text:
    Vernon MEKERTIN and Marilyn Mekertin, Appellants, v. WINN DIXIE STORES, INC., a Florida corporation, Christopher M. Geary, and Kenneth C. Jenne, II, as Sheriff of Broward County, Appellees.
    No. 4D03-377.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.

      Stephen A. Marino, Jr. of Ver Ploeg & Lumpkin, P.A., Miami, for appellants.
    Robert H. Schwartz and Alain E. Boi-leau of Adorno & Yoss, P.A., Fort Lauder-dale, for appellee Winn Dixie Stores, Inc., a Florida corporation.
    Bruce W. Jolly and Adriana Jisa of Pur-dy, Jolly & Giuffreda, P.A., Fort Lauder-dale, for appellees Christopher M. Geary and Kenneth C. Jenne, II, as Sheriff of Broward County.
   GROSS, J.

Vernon and Marilyn Mekertin appeal an order granting motions to dismiss their multi-count complaint as barred by the applicable statutes of limitation. In this appeal, they challenge the propriety of orders dismissing a previous case for failure to comply with Florida Rule of Civil Procedure 1.070(j). Because we do not have jurisdiction to review the orders from the earlier case, we affirm.

In August 1996, the Mekertins were arrested and charged with trespass after warning and resisting arrest. The arrests arose out of their conduct in a Winn Dixie supermarket. Vernon Mekertin was found not guilty of the crimes and Marilyn Mek-ertin’s criminal charge was dismissed.

In August 1999, the Mekertins filed a complaint in federal court against the Sheriff of Broward County and Winn Dixie, alleging multiple violations of 42 U.S.C. § 1983 and fifteen claims under state law. In July 2001, the federal district court granted partial summary judgment for the defendants; because only state law claims remained, the court dismissed them without prejudice to re-file in state court. The Mekertins appealed the district court’s order.

The Mekertins also filed a twenty-one count complaint in state court on August 13, 2001. On February 27 and 28, 2002, the circuit court entered orders for the Mekertins to show good cause as to why their case should not be dismissed for lack of service. After a hearing, on March 18, 2002, the circuit court extended the date of service for 120 days.

In July 2002, Winn Dixie and the Sheriff moved to dismiss the complaint for the failure to serve them within the time parameters of the March 18th order. On July 22, 2002, the circuit court dismissed the case without prejudice under rule 1.070(j). Subsequently, on August 6, 2002, the court denied the Mekertins’ motion to vacate that order.

The Mekertins may have had a basis to appeal the August 6th order, given their pending appeal in the related federal case. However, they filed no notice of appeal directed at either the July 22nd or the August 6th orders.

Instead, on August 8, 2002, the Meker-tins filed a new case in state court containing the same twenty-one counts that had been dismissed.

Winn Dixie and the Sheriff moved to dismiss because the re-filed complaint demonstrated on its face that the applicable statutes of limitation had run. The trial court granted the motions to dismiss in January 2003.

In this appeal, the Mekertins challenge the propriety of the circuit court’s July 22 and August 6, 2002 orders dismissing the case under rule 1.070(j). However, because those orders were not timely appealed, this court is without jurisdiction to review them. See Fla. RApp. P. 9.110(b); A.G. v. Dep’t of Children & Family Servs., 745 So.2d 1158, 1159 (Fla. 4th DCA 2000); Forszpaniak v. Forszpaniak, 775 So.2d 352, 352-53 (Fla. 2d DCA 2000).

Even though the July 22nd dismissal was without prejudice to the re-filing of a new lawsuit, the order was nonetheless an appealable order. See Silvers v. Wal-Mart Stores, Inc., 763 So.2d 1086 (Fla. 4th DCA 1999). It is clear that the order was intended to be without prejudice to file another action, rather than to amend the complaint in the first action. See Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451, 452 (Fla. 1st DCA 1993). Likewise, the Mekertins could have appealed the August 6th order denying their motion to vacate. See Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379, 380 (Fla. 4th DCA 1971).

“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal.” Am. Auto. Ass’n v. C.D.S. Towing & Recovery Inc., 805 So.2d 1064, 1065 (Fla. 3d DCA 2002) (quoting Tyler v. State, Governor Chiles, 718 So.2d 811, 812 (Fla. 2d DCA 1997)).

The Mekertins make the equitable argument that they should not be penalized for following the instructions of the trial judge, who told them on July 22nd that they could re-file their lawsuit after the dismissal. We rejected a similar equitable argument in Godfrey v. Carlon, Inc., 760 So.2d 1064 (Fla. 4th DCA 2000). Like the Mekertins, the Godfrey plaintiffs lawsuit was dismissed on statute of limitations grounds. The plaintiff had taken a “voluntary nonsuit” of the first case after the trial judge incorrectly told her lawyer that the statute of limitations would not be a problem. Id. at 1065. We held that the trial court’s bad advice did not relieve the plaintiff from the operation of the statute of limitations. Similarly, what the trial judge may have said in this case does not confer jurisdiction upon this court to review orders for which no notices of appeal were filed.

AFFIRMED.

WARNER and STEVENSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.B.P.F., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. J.B.P., the Mother, Appellant, v. Department of Children and Families, Appellee.
    Nos. 4D03-3712, 4D03-4113.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Denise E. Kistner of the Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

The mother, J.B.P.F., appeals from an order of dependency and an order of termination of parental rights respecting her child, A.P. Although the appeals were brought separately, we sua sponte consolidate them for the purpose of this opinion. We find that the orders of dependency and termination are both supported by competent substantial evidence and we affirm.

We reject the mother’s claim that the trial court lacked jurisdiction to proceed with the adjudicatory hearing on the termination of parental rights case while an appeal of the underlying dependency action was pending. While it may be prudent in a given case for the trial court to await the outcome of an appeal of the underlying dependency action prior to continuing with a termination case, the decision to stay the termination case in such an instance is a matter of judicial discretion, and not jurisdiction. See Dep’t of Children & Families v. L.D., 840 So.2d 432 (Fla. 5th DCA 2003). Additionally, no relinquishment of jurisdiction was necessary to allow the trial court to proceed with the termination proceedings since there was no possibility that the trial court’s ruling in the termination case would alter, or otherwise affect the prior ruling in the dependency case. Cf. Brandenton Group, Inc. v. Dep’t of Legal Affairs, 701 So.2d 1170, 1180 (Fla. 5th DCA 1997)(stating that “[t]he lower court is prohibited only from altering the order or acting in any manner with respect to its appealed order as might frustrate the efforts of the appellate court or render moot its labors”), approved in part & quashed in part, 727 So.2d 199 (Fla.1998).

We have examined the other issues raised on appeal and find no error. Accordingly, the orders of dependency and termination of parental rights in the instant case are AFFIRMED.

WARNER, STEVENSON and GROSS, JJ., concur.

      . The mother is listed as J.B.P. in case number 4D03-4113.

      . Of course, as the trial judge recognized, it was possible that the ruling on the appeal of the dependency order could have had an effect on the termination proceedings.


text:
    Louis COLON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3833.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this Anders appeal, we affirm the convictions and sentences.

Our review of the record indicates a possible sentencing error, in that the trial court’s oral pronouncement of sentence did not include the imposition of a ten-year mandatory minimum term as a habitual violent felony offender, which appears in the written sentences. The mandatory minimum is discretionary, not mandatory, see State v. Hudson, 698 So.2d 831 (Fla. 1997) (not cited), and thus must be orally pronounced. See Hill v. State, 652 So.2d 904 (Fla. 4th DCA 1995); Green v. State, 615 So.2d 823 (Fla. 4th DCA 1993).

However, the issue was not preserved for appeal, and unpreserved sentencing error cannot be corrected in an Anders case. See Washington v. State, 814 So.2d 1187 (Fla. 5th DCA 2002), rev. dismissed, 831 So.2d 675 (Fla.2002); A.F.E. v. State, 853 So.2d 1091, 1094-95 (Fla. 1st DCA 2003). Accordingly, our affirmance is without prejudice to appellant’s filing an appropriate post-conviction motion raising any such unpreserved sentencing issues.

FARMER, C.J., POLEN and KLEIN, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    DOCUTEK IMAGING SOLUTIONS, INC., Petitioner, v. COPYCO, INC., Respondent.
    No. 4D04-235.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Frank C. Simone of Sherman Law Offices, Chartered, Fort Lauderdale, for petitioner.
    Craig J. Trigoboff of Waldman Feluren Hildbrant & Trigoboff, P.A., Weston, for respondent.
   PER CURIAM.

Docutek Imaging Solutions seeks certio-rari review of a discovery order on the ground that it has been ordered to produce trade secrets and confidential business information. We grant the petition because the trial court departed from the essential requirements of law in ordering the production without first conducting the requisite in camera inspection. See Premiere Lab Supply, Inc. v. Chemplex Indus., Inc., 791 So.2d 1190, 1190 (Fla. 4th DCA 2001); Amer. Exp. Travel Related Servs. v. Cruz, 761 So.2d 1206, 1208-09 (Fla. 4th DCA 2000).

GUNTHER, WARNER and STEVENSON, JJ., concur.


author: ' MOISE, Justice. McCALEB, Justice

text:
    229 La. 842
    STATE of Louisiana v. Dr. Joseph A. LA NASA.
    No. 42721.
    Supreme Court of Louisiana.
    March 26, 1956.
    Girard J. Fernandez, J. Richard Reuter, Jr., New Orleans, for defendant-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.

Dr. Joseph A. LaNasa, a physician and surgeon in the City of New Orleans, Louisiana, for over thirty years, was charged by Bill of Information with having failed “to properly fill out a certificate of the death of one Alice Busch, deceased, by failing to write with black ink on said certificate, as -required by- [LSA-JR.S. 40:154.”

The 'defendant wás triéd, convicted and sentenced, under LSA-R.S. 40:267, to pay a fine of $400 and in default thereof to serve five days in the Parish Prison. He prosecutes a suspensive appeal to this Court.

LSA-R.S. .40:154, under the heading, “Vital Statistics,” refers -to- the Parish of Orleans and reads:

“In the parish of Orleans, all certificates of birth or death shall be typewritten in black type or written legibly in durable black ink.” Source Act 257 of 1918, sec. 19.

LSA-R.S. 40 :267 provides a penalty for any person who:

“(4) Fails to properly fill out a certificate of * * * death and file it with the local registrar or to deliver it, upon request, to any person charged with filing it”.

The record discloses that three Bills of Exceptions were perfected, and that there is annexed all of the testimony taken in connection with the bills.

Bill of Exceptions No. I was taken to the trial judge’s overruling defendant’s motion to quash. The defendant charges that the Bill of Information does not set out any crime as denounced by the laws of the State of Louisiana; that it merely states a conclusion of law; that the charges therein are too vague and indefinite to permit the defendant to properly prepare his defense; and that LSA-R.S. 40:154 violates Article I, Sec. 10, and Article II, Secs. 1 and 2, of the Louisiana Constitution of 1921, LSA, being vague, indefinite and impossible of precise interpretation or application.

The State contends that the defendant’s act of signing the death certificate in blue-black ink constituted a violation of LSA-R.S. 40:154, in that the certificate was not properly filled out and defendant incurred the penalty prescribed by LSA-R.S. 40:267.

It is to be noted that the statute requires that death certificates be typewritten in black type or written legibly in durable black ink. (Italics ours.) The gravamen of the offense is not the failure to fill out a death certificate in black ink, as charged in the Bill of Information, but the failure to legibly fill such a certificate in durable black ink. Therefore, the indictment is fatally defective because it does not state any offense known to the laws of Louisiana.

In the very recent case of State v. Arkansas Louisiana Gas Co., 227 La. 179, 78 So. 2d 825, 827, we held:

“It is so axiomatic, that citation of authority is unnecessary, that in Louisiana there are no common-law crimes, and that nothing is a crime, no conduct can be held criminal, which is not made so by statute and clearly described by the language of its prohibition. Such statutes are subject to strict interpretation. Article 7 of the Louisiana Criminal Code itself states as follows: ‘A crime is that conduct which is defined as criminal in this Code, or in other acts of the legislature, or in the constitution of this state.’ LSA-R.S. 14:7.”

In the syllabus of the case of State v. Breffeihl, 130 La. 904, 905, 58 So. 763, 40 L.R.A.,N.S., 535, it is well stated that:

“A penal statute must be strictly construed, and cannot be extended to cases not included within the clear import of its language, and nothing is a crime which is not clearly and unmistakably made a crime.”

United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 626, 33 L.Ed. 1080, holds:

“There can be no constructive offenses ; and, before a man can be punished, his case must be plainly and unmistakably within the statute.”

We held, in State v. Peters, 37 La.Ann. 730, that:

“Criminal statutes cannot be extended to cases not included within the clear import of their language.”

In State v. Verdin, 192 La. 275, 187 So. 666, we held that an indictment, which is not sufficiently specific to enable the defendant to prepare his defense and which merely charges conclusions of law, is open to motion to quash.

The Supreme Court of the United States, in the case of United States v. Reese, 92 U.S. 214-221, 23 L.Ed. 563, ably stated:

“ * * * Every man should be able to know with certainty when he is committing a crime.
“It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who could be set at large.”

Since we have found that the Bill of Information was faulty, we would not ordinarily discuss other bills; but, because the phrase, “Durable Black Ink”, is the lamp, in the light of which this whole decision must rest, we shall discuss Bill of Exceptions No. II, which was overruled. Defendant contends that there was no evidence to support the verdict and moves for a new trial.

We cannot be called upon to pass on the weight of the evidence or the sufficiency of the proof. State v. Hilliard, 227 La. 208, 78 So.2d 835. However, this Court may interfere with the finding of the jury or the trial judge where there is no evidence at all to sustain the conviction. State v. Sawyer, 220 La. 932, 57 So.2d 899.

Expert testimony taken at the trial discloses that there is no such thing as jet black ink. The nearest approach to jet black ink is India ink, which cannot be used in fountain pens. The testimony further reveals that all black ink, other than printers’ ink, contains traces of blue, violet, brown, greenish blue, or purple. The defendant believed that blue-black ink was black ink. The State not only failed to offer any evidence to show that it was not but admitted that the ink used by defendant was durable. Therefore, there is no proof to show that the defendant did not use durable black ink; the statute makes no mention of any particular shade of black.

Bill of Exceptions No. Ill was taken to the trial judge’s overruling a motion in arrest of judgment. Since we have shown that there was merit in Bills of Exceptions No. I and No. II, the motion should have been sustained.

For the reasons assigned, the information is annulled and set aside, and the accused is ordered discharged from custody.

HAMITER and HAWTHORNE, JJ., concur in the decree.

McCALEB, Justice

(dissenting in part and concurring in part).

I cannot agree that the bill of information fails to set forth an offense. It charges “ * * * that one, Joseph A. LaNasa, * * * being then and there, a person authorized under the law to practice medicine, did willfully and unlawfully fail to properly fill out a certificate of the death of one, Alice Busch, deceased, by failing to write with black ink on said certificate, as required by R.S. 40:154, contrary to the form of the statute of the State of Louisiana, * * Since R.S. 40:154 requires that all certificates of birth and death be written legibly in durable black ink, it is clear to me that the charge that defendant did not use black ink at all in filling out the certificate avers a violation thereof. If the ink is not black, the law is breached even though it be durable.

I have never understood that it is sacramental to charge an accused in the exact language of a statute. It is only necessary that the facts alleged disclose a violation of law. Article 227 of the Code of Criminal Procedure, R.S. 15:227.

On the other hand, I am in accord with the ruling of the majority that Bill of Exceptions No. 2, which was taken to the overruling of the motion for a new trial, is well founded in view of the fact that the evidence showed that defendant used a blue-black ink. As the statute requires black ink, any durable ink denominated as black would seem to comply therewith.

I am therefore of the opinion that the conviction and sentence should be annulled and set aside.


author: FOURNET, Chief Justice.

text:
    229 La. 849
    Freda Jones MURPHY v. Coleman P. MURPHY.
    No. 41488.
    Supreme Court of Louisiana.
    March 26, 1956.
    Love & Rigby, Shreveport, for defendant-appellant.
    Wilson, Abramson & Maroun, Shreveport, for plaintiff-appellee.
   FOURNET, Chief Justice.

The defendant, Coleman P. Murphy, having appealed from a judgment in favor of his wife, Freda Jones Murphy, decreeing a separation from bed and board and ordering him to pay alimony pendente lite of $60 a month, filed in this Court shortly before the date set for argument of his appeal an “Exception of No Cause of Action and/or Plea in Abatement and Estop-pel,” based on the fact that his wife, while this case was pending here on appeal, secured a judgment of absolute divorce from him on the ground of two years separation —his contention being that since a suit for separation from bed and hoard abates and ceases to have any legal existence when a divorce is granted, the right to claim alimony pendente lite, which is merely an incident to a' suit for separation from bed and' board, necessarily falls also.

Counsel’s argument>that when the wife was granted an absolute divorce on the ground that she. had been living separate and apart from her husband for more than two years, her' suit against him for separation from bed and board necessarily went out of existence, is correct. Cotton v. Wright, 193 La. 520, 190 So. 665; Sampognaro v. Sampognaro, 213 La. 814, 35 So.2d 742. But counsel’s conclusion that the judgment in this case in favor of the wife, ordering the husband to pay alimony pendente lite, became void and ineffective the moment the judgment for divorce was granted, finds no support in law. Cotton v. Wright, supra; Eals v. Swan, 221 La. 329, 59 So.2d 409. As pointed out in Smith v. Smith, 217 La. 646, 652, 47 So.2d 32, 34, “Article 148 has for its purpose the enforcement of the husband’s obligation of support of his wife as it exists under Article 120 of the [LSA-] Civil Code, 'which continues during the pendency of a suit for separation from bed and board or for divorce and does not terminate until the marriage is dissolved either by death or by divorce. While the Suit is going on the obligation still exists and, whether the wife is the one who is suing or is being sued, if she' has not a sufficient income for her maintenance, the judge shall allow her a sum for her support, the amount to be gauged according to what her needs are and what are the means of her husband. * * * ” This obligation continues until the bonds of matrimony are j dissolved. Arnold v. Arnold, 186 La. 323, 172 So. 172; Eals v. Swan, supra, and cases therein cited;. Hillard v. Hillard, 225 La. 507, 73 So.2d 442.

Counsel’s argument in brief on the merits that the plaintiff failed to establish lawful grounds for separation from bed and board, and that the judgment decreeing this relief was erroneous and should be reversed, avails him nothing insofar- as alimony is concerned because, as shown above, the wife’s right to alimony pendente lite is not dependent upon the merits or the outcome of the suit. In any event we think the evidence supports the judgment of the trial court decreeing a separation from bed and board in favor of the wife, and that the award of $60 a month for, alimony was -reasonable under the circumstances of the case.

We think, however, that- there is merit in defendant’s claim that the trial, judge erred in awarding plaintiff the amount- of $250 as attorney’s fees. Although she alleged that she was entitled to attorney’s fees and prayed for judgment against the defendant therefor, she did not allege that she had paid counsel or obligated herself to pay in any amount, nor did she introduce any evidence to sho,w the value of said services. Under the circumstances,' the judgment granting attorney’s fees was unwarranted. Scacciaferro v. Hymel, 206 La. 973, 20 So.2d 284; Arnold v. Arnold, 186 La. 323, 172 So. 172.

