author: GLADNEY, Judge.

text:
    William T. TARVER, Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 8512.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.
    Rehearing Denied June 14,1956.

      Thetis, Grisham, Davis & Leigh, Monroe, for appellant.
    McKeithen, Mouser & McKinley, Columbia, for appellee.
   GLADNEY, Judge.

This is an action in tort by William T. Tarver against the insurer of an automobile driven by C. M. Brown to recover damages for personal injuries and property damage allegedly sustained in an automobile collision March 5, 1955, at about 10:20 o’clock P.M., on U. S. Highway No. 84 about three miles north of Trout in LaSalle Parish, Louisiana. Following a trial on the merits judgment was rendered in favor of plaintiff in the sum of $3,744.50, from which judgment defendant has prosecuted an appeal, and plaintiff-appellee has answered the appeal asking that the award be increased to the sum of $5,255.50. It is conceded by counsel for both parties litigant that the case may be determined solely on certain issues of fact.

On the night of March 5, 1955, Mrs. Charlotte Tarver was driving the family car in a northerly direction accompanied by her husband, plaintiff herein, and seated upon his lap was their five year old granddaughter. As Mrs. Tarver was preparing to turn left and go into the driveway leading to her home on the west side of the highway their car was struck on its left rear end by an automobile driven by C. M. Brown, manager of the Gulf States Truck Lines, the insured of defendant. As a result of the collision plaintiff sustained an injury in the region of his neck and shoulders, more commonly referred to as a “whiplash” injury, and the automobile was damaged to the extent of $50.

The liability of the defendant is predicated upon five specifications of negligence attributed to C. M. Brown, the driver of the Oldsmobile. These were: (a) In driving at a fast and reckless rate of speed which plaintiff avers was substantially in excess of 60 miles per hour before the application of his brakes; (b) In failing to keep a proper lookout and observe the hand signal being given by the driver of plaintiff’s car; (c) In failing to reduce the speed of his car and bring it under control when he saw or should have seen plaintiff’s car moving slowly in the road ahead of him; (d) In failing to give warning with his horn of any intention or desire to pass plaintiff’s car; (e) In driving his car into a collision with the rear of plaintiff’s car when several alternative courses were available to him by the exercise of due care. The charges embraced in (a) and (e) have not been supported by evidence and are not seriously pressed upon the appeal. In the written opinion of the district court it is indicated plaintiff did satisfactorily prove the charges particularized in (b), (c) and (d) above.

On the other hand it is defendant’s contention that its insured, Brown, was not guilty of any negligence, but that the accident was caused solely by the action of Mrs. Tarver in turning left in front of a passing automobile without giving timely signal of her intention to make a left hand turn.

As readily conceded by counsel, the resolution of liability rests upon several issues of fact. Certain of the facts are undisputed and it was stipulated by counsel: That while actually the highway in question ran almost exactly northwesterly and southeasterly at the point of this accident, for the purpose of this record the road will be dealt with as running north and south, the direction toward the Town of Tullos being spoken of as north and toward -the Town of Trout being spoken of as south. The Tarver house was situated then on the west side of the road and the house of the witness Berryman on the east side of the road; that the highway was surfaced with concrete, the paved surface being 18 feet wide and the road was level or almost exactly level at the point of the accident and for several hundred yards in each direction; that the road was straight for approximately a mile in each direction from the point of the accident; that there was no public highway intersection near enough to be a factor in the situation. , It was in open country with houses closely located on both sides of the highway, approximately 4 or S residences being on each side of the highway within a distance of 1,000 feet south of the point of collision; that the road was dry and it was not raining, there being no moisture in the atmosphere or on the surface of the road. Visibility was unimpeded considering the fact that it was night.

The only eye witnesses to the accident were the occupants of the two automobiles involved. Both Mr. and Mrs. Tarver testified, as did C. M. Brown. Additional testimony was furnished by S. B. Berryman, Gerald Berryman and Don Steen, a State Trooper.

Mr. Tarver testified that his wife had been driving north along U. S. Highway No. 84 at a rate of speed of 40 to 45 miles per hour, proceeding in the direction of their home; that when about 125 yards to 150 yards south of their driveway his wife began slowing down and at the same time gave a signal for a left turn by extending her arm straight to the left; that their automobile was struck in the rear at a point about 50 feet south of the driveway in front of their home while moving at a slow speed and before his wife began to negotiate a left turn; that after being struck from the rear, his car went forward and came to rest about 100 feet north of the point of impact on the east or right side of the highway. Mrs. Tarver’s testimony is substantially the same as that of her husband. She admitted, however, that she observed in the rear view mirror the automobile driven by Brown when it was approximately 200 yards to the rear.

C. M. Brown testified he was driving north along U. S. Highway No. 84 just prior to the accident preceded by a car which went on to pass the Tarver car and after that car had passed on in front, and while he, Brown, was traveling 40 to 45 miles per hour, he began to speed up and moved out to pass the Tarver car. Then, when he was within some 15 to 30 feet of the latter vehicle, its driver, Mrs. Tarver, gave a left turn signal with her hand extended, and at that time it was too late to drop back, turn to the right, or to pass on the left. Accordingly, he applied his brakes and skidded into the rear of the Tarver automobile.

The inference from Brown’s testimony is the two vehicles collided when his car was entirely in the west traffic lane and consequently Mrs. Tarver was at that time attempting to execute a lefthand turn. However, he admitted to the fact that he was at least 100 feet to the rear of the Tarver car when he applied his brakes and also he conceded he did not see Mrs. Tarver’s hand when it was initially extended as the signal for a lefthand turn.

Gerald Berryman and his father, S. B. Berryman, were seated in the living room of the latter’s home and upon hearing the sound of the collision they rushed to the scene of the accident. Both testified they observed tire marks on the pavement which commenced about 125 feet from the point of impact and extended only 6 or 7 feet before fading out. The marks were wholly within the west traffic lane and apparently were made by the Brown automobile. These witnesses testified further that they found bits of broken glass, a piece of chrome and some dirt near the center of the paved slab, but the greater part of this-debris was located within the east traffic lane. It was thus indicated that the point of impact was where these objects were found and that the glass and chrome came from a shattered lens from the right front parking light of the Oldsmobile. Gerald Berryman fixed the locus of the collision as being 50 or 60 feet to the south of the Tarver driveway. The record reveals also that several months after the accident S. B. Berryman and Don Steen, a State Trooper, while engaged in inspecting the scene found the tire marks still present.

Counsel for appellant earnestly argues S. B. Berryman’s testimony was contradictory to a signed statement given by him to Harry Sneed, an investigator of the defendant, in which statement Berryman said the skid marks in the east lane “went straight on west until they curved off the west side of the road” and “about midway of the length of the skid marks he saw some broken glass and kicked it off the highway.” The contention thus made would place Brown’s automobile entirely west of the center line just before and after contact with the Tarver vehicle. But even if it be conceded that counsel’s point is well taken, the testimony of Gerald Berryman and of Mr. and Mrs. Tarver preponderates to establish that the Tarver car had not departed from the east lane nor had it commenced its act of making a left turn when the collision occurred.

Commenting upon the testimony and facts presented, the judge a quo aptly observed:

“The physical facts support the testimony of the witnesses, William T. Tarver and Mrs. Tarver, that the plaintiff’s car was in its proper or right lane of traffic when struck from the rear by the car being operated by Mr. Brown. And further, that the Tarver car was moving straight ahead at the time of the impact. The contention borne out by the testimony of Mr. Brown that the car driven by Mrs. Tarver was crossing in the left lane at an angle of 45 degrees or even less is untenable. With this version as to the impact it seems reasonable that the Tarver car would have been crushed more along the left side of tlje vehicle and had both cars been moving in that direction it follows that they would most probably both have continued on in a left direction after the impact. The facts reveal that the Tarver car continued on in a northerly direction and veered off to the right and that the Brown car abruptly turned to the left.”

