author: HARDY, Judge;

text:
    R. J. JONES, Jr., Plaintiff-Appellee, v. REMINGTON RAND, Inc., et al., Defendant-Appellant.
    No. 8476.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.

      Theus, Grisham, Davis & Leigh, Monroe, for appellant.
    Campbell & Campbell, Minden, for appel-lee.
   HARDY, Judge;

This is a compensation suit instituted by plaintiff claiming total and permanent disability. From a judgment in favor of plaintiff awarding compensation at the maximum rate for a period not exceeding 400 weeks, together with medical expenses, the defendant employer and its insurer have prosecuted this appeal.

The only issue tendered by this appeal involves the extent and duration of plaintiff’s injury.

■ On March 13, 1954, while employed as a heavy duty mechanic by defendant, Remington Rand Company, operator of the Louisiana Ordnance Plant in Webster Parish, plaintiff was engaged in [assisting in the removal of heavy pipe from a rack on the wall of a building. .From his position on a stepladder plaintiff was< using a wrench with his right hand behind a joint of pipe. The pