisano.”

LSA-Revised Statutes 15:422 provides:

“Judicial cognizance is taken of the following matters: * * *
“(4) The accession to office and the official signatures and seals of the public officers of this state and of the United States.”

LSA-Revised Statutes 15:457 provides:

“A copy of a document, certified to by the officer who is the legal custodian of the same is equivalent to the original in authenticity; but the certificate of an officer to any matter not under the general powers vested in him is no evidence at all.”

The request for the certified letter and tlie bill for $1.00 which followed showed a compliance with Section 6107 of the Internal Revenue Code of 1954, supra, and they were properly admitted in evidence. It is also to be noted that in admitting the evidence, the trial judge stated:

“Of itself it would prove nothing but with other evidence in the case it is the question of whether it proves anything or whether it supplements the other evidence. The mere fact that the man has the gambling stamp proves nothing, but there is other evidence in this case.”

See, State v. Wilson, 141 La. 404, 75 So. 95.

The United States Supreme Court passed upon the admissibility of such documents in the case of Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561, and it stated:

“Upon his arrest, petitioner had on his person a federal wagering tax stamp bearing his name, home address and the date, * * *. Against objection, it and other documentary evidence from the office of the United States Collector of Internal Revenue was received to show petitioner’s application for the wagering tax stamp and his return to the Collector under the federal law. These documents were made pursuant to the Federal Act imposing wagering taxes, 65 Stat. 529, 26 U.S.C. (Supp. V) section 3285 et seq., 26 U.S.C.A. § 3285 et seq., held constitutional by this Court in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754. The claim is made that it was ■error as a matter of federal law to admit this evidence and also that payment of the federal tax resulted in a federal license to conduct the wagering business. This statute does not make such records or stamps confidential or privileged hut, on the contrary, expressly requires the name and place of business of each such taxpayer to be made public. 53 Stat. 395, 26 U.S.C. § 3275, 26 U.S.C.A. § 3275. Petitioner’s contentions are without substance or merit in view of the express provision of the statute that payment of the tax ■does not exempt any person from penalty or punishment by state law and does not authorize commencement or continuance of such business. * * * ”

The provisions of Article I, § 9, of the Louisiana Constitution of 1921, LSA, which gives to an accused the right to be confronted with the witnesses against him, does not extend to documentary evidence as submitted in the instant case. State v. Donato, 127 La. 393, 53 So. 662; State v. Hardy, 174 La. 458, 141 So. 27.

Bill of Exceptions No. Five is without merit.

Bill of Exceptions No. Six was reserved because the trial court exercised the right to examine the penciled writing and numbers on the lottery paraphernalia and found it to be the same as defendant Reinhardt’s handwriting on the Appearance Bonds heretofore discussed.

LSA-Revised Statutes 15:460, providing for the proof of documents other than .authentic acts, reads:

“Any document, other than an authentic act, may be proved by any one who saw it written, or by'a comparison of hands, or by any one who, from his knowledge of the handwriting of the person alleged to have written the document can testify that the document produced is in the handwriting of said person.”

LSA-Revised Statutes 15:460.1 further provides:

“Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses in criminal cases. The writings and the evidence of witnesses respecting the writings may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.”

Since the case was tried by the judge he stands in the place of the jury, and the final decision as to whether the defendant was the writer of the lottery plays rested with him. Therefore, the trial judge did not assume any power not granted to him by law, and we find no merit in Bill of Exceptions No. Six.

Bill of Exceptions No. Seven was taken to the trial judge’s refusal to grant the defendant a new trial. In his motion for a new trial in the lower court, defendant’s counsel incorporated all objections raised in the Bills of Exceptions. In a lengthy per curiam, the trial judge reaffirmed his previous rulings.

Defendant’s counsel argues in this Court that the conviction was had without any evidence establishing essentials of the offense charged — namely, “gambling as defined by R.S. 14:90”.

As stated in our discussions of the previous Bills of Exceptions, the record docs contain evidence of the offense charged. Under Article 516 of the Code of Criminal Procedure, our appellate jurisdiction cannot be invoked to review the refusal to grant a new trial where there is no error of law. State v. Heiman, 227 La. 235, 79 So.2d 78. This suit follows a well recognized rule of evidence — “Circumstantial variety, coupled with substantial unity, ‘is the strongest kind of evidence.”

For the reasons assigned, the conviction and sentence are affirmed.

FOURNET, C. J., absent.


text:
    229 La. 690
    STATE of Louisiana v. Lucius FORSYTH.
    No. 42560.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Chandler C. Luzenberg, Jr., Girard J. Fernandez, New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Adrian G. Duplantier, First Asst. Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., New Orleans, for ap-pellee.
   McCALEB, Justice.

Appellant and another were charged, tried and convicted of gambling as defined by R.S. 14:90 in that they conducted a lottery as- a" business. Following imposition of a sentence to serve 7 months in the Parish Prison and pay a fine of $500, appellant took this appeal, relying on eight bills of exceptions for a reversal of his conviction.

Bill No. 1, which was taken to the refusal of the judge -to grant a continuance of the -case on account of appellant’s illness, was the only exception stressed in oral argument. The other bills have been submitted for our consideration on brief.

On May 6th 1955, the date of the trial, defense counsel appeared and moved for a continuance, advising the court that appellant had been confined in Touro Infirmary of New Orleans since May 4th on the order of his physician, Dr. Murrel H. Kaplan, who submitted a medical certificate reading as follows:

“Mr. Lucius Forsyth has been a patient of ours for many years. He has been under treatment for diabetes and recurrent bronchitis. He reported to me on Wednesday, May 4th, complaining of severe headache, dizziness, and pains across his chest and shoulders. Blood pressure was 180/90.
“Inasmuch as he is a known diabetic and his urinary sugar was four plus, and in view of the high blood pressure, it was deemed advisable to admit him to the hospital for observation and treatment”.

As this certificate merely sets forth facts relative to a chronic diabetic condition for which appellant had been under treatment since 1948 and inasmuch as there was no statement contained therein that he was too ill to stand trial or assist his counsel during the trial, the district judge, suspecting that appellant was trifling with the court and believing that he had entered the hospital for the specific purpose of avoiding trial, issued an alias capias for his arrest and instructed the Sheriff to produce him in court instanter. When appellant was taken in custody at Touro Infirmary, Dr. Kaplan telephoned the judge and a conversation ensued relative to appellant’s condition, during the course of which the judge invited the physician to appear in court and testify. The latter declined to do so, stating that his certificate was complete. Before appellant was placed on trial, his counsel renewed the motion for a continuance on the ground that appellant was so ill that he was unable to assist in the defense of his case but no evidence was offered to support it other than the above quoted certificate. When the judge overruled the motion, defense counsel reserved this bill of exceptions.

In his Per Curiam, the trial judge gives a detailed account of the facts and his reasons for refusing the continuance. He states, among other things, that, although appellant’s face seemed somewhat flushed and his eyes bright, as though he had been administered sedation, he was not in pain, was not weak or feverish and that he appeared completely oriented and alert; that, from time to time, he consulted with his counsel and at no time during the trial was any complaint made that he was incapable of assisting them; that the trial lasted a little over three hours and that appellant did not appear to 'be adversely affected physically by reason thereof.

In a motion for a new trial, appellant set forth, inter alia, that he had been prejudiced by the refusal of a continuance as he was too ill to assist his counsel in their defense of his case. But the only evidence administered to substantiate these allegations was that of Dr. Kaplan who, while stating that it was his opinion that appellant should have remained in the hospital, would not say that he suffered any physical impairment by being forced to stand trial or that he was so ill as to be unable to assist in his defense.

A review of the facts of the case satisfies us that the trial judge did not abuse his discretion in holding that appellant was physically able to stand trial. The granting or refusing of a continuance was a matter within the sound discretion of the judge and, as provided by Article 320 of the Code of Criminal Procedure, R.S. 15 :320, unless it plainly appears that the judge acted arbitrarily and unreasonably, this court will not disturb his ruling. State v. Ward, 14 La.Ann. 673; State v. Blakeney, 164 La. 669, 114 So. 588; State v. Scruggs, 165 La. 842, 116 So. 206 and State v. Brown, 183 La. 445, 164 So. 241.