The district judge made the following specific findings of fact before assessing responsibility for the accident upon the driver of the automobile insured by defendant: That plaintiff’s car was moving at a speed of approximately 10 to 12 miles per hour at the time it was struck; that it was struck from behind by the approaching Oldsmobile on the left portion of the rear, involving approximately one and one-half foot space; that Mrs. Tarver gave a proper signal indicating her intention to make a left turn; that the passing automobile driven by Brown gave no audible signal of his intention to pass; that the Oldsmobile was in the lefthand lane or west lane approximately 125 feet from the point of impact; that after the impact the Tarver car traveled northward, angling to the right and the car driven by Mr. Brown moved to the left abruptly and came to rest on the left side of the road; that broken glass, a piece of chrome, and some dirt were found in the center of the road at the point of impact and other debris extended from the center of the road to the left following the path of the Oldsmobile.

After a careful examination of the record we are of the conviction that the testimony entirely supports the judgment which found that Brown was negligent in failing to keep a proper lookout except for which failure he would have sooner observed the signal given by Mrs. Tarver and exercised more careful control over the vehicle driven by him.

We concur, therefore, in the conclusion of the trial judge as to the negligence of Brown being the sole and proximate cause of the accident. It is earnestly contended that Mrs. Tarver was contributorily negligent in untimely turning her vehicle into the left or west lane of the highway. This contention falls because of our finding that Mrs. Tarver had not commenced her turning maneuver at the time of the impact.

The evidence discloses that at the moment of the collision the seat occupied by Mr. Tarver was broken loose and threw him backward and from that time he suffered pain in his neck. He was treated by Dr. Guy Campbell at the Jena Clinic and thereafter he went to the United States Veterans’ Administration Hospital for further treatment. Subsequently he was examined by Drs. A. Scott Hamilton, orthopedist of Monroe, Louisiana, and James Q. Graves, general practitioner of Monroe, Louisiana. A careful reading of the testimony and evidence relating to the injury leads to the conclusion that plaintiff suffered a sprain of the neck muscles and apparently sustained some injury to the nerves in that region. After the accident Mr. Tarver has been unable to rotate his head from side to side without experiencing pain. Dr. Graves attributed this to a disturbance of the brachial plexus nerve. This pain was also associated with numbness in his arms extending down to the fingers, causing a tingling sensation and weakness of the arms and hands. Dr. Hamilton concluded that Mr. Tarver’s complaints are in a large measure justified by the physical and radiographic findings which he concluded to be as follows:

“I feel that Mr. Tarver’s complaints are in a large measure justified by the physical and radiographic findings. I think that it will require several months before spontaneous healing takes place. The exact length of time is difficult to determine but it can be assumed that it will be longer than it would in a younger and more virile person. Mr. Tar-ver’s age and general poor physical status, as well as his hypersthenic habitus, militate against any rapid recovery.”

After giving every consideration to the appeal made by plaintiff to have the award of damages increased, we are of the opinion that the conclusion reached by the trial judge should be affirmed and that the allowance as made in the judgment from which appealed is supported by satisfactory evidence, and is neither excessive nor inadequate.

It is our opinion that the judgment from which appealed should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lesnor GUILLORY, Plaintiff-Appellee, v. Estine J. LEMOINE, Jr., Defendant-Appellant.
    No. 8462.
    Court of Appeal of Louisiana. Second Circuit.
    May 21, 1956.

      Coco & Bennett, Marksville, for appellant.
    A. M. D’Angelo, Alexandria, for ap-pellee.
   GLADNEY, Judge.

This action was brought by Lesnor Guil-lory for reimbursement of medical expenses and for personal injuries received by his minor son, Vincent Guillory, who was struck by a truck driven by the defendant. The accident occurred on December 8, 1954 about 9:30 o’clock a. m. in the City of Alexandria, Louisiana as Vincent was attempting to cross Lower Third Street after alighting from a city bus, and defendant was driving his truck westerly along said street.

After trial judgment was rendered in favor of plaiwtiff for the sum of $1,811.15 for expenses incurred and in the further sum of $2,500 damages on account of the injuries sustained. Lemoine was granted a devolutive appeal from the judgment and relieved of furnishing bond therefor because of his lack of means.

The charges of negligence directed against Lemoine are:

(1) Driving at an excessive, careless and reckless rate of speed within the corporate limits of the City of Alexandria; (2) Failing to keep a proper lookout and failing to have his truck under control so as to avoid striking the child; (3) Failing to sound the horn of said vehicle as defendant could have and should have seen the child at the edge of the. street; (4) Failing to observe the child at the edge of the paved portion of the street just prior to the accident; (5) Failing to have the said vehicle under such control that it could be stopped or turned so as not to strike the child; (6) Failing to apply the brakes on said vehicle.

The defendant denied generally all charges of negligence and plead in the alternative the contributory negligence of the injured child and the child’s father.

The evidence clearly shows defendant was not driving at an excessive, careless or reckless rate of speed, nor that his speed of twenty-five miles per hour contributed to the accident. Nor is there merit in the charge that Lemoine failed to apply the brakes upon seeing the boy in danger. The record indisputably establishes the brakes were applied and the track skidded some twelve paces or thirty-six feet. It is admitted Lemoine did not sound the horn and his stated reason for not doing so was that when he first observed Vincent Guillory in danger he did not have an opportunity to do so. The most serious charge made is that the driver of the truck was not keeping a proper lookout, and failed to see the child at the south edge of the pavement although his view was unobstructed.

The record discloses Vincent Guillory, who was at that time nine years of age, and his brother, Donald Guillory, twelve years of age, were returning from church on a city bus. The bus was traveling east on Lower Third Street, reached the intersection with Augusta Street and came to a stop on the south side of the street. The boys got off the bus at that point which was nearly opposite their home on the north side of Lower Third Street. Lower Third Street is paved with a concrete slab eighteen feet in width and the shoulders of gravel construction are approximately four feet in width. Although Augusta Street intersects from the north, it does not cross Lower Third Street. On this particular morning there had been a light drizzle and the pavement was wet, but it was not raining at the time of the accident.

Vincent Guillory testified that he and his brother, Donald, got off the bus by a fire hydrant, stood on the shoulder as the bus moved off and looked in both directions for any approaching automobiles pri- or to crossing the street. He said he then started across the street at a pace which tie described as neither a walk nor a run; that he did not see the truck before he was hit but when he reached the center line he heard Donald holler at him and turned at the moment he was hit on his left side; and that he was unconscious thereafter.

Donald Guillory stated that after the bus had discharged them and proceeded a distance of one hundred feet he looked and saw the Lemoine truck about one hundred fifty feet away, at which time Vincent started to cross the street and had reached a point approximately two feet north of the center line when he saw the truck was within five or ten feet of Vincent. Realizing the danger he yelled at his brother, who turned to run back at the instant he was struck by the left front fender of defendant’s truck. The boy’s body was hurled some distance through the air and rolled over to the south side of the street, a distance of about forty feet from the point of impact. Donald said he was sure of the distance traversed by the bus before Vincent attempted to cross the street as this distance was measured by his older brother and he, Donald, assisted with the measurement. The brother strangely enough refused to appear and testify despite efforts of his father and counsel to obtain his testimony.

City Police Officer Mike Fisher testified that he measured the distance from the point of impact to the spot where the boy’s body was found and he also measured the skid marks made by Lemoine’s truck. These began at the point of impact and extended twelve paces, or thirty-six feet.

Seated in the Chevrolet pick-up truck with the defendant were his wife and Edward Knoll, the thirteen year old brother of Mrs. Lemoine. Mrs. Lemoine was seated in the middle and Edward Knoll on the right side of the seat. They had come from their home near Marksville and were driving in a westerly direction into the City of Alexandria. Upon entering the corporate limits of the City the speed of the truck was reduced to twenty-five miles per hour. Defendant and his wife repeatedly testified without the slightest qualification that they did not see Vincent Guil-lory before he was struck. Both insisted they were looking straight ahead and observing a car preceding them and traveling in the same direction. They had no recollection of seeing the bus, or any other vehicle which might have prevented them from seeing Vincent Guillory at some time before he was struck. Edward Knoll testified at first that the bus was approximately opposite defendant’s truck and that the injured boy ran out from behind the back of the bus, but the effect of this testimony was largely destroyed when upon cross examination the youthful witness confessed he did not actually see the injured boy run out from behind the bus, but he simply thought that this must be what happened.

Thus, there is no substantial evidence in the record to contradict the testimony of Donald Guillory to the effect he saw the truck one hundred fifty feet away when Vincent Guillory commenced his journey across the street. Of course, if Donald Guillory could see the truck from this distance like opportunity existed for the occupants of the truck to see the two boys on the shoulder of the road. It is argued, but not supported by evidence, that Vincent ran from behind the bus, and, therefore, Lemoine had no time for precautionary measures. This contention is refuted by all three of defendant’s witnesses who were positive they did not see the boy even a few feet away from the point of impact. The failure to satisfactorily account for such omission convicts Lemoine of negligence in failing to see that which he should have seen. Further, and since we must accept Donald Guillory’s uncontradicted testimony, the defendant should have observed Vincent Guillory attempting to cross the street from a distance of more than one hundred feet, which distance afforded ample time for bringing the vehicle under control and thereby avoiding the accident.

In the recent case of Haywood v. Fidelity Mutual Insurance Co. of Indianapolis, Ind., La.App.1950, 47 So.2d 59, 61, the court declared the duty of the defendant to be:

“Under the factual set up in the instant case, the defendant Pettit had the last clear chance to avoid the accident, and even should this child b.e held guilty of contributory negligence the defendant violated all the rules of the road as set out by the jurisprudence of our state relative to children playing, standing, sitting or being along the public highways. This defendant is presumed to have seen what he should have seen, and under the holding in Jackson v. Cook, 189 La. 860, 181 So. 195, he should have brought his car under such control when he saw this ifnminent danger that the accident could have been avoided, and, also, under the many, many cases which have held that when a motorist sees a child of tender years along a highway he must bring his car under such control that an accident can be avoided regardless of any unexpected or expected action on the part of the child. See the cases cited under Guillory v. Horecky [La.App., 162 So. 89, affirmed La.App., 165 So. 159, annulled 185 La. 21, 168 So. 481], Stamps v. Henderson [La.App.1946, 25 So.2d 305]. There was absolutely nothing to prevent the defendant Pettit from seeing these children.” (Citation inserted).

In Stamps v. Henderson, La.App.1946, 25 So.2d 305, 309, this court held responsible the defendant when a nine and one-half year old girl ran into the path of defendant’s automobile under circumstances which indicated the defendant saw the little girl one hundred feet away but failed to sound her horn or reduce her speed of twenty-five miles per hour. The court held the negligence of the defendant to be the proximate cause of the accident and pointed out:

“ ‘It is true that it is negligence for a pedestrian to cross a road from behind a car heedlessly and without looking out for traffic. But in the case of children a tendency toward such heedlessness is recognized, and knowledge of it is imputed to all drivers. It is for this reason that a greater degree of care is required of them when children are seen along the road. It would' be unreasonable to say that drivers are required to anticipate heedlessness on the part of children, but, if they do not, no liability attaches, because the children are contributorily negligent in being heedless.’ ”

It is our conclusion that defendant was negligent in failing to observe the nine year old Vincent Guillory crossing the street one hundred feet or more away. Had he been keeping a proper observation Lemoine could have sounded his horn to alert the boy to the danger, or further, Lemoine could then have taken steps to control his vehicle and avoid striking the youth even should the latter persist in' his journey across the highway.

Counsel for appellant has earnestly urged as a- special defense the contributory negligence of Vincent Guillory. Unquestionably Vincent Guillory was negligent, but it is equally clear Lemoine under the rulings established by the Supreme Court in Rottman v. Beverly, 1935, 183 La. 947, 165 So. 153 and Jackson v. Cook, 1938, 189 La. 860, 181 So. 195 is responsible notwithstanding the’ negligence of the boy. The Supreme Court commented in Jackson v. Cook, 1938, 189 La. 860, 181 So. 195, 197:

“In the Rottman case, [Rottman v. Beverly, 183 La. 947, 165 So. 153] Mrs, Rottman was guilty of gross negligence which continued up to the moment of the accident. Beverly, the driver of the automobile, actually saw her in her perilous position in time to avert the accident had he used proper precautions. In the present case the plaintiff was guilty of gross negligence which continued up to the moment of the accident. The driver of the car did not see, hut could have seen, plaintiff in his peril if he had been looking ahead. The mere fact that the driver of the car in this case did not see plaintiff does not absolve the defendant from liability, because it was the duty of the driver to look, and, according to the findings of both courts, he was not looking.” (Emphasis supplied.)

For the foregoing reasons we are of the opinion the decision of the trial court is correct in finding the defendant negligent and that such negligence was the proximate cause of the accident.

Concerning the question of quantum, it is our opinion that the district judge has correctly disposed of the issues therein involved and after careful examination we adopt his reasonings and conclusions in t oto:

“Now passing to the question of the amount of monetary damages to be allowed, we find the following definitely established medical expenses: The hospital bill was $1,069.15, the nurses $492 and the Doctor $250, a total of $1,911.15. The statement of Dr. R. Bruce Wallace, Jr. filed in evidence in lieu of his testimony shows that Vincent Guillory suffered a traumatic pneumothorax (commonly called a collapsed lung), multiple skull fractures and a severe concussion. The child was struck on his left side with resulting injuries to his head and chest and then when he landed on the concrete pavement he, of course, was bruised and skinned severely. He was unconscious from the date of the accident, December 8th, until December 24th. He remained in the hospital with nurses on duty 24 hours a day all during that time. A catheter was- placed in the chest cavity to draw blood from the collapsed lung, which expanded slowly. Vincent was released from the hospital on January 1st and returned to his home where he continued his convalescence and was able to return to school on about May 1st. According to the statement of Dr. R. Bruce Wallace, Jr., in his letter of June 28, 1955, Vincent has made very satisfactory progress considering the severe nature of his injury and the shock to which he was subjected, and the only possibility of any permanent disability is as respects the,vision of the left eye. There was a severe fracture of the skull immediately above the left eye which might cause trouble in the future. There is no further medical evidence in the record regarding the possibility of permanent disability.
“On the day of the trial plaintiff testified that his son had completed his studies in the 3rd grade and that apparently he had recovered except for occasional headaches. The Court observed the injured child on the witness stand and he apparently is a normal child who had no visible permanent disability. Plaintiff stated that his child acts now about the same as he did before the accident.
“Although it is very difficult in cases of this type to determine the amount of monetary damages for such physical pain, suffering and shock, I am of the opinion that since there is very little, if any, permanent disability, an award of $2,500 is sufficient and is in line with the jurisprudence of this Court. Stevenson v. Williams [La. App.], 76 So.2d 345; Byrd v. New Amsterdam Casualty Co. [La.App.], 52 So.2d 770.”

For the reasons assigned, the judgment from which appealed is affirmed.


author: REGAN, Judge.

text:
    John CARMOUCHE v. MALONEY TRUCKING & STORAGE, Inc.
    No. 20737.
    Court of Appeal of Louisiana. Orleans.
    May 28, 1956.
    Beard, Blue & Schmitt, Leslie P. Beard and A. J. Schmitt, Jr., New Orleans, for defendant-appellant.
    Cronvich & Ciaccio, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

• Plaintiff, John Carmouche, employed as a truck driver, instituted this suit against the defendant, his employer, .the Maloney Trucking & Storage,' Inc., endeavoring to recover workmen’s compensation at the rate of $30 per week for a period of four hundred weeks, together with penalties, existing and anticipated medical expenses and attorney’s fees, for -total and permanent disability, resulting from injuries incurred to his back by virtue of an accident which occurred on November 30, 1954, when he and a co-employee were unloading bales of cotton from the defendant’s truck.

defendant answered and admitted the occurrence of the accident and resulting injuries, but insisted that the plaintiff had fully recovered therefrom as of January 17, 1955.

From a judgment awarding plaintiff compensation for total and permanent disability at the rate of $29.90 per week for 400 weeks, $661.18 for medical expenses and $100 for expert fees, defendant has prosecuted this appeal. Plaintiff has answered the appeal requesting that the judgment be amended so as to reserve his right to assert a claim for future medical expenses.

On November 30, 1954, the plaintiff was assisting in unloading bales of cotton from a truck owned by the defendant. Plaintiff and a fellow employee, Albert Harris, were standing, on the ground , alongside of the truck in order to maintain 'the upright position of the bales, as they were rolled from the truck to the ground; one of the bales, weighing approximately 542 pounds, was rolled from a very elevated position in the truck and upon striking the ground, it was grabbed by the cotton hooks customarily used in this work by the plaintiff and, Harris; Harris’ hook tore loose causing the bale to strike plaintiff on his left side, knocking him into the side of the truck; however, Harris and plaintiff, upon recovery of his equilibrium, again grabbed the bale, but this time the plaintiff’s hook tore loose therefrom causing him to fall violently to the concrete wharf upon his buttocks. He was stunned and remained sitting in this position for about fifteen minutes when he was persuaded by his co-workers to move and lie down to rest on some bales of cotton. He endeavored to work for several additional hours, but that night suffered chills, fever and severe pains in the back. The following day he was referred to Dr. John Andrews, defendant’s physician, who, after examining him, diagnosed his condition as moderate contusions of the entire back. On December 15, 1954, Dr. Andrews had X-rays taken which were negative except for some minor degenerative arthritic changes. On January 4, 1955, he again examined plaintiff and could find no objective signs to account for plaintiff’s complaints, so he referred him to Dr. Howard Karr, a neurosurgeon, Dr. Hyman Soboloff, an orthopedist, and Dr. Meyer Teitelbaum, a radiologist. Upon receipt of negative reports on January 14, 1955, from these doctors, he discharged the plaintiff and instructed him to return to work as of Monday, January 17, 1955.

On that day, plaintiff visited the offices of Dr. Blaise Salatich, who, after examining him and X-rays which had been taken of his back, diagnosed his condition as. a “crushing torsion-type low back injury involving ligamentus and musculo-fascial structures lumbo sacral region, subsiding, associated with residual dysfunction and low back pain.” He prescribed diathermy treatment, anti-spasm drugs and a lumbo-sacral corset. Plaintiff returned to his office for these treatments 120 times which extended over a period of approximately eight and one-half months and was still undergoing treatment and wearing the corset at the time of the trial.

On January 24, 1955, plaintiff visited the office of Dr. Frederick Rhodes, a general practitioner, who, after examining the plaintiff, was of the opinion that he had “limited flexion of the back and on pressure * * * I detected that there was pain or, at least, he complained of pain along the * * * lumbar spine and sacral spine * * * and muscle spasms.” He prescribed codeine for pain and external analgesics to be applied to the back. Plaintiff did not visit the offices of Dr. Rhodes again.

In addition to the foregoing expert testimony there appears in the record the lay testimony of plaintiff’s wife, his mother, Rosetta Carmouche, Rev. S. A. Jones, the pastor of his church, A. J. Kelly and Ernest Northless, truck drivers, who, in substance, testified that they had occasion to observe plaintiff on many occasions and that they saw his inability to rise from a prone position, to turn the wheels of a truck, to hold a small baby or lift any heavy object, to dress and undress himself and that he manifested many other external symptoms of one who is suffering from a painful back.

The testimony of Northless was particularly impressive because the incident which he spoke of occurred at a time which was unsuspicious. He related that in the month of June, 1955, he was sitting in his truck parked in the cotton warehouse, when he noticed a congestion of traffic created by another truck which blocked the entrance to the wharf; he alighted from his truck to ascertain the cause thereof and discovered that the plaintiff perspiring excessively, was laboriously endeavoring to turn the steering wheel of the truck, but was unable to maneuver it because of pain in his back and that he finally entered the truck and backed it into the warehouse for-the plaintiff.

Plaintiff contends that he is' totally and permanently disabled and, therefore, unable to resume his former occupation as the operator of a trailer truck.

Defendant, on the other hand,- insists that the plaintiff was fully capable of returning to his former employment as of January 17, 1955, and, in effect, he is a malingerer.

The only question posed for our consideration is one of fact and that is whether the plaintiff is able to resume his former employment. The trial judge answered this question in the negative and our examination of the record, together with his written reasons for judgment, fails to disclose reversible error in his legal or factual conclusions. In his written reasons for judgment, the trial judge said:

“In such a case as this where two orthopedist specialists apparently reach opposite conclusions the Court is entitled to view the case as a whole giving weight to the lay testimony as well as to the medical, specialist and non-specialist.
“Viewing the case as a whole the Court does not believe plaintiff is a malingerer, but is of the opinion that plaintiff is not able to work without "ensuing disabling pain, and is therefore entitled to be considered as totally and permanently disabled within the meaning of the Compensation law.”

After a comprehensive analysis of all of the facts including the conflicting medical testimony and that of the lay witnesses, we believe that the plaintiff has sustained the burden of proof and has established with that certainty which the law requires his-claim of total and permanent disability to perform the arduous duties of the operator of a heavy trailer truck.

We are fully cognizant of the caution which we must exercise in a case of this-nature in view of the conflicting medical testimony; however, if plaintiff’s condition should improve, the defendant may avail itself of the provisions of the Workmen’s Compensation Law, LSA-R.S. 23:1021 et seq., which affords it the right to reopen the case after the lapse of six months.

It is our opinion that plaintiff’s right to assert a claim in the future for whatever additional amount he may incur for treatment of his injuries should be reserved to him. Boykin v. We Hope Gas & Oil Co., La.App., 2 So.2d 528; Rosenquist v. New Amsterdam Casualty Co., La. App., 78 So.2d 225; Wilson v. New Amsterdam Casualty Co., La.App., 86 So.2d 556; Fourchea v. Maloney Trucking and Storage, Inc., La.App., 88 So.2d 82.

For the reasons assigned the judgment appealed from is amended by reserving to the plaintiff his right to assert a claim for any medical expenses he may incur in the future in connection with his injuries and, as thus amended, it is affirmed.

Amended and affirmed.

      . Plaintiff’s occupation, in addition to the operation of a trailer truck, required Mm to both, load and unload - the contents thereof.

      . Plaintiff, on this occasion, was attempting to resume liis occupation as a truck driver with another company.


author: DREW, Chief Justice.

text:
    CITY OF CORAL GABLES, Florida, a municipal corporation under the laws of the State of Florida, and W. T. McIlwain, Appellants, v. R. J. SEIFERTH, Jr., Individually and doing business as Rusty Plumbing Co., a sole proprietorship, and Plumbing Industry Program, Inc., a Florida corporation, Appellees.
    Supreme Court of Florida. En Banc.
    May 25, 1956.
    Edward L. Semple, Miami/ for appellants.
    Leo M. Alpert, Miami, for appellees.
   DREW, Chief Justice.

The City of Coral Gables, the appellant here, installed a sanitary sewer system and passed ah ordinance requiring all buildings to connect directly with the lateral sanitary sewers adjacent to said property immediately upon the lateral being available for such purpose. The ordinance provided the method of the connection to be made and that upon such connection being completed, any septic tank being theretofore used was to be discontinued and filled in with well tramped soil. Section 2 of the ordinance which brought on this controversy between the City and the appellee Plumbing Company provided that “Any licensed septic tank contractor in the City of Coral Gables shall have the privilege of doing said work.” The lower court, in a suit filed by the Plumbing Company for injunction, held that Section 2 of the ordinance was in conflict with Chapter 469, Florida Statutes, 1953, F.S.A., which provides that “any person engaged in or working at the business of plumbing in cities of seven thousand five hundred population or more in this state, either as master plumber or employing plumber or as journey'man plumber shall first receive a certificate thereof in accordance with the provisions of this chapter”, and permanently enjoined the appellant City from enforcing said Section and denied attorney’s fees to the attorney for the Plumbing Company.

It was stipulated in the lower court by the parties to this appeal that the work which the ordinance authorized any licensed septic tank contractor to do was “plumbing” within the contemplation of said Chapter 469. We wish to observe that this question is not present in this appeal and we do not by our holding in this case, pass upon it, directly or indirectly.

Two questions are presented on this appeal. Appellant City argues that the ordinance is valid because the legislative act is unconstitutional. Appellee, on cross-assignment, argues the lower court erred in failing to allow attorney’s fees to its attorney.

We dispose of the latter question first.

We find no merit in Appellee’s contention that it is entitled to have the City pay its attorney for representing it in this action. The decree of the chancellor, therefore, with respect to this matter was without error.

As to the first question, the action of the Legislature in limiting the application of Chapter 469, F.S.A. to cities of over 7,500 population was clearly within the legislative field, particularly when we consider the subject matter with which it was concerned. The fact that the act does not apply to all cities and towns of the state does not, within itself, render the statute unconstitutional. See Gandy v. Borras, 114 Fla. 503, 154 So. 248, and the cases there cited. Holding, therefore, as we do, that Chapter 469, F.S.A. is a valid and constitutional law, it follows that Section 2 of the ordinance under attack, being clearly in conflict with the act itself, must fall. The decree appealed from is therefore,

Affirmed.

TERRELL, ROBERTS, THORNAL and O’CONNELL, JJ., concur.

THOMAS, J., agrees to the conclusion.

HOBSON, J., not participating.


author: TERRELL, Justice.

text:
    Hope Lillian SHEPARD, Appellant, v. Miles Daniel SHEPARD, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.

      Matheson, Paige & Boyd, Miami, for appellant.
    Irving M. Wolff, Miami, for appellee.
   TERRELL, Justice.

Appellee sued appellant for divorce, charging extreme cruelty. The complaint also prayed for custody and control of the two minor children of the parties hereto, Susan Lee Shepard, 8 years of age, and Wendy Ann Shepard, 5 years of age. In her answer appellant, as defendant, denied the material allegations óf the complaint and counterclaimed for divorce, custody and control of the minor children, attorneys fees, suit money, alimony and support for herself and the minor children. At final hearing the chancellor found the equities to be with the plaintiff, granted his prayer for divorce, awarded the custody of the minor children to the paternal grandparents, with right of reasonable visitation to defendant; ordered plaintiff to pay defendant’s attorney a fee of $200; rescinded a previous order requiring plaintiff to pay defendant $10 per week temporary alimony; ordered plaintiff to contribute to support of the minor children to the best of his ability; ordered the court costs taxed and required each party to pay their respective part. The defendant, Hope Lillian Shepard, has appealed from the final decree.

This case might be appropriately affirmed, per curiam, without opinion for the reasons proclaimed in the forepart of our opinion on petition for rehearing in Newmons v. The Lake Worth Drainage District, decided 25th day of April, 1956, except for the question of custody of the minor children, that being the primary concern of the chancellor. This question, like others raised, turns on the interpretation of the testimony which amply' supports the finding and decree of the chancellor. The evidence on this point was significant for its emotional aspect rather than for throwing light on the legal or equitable aspect of the issues raised. We find no abuse of discretion in awarding custody of the minor children to their paternal grandparents. The convincing testimony shows that they are happy and contented with them, that they attend school and church regularly, that they are healthy and well adjusted, have adequate medical care, that they are economically secure, they are well disciplined and live in an ordered home where their environment is commendable. The evidence also shows that the children prefer living with their grandparents who are much better equipped guardians than either of the parents; that they are loved by their grandparents, while the mother is unstable, and the father is not so dependable that he can provide for and care for them in the manner that their circumstances require. We do not overlook the seriousness of taking children from the natural parents and awarding their custody to others but conditions sometime arise that require it. Pittman v. Pittman, 153 Fla. 434, 14 So.2d 671; Phillips v. Phillips, Fla., 67 So.2d 325; Grizzard v. Grizzard, 146 Fla. 17, 200 So. 209; Smith v. Smith, 160 Fla. 870, 36 So.2d 920. In this case the chancellor in terms retained control of the parties and the subject matter so that either parent, if he or she can make the proper showing, might secure custody of the minor child. Terral v. Terral, Fla., 83 So.2d 270.

We cannot say that the chancellor committed error in refusing alimony to the defendant and in imposing the costs of this litigation on both parties to the cause. The plaintiff was required to make contributions to the support of his children and had a bare subsistence for himself after doing so. Defendant was shown to have worked but earned little above subsistence. It was a case in which the parties could not get along with each other; he did not make enough to support the family living separated; their temperament was such that they could not pool their earnings and operate a family partnership under the same roof. Faced with that kind of a kettle of fish it looks as if the chancellor did about the best that was possible, at least we cannot see where he could have done enough better to reverse him. Kahn v. Kahn, Fla., 78 So.2d 367.

In the matter of the allowance of attorneys fees, it may be that the amount allowed, $200, was inadequate. The criterion to govern the allowance of attorneys fees in a divorce is “from the circumstances of the parties and nature of the case may be fit, equitable and just”. Section 65.08, Florida Statutes, F.S.A., Hryckowian v. Hryckowian, Fla., 82 So.2d 879. In contested cases what is “fit, equitable and just” is at times beyond the reach of litigants to pay. In such cases the answer to the question is determined by how much the traffic will bear and we cannot say that the chancellor adduced a wrong answer to that question. Such cases are often so unpleasant to litigate that attorneys refuse to take them and it is doubtful if those who do are ever adequately compensated. Such cases may be catalogued as liabilities of the profession.

We have examined the record carefully and we are convinced that the chancellor adopted the best solution available for a pathetic problem so his judgment must be, and is hereby,

Affirmed.

DREW, C. J., and HQ3S0N and THORNAL, JJ., concur.


author: THOMAS, Justice.

text:
    Allice McCOY, Appellant, v. FLORIDA POWER and LIGHT COMPANY, Appellee.
    Supreme Court of Florida. Division B.
    May 23, 1956.

      F. Malcolm Cunningham, West Palm Beach, for appellant.
    Earnest, Lewis, Smith & Jones, West Palm Beach, for appellee.
   THOMAS, Justice.

Ezekiel McCoy, employee of Lake Ridge Nursery and Flower Shop, was engaged in pruning trees when he came in contact with a wire carrying a current of high voltage, and was electrocuted.

Two dependents, his wife and his mother, survived McCoy, and both are receiving benefits under the Workmen’s Compensation Law. Sec. 440.16, Florida Statutes 1953, and F.S.A.

These dependents filed an action against the appellee, Florida Power and Light Company, claiming that damages they suffered by the loss of McCoy were the result of the negligent maintenance by the defendant of the electric wire. Then the wife dismissed her case leaving the mother as party plaintiff and, later, upon motion of the defendant summary judgment was entered in favor of the defendant on the ground that the remaining plaintiff could not maintain the action.

We agree with the appellant’s observation that the law was designed to protect workers and their dependents against the hardships that arise from the workers’ injury or death arising out of employment and occurring during employment, and to prevent those who depend on the workers’ wages from becoming charges on the community. The law operates to place the burden for such misfortunes upon industry. Whitehead v. Keene Roofing Co., Fla., 43 So.2d 464. Of course, compensation is secured to the laborer and his dependents regardless of the circumstance that the injury may have been caused by a stranger to the relationship of employer and employee. Sec. 440.39(1), Florida Statutes 1953, and F.S.A.

The law provides procedure for an action by the employee, or upon his delay for a certain period, by the employer, against a third person who by his negligence may have caused the injury or death. Sec. 440.-39(3, 4), supra. There is no need to detail now the provisions for such procedure because our treatment of the present controversy may be greatly simplified by not doing so.