For the reasons assigned, the judgment of the district court is amended by disallowing attorney’s fees, fixed therein at the sum of $250, and, as amended, it is affirmed.

      . LSA-Civil Code, Article 148, provides:
      “If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

      . That Article declares: “The wife- is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obligated to receive her and to furnish her with whatever is required.for the convenience of life, in proportion to his nie.ans and condition.” " ' ’


author: PONDER, Justice.

text:
    229 La. 855
    CITY OF NEW ORLEANS v. Daniel H. CHRISTIAN, Jr., d/b/a Ce Soir.
    No. 42690.
    Supreme Court of Louisiana.
    March 26, 1956.
    Sam Monk Zelden, Max Zelden, New Orleans, for defendant-appellant.
    Henry B. Curtis, City Atty., Joseph F. Deynoodt, Asst. City Atty., New Orleans, for plaintiff-appellee.
   PONDER, Justice.

The plaintiff brought a rule ordering the defendant to show cause why he was not indebted to the City of New Orleans in the amount of $109.65 together with penalties, attorney’s. fees, and costs, for failure to pay an amusement tax due under Ordinance No. 15,129 CCS as amended. The defendant attacked the constitutionality of the ordinance alleging that it violates Sections 1, 5, and 8 of Article 10 of the Constitution of Louisiana, LSA. The defendant alleged that the taxing power is an exclusive legislative function and that taxes can only he imposed in pursuance to legislative authority and that the legislature can only grant this authority to municipalities by express authority; that the Ordinance was not enacted in pursuance to Act 212 of 1938, LS AR.S. 4:41 et seq.; that the Ordinance imposes a tax greater than that imposed by the state and that the Ordinance is therefore unconstitutional. After a hearing of the rule, the lower court overruled the plea to the constitutionality of the Ordinance and gave judgment in favor of the plaintiff for $109.65, plus 20% as penalties, and 10% on the principal amount and penalty, as attorney’s fees, or a total of $144.73, with interest at the rate of 5% per annum from date of judgment until paid. The defendant has appealed.

The appellant, owner and operator of a nightclub, contends that the amusement tax imposed by the Ordinance No. 15,129 CCS as amended, is a license tax and as such violative of Section 8, Article 10 of the Louisiana Constitution since the State imposes no such license tax. Section 8 of Article 10 provides that municipalities cannot impose a license tax greater than that imposed by the state. The pertinent part of the Ordinance in question reads as follows:

“The term admission as used in this section includes seats and tables, reserved or otherwise, and other similar accommodations, as well as all amounts paid for admission, refreshment, service, and merchandise at any of the establishments set forth above, or other similar place furnishing a public performance for profit, if any payment or part thereof, for admission, refreshment, service or merchandise, entitles the patron to be present during any portion of such performance.”

This Ordinance was adopted under the authority of Act 212 of 1938

A license tax strictly speaking is a tax that must be paid by the party or dealer as a condition precedent to legally engaging in business and is usually incident to regulation under the police powers of the state. The distinction between a license tax and an excise tax is pointed out in 53 C.J.S., Verbo, Licenses, §■ 3 c(l), p. 455, as follows:

“Although there is no clear line of demarcation between license, occupation, and privilege taxes, license fees or taxes proper may be distinguished from excise or privilege taxes. * * The nature of a particular tax is not to be determined by the name given to it, or by the use of some particular form of words, but by the substance and realistic impact of the tax. A license tax proper is usually incident to regulation under the police powers of the state, whereas an excise or privilege tax is exacted under the taxing power primarily for purposes of revenue and is not an attempt at license and regulation under the police powers * * *.”

When these principles are applied to the tax in question it is apparent that the tax is not a license tax. The tax imposed under the Ordinance herein involved is not imposed as a condition precedent to engaging in business but the amount varies according to the sales and is computed after these sales are made. The evidence shows that the appellant furnished amusement only on certain nights of the week and that the tax was computed on 45% of the gross income.

It has been held in other jurisdictions that an amusement tax is an excise tax and not a license tax. Shannon v. Streckfus Steamers, 279 Ky. 649, 131 S.W.2d 833; City of Louisville v. Churchhill Downs, Inc., 267 Ky. 339, 102 S.W.2d 10. It was stated in the latter case: “ * * * an excise tax is in its proper sense ‘something cut off from the price paid on a sale of goods as a contribution to the support of the government.’ ” 102 S.W.2d 13.

The tax in question is referred to in the Ordinance and the statute as a “license” tax but this is a misnomer. This court has held that the fact that an excise tax is denominated a license is of no importance in determining the true nature of the tax. Giamalva v. Cooper, 217 La. 979, 47 So.2d 790. The name by which a tax is described in the statute is immaterial, its character must be determined by its incidents. Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 292, 41 S.Ct. 272, 274, 65 L.Ed. 638, 645; Lionel’s Cigar Store v. McFarland, 162 La. 956, 111 So. 341.

It has been held by this Court that when a tax is- levied upon the right or privilege of selling, using, or consuming a commodity where the amount to be paid is based on the quantity involved, that the tax is an excise tax. See State v. Johnson, 173 La. 669, 138 So. 503; State v. Tri-State Transit Co., 179 La. 811, 155 So. 233; State v. City of Monroe, 177 La. 983, 149 So. 541; State v. Standard Oil Co. of La., 190 La. 338, 182 So. 531; Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11.

This tax is not a regulation under the police power but is one for revenue. Act 212 of 1938 states that the proceeds thereof are dedicated to the relief of the unemployed or unemployables or mothers’ aid cases of the State. The, Ordinance also states that the tax is levied for the purpose of providing funds for the relief of the unemployed or unemployables, or foster home care or sponsorship of WPA projects as provided for by Act 212 of. 1938, as amended.

The conclusion is, therefore, inescapable that the tax imposed in the Ordinance (No. 15,129 CCS as amended) is not a license tax and consequently does not violate Section 8 of Article 10 of the Louisiana Constitution.

The appellant contends that’the Ordinance enlarges upon the definition of an admission tax as set out in Act 212 of 1938. Act 212 of 1938 authorizes any municipality having over 300,000 inhabitants to levy a tax on a nightclub, etc., where a fee is charged for admission or where there is any charge whatsoever therefor' in connection therewith either directly or indirectly and the term “admission” is defined as including seats,' and tables, reserved or otherwise, and other similar accommodations and charges made therefor. The provisions of the Ordinance imposing a tax on refreshments, service, and merchandise at the establishment where the payment or part thereof for admission, refreshment, service or merchandise entitles the patron to be present during any portion of the performance is not an enlargement of the provisions of Act 212 of 1938. The statute is very broad and seems to cover all. services rendered in, the nightclub in view of the fact that the term “admission” is defined so as to include “other similar accommodations”. When the statute as a whole is compared with the Ordinance it is apparent that the Ordinance has not enlarged upon the provisions of Act 212 of 1938.

For the reasons assigned, the judgment of the lower court is affirmed.

HAMITER, J., concurs in the decree.


author: SIMON, Justice.

text:
    229 La. 862
    Succession of George WASHINGTON, Jr.
    No. 41378.
    Supreme Court of Louisiana.
    March 26, 1956.
    Frederick G. Veith, New Orleans, for plaintiff-appellant.
    Philip Gensler, New Orleans, for appel-lees.
   SIMON, Justice.

Plaintiff, as one of the.collateral heirs of decedent herein, sued for possession and partition by licitation of property belonging to this succession. Defendants, who are other interested collateral heirs, .some of, whom were absent from the state and, therefore, represented by a curator ad hoc, duly appointed by the trial court, deny the plaintiff’s right to a partition by licitation.

Upon the trial of the issues presented by the pleadings filed .herein by all parties, the trial court concluded that a legally effective partition of the property of the decedent could not be pronounced prior to an administration of the succession and the payment of all then existing debts and other obligations and, accordingly, rendered judgment in favor of defendants, dismissing plaintiff’s suit.

Plaintiff has appealed from said judgment, to which appeal the defendants have not filed any answer.

No briefs were filed on behalf of appellant in support of her appeal, and on the day this case was called for argument before us, appellant,’in propria persona, filed a motion informing us that the issue presented by this appeal is now moot in that the property sought to be partitioned has been sold by the administrator and the proceeds deposited in accordance with law. She prays for a dismissal of this appeal. However, counsel of record for appellant has not signed this motion for dismissal; and we extended to him a week’s delay to file written brief or motion in this court in order to preserve any rights he has or inay . have as counsel for .appellant. Counsel has not fayored us with a., brief but; has addressed. a letter to this court requesting that’ the issue presented by this appeal, though moot, be considered and the correctness of the trial court’s judgment be determined by us.

It is a well-settled policy of this court that we will not decide moot questions. General Motors Truck Co. of Louisiana v. Caddo Transfer & Warehouse Co., 175 La. 892, 144 So. 608; State v. Hayes, 199 La. 269, 5 So.2d 768; Pellegrin v. City of Gretna, 222 La. 527, 62 So.2d 824; Jefferson 7th Ward Social Club v. Grevemberg, 225 La. 607, 73 So.2d 777.

Accordingly, for the reasons assigned, the appeal herein taken is dismissed.


text:
    229 La. 865
    Edmond L. HARANG v. Charles R. SMITH.
    No. 42371.
    Supreme Court of Louisiana.
    March 26, 1956.
    D. L. Kirschenheuter, Jr., New Orleans, D. Elmore Becnel, Reserve, for defendant-appellant.
    James P. Vial, Hahnville, Chehardy & Werhan, John C. Werhan, New Orleans, for plaintiff-appellee.
   PONDER, Justice.

The defendant is appealing from the judgment of the lower court annulling two acts of sale and ordering them cancelled from the Conveyance Records.

The plaintiff alleged in his petition and testified that the defendant obtained the acts of sale from him by fraud and misrepresentation; that the defendant, who was the foreman and supervisor of the plaintiff in the construction of a housing project in the Destrehan Heights Subdivision, was to receive in addition to his salary a bonus of approximately $50 per unit upon completion of construction of each house; that the plaintiff promised to deliver title to the lots described in the acts of sale upon completion of the subdivision but, because of defendant’s inducement by threatening to leave his employ before the completion of the subdivision, the acts of sale were passed before the completion of the work and that no cash consideration was given at the time the acts of sale were passed.

The averments in the defendant’s answer and his testimony is to the effect that he had earned the bonuses and that the acts of sale were given in payment of these bonuses because the plaintiff at that time was without sufficient funds to pay him.

It appears from the record, that the plaintiff owed the defendant bonuses on a number of houses which had been constructed but the amount was uncertain. The plaintiff did not offer any corroborating witnesses while, on the other hand, the defendant was partially corroborated by two witnesses.

If we were to accept the plaintiff’s version of this case, it would not constitute fraud. Moreover, if it were considered in that light, the plaintiff has failed to sustain the burden by clear and convincing proof. McClatchey v. Guaranty Bank & Trust Company, 228 La. 1103, 85 So.2d 6, and the cases cited therein.

The rule that a consideration different from that stated in the contract can always be shown docs not apply to authentic acts where the suit is between the contracting parties, their heirs, or assigns. In the absence of fraud the contracting parties cannot contradict the recitals of an authentic act by parol testimony. The only method by which either party to the contract can show that no consideration, or a different one than that specified was given, is by counter letter or by answer of the opposing party to interrogatories on facts and articles.. Tempelt v. Babbitt, 198 La. 810, 5 So.2d 13; Robinson v. Britton, 137 La. 863, 69 So. 282; Breaux v. Breaux, 218 La. 795, 51 So.2d 73.

For the reasons assigned, the judgment of the lower court is reversed and set aside and the plaintiff’s demand is rejected at his cost.


author: REGAN, Judge.

text:
    Jesse G. RAINWATER, Sr., v. Jacob TIMOTHY, d/b/a Parkway Bakery, Henry Timothy, and Maryland Casualty Company.
    No. 20621.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.

      Ogden & Woods,,Charlton B. Ogden, II, and Fallon W. Bentz, 'New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown, Sessions & Read, Peter H. Beer, New Orleans, for defendants-appellees.
   REGAN, Judge.

The plaintiff, Jesse G. Rainwater, Sr., the operator of a 1952 Plymouth automobile, instituted this suit against the defendants, Jacob Timothy, conducting hi? business under the trade name of Parkway Bakery, his employee, Henry J. Timothy, the operator of the bakery’s truck, and their liability insurer, Maryland Casualty Company; he was endeavoring to recover the sum of $31,653.75 representing personal injuries, loss of earnings, pain and suffering and medical expenses resulting from an accident which occurred on January 28, 1953, in the lakeside roadway of Jefferson Davis Boulevard where it intersects Jberville Street, at. which time Timothy’s truck was driven into the rear of his parked car causing the injuries which are the subject matter of this litigation..

After the court had disposed of various technical pleadings filed on behalf of the defendants, they answered admitting the occurrence of the accident, but denied liability therefor.

From a judgment in favor of the plaintiff in the sum of $1,100 against the defendants in solido, plaintiff has prosecuted this appeal.

In the trial court the defendants conceded liability for the accident and, therefore, the only question of fact which was presented for that court’s consideration and which is now posed for our review by virtue of plaintiff’s appeal is one of quantum, that is, whether plaintiff’s preexisting illness was permanently aggravated as a result of the accident which occurred on January 28, 1953? ,

The trial judge answered this question by awarding the plaintiff the sum of $1,000, together with $100 for experts’ fees and our careful analysis of both the lay and medical testimony appearing in the record and his written reasons for judgment which are quoted hereinafter, disclose no error in his conclusion with respect to the quantum awarded the plaintiff.

“Plaintiff had come to a dead stop when defendant rammed into him from the rear. Plaintiff, at the driver’s wheel, was catapulted forward and suffered abrasions and contusions to his left leg, knees and elbows. No frac-^ tures developed. At the time and 30. years prior to the accident plaintiff suffered from high bloo°d pressure and arteriosclerosis. Plaintiff is 72 years of age. After the accident plaintiff got out of his automobile, looked around, carried on a conversation, and went home in another vehicle. He was not in a state of shock, nor otherwise incapacitated.
“The medical testimony is convincing that the injuries plaintiff sustained were completely cured within three' months at most, even taking into consideration that older people suffer more severe injuries than younger ones. It must also he considered that, as older people are more susceptible to fractures because of the brittleness of their bones, the shock of the impact could not have been severe since plaintiff suffered no fractures, only abrasions and contusions. He had a history of a previous injury. In 1946 while standing in the street checking a load of lumber a board fell and injured his leg. He also suffered a later injury in 1954. While stepping over a ledge in the bathroom his foot weakened causing him to fall and hurt his back.
“The testimony is clear that the injury resulting from the weakening of his leg in the bathroom was not due to the injuries he sustained in the automobile accident. If at all, his fall was due to a long existing flat foot, which gave way when he put pressure on it.
“A pre-existing injury or disease, organic or otherwise, that is aggravated by a trauma, stress or strain is recoverable in tort or under the Compensation Act [LSA-R.S. 23:1021 et seq.].
“If the evidence here showed that the pre-existing arteriosclerosis or hypertension was aggravated by the automobile accident and plaintiff was incapacitated thereby at the time of the bathroom episode, he would be entitled to recover for the additional injuries.
“My conclusion, is that the inju-' ries sustained in the automobile accident. the bruises, the contusions, the ecchymosis, did not cause disability beyond 4 months, and that plaintiff is completely cured of any injury or aggravation sustained in the automobile accident of January 28th, 1953.
“Plaintiff contends ‘that his fall in the bathroom in Í954 was due to the injury sustained in the automobile ac-’ cident of January 28th, 1953. A tort-feasor is liable only for the diredt ánd proximate results of his yrrongful act. He cannot be held responsible for .the result of a separate, independent and intervening act with which he had no activé connection. If a person receives an injury through the, negligent act of another, and the injury is afterwards aggravated and recovery retarded by a subsequent accident not resulting from the failure of the injured person to use ordinary care, the subsequent accident becomes a sequence or natural result of the original injury and the tort-fea-sor is liable for the entire damage sustained. However, the reverse is true if the subsequent injury is attributable to a distinct, intervening cause, for which the tort-feasor would be liable only for the original injury and hot the subsequent one.'
“Plaintiff, however, bears the burden of proving that his fall in the bath was the natural and proximate result of the injury occasioned to him by the automobile collision of January 28, 1953, and was not the result of a separate, independent and intervening act for which defendant \yas in no way responsible. [Farnon v. Silver King Coalition Mines Co., 50 Utah 295, 167 P. 675], 9 A.L.R. 255; 20 A.L.R. 524; Goins v. Moore, [La.App.], 143 So. 522; Behan v. John B. Honor Co., 143 La. 348 [78 So. 589, L.R.A.191SF, 862]; Donahoe v. Scharfenstein & Son, 154 La. 815 [98 So. 256],
“Since the injuries sustained in the automobile accident were minor and of short duration, being merely bruises and contusions from which the defendant had fully recovered, it cannot be said, then, that his fall in the bathtub was due to any continuing injury sustained in the automobile accident.
“To the contrary, the evidence clearly indicates that the injury sustained by plaintiff in the bathtub was due either to flat feet, cardio-vascular disease or the high blood pressure he had for 30 years, and probably a foot injury sustained in 1946.”

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

McBRIDE, J., absent, takes no part.


author: JANVIER, Judge.

text:
    AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY v. Dominico MASSA and Traders & General Insurance Company.
    No. 20635.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.
    Boswell, Loeb & Livaudais, Marcel Liv-audais, Jr., New Orleans, for defendants-appellants.
    Ray S. Clement, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

This action ex delicto results from a collision between two motor vehicles which took place at what is referred to as the “T” intersection of Marconi Drive and Navarre Street, in New Orleans, at about 6:30 o’clock in the evening of February 8, 1954. Marconi Drive is a rather broad thoroughfare on which traffic moves in both directions. Navarre Street joins Marconi Drive at a right angle on one side but does not continue on the other side. There are no traffic control signals or signs at that intersection on either roadway.

Charles W. Berg was operating his 1953 Buick Convertible automobile on Marconi Drive in a southerly direction and Dominico Massa was driving his lj4 ton Stake Body truck in the opposite direction. As Massa reached the intersection of Navarre Street he turned his truck to its left as he desired to enter that street and to proceed in a westerly direction. As his truck was making the turn to the west across the other side of Marconi Drive, it was struck on the right side by the Berg car with the result that Berg sustained physical injuries and his Buick automobile was severely damaged.

Berg had obtained from American Manufacturers Mutual Insurance Company a policy of collision insurance containing what is known as a $100 deductible clause. Under this policy the insurance company had agreed that should Berg’s car be damaged in collision, it would pay all but $100 of the cost of making the necessary repairs. Massa had secured from Traders & General Insurance Company a policy of liability insurance under which that company agreed to pay such amounts as Massa might become liable for as the result of the negligent operation of his truck.

The cost of repairing the Berg car amounted to $1,055.95 and of this American Manufacturers Mutual Insurance Company paid $955.55, securing from Berg a written subrogation to all rights which he might have against Massa or Massa’s insurer, Traders & General Insurance Company.