Furthermore, a judgment will not be set aside and a new trial granted on appeal unless the error complained of constitutes a violation of a constitutional or statutory right or is prejudicial to the substantial rights of the accused. Article 557 of the Code of Criminal Procedure, R.S. 15:557. In the case at bar, it appears to us that appellant, suffering from a chronic disease, was approximately in the same condition on the day of trial that he was prior thereto and thereafter. As a matter of fact, appellant did not re-enter the hospital until May 11, 1955, five days after the trial. Dr. Kaplan stated that the delay in re-entry was due to the circumstance that no rooms were available at Touro Infirmary until May 11th. But the fact remains that, if hospitalization of appellant was essential to his well-being, he could have been confined elsewher.e.

While the police officer who had arrested Cauzbon (the codefendant on trial with appellant) on December 1, 1954 was testifying, he was asked by the State whether he had previously visited the room in which the arrest was made. Counsel for appellant thereupon objected on the ground that the evidence sought to be elicited was irrelevant md, when the objection was overruled, reserved Bill of Exceptions No. 2.

There is no merit in the bill. The evidence was offered for the-purpose of showing that Cauzbon had been seen in the same room where the lottery shop was operated prior to the date of his arrest on December 1, 1954 and to contradict a statement made by said Cauzbon at the time of his arrest that he happened to be at the lottery shop on the date of the raid for the purpose of collecting rent from the tenants. Furthermore, the testimony affected Cauzbon only and its admission 'was not prejudicial to appellant.

The Bond Clerk of the Criminal District Court was called to the stand by the State and questioned with respect to a bail bond given by appellant’s codefend-ant, Cauzbon, on another criminal charge for gambling, separate and distinct from the one then being tried. Appellant’s counsel objected to this examination on the ground that the State was seeking to prove the commission of another offense by Cauz-bon and thus was attacking his credibility without his ever having taken the witness stand. The judge overruled the objection and counsel reserved Bill of Exceptions No. 3.

It is difficult to perceive how appellant was prejudiced by the admission of this evidence, which pertained solely to his co-defendant, Cauzbon. In addition, it is clear that the testimony was admissible as to Cauzbon for the limited purpose of showing the address he had given the authorities at the time of his arrest on another charge which, incidentally, was the same address (3739 S. Rocheblave Street) as that listed for Cauzbon in a special tax return filed by appellant under the Federal Wagering Tax Law as the operator of a gambling business.

Counsel objected to the introduction in evidence of the lottery paraphernalia which were seized at the time of Cauzbon’s arrest, on the ground that no proof had yet been submitted to connect appellant with the law violation. The judge overruled the objection and counsel reserved Bill of Exceptions No. 4.

There is no substance whatever in the bill. It is a fundamental rule of law that a party cannot be controlled in the order of introducing testimony. Article 368, Code of Criminal Procedure, R.S. 15:368; Section 583 of Vol. 2, Marr’s Criminal Jurisprudence of Louisiana, 2nd Ed. and cases cited to the text. The judge has a wide discretion in the matter and may permit the introduction of testimony at any stage of the proceeding even though at the time of its admission one of the defendants on trial may not then be shown to be connected with the crime.

Bill No. 5 was taken to the overruling of an objection by defense counsel to the offer in evidence of certain quarterly reports submitted by appellant to the Division of Employment Security, Louisiana Department of Labor, produced from the Division’s files by a special investigator of the Department in response to a subpoena duces tecum. The basis of the objection was that the investigator, Mr. Walter J. Blumstein, was not the custodian of the records and that they would have to be identified by the Administrator of the Division of Employment Security.

We find no merit in the bill. Mr. Blum-stein testified that the records produced in court were originals, stating that he had personally removed them from the Division’s files in the course of his duties. This was a sufficient predicate to warrant their admission in evidence.