We must decide whether or not a dependent mother, recipient with a surviving widow of compensation under the law, Sec. 440.16, Florida Statutes 1953, and F.S.A., may carry on a suit against a third-party tort-feasor despite the provisions of Sec. 768.01, Florida Statutes 1953, and F.S.A., dealing with rights of action for death due to negligence, and the requirement of Sec. 768.02, Florida Statutes 1953, and F.S.A., that every such action “shall be brought by and in the name of the widow * * * and where there is [no] widow * * * then the minor child * * *; and where there is neither widow * * * nor minor child * * * then * * * by any person * * * dependent on such person killed for a support * * We have deleted such portions as do not apply to widows and other dependents.

The appellant argues that the restrictions outlined in the statute just quoted, relative to the succession of persons who may institute actions, do not apply .in cases like the present one because in Sec.. 440.39(1) of Workmen’s Compensation Law it is specified that an “employee, his dependents or personal representatives may- pursue his remedy by action at law ’ or otherwise against such third party tort-feasor.” Appellant contends that this provision entitles her to maintain a suit separate and distinct from any suit by the widow under the “wrongful death statute.”

We find nothing in this language to justify a ruling that, in addition to the protection afforded to the deceased worker’s dependents under Workmen’s Compensation Law, they may prosecute a claim against a third-party tort-feasor as plaintiffs in a different manner than that which must be employed by persons who do not have the benefit of the Workmen’s Compensation Law.

We cannot construe the language of Section 440.39(3), supra, relative to actions at law against third-party tort-feasors by the employee or his dependents “or those entitled by law to sue in the event [the employee]' is deceased” to grant any special concession irrespective of Sec. 768.02, supra. Cf. Vanlandingham v. Florida Power & Light Co., 154 Fla. 628, 18 So.2d 678.

When a workman is killed any action by a survivor against a third party is governed by the same rules that apply to other litigants, and the proper party plaintiff is determined in the order specified in Sec. 768.02, supra. So the surviving widow was, alone, entitled to sue and when she dismissed her case the mother, though a dependent, did not succeed to that right.

Affirmed.

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


author: PER CURIAM.

text:
    Alvin Charles DAVIS, alias Charles E. Burns, Appellant, v. STATE of Florida, Appellee (three cases).
    Supreme Court of Florida. Division B.
    May 30, 1956.
    Joseph A. Varón and' Ray Sandstrom, Hollywood, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on authority of Davis v. State of Florida, Fla., 87 So.2d 416.

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


text:
    William Stanley MILES, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division B.
    May 30, 1956.
    John R. Tamm, Daytona Beach, for appellant.
    Richard W. Ervin, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the Rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that skid motion is appropriate and seasonably máde and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

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


text:
    Lander HAIGE, Allan Haige and Marie F. Haige, his wife, and Enar Haige, otherwise known as Ener Haige, and Alice W. Haige, his wife, Appellants, v. JEFFERSON STANDARD LIFE INSURANCE COMPANY, a corporation under the laws of the State of North Carolina, Appellee.
    Supreme Court of Florida. Division B.
    May 30, 1956.
    Wm. C. Kaleel and Luke R., Kaleel, St. Petersburg, for appellants.
    , Ed W. Harris, St. Petersburg, for appel-lee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to Rule 38 of the Rules of this court, 31 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed.

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


author: CARROLL, Associate Justice.

text:
    CENTRAL FLORIDA OIL COMPANY, a Florida corporation, Appellant, v. BLUE FLAME, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    May 30, 1956.

      James M. Smith, Jr., Ocala, for appellant.
    ■ Frank C. Decker and Virgil L. Milbrath, Ocala, for appellee.
   CARROLL, Associate Justice.

This appeal challenges the provisions of a chancery decree awarding appellee possession of certain leased premises and double rental damages for withholding possession beyond the term.

The facts,. which were not in conflict, were set out by the Chancellor in his filed findings, as follows:

“On October 30, 1950 one Warren Callihan was the owner of the fee in a certain parcel of land in Ocala, Florida and on that date leased the premises to Central Florida Oil Company, a corporation for a term of fifteen (15) years beginning on the 8th day of November, 1950 at a rental equal to one cent per gallon-of all gasoline sold on the premises each month. Mixed into the deal somewhere was a. loan of .Ten Thousand ($10,000.00) Dollars' from the Lessee, Central Florida Oil Company, to the Lessor, Warr.en Callihan. On the same day and date, October 30th, 1950, Central Florida Oil Company executed a document labled [sic] all over as a ‘sub-lease’ whereby the Central Florida Oil Company did ‘lease and let’ the same identical parcel of land to the same Warren Callihan for the same identical term reserving the same identical rent, but reserving ‘nothing out of the estate. The Ten Thousand ($10,000.00) Dollar loan is not mentioned in either document, but is mentioned in defendant’s answer and in his testimony, but it is not claimed to have been in any way secured by the lease. The net result of this transaction was that Callihan became personally obligated to operate a filling station on the premises described and to sell only the petroleum products distributed by the defendant, Central Florida Oil Company.
“On December 10, 1952, Qallihan conveyed the fee in the same parcel of land to one Fred C. Kernan.
“On February 5, 1953 the defendant, Central Florida Oil Company as Lessee, entered into another lease agreement with the said Kernan, as Lessor, for the same parcel of land and property, except the second story of the building, agreeing to pay a rental of Fifty ($50.00) Dollars per month and without reference to the amount of petroleum products sold. This new lease was for a term of one (1) year, renewable from year to year for four (4) additional years upon notice of renewal being given by the Lessee to the Lessor ten (10) days before the annual expiration date.
“On January 13, 1954, Kernan conveyed the property to the plaintiff.
“At the expiration of the first year of the lease from Kernan to the Defendant, which was subsequent to the conveyance by Kernan to the Plaintiff, the Defendant réfused to renew the lease and notified Plaintiff that it would continue to hold possession under the lease of October 30, 1950, from Callihan to Defendant — the same lease under which defendant claims it ‘subleased’ to Callihan and which Plaintiff claims was assigned to Callihan. The Defendant remained in possession and is yet in possession claiming', not under the lease 'from Kernan, which it has refused to recognize since the expiration of its first one year term, but' claiming right to possession under and tendering rent according to the Calli-han lease of October 30, 1950.”

Much of the argument concerned the question of whether the second lease or sub-lease was an assignment to the owner-lessor ending the original lease, or whether the sub-lease remained in effect, as contended for by appellant, calling for performance of a covenant to operate the premises as a filling station.

It is unnecessary to evaluate the arguments of counsel on those questions, because appellant accepted a one year lease, with optional extension, on February 5, 1953, and operated the premises thereunder.

Later, after failing to exercise its option for an additional year or years, appellant held over and claimed a right to cancel the first sub-lease it had made to the original owner-lessor, for breach of covenant of the owner or his grantees to operate the premises as a gasoline service station.

The acceptance by appellant of the new lease in February of 1953, from a grantee of the original owner, and the occupancy and operation of the service station thereunder by appellant, was inconsistent with and precluded the claim of right under ' the earlier lease or sub-lease. See Rader v. Prather, 100 Fla. 591, 130 So. 15, 17; 51 C.J.S., Landlord and Tenant, § 124(a). Accordingly, the portion of the decree appealed from which restored possession to the appellee was proper and is affirmed.

But we think the lower court erred in holding that appellant should pay damages to appellee equal to double monthly rental, with interest, for a period of occupancy by appellant after the end of the last lease on February 15, 1954.

This award was made under Sec. 83.06, F.S.1955, F.S.A., which provides that “When any tenant shall refuse to give up possession of the premises at the end of his lease, the landlord * * * may demand of such tenant double the monthly rent, and may recover the same at the expiration of every month, or in the same proportion for a longer or shorter time by distress, in the manner pointed out hereinafter.”

Appellant overstayed its term on a claim and contention of right under an earlier instrument. Continued possession under a bona fide claim of right based on reasonable grounds evades the statutory penalty. Moreover, the complaint in the lower court did not’ demand and pray for the penalty. In these circumstances Painter v. Town of Groveland, Fla., 79 So. 2d 765, 767-768, is controlling.

Affirmed in part and reversed in part.

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


author: TERRELL, Justice. DREW, Chief Justice

text:
    George DUBINSKY, trading and doing business as Reliable Potato Co. of New York, N. Y., Appellant, v. W. C. WARE, Jr., Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    Rehearing Denied June 12,1956.
    Edward L. Bush, Palatka, for appellant.
    Angus W. Harriett, Palatka, for appel-lee.
   TERRELL, Justice.

Appellee as plaintiff sued appellant as defendant to collect freight charges on goods delivered by truck. Attachment affidavit was filed with the complaint, writ of attachment was issued and a certain Ford tractor and trailer were taken into custody and return noted on the writ. Affidavit for publication was filed January 20, 1955, and notice of the suit was issued directed to defendant requiring him to defend on or before February 21, 1955. On the last named date defendant filed his answer and motion to dismiss with the Clerk of Circuit Court and a forthcoming bond with the Sheriff of Putnam County. The truck and trailer were then turned over to defendant.

At the trial the Circuit Court found and held that in view of these proceedings and the fact that defendant admitted the amount of the indebtedness in his answer, there were no other material issues of fact for determination so he entered judgment for the plaintiff. This appeal is from that judgment.

The only point for determination is whether or not the court acquired jurisdiction of the defendant.

We think this question requires an affirmative answer and is foreclosed by Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, and Florio v. Colquitt Hardware Co., 160 Fla. 92, 33 So.2d 722. See also 4 Am.Jur. 582, and Wagner v. Farmers’ Co-Operative Exchange Co. of Good Thunder, 147 Minn. 376, 180 N.W. 231, 14 A.L.R. 279.

Affirmed.

HOBSON and THORNAL, JJ., concur.

DREW, C. J., concurs specially.

DREW, Chief Justice

(concurring specially) .

I concur in the foregoing opinion and judgment but I think it would have been more appropriate to have quashed the appeal under the provisions of Section 59.33, Florida-Statutes 1951, F.S.A., and to have assessed damages under that Section against the appellant.

A careful examination of the record in this cause as well as the reading of the foregoing opinion by Justice Terrell leaves no doubt that the appeal is wholly without merit and falls squarely in the category of appeals condemned by the foregoing Section of the Statute. It is worthy to note that this Statute has been a part of the Statute laws for more than one hundred years. No substantial changes have been made in it since it was originally enacted by the Legislative Council of the Territory of Florida, Section 13 of Act 59 of February 10, 1832.

In 1945 the Legislature reenacted this Section changing the words “courts of error” to “appellate courts” ánd “proceedings in error” to “appeals.” See Section 33, Chapter 22854, Laws of Florida, Acts of 1945. Moreover, this identical section, as amended in 1945, has been brought forward in each reenactment at each regular session of the Legislature since then.

The act was designed not only to compensate the innocent appellee for “delay and expense”, Williams v. La Penotiere, 25 Fla. 473, 6 So. 167,. 169, but also to prevent the deluging of the appellate courts with frivolous appeals. Every such appeal which this Court must hear and consider necessarily takes time which could be well consumed in cases where important and meritorious questions are present. Delay in the administration of justice, whether the case involved liberty or property, is condemned by our Constitution and that of most of the other sovereign states of the Nation. It is a matter of great concern not only to the litigant and this Court but to the public and I think it is appropriate to recall the provisions of this Statute to the Bench and Bar. In Redmond v. Donaldson, 35 Fla. 167, 17 So. 70, we assessed the 10% penalty for a frivolous appeal so there is precedent for such action in appropriate cases.

      . Section 4 of the Declaration of Rights of the Constitution of the State of Florida, F.S.A., reads as follows:
      “Section 4.' Courts open to everyone; remedy for wrongs. — All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.” (Emphasis supplied.)


text:
    Joseph GOLDBERG, Max E. Gottlieb and Albert Edelson, Appellants, v. TOWN OF SURFSIDE, a municipal corporation, Appellee.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    Rehearing Denied June 21, 1956.
    Anderson & Nadeau, Miami, for appellants.
    Frank J. Kelly, Miami, for appellee.
   PER CURIAM.

Affirmed on authority of rule announced in City of Miami Beach v. Wiesen, Fla., 86 So.2d 442, and cases "there cited.

DREW, C. J., TERRELL and THOR-NAL, JJ., and JONES, Associate Justice, concur.


text:
    Alfred Poole HILL, Appellant, v. STATE of Florida, Appellee. (Ct. Ct. #6845). Alfred Poole HILL, Appellant, v. STATE of Florida, Appellee. (Ct. Ct. #6846).
    Supreme Court of Florida. Division B.
    May 18, 1956.
   PER CURIAM.

Affirmed.


text:
    Marvin YOUNGBLOOD, a Minor, by His Father and Next Friend, L. H. Youngblood, Appellant, v. Frank Herbert TAYLOR, Appellee.
    Supreme Court of Florida. Special Division B.
    Feb. 22, 1956.
    Rehearing Denied June 12, 1956.
   PER CURIAM.

Affirmed.


text:
    Judge L. CHILDRE, Appellant, v. STATE of Florida, Appellee (two cases).
    Supreme Court of Florida. Division A.
    May 18, 1956.
   PER CURIAM.

Affirmed.


text:
    Petition of James R. COOPER. Russell W. MacNEILL, Appellant, v. Anthony MAIO, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
   PER CURIAM.

Affirmed.


text:
    Bryan O. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4347.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2002.
    Appellant, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002).

MINER, KAHN and WEBSTER, JJ., concur.


text:
    Ozzie ELBERT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3557.
    District Court of Appeal of Florida, First District.
    Sept. 6, 2002.
    Appellant, pro se.
    Robert A. Butterworth, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002).

WEBSTER, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Darrell D. GRISSETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3040.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2002.
    Appellant, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002).

WEBSTER, Van NORTWICK and PADOVANO, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Domingo SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-170.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
   ALTENBERND, Chief Judge.

Domingo Sanchez appeals the denial of his postconviction motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He claims that his sentence is illegal under this court’s holding in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). The trial court summarily denied this motion, ruling that legislative enactments after Taylor transformed Mr. Sanchez’s sentence into a legal sentence. The trial court ruled prior to the issuance of this court’s recent decision in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). We certify conflict with the Fourth and Fifth Districts’ cases with which we disagreed in Green. Id. at 755. Accordingly, we reverse and remand for further consideration of the motion.

Reversed and remanded.

CASANUEVA and STRINGER, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Linda MORGAN, Appellee.
    No. 2D02-1380.
    District Court of Appeal of Florida, Second District.
    June 20, 2003.
    Rehearing Denied Sept. 11, 2003.

      Anthony J. Parrino and Phil S. Yurecka of Reynolds & Stowell, P.A., St. Peters-burg, for Appellant.
    Joseph C. Whitelock of Joseph C. White-lock, P.A., St. Petersburg, for Appellee.
   NORTHCUTT, Judge.

Allstate Insurance Company challenges a summary judgment granting Linda Morgan personal injury protection benefits under an automobile insurance policy it issued to Maurice Sample. The circuit court entered the summary judgment after borrowing a definition from the liability and uninsured motorist sections of the policy in order to resolve a perceived ambiguity in the PIP section. We conclude that there was no ambiguity in the relevant language of the PIP section and that the court erred in finding that Morgan was entitled to benefits under that coverage.

Morgan was injured in a collision when operating a vehicle rented by Sample, her boyfriend. Sample had rented the vehicle while his car was being repaired. Allstate denied Morgan’s claim for PIP benefits, whereupon she filed this lawsuit. The parties filed cross-motions for summary judgment. The circuit court noted that the PIP section of the policy did not define the term “insured auto,” but that the liability and uninsured motorist sections of the policy defined that term to mean “a substitute private passenger auto being temporarily used while an insured auto is being serviced or repaired.” Relying on Travelers Insurance Co. v. Smith, 328 So.2d 870 (Fla. 3d DCA 1976), the court borrowed that definition of “insured auto” and construed the PIP provision in favor of coverage for Morgan.