American Manufacturers Mutual Insurance Company then brought this suit against Massa and against Traders & General Insurance Company alleging that the accident had resulted solely from negligence on the part of Massa and praying for solidary judgment against both defendants in the sum of $955.95. Berg did not join in the suit as a party plaintiff.

Massa and Traders & General Insurance Company answered, admitting that Massa had owned the truck in question and that the said insurance company had issued to him a policy of liability insurance and admitting the occurrence of the accident, but denying that Massa had been in any way negligent and averring that Berg had been entirely at fault and averring, in the alternative that it should appear that Massa had been in any way at fault, that the contributory negligence of Berg was the proximate cause of the collision.

There was judgment as prayed for against Massa and Traders & General Insurance Company in the sum of $955.95 and both defendants have appealed suspensively.

The only eyewitnesses were the drivers of the two vehicles, Berg and Massa.

Counsel for Massa, in oral argument, frankly stated that there could be no doubt as to the negligence of Massa in turning to his left across the path of the oncoming Buick but he argues that the collision could easily have been averted by Berg had he been on the alert and that he should have noticed the truck and seen that it was turning across his path.

Each driver says that the lights on the other vehicle were not burning, though it is quite evident that Massa was not so certain about this as'was Berg. In fact, it almost required prompting of Massa to say that the lights on the Berg, car were not burning, whereas Berg was very positive and reiterated his statements that the lights on the Massa car were not burning. He said: “It was dark * * * . There were no lights on the truck, * * *And he also said that the lights on his Buick were burning even after the collision; that the police “used my headlights to write up the report * * * the policeman had to turn my lights off.”

Counsel for defendants refers to several statements by Berg to the effect that he “looked up” and “saw the truck in front of him” and counsel says that if Berg.“looked up” just as the truck crossed his path he must not have been looking up as Berg made the turn. Berg did use these words on several occasions but says that as the truck was proceeding along the other side of the roadway he paid no attention to it, possibly didn’t even notice it until it made the sudden turn to its left across his path. He says:

“ * * * I didn’t see any lights— and he darted across very fast in front of me. I didn’t see him but at that split second * * *

On behalf of defendants it is argued that the speed of the Berg car must have been grossly- excessive since the damage to its front end was so great that the repair bill amounted to more than $1,000. Berg himself says that his speed was about 30 miles an hour, and ther:e is nothing which would justify the conclusion that his speed was greater. Even if it was slightly higher than 30 miles per hour that slight excess could not be considered as a contributing cause of the accident. He was’approaching the intersection with his headlights burning and when Massa suddenly turned across in front of him, there was nothing that he could have done even had his speed been a little slower than it actually was.

In Michelli v. Rheem Mfg. Co., La.App., 34 So.2d 264, 270, we said:

, * We believe, however, that the speed of the Michelli car was not a, contributing cause of the accident, . as the collision could well have happened if it had been going 25 miles an . hour, just the same as it.was going 50 to 60 miles an hour.”

Counsel for defendants cite several cases in which collisions ' occurred between vehicles crossing neutral grounds and other vehicles driving on roadways alongside those neutral grounds. For instance, in Scheib v. Ledet, La.App., 57 So.2d 814, one of the vehicles was crossing St. Charles Avenue at Valmont Street and the other was going up St. Charles Avenue. We held that the operator of the car going up the avenue should have seen that the car crossing was about to enter the roadway.

The situation here was quite different’. Here the offending vehicle was not crossing but turned suddenly to its left. Furthermore, in the Scheib case the accident occurred in broad daylight and each driver ■ could easily have seen the other car. Here the accident occurred at night and the offending, .-.car ,was being. operated without lights. ,

We think that the record justifies this last conclusion, but even if the lights on the truck were burning, we still ,feel that the cause of the accident was the sudden turning of the truck across the roadway in front of the Berg car.

The record convinces us that the finding of the District Court was correct.

The judgment appealed from is affirmed at the cost of appellant.

Affirmed.


author: McBRIDE, Judge.

text:
    Gerard G. O'CONNOR v. AMERICAN MUTUAL LIABILITY INS. CO.
    No. 20782.
    Court of Appeal of Louisiana. Orleans.
    April 23, 1956.

      Kenneth V. Ward, New Orleans, for plaintiff-appellant.
    Alfred C. Kammer, New Orleans, for American Mut. Liability Ins. Co., defendant and appellee. Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, of counsel.
    Oliver S. Delery, New Orleans, for Board of Adm’rs of Charity Hospital of Louisiana at New Orleans, intervenor.
   McBRIDE, Judge.

Gerard G. O’Connor, alleging that when he was shot by a bandit on April 15, 1955, he was in the employ of Elmer’s Fine Foods, Inc., brings this suit against its workmen’s compensation insurer for compensation at the rate of $30 per week for 400 weeks. It is represented that the injuries arose out of the employment and rendered him totally and permanently disabled from doing work of any reasonable character. Plaintiff prays also for an allowance for medical expenses and for statutory penalties (under LSA-R.S. 22:658) for defendant’s failure to pay him compensation as it became due. Defendant denies liability for any compensation whatever; that O’Connor was an employee of Elmer’s Fine Foods, Inc., is specially denied.

After a trial on the merits of the case, the suit was dismissed and plaintiff has appealed. The judgment also dismissed the intervention which had been filed by Board of Administrators of Charity Hospital of Louisiana at New Orleans claiming $185.70 which represented the cost of medical care and hospitalization furnished plaintiff, hut as no appeal was taken from that part of the judgment, the said incidental demand is no longer a part of the case.

Plaintiff’s business connection with Elmer’s Fine Foods, Inc., commenced on April 11, 1955, when he called at the office of said concern seeking a “selling job” and was referred to Joseph Elmer, its vice-president and general manager. Plaintiff acquainted Mr. Elmer with the fact he was an experienced route worker, but was told there were rio route openings just then. However, Mr. Elmer stated that if plaintiff would be willing to undertake the building up of a route of his own, be would be treated the same as the other routemen. Plaintiff made it plain that he was without funds and could not even finance the original merchandise he was to handle. Mr. Elmer thereupon told him that in order to help him get started and also hoping to augment the company’s sales, he would permit plaintiff to utilize an old automobile the company owned but did not use. He also stated that he would furnish fuel for the truck and supply the merchandise. O’Connor was given' to understand that he could call on prospective customers within the city of New Orleans, except he was not to solicit certain establishments, such as supermarkets, with which Elmer’s Fine Foods, Inc., had special arrangements.

Plaintiff accepted the offer. Each day there was turned over to him a quantity of merchandise which, after being inventoried, was loaded by plaintiff aboard the truck. He went out with the truck and canvassed likely establishments on April 11, 12, 14 and 15, 1955, and at about 12 o’clock noon on the last mentioned date he was held up and shot in the left wrist by a colored youth who made off with his sales receipts. The assault took place while plaintiff was in the act of calling on a customer.

At the conclusion of each day he worked, plaintiff would return to the office of the company, account for all unsold merchandise, and turn in to the company’s representative the day’s receipts for sales made. The “sales slips” would be checked and the company’s representative would pay him a 20 per cent commission on the gross amount of his sales.

O’Connor’s duties entailed more than just calling on retail establishments and making sales. The company required him to keep certain written records. For instance, with each sale he had to fill out sales slips in duplicate on blanks furnished by the company, one of which was given to the customer and the other was turned in at the end of the day. Then there was the leather route book into which O’Connor had to enter the names and addresses of the customers and list the establishments at which he placed racks. We understand these racks, made of wire, are furnished by Elmer’s Fine Foods, Inc., to the retailer for displaying merchandise.

The record shows another feature of the relationship between the parties which seems to us to be of marked significance. On occasions a customer along the route would ask for a product or article not carried by Elmer’s Fine Foods, Inc. Joseph Elmer admits that on such occasions in “an effort to help” O’Connor, he would secure the merchandise desired by the customer from whichever concern handled it and turn it over to O’Connor for delivery to the customer. Apparently O’Connor was not informed of the price at which Mr. Elmer purchased such merchandise, but after selling it to his customer he would remit the full proceeds of the sale along with the proceeds from his regular sales. On such-transaction defendant paid him the usual commission of 20 per cent of the amount of the sale.

The initial question presented for determination is whether O’Connor occupied the status of an employee or was engaged in reselling products which he bought from Elmer’s Fine Foods, Inc., as an independent merchant.

A decision on the question whether a worker is an employee within the meaning of tlie Workmen’s Compensation Statute or is to be placed within another category is not always easy to reach. Scarcely any general test can be applied to the cases. Power of control and superintendence and the right to “fire” or discharge by the employer ar.e usually standards for making the test, but the Supreme Court has said the better policy is to judge each case on the circumstances and let the principle of stare decisis govern. See Bell v. Albert Hanson Lumber Co., Limited, 151 La. 824, 92 So. 350. Usually where the right to direct or control exists there is to be found the employee relationship, but merely because a manufacturer or wholesaler assigns to a peddler or to a retailer a certain territory and limits the sales to that territory does not of itself show that he is an employee. Nor does the fact that a manufacturer or wholesaler retains the right to discontinue selling to a retailer, which would be tantamount to discharging him, justify the conclusion that the retailer is his employee. See our discussion of these points in Buettner v. Polar Bar Ice Cream Co., Inc., La. App., 17 So.2d 486.