Bill of Exceptions No. 6 was reserved to the overruling of an objection to the admission in evidence of certain photostatic copies of appellant’s Federal Wagering Tax records and a certificate of the Chief of the United States Intelligence Division at New Orleans, stating that they were true and correct photostats of the originals filed in his office. Andrew Guiro-vich, a Special Investigator for the District Attorney’s office, testified that he obtained the photostats from the Chief of the United States Intelligence Division; that he had compared the copies with the original documents and found them identical and that he was present when Mr. Elliott, the Chief of the Division at .New Orleans, signed the certificate as to the authenticity of the photostats. Defense counsel contended these documents could not be received unless Mr. Elliott was produced as his certificate was not sufficient to establish their identity or authorize their introduction as secondary evidence.

Counsel are in error. The documents were certified copies of public records and the procedure for their certification is specifically authorized by Federal law, 26 U.S.C.A. § 6107. Article 457 of the Code of Criminal Procedure, R.S. 15:457, provides that a copy of a document certified by the officer having legal custody of the same is equivalent to the original in authenticity. In addition, the signature to the documents admitted in evidence was shown to be that of appellant and his tax consultant identified them as being copies of his returns.

Bills of Exceptions Nos. 7 and 8 were taken to the overruling of motions for a new trial and in arrest of judgment. The points raised in the motions are simply a repetition of those presented in the other bills which we have already considered.

The conviction and sentence are affirmed.

FOURNET, C. J., absent.


author: HAWTHORNE, Justice. McCALEB, Justice

text:
    229 La. 702
    Hampton WADE v. CALCASIEU PAPER COMPANY, Inc.
    No. 42650.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Julius T. Long, Shreveport, for plaintiff, appellant, and relator.
    Plauché & Plauché, S. W. Plauché, Jr., Lake Charles, for defendant-respondent.
   HAWTHORNE, Justice.

Hampton Wade- was injured in the course and scope of his employment on October 19, 1951, while working at his regular position as a chipper feeder for the Calcasieu Paper Company, Inc. Medical examinations made shortly after the accident disclosed that Wade had injured his brachiál plexus, which is the plexus of nerves from the spinal canal which supplies the arm. An orthopedic surgeon who made this examination reported to the company that Wade had sustained a peripheral nerve injury which prevented him from doing his regular work, and accordingly Wade was paid compensation of $30 a week for 101 weeks. Two orthopedic surgeons examined Wade more than two years after the accident and concluded that he had recovered and was able to return to his regular work. Calcasieu Paper Company accordingly stopped compensation payments. Wade then instituted this suit, alleging that he was totally and permanently disabled as a result of the injury he received in 1951, and asking for compensation for 400 weeks at $30 a week less the amount of compensation already paid.

After trial in the district court there was judgment dismissing his suit. The trial judge says in his reasons for judgment that, although he gave due consideration to the well established judicial policy of construing the law liberally in favor of an injured workman, he concluded that the plaintiff had failed to discharge the burden of proving that he was unable to return to work after the payments of compensation ceased. The trial judge found that, even though the evidence disclosed that plaintiff had suffered a serious injury and had had an extended convalescence, this evidence also clearly showed that he had finally recovered.

From this judgment plaintiff appealed to the Court of Appeal, First Circuit. After reviewing all the evidence and testimony adduced, that court in a unanimous opinion with Judge Tate as its organ affirmed the district court’s judgment on the ground that there was no manifest error in the trial judge’s conclusion that Wade was no longer disabled as a result of the accident. 82 So.2d 117, 119. In the course of this opinion the Court of Appeal said: * * * We regret very much, as we are sure the District Court did, that a neurological or neurosurgical opinion regarding the alleged nerve damage is not available to aid in determination of disability; but we feel the burden of producing such evidence falls upon the plaintiff-employee, rather than upon the defendant-employer. * * * ”

Wade timely filed an application for a rehearing in the Court of Appeal. However, after the time fixed by law for filing applications for rehearing had elapsed, he filed what he terms a supplemental or amended application for rehearing, and in answer to the Court of Appeal’s expression of regret quoted above he attached to this application a written report of a physician specializing in surgery of the central and peripheral nervous system. This neurosurgeon had examined Wade after the opinion of the Court of Appeal was handed down. In this supplemental application Wade petitioned the Court of Appeal to remand his case for the taking of additional testimony and particularly the testimony of the neurosurgeon whose report he had attached to his application. The court refused a rehearing, with Judge Tate dissenting, and plaintiff applied to this court for writs, which we granted.