Smith was inapplicable to this case. In Smith, the policy provided PIP coverage for an “insured motor vehicle,” which meant a “motor vehicle of which the ... insured is the owner.” The court discerned an ambiguity because the liability section of the policy defined “owned automobile” to include a temporary substitute automobile not owned by the insured. The court resolved the ambiguity by construing the contract against the insurer, which drafted it, and in favor of the insured. Therefore, it found that the plaintiff was entitled to PIP benefits. Smith, 328 So.2d at 872-73.

Here, the PIP section of the policy contained the following relevant language:

Part III
Personal Injury Protection
Coverage VA
Allstate will pay to or on behalf of the injured person the following benefits. Payments will be made only when bodily injury is caused by an accident arising from the use of a motor vehicle as a motor vehicle.
Definitions
* * *
3. “Injured person” — means
(a) Within the State of Florida
(1) You or a resident relative while in, on, getting into or out of, or struck while a pedestrian by a motor vehicle.
(ii) Any other person while in, on, getting into or out of, and if a legal resident of Florida, any other person struck while a pedestrian by the insured motor vehicle.
* * *
4. “Insured Motor Vehicle” — means a motor vehicle:
(a) You own, and
(b) for which the security is required to be maintained under the Florida Motor Vehicle No-Fault law, and
(c) (i) for which a premium is charged, or
(ii) a trailer designed for use with a private passenger automobile, or if not used for business purposes, a trailer designed for use with a pick up truck, panel truck or van.

Morgan was entitled to PIP benefits only if she was an “injured person” as defined in paragraph 3(a)(ii) of the PIP section definitions. She was not, because she was not riding in an “insured motor vehicle” as that phrase was specifically defined in paragraph 4 of the PIP section definitions.

In Smith, the definition of “owned automobile” elsewhere in the policy created confusion about the meaning of the phrase “motor vehicle of which the ... insured is the owner” as used but not defined in the PIP section. Here, the term “insured motor vehicle” was specifically defined, and that definition was clear and unambiguous. It simply could not be clouded by the definition of the phrase “insured auto” elsewhere in the policy.

“An insurance policy is properly construed against the insurer only if the language of the policy is deemed to be ambiguous.” USAA Cas. Ins. Co. v. Gordon, 707 So.2d 1185, 1187 (Fla. 4th DCA 1998) (citations omitted). Because the language at issue here was not ambiguous, and because Morgan was not entitled to PIP benefits under that unambiguous language, we reverse the summary judgment in her favor and remand with directions to enter judgment for Allstate.

Reversed and remanded with directions.

WHATLEY and SILBERMAN, JJ., Concur.


author: SALCINES, Judge.

text:
    Michael KEINZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2969.
    District Court of Appeal of Florida, Second District.
    July 11, 2003.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Michael Keinz pleaded no contest to charges of trafficking in more than 400 grams of cocaine, trafficking in four grams or more of heroin, and trafficking in twenty-eight grams or more of cocaine. Keinz does not appeal his convictions or the sentence imposed for the offense of trafficking in more than 400 grams of cocaine. However, he does challenge the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b) in which he claimed that the three-year minimum mandatory terms imposed for his convictions for trafficking in heroin and trafficking in twenty-eight grams or more of cocaine were illegal.

In support of his argument, Keinz cited to Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), in which this court found that chapter 99-188, Laws of Florida, providing for the imposition of minimum mandatory sentences for these offenses, is unconstitutional. But see State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). In response, the State argued that the trial court did not err when it imposed the minimum mandatory sentences because before the Taylor opinion became final, the legislature reenacted the minimum mandatory terms for drug trafficking and provided for retroactive application of the statute. See ch.2002-212, Laws of Fla.

This court recently rejected the State’s argument in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). Accordingly, we affirm the convictions; affirm the sentence for trafficking in 400 grams or more of cocaine; reverse the sentences for trafficking in four grams or more of heroin and trafficking in twenty-eight grams or more of cocaine; and remand for resentencing on those two convictions in accordance with the valid laws in effect on the date of the offenses, December 14,1999.

We certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), Lecom v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and Jones v. State, 27 Fla. L. Weekly D2377, 2002 WL 31431541 (Fla. 5th DCA Nov.1, 2002). We also note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

Affirmed in part, reversed in part, and remanded for resentencing in accordance with this opinion.

ALTENBERND, C.J., and KELLY, J., Concur.


author: DAVIS, Judge.

text:
    Alfredo PADILLA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5319.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
   DAVIS, Judge.

Alfredo Padilla, Jr., challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order in part, reverse in part, and remand for further proceedings.

Padilla pleaded guilty to four counts of an information. Count one of the information charged that on August 8, 2001, Padilla trafficked in more than 200 grams but less than 400 grams of cocaine. The written sentence indicates that the trial court imposed a seven-year mandatory minimum term of imprisonment pursuant to section 893.135(l)(b)(l)(b), Florida Statutes (2001). Count two of the information charged that on August 14, 2001, Padilla trafficked in more than 400 grams but less than 150 kilograms of cocaine. The trial court imposed a fifteen-year mandatory minimum on that count pursuant to section 893.135(l)(b)(l)(c). Count three charged that from August 1 to August 14, 2001, Padilla conspired to traffic in cocaine in an amount more than twenty-eight grams. The trial court imposed a fifteen-year mandatory minimum term of imprisonment on count three. Finally, count four of the information charged that on August 14, 2001, Padilla trafficked in more than 200 grams but less than 400 grams of cocaine. The trial court imposed a seven-year mandatory minimum term of imprisonment pursuant to section 893.135(l)(b)(l)(b). All the sentences were to run concurrently.

In his motion, Padilla alleged that the mandatory minimum sentences are illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found that the legislature cured the single subject rule violation by reenacting the provisions originally contained in chapter 99-188 and that the reenactment was retroactive to July 1, 1999. However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

The dates of the commission of the offenses in question fall within the Taylor window. See Green, 839 So.2d at 750 n. 1. Padilla has therefore presented facially sufficient claims in regard to the offenses of trafficking in cocaine in an amount of more than 200 but less than 400 grams. See Green, 839 So.2d 748. We reverse the order of the trial court and remand for the trial court to resentence Padilla on counts one and four under the 1997 statute. See id. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Padilla is not entitled to relief on his claim that the fifteen-year mandatory minimum term of imprisonment imposed pursuant to section 893.135(l)(b)(l)(e) is an illegal sentence because that section was not affected by the amendments to section 893.135 contained in chapter 99-188. See Rowe v. State, 839 So.2d 916 (Fla. 2d DCA 2003). We therefore affirm the denial of this claim.

Section 893.135(5) states:
Any person who agrees, conspires, combines, or confederates with another person to commit any act prohibited by subsection (1) commits a felony of the first degree and is punishable as if he or she had actually committed such prohibited act. Nothing in this subsection shall be construed to prohibit separate convictions and sentences for a violation of this subsection and any violation of subsection (1).

Thus, the trial court could only impose a fifteen-year mandatory minimum prison sentence if the information charged Padilla with conspiring to traffic in over 400 grams of cocaine. See § 893.135(l)(b)(l)(c). However, the information that is a part of our record charged that Padilla conspired to traffic in over twenty-eight grams of cocaine. Thus the trial court could only sentence Padilla as if he had actually committed the act prohibited by section 893.135(l)(b)(l)(a). Because the offense of conspiring to traffic in more than twenty-eight grams of cocaine occurred within the Taylor window, the trial court cannot legally impose a three-year mandatory minimum. However, because it is possible that the information was amended either prior to or at the time of the plea, we reverse this portion of the trial court’s order and remand for further proceedings. If the trial court again denies this claim, it shall attach those portions of the record showing that the information was amended to allow for the imposition of a fifteen-year mandatory minimum prison term. Otherwise, it shall resentence Padilla on count three in accordance with the provisions of the 1997 statute.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.