In analyzing the facts of each particular case, it is necessary to consider, in addition to the power of control and supervision and the .employer’s right to discharge, such things as whether the claimant earned wages, or that he was or was not hired by the job rather than by the hour, day or week, or that he did not furnish his own transportation, or that he was or was not carried on the payroll. No one of these factors is conclusive. However, the circumstances revealed by the instant record, although if each, stood alone it possibly might not make it certain that the employee relationship actually existed, present a formidable chain of circumstances which goes far to demonstrate that plaintiff was an employee and not just an enterpriser buying and reselling merchandise for his own account. The circumstances we refer to are plaintiff’s selling of merchandise which Mr. Elmer bought for resale from other dealers and which plaintiff disposed of on a commission basis; the supplying of merchandise each morning to O’Connor without exacting payment therefor; the furnishing of the truck and the fuel therefor without cost or expense to plaintiff; the requirement that plaintiff make daily remittance of the full amount received from his gross sales; and the keeping of the records. Another requirement was that Mr. Elmer be kept “posted” of plaintiff’s whereabouts each day “in case there was an emergency.” This latter feature of the contract between the parties shows one thing above all and that is that Elmer’s Fine Foods, Inc., retained and exercised absolute and positive control and superintendence of the movements and activities of plaintiff. The language of the Court of Appeals of New York in Glielmi v. Netherland Dairy Co., Inc., 254 N.Y. 60, 171 N.E. 906, 907, fits the plight of O’Connor perfectly:

“ * * * He is bound hand and foot as long as he works the route at all, his freedom an illusion, and his independence but a name.”

- As against all of the above, the only element in the case which might appear to be favorable to defendant, is the fact that O’Connor was not carried on the payroll of Elmer’s Fine Foods, Inc., and that the usual withholdings for income, unemployment and social security taxes were not made. However, this is unimportant in view of the many factors pointed out above which show beyond doubt that plaintiff was in the employ of said concern.

A conclusion that O’Connor was an employee within the purview of the compensation statute is inescapable. In Buettner v. Polar Bar Ice Cream Co., Inc., supra, the deceased worked regularly as a peddler of ice cream manufactured by the defendant by buying it from defendant and selling it at a profit for a fixed price. The deceased’s route was defined by agreement with defendant ; he was subj ect to dismissal at any time; and the car he drove was financed through the defendant and bore the latter’s advertising matter. We regarded deceased as an employee whose dependents were entitled to compensation.

We discern a' close analogy between O’Connor and'the plaintiff in Blackburn v. Chenet, La.App., 42 So.2d 288. The defendant there owned several mules and wagons which were used by various other persons in the' peddling of fruit and vegetables; defendant provided the funds to each driver to purchase the stock. At the termination of each venture, out of the gross sales there was first refunded to defendant the amount he had advanced. The balance remaining was divided between defendant and the peddler. We held the latter to be an employee.

Defendant has cited Durant v. Industrial Lumber Co., Inc., La.App., 6 So.2d 164, but we find it entirely dissimilar to the instant case and agree with the holding of the court that the plaintiff was an independent contractor not entitled to recover workmen’s compensation benefits.

Unquestionably O’Connor’s occupation falls within the provisions of the statute by virtue of the employer’s business being of a hazardous nature. While the record does not show whether Elmer’s Fine Foods, Inc., is a manufacturer or wholesaler, or if its business is one of those designated by the statute as being hazardous, it in fact became hazardous by virtue of the operation of motor vehicles in pursuit of the business. In Haddad v. Commercial Motor Truck Co., 146 La. 897, 84 So. 197, 9 A.L.R. 1380, the Supreme Court held that the business of hauling, though not specifically designated as being hazardous, becomes hazardous if motor vehicles are used on the theory that the-driving of such vehicles involves the operation of engines which is specifically made hazardous by the terms of the statute. It has been held that when an employee of an insurance company, a retail clothing establishment, or a beer parlor uses a motor vehicle in the discharge of a part of his duties, this makes the business a hazardous one. Reagor v. First Nat. Life Ins. Co., 212 La. 789, 33 So.2d 521; Richardson v. American Employers’ Ins. Co., La.App., 31 So.2d 527; Crews v. Levitan Smart Shops, Inc., La.App., 171 So. 608. In Snear v. Eiserloh, La.App., 144 So. 265, we held that an employee who merely engaged in loading- a 'motor truck was in “hazardous employment.”

Counsel for defendant in. oral argument contended that O’Connor’s injury at the hands of the bandit did not arise out of the employment and is -therefore not com-pensable. Our conclusion is that for two reasons the assault committed by the third person can be said to have arisen out of the employment. The first reason is that the employee’s duty required the carrying of the cash* receipts of sales on his person which certainly tended to expose him to a greater possibility of criminal assault from a lawless person bent on robbery than an employee not engaged in such employment.

From a leading case on this subject, Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256, 257, in which,a number of authorities were cited and discussed, there.evolved the following rule:

“The test to determine whether injuries to a workman arise out of his employment is not whether the cause of the injury, that is, the agency producing it, was something peculiar to the line of employment, but whether the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not, engaged in the employment.”

The rule above set out was applied- in Dyer v. Rapides Lumber Co., 154 La. 1091, 98 So. 677. The deceased who was hired by the defendant as an engine tender was shot and killed by an unknown assailant during the nighttime in an isolated area. The Court, holding that the death arose out of employment, stressed the increased opportunity for an assault from ambush afforded by the nighttime work hours and by the stooped position required in stoking the boiler's.

In Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248, the deceased was employed in defendant’s gravel pits and was forced to work in close proximity to a fellow employee who had shown considerable animosity toward him. One day while deceased was in a stooped position he was struck on the head by an iron instrument wielded by his enemy. Compensation was allowed. The Court found that deceased’s employment increased the risk of assault by bringing him in daily contact with his enemy.

The second reason for saying that the injury arose out of the employment is that the employment subjected plaintiff to a peril which came from the fact that its duties required that he be in the place where and when the bandit committed the assault upon him.

In the comparatively recent case of Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449, 451, a towerman in defendant’s employ left the tower on which he was stationed and descended to the ground to rescue a child from the attacks of a vicious dog and in doing so sustained an injury. It was held that such injury arose out of and in the course of the employment within the provisions of the Act for the reason that the employee was required to be in the place where the injury occurred. The Court in its original opinion said:

“After a very exhaustive review of the subject, the court concludes that under the broad view now taken of these statutes * *

and then quoted the following language from Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, certiorari denied by the United States Supreme Court, 309 U.S. 689, 60 S.Ct. 891, 84 L.Ed. 1032:

“ ‘ * * * no more is necessary than that the work subject the employee to a peril which comes from the fact that he is required to be in the place where it strikes when it does so. It is immaterial whether the place is the employer’s premises or a street; whether the risk arises from physical features or human agencies connected with the place; whether it is a common occurrence or an extraordinary happening; one which threatens only employees at work or others also.’ ”

Although the provisions of the Compensation Act fix the benefits to an injured employee, or his dependent in the event of his decease, on the basis of certain percentages of the wages earned by the employee, it was not the intention of the lawmakers to restrict the workmen’s compensation benefits to wage earners alone. Because the employee was working for a commission and not for a salary when injured does not render the Workmen’s Compensation Act inapplicable to him. It has been held that a taxicab driver or an automobile salesman who works for a commission is embraced within the protection of the Act. See Coats v. Windsor, La. App., 167 So. 483; Plick v. Toye Bros. Auto & Taxicab Co., Inc., 13 La.App. 525, 127 So. 59. In several cases employees doing piecework and not working for regular wages were held to come within the compensation law. Calhoon v. Meridian Lumber Co., 180 La. 343, 156 So. 412; Dick v. Gravel Logging Co., Inc., 152 La. 993, 95 So. 99; James v. Hillyer-Deutsch-Edwards, Inc., 15 La.App. 71, 130 So. 257; Jones v. Landry, 10 La.App. 740, 122 So. 913. In principle we cannot distinguish any of these cases from the instant one.

During the three and one-half days he worked the route before being shot, O’Connor's sales aggregated $57.99, and he was entitled to a commission of 20 per cent of this amount, or $11.60, and dividing said amount by 3.5 would give the average daily rate of earnings as $3.31. Projecting this daily rate of pay for a 5-day week, which was what the contract of employment contemplated, would bring the earnings to $16.55 for a full week. This is the formula used by the courts in several cases to arrive at the weekly rate of pay of an employee hired at an hourly rate but who does not work the full week for the employer and we can think of no better method for computing O’Connor’s weekly wage. See Calhoon v. Meridian Lumber Co., supra; Rylander v. T. Smith & Son, Inc., 177 La. 716, 149 So. 434; Coats v. Windsor, supra. In Hayes v. Barras, La. App., 6 So.2d 66 (writs refused), the plaintiff had been hired at 30 cents an hour for a 3-hour job loading a truck and was injured shortly after beginning the work. The court multiplied the hourly rate of pay by the number of hours the employee would have worked had he been employed for a full week and computed the amount of his earnings to be $14.40 for a full week and used this figure as the basis for the compensation award.

The specific purpose for which O’Connor was hired and for which he engaged himself was to “build up” his own route, and we cannot indulge in conjecture, as his attorney would have us do, as to what his earnings might have amounted to at some future time. O’Connor cannot arbitrarily be put on a parity with the other routemen who might have been more established in their activities so as to make their earnings the criterion for establishing the weekly amount of compensation due O’Connor. We think that a new worker who is injured at a time before his true earning capacity is attained must nevertheless be satisfied with compensation based on the beginner’s wage. As the Court of Appeal for the Second Circuit in Coats v. Windsor, supra [167 So. 485], said:

“ * * * but the statute is only intended for financial compensation and not for general relief, and some basis upon which to fix tire compensation due must necessarily be fixed, although in some individual cases, as here, a hardship might inure, due to the unusually low wage at the time of the accident.”