The report of the neurosurgeon attached to plaintiff’s supplemental application for a rehearing states that it is never possible to determine whether a patient is exaggerating his complaints, but that the examiner did not feel that plaintiff was doing this or was a malingerer; that the examiner could not say with certainty that Wade’s symptoms and disability were as severe as Wade described them, but that he personally believed they were, and that in his opinion Wade was suffering from a genuine injury with residual disability.

This neurological report is only an ex parte statement in no way binding upon defendant, and cannot be considered as evidence in this case. We believe that the Court of Appeal was correct in refusing to consider Wade’s supplemental application, as it was not timely filed in that court. However, the case is before us under our supervisory jurisdiction, and we can make any disposition of it permitted by law. We have concluded that in the interest of justice this case should be remanded to the district court so that both plaintiff and defendant may introduce the testimony of neurologists or neurosurgeons to show whether this employee is still disabled because of a nerve injury, as well as any other evidence that either may care to adduce.

In dissenting from the Court of Appeal’s refusal to grant a rehearing Judge Tate remarked : “ * * * In our original opinion, we had commented on the absence of such testimony [testimony of neurologists], and it is probable or at least very possible that the majority would have remanded the matter for such purposes had the request and showing been made timely, and on a showing that such evidence was not available at the original trial * * 82 So.2d 120.

Our remand here will make the testimony of neurologists or neurosurgeons available not only to the district court but also to the Court of Appeal in the event of an appeal, and should supply the kind of evidence which the Court of Appeal regretted not having before it.

In fairness to the litigants, however, we should like to say that on the testimony presently in the record we should probably reach the conclusion that plaintiff’s suit should be dismissed, as did the district court and the Court of Appeal. Defendant’s medical witnesses, two orthopedists and one general practitioner,’ all concluded after tests and X-rays that the plaintiff had entirely recovered from his disability and was able to resume his regular employment, whereas plaintiff’s medical witnesses, three general practitioners, gave opinions based almost entirely on subjective symptoms.

This cause is remanded to the district court for further proceedings consistent with the views which we have expressed.

McCALEB, Justice

(dissenting).

Forasmuch as this Court is of the opinion that the Court of Appeal did not err in refusing to consider Wade’s supplemental application' for a rehearing, I think its decision should be affirmed.

In ordering a remand of' the case for the purpose of considering the new evidence forming the basis of the belated supplemental application, the majority take the view that, since the case is before us under our supervisory jurisdiction, “we can make any disposition of it permitted by law”.

I am unable to agree that an authorized legal disposition is being made of the case. Initially, it is apt to observe that the case is not here under the supervisory powers vested in this Court by Section 10 of Article 7 of the Constitution. Rather, it comes to us from the Court of Appeal on a writ of certiorari or review under authority of Section 11 of Article 7 of the Constitution. That Section gives this Court the same right to review a judgment, of the Court of Appeal as though the matter had been directly appealed here and, obviously, the only purpose of such a review is to correct errors committed by the Court of Appeal in its final disposition of the case. If the Court of Appeal has not committed any error of law or fact, it does not lie within the province of this Court to make a determination of the case contrary to that of the Court of Appeal.

Accordingly, it being acknowledged that the Court of Appeal reached the correct conclusion in refusing to consider a pleading filed after the time allowed by law for-doing so, I fail to understand how this Court has the right to use it as the 'basis for a remand as nothing has occurred to change its legal status as a pleading which was filed untimely.

I respectfully dissent.