Counsel also urges us to adopt the figure of $50 per week as the compensation base for the ascribed reason that Mr. Elmer testified that his “regular salesmen were on a guaranteed salary of $50 a week and up.” We have carefully read that portion of the testimony and do not interpret the statement made by Mr. Elmer to mean that the guaranteed wage applied to any of the routemen as it clearly appears Mr. Elmer was speaking with reference to his salesmen as contradistinguished from the route workers. But even if it be conceded that the other routemen were guaranteed a weekly wage of “$50.00 and up,” still the plaintiff cannot claim that the arrangement with the other men applied to him as there was no such understanding in his contract of hiring. He was to receive a commission equal to 20 per cent of the gross sales he made without any guarantee of a minimum wage.

The brigand’s 'bullet caused plaintiff to suffer a comminuted fracture of the left wrist for which injury he was treated by the physicians at Charity Hospital, none of whom appeared in court as witnesses. The only medical evidence concerning plaintiff’s condition we have before us is the hospital record and the testimony of the three physicians who examined him on various dates after June 1, 1955, which was when the plaster cast placed on his arm at the hospital was removed.

Dr. Blaise Salatich, who is an orthopedist, appeared as plaintiff’s expert. He saw and examined O’Connor on July '1 and December 27, 1955, finding a healed commi-nuted fracture of the left wrist with a multiplicity of metal fragments (from the bullet) imbedded in the flesh. On both examinations Dr. Salatich noticed a limitation of the motion of the plaintiff’s wrist and while it appeared to him there had been some improvement in the interval between examinations, he thought there would be a permanent residual. With reference to O’Connor’s ability to return to his work, his opinion was that while O’Con-nor might be able to carry on his former duties, he would have to do the work in pain. It might be stated that on the date of the second examination O’Connor was in the employ of the cleaning and pressing concern. When asked if he could state positively that O’Connor was experiencing pain, Dr. Salatich made this significant statement:

“It’s quite possible he can have pain. I have no means of being absolutely positive, only .what the man says.”

Dr. George Berkett, a specialist in orthopedics, examined plaintiff on behalf of defendant on June 6 and December 27, 1955. The cast had been removed from O’Con-nor’s arm five days prior to his first examination. Dr. Berkett’s finding on the earlier examination was that the patient had excellent function and range of motion of the left wrist 'but with some limitation and his prognosis was that within a month t'o six weeks the motion should be normal. On the December 27th examination Dr. Berkett found no residual whatever.

Dr. Edward T. Haslam, an expert in the field of surgery, saw and examined plaintiff twice, the first time on 'September 7 and again on October 6, 1955. His opinion was that the metal fragments were insignificant. He finally concluded that plaintiff had suffered a 10 per cent permanent loss of the use of the function of the left arm due to limited motion of the little finger and a 20-degree lack of dorsiflexion, but he. saw -no reason why O’Connor could not return to work driving the motor truck and carrying on the duties of routeman.

,The learned trial judge, according to the reasons for judgment he gave, dismissed the suit believing that plaintiff was an independent contractor and not entitled to the rights and benefits of the compensation statute. Of course, in that conclusion our brother was in error. However, the judge went a bit further and stated in his reasons that he was impressed by Dr. Haslam’s opinion that O’Connor had incurred the 10 per cent loss of the use of his left arm. Dr. Haslam’s statement likewise makes impression on us. The doctor seems to have been most fair in making appraisal of plaintiff’s condition, and our opinion is that O’Connor did suffer a permanent partial loss of the use and function of the member as stated by Dr. Haslam, but, in spite of this, Re is physically competent to resume, his former occupation or to engage ,in activities similar thereto.

The fact that O’Connor holds' the job of routeman with his present employer in the cleaning, and pressing business supports Dr. Haslam’s conclusion -that the partial loss of use of the function of the arm is not disabling to any extent and will not interfere with his ability .to do his work. The plaintiff pretends he can do little with his left hand but admits he can drive a Chevrolet automobile on his route; However, he says he experiences an annoying pain, a sort of numbness, which cold weather tends to aggravate. None of -the physicians, except Dr. Salatich, saw any reason for the pain and Dr. Salatich acknowledged that he has no way of knowing positively if plaintiff’s complaints of pain are genuine other than from plaintiff’s statements to him.

As between, plaintiff’s present occupation and his former employment, we can discern no material difference. His present job is to build up a route for the cleaning and pressing company. He was employed to build up a route for Elmer’s Fine Foods, Inc. Both occupations entailed his driving of - a motor vehicle. He- now drives a Chevrolet car- but formerly drove a Ford ■i^-ton panel truck, and it is a well-known fact that both types are light vehicles. In the former job O’Connor loaded candy and confections onto the truck and by his, own statement it took him but 5 or 10 .minutes to load his stock in trade each morning.' Plaintiff says some of the packages of confections' weigh as little' as 5 ounces and a carton of them weighs only a few pounds. The weight of a box of 24 bars of candy is a little in excess of a pound and the jars of candy he. handled weighed between 2 and 3 pounds. He maintained that it was necessary to lift packages weighing up to 30 pounds which he says he can no longer do, but we are inclined to believe that this statement of plaintiff is, somewhat of an exaggeration. The duties of the present job require the. lifting and carrying of all types of wearing apparel to and from the automobile. The record gives us no inkling as to what these articles might weigh, but we do not think that his present duties are any less arduous than those which he formerly performed.

O’Connor never attempted to return to work for Elmer’s Fine Foods, Inc., and he states he was totally incapacitated until September 7, 1955. We know that his arm was in the cast until June 1, 1955, and it necessarily follows that he could not do work prior to that date. Whereas Dr. Berkett believed when he saw plaintiff on June 6 that all disability would disappear in from 4 to 6 weeks, we conclude that plaintiff was disabled until September 7 when he found the new job of building up the cleaning and pressing route.

Plaintiff’s disability was temporary but total for a period of 21 weeks and if an award of compensation were to be made on the basis of temporary total disability he would be compensated under LSA-R.S. 23:1221(1) at the rate of $10.75 (65 per cent of $16.55) per week or to the extent of $225.75. But he has sustained a 10 per cent loss of the use of function of his left arm and therefore the weekly amount of compensation payable must come under the provisions of the statute relating to specific loss. The correct method for computing compensation for the permanent partial loss of use of the function of a member is to take the proportion of the partial loss from 65 per cent of the weekly wage and allow such amount as compensation for the number of weeks permitted for the total loss of the respective member. Cooper v. Employers Liability Assurance Corporation, Limited, La.App., 80 So.2d 180; Morgan v. Standard Accident Ins. Co., La.App., 51 So.2d 107; Storm v. Johnson, La.App., 23 So.2d 639; Smith v. Turner Lumber Co., La.App., 174 So. 699; Thornton v. Haynesville Lumber Co., Inc., La.App., 155 So. 784. The pertinent provisions are LSA-R.S. 23:1221(4) (f, n, o) and the result is that the compensation rate is 10 per cent of 65 per cent of $16.55 or $1.07 per week for 200 weeks, but as LSA-R.S. 23:1202 establishes the lowest or minimum rate of compensation at $3 per week, plaintiff is entitled to said minimum sum each week for a period of 200 weeks.

An injured workman cannot recover compensation both for specific loss, such as a partial loss of the function of any member, and for temporary total disability. LSA-R.S. 23:1223 provides that where compensation, has been paid under the disability provisions the amount of such payments shall be deducted from any compensation allowed for a specific loss, but as no payments at all have been made O’Connor is entitled to compensation for the permanent partial loss of function of the member which is- greater than any compensation he would receive under the disability provisions. See Cooper v. Employers Liability Assurance Corporation, Limited, supra; Storm v. Johnson, supra; Ferguson v. Kellogg Lumber Co., La.App., 200 So. 36; Franklin v. Louisiana Highway Commission, La.App., 152 So. 604; McBride v. Natural Gas & Fuel Corporation, 9 La.App. 513, 119 So. 722.

In addition to the award for workmen’s compensation at $3 per week for 200 weeks, plaintiff is entitled to recover the sum of $20 which he expended for X-rays in connection with his injuries.

Dr. Salatich’s fee as an expert witness is fixed at $100, which is in line with previous allowances made by this court to medical experts. He presented two bills for the sum of $25 each for services rendered in examining plaintiff, but, of course, neither the doctor nor plaintiff can recover the amount of the bills. We are unaware of any provision of law which makes the defendant in a workmen’s compensation suit liable for the bill of a physician for examining an injured workman when the sole purpose of the examination is to acquaint the physician with the workman’s condition and prepare him to testify in the case as an expert witness. All the physician is entitled to is a fee for giving testimony as a expert witness and this fee is to be fixed within the sound discretion of the court.

Plaintiff claims the penalties provided for by LSA-R.S. 22:658 for defendant’s failure to make payment of compensation within 60 days after receipt of proof of loss. We do not think that the penalties provided for in said statutory provisions should be imposed in this case for the reason that there is nothing in the record to indicate that the failure to make payment of the claim was to any extent arbitrary, capricious or without probable cause. The defendant took the position all along that the plaintiff was not an employee of the insured and evidently it acted on the advice of its attorneys and in good faith on a debatable question. We see no reason whatever for saying that defendant is amenable to any penalties.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered, adjudged and decreed that the plaintiff have judgment against defendant for workmen’s compensation at the rate of $3 per week for a period of 200 weeks commencing as of April 22, 19SS, together with legal interest on each overdue installment from its due date until paid, plus $20 for medical expenses and for all costs in both courts. The fee of Dr. Blaise Salatich as an expert witness is fixed at the sum of $100 and is taxed as an item of costs.

Reversed.


author: THORNAL, Justice.

text:
    Frank Elliot SMITH, Appellant, v. J. O. WHIDDEN, Appellee.
    Supreme Court of Florida. Special Division A.
    April 25, 1956.
    Mellor & Watson, Fort Myers, for appellant.
    Stewart & Stewart, Fort Myers, -for ap-pellee.
   THORNAL, Justice.

Appellant Smith who was defendant below seeks reversal of a judgment for ap-pellee Whidden who was plaintiff below in an action for damages resulting from the collision of two automobiles.

Appellant urges three points for reversal, to-wit: (a) he contends that when a husband sues for the wrongful death of his wife and includes a claim for loss of services, he should be required to prove that he had actually replaced, or will actually replace, his wife’s services by hired help as a condition to recovery, (b) the trial judge refused to charge the jury on the matter of the contributory negligence of the plaintiff, and (c) a $13,000 verdict in favor of an 80-year old husband suing for the death of his 59-year old wife, with a 5-year joint life expectancy, was excessive under the facts of this case.

The tragic collision occurred when ap-pellee Whidden accompanied by his wife was driving his automobile at a moderate rate of speed on the proper side of a public highway. Apparently appellant Smith, who was driving his car in the opposite direction, lost control of his automobile when a third car attempted to pass the Whidden vehicle. The Smith car veered off the pavement and then turned sharply toward the Whidden car, skidded 110 feet and plowed into the Whidden automobile with the resultant damage to the vehicle, some physical injury to Whidden and the death of Mrs. Whidden, apparently from the shock of the collision. Whidden thereupon sued Smith seeking recovery for the damages to his automobile, expenses for doctors and funeral bills as well as for the injury to himself and the usual claims for damages resulting from the death of his wife.

After hearing all of the testimony, including the fact that Whidden was 80 years of age, his wife was 59, and that they had a joint life expectancy of 5 years, the jury rendered a verdict of $13,000 in favor of appellee Whidden. A judgment was entered against appellant and this appeal ensued.

On the first proposition urged by the appellant Smith, the record shows that Mrs. Whidden rendered all of the usual and customary domestic services to be rendered by a wife in the financial circumstances of the parties. She took care of the house, fixed the meals, did the laundry, cared for her husband who was not in good health, and did the other chores that a normal wife in her circumstances would expect to do. Since her death, her husband has lived part of the time with his children by a former marriage, and part of the time with family friends. He paid them nothing for his keep. At the time of the trial, he was living in his own home, but had taken in a couple who were attempting to render the same domestic services as the deceased wife had rendered in exchange for rent-free accommodations. It was shown that if this couple should leave appellee’s home, he would again be compelled to impose, upon the charity of friends and relatives.,

The testimony of an Employment Service official was to the effect that to employ someone to render the domestic services of the deceased Mrs. Whidden would require an expenditure of $30 to $35 per week. The method followed by appellee in this case to establish value of his wife’s services is one proper method of proving this ultimate fact. The evidence before us is well within the rule announced by our decision in Lithgow v. Hamilton, Fla. 1954, 69 So.2d 776. In a case such as this where the nature of the wife’s services is shown by the evidence and it is established that the husband has lost such services because of the death of his wife resulting from the negligence of the defendant, he is entitled to recover, insofar as reasonably measureable, the value of that which the defendant’s negligence has deprived him of enjoying. It is not essential as a condition to recovery that he immediately hire someone to render the service. It is sufficient to prove that he had previously enjoyed the service and had been deprived of it by the negligence of the defendant. On this foundation the husband may then proceed to establish the value of the service as he did in the case before us.

As to the failure of the court to instruct the jury on the matter of contributory negligence, we find from an examination of the record that the trial judge was justified in declining an instruction on this subject. The asserted defense of contributory negligence was based on appellant’s contention that the appellee failed to use ordinary care and caution in the operation of his own automobile. The record fails to reveal just what he could have done to have avoided the collision and any effort on our part to speculate on the subject would be entering into the realm of conjecture that would be completely unjustified. As a matter of fact, appellant himself testified with reference to the manner of appellee’s operation of his automobile that “it appeared his car was being driven all right”. Where the testimony fails to support a requested jury instruction, it is axiomatic that the trial judge is justified in declining to give the instruction.

On the matter of the excessiveness of the verdict, we have examined the record carefully and find no justification for any conclusion that the verdict is so excessive as to shock the judicial conscience. The cause was fairly tried, the jury heard and saw all of the witnesses and any interference with their conclusion in this case would be. an unjustifiable intrusion upon the jury function.

Finding no error, the judgment appealed from is—

Affirmed.

DREW, C. J., HOBSON, J., and PATTERSON, Associate Justice, concur.


author: THOMAS, Justice.

text:
    Annie EISEN and Isaac Eisen, her husband, Appellants, v. SPORTOGS, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    April 25, 1956.
    Dixon, Dejarnette, Bradford & Williams, Miami, for appellants.
    Wicker & Smith, Miami, for appellee.
   THOMAS, Justice.

The appellants, husband and wife, lost in their action against the appellee to recover damages suffered when the wife stumbled and fell in the store of the appellee, a so-called “one man” corporation dominated, operated and controlled by appellants’ son.

The salient facts are simple. Evidently the appellee’s place of business consisted of a shop where shirts were made and a store where the products of the shop were sold. The appellant-husband had taken to his home some shirts “in embryo-” for the purpose of working on them in the evening. The next morning he forgot to take them back to the store. When the appellant-wife discovered the oversight she proceeded to return the shirts to the store and to deliver them to her husband in the shop. While there,'she decided to' go to a rest room located on a balcony. As she was ascending the stairs her foot caught on the worn carpet covering the steps, she fell and was injured.

The appellants take the position that Annie Eisen was a business invitee; the ap-pellee contends she was a mere licensee; the court sided with the appellee and entered a summary final judgment in its favor.

Apparently the appellant-husband' and -wife and the son derived a livelihood from the business, and the appellant-wife had had for many years the run of the premises inasmuch as the business had been operated by the appellant-husband before the son took over.

Considering the relationship of the parties, the nature of the appellant-wife’s errand and the common interest of all the patties in the business, we are impelled to the view that the circuit judge made no mistake when he ruled in appellee’s favor. The appellant-wife was not expressly or impliedly invited to the place by the appellee, Sportogs, Inc., or by her son, the proprietor. In all the circumstances, we think it cannot be said that she was a business visitor. She went to the store on her own account as an accommodation to her husband who was, in effect, her son’s employee.

None of the facts was in dispute and we fail to find any fact that may be construed as an invitation from appellee to appellant-wife to enter the place. She gratuitously went there and apparently had no thought but to make the delivery to her husband. We think that she was a gratuitous visitor when she entered, and that after she delivered the shirts to her husband and set off on her independent mission to the balcony, any doubt about her status at the time she entered the store was dispelled for from that moment on she was plainly a licensee. Napier v. First Congregational Church of Portland, 157 Or. 110, 70 P.2d43; Freeman v. Levy, 60 Ga.App. 861, 5 S.E.2d 61.

The judgment should be and it is—

Affirmed.

DREW, C. J.,- ROBERTS,' J., and PRUNTY, Associate Justice, concur.'


text:
    STATE of Florida ex rel. Philip VAN EEGHEN, Appellant, v. H. T. WILLIAMS, as Sheriff of Brevard County, Appellee.
    Supreme Court of Florida. Division A.
    April 24, 1956.

      Carr & O’Quin, Miami, Shepard & Dykes, Cocoa, and Richard B. Muldrew, Melbourne, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appel-lee.
   THORNAL, Justice.

Appellant Van Eeghen seeks reversal of an order of the Circuit Judge dismissing a writ of habeas corpus and remanding him to the custody of appellee Sheriff without bail.

The only question before us is whether the evidence presented to the trial judge was sufficient to justify the denial of bail in a capital case.

Appellant Van Eeghen was indicted by a Grand Jury and charged with first degree murder. He petitioned for a writ of habeas corpus to test his right to bail. The writ was issued and made returnable before the Circuit Judge. After hearing all of the testimony, the Circuit Judge entered a final judgment dismissing the writ and remanding the petitioner-appellant to the custody of the Sheriff wtihout bail but granting to the petitioner the right to take an appeal to this Court from said judgment. Hence, this appeal.

The record before us has been carefully and thoroughly examined. In considering the right of accused to bail, we must apply the provisions of Section 9 of the Declaration of Rights of the Florida Constitution, F.S.A., which reads:

“Sec. 9. All persons shall be bailable by sufficient sureties, except for capital offences where the proof is evident or the presumption great.”

We have consistently followed the constitutional prescription which permits the denial of bail in capital offenses only where the proof is evident or the presumption great. It is not sufficient to justify a denial of bail in such cases that the evidence establish merely a probability of guilt. See Ex parte Nathan, Fla., 50 So. 38.

In Russell v. State, 71 Fla. 236, 71 So. 27, this Court held that the degree of proof sufficient to deny an accused the right to bail in a capital case under our Constitution, to-wit, proof that guilt is evident or the presumption of guilt is great is actually a greater degree of proof than that which is required to establish guilt merely to the exclusion of a reasonable doubt. See State ex rel. Freeman v. Kelly, Fla. 1956, 86 So.2d 166; State ex rel. Hernandez v. Culbreath, 152 Fla. 356, 11 So.2d 569; State ex rel. Connor v. Sullivan, 160 Fla. 844, 36 So.2d 828.

We pretermit any discussion of the details of the evidence in the case before us for the reason that we do not desire tO' indicate in any fashion this Court’s opinion on the weight or the sufficiency of the evidence at a subsequent trial. It is sufficient to hold, and we do hold, that the evidence in this record is not adequate to justify the denial of bail within the-framework of the requirements of our Constitution. In other words, the evidence presented to the trial judge fails to supply proof that guilt is evident or the presumption thereof great.

The accused is, therefore, entitled to bail. The judgment appealed from is reversed' and it is the judgment of this Court that the appellant Philip Van Eeghen be released from custody on good and sufficient appearance bail bond in the sum of $10,000, h> be approved by the Clerk of the Circuit Court of Brevard County.

It is so ordered.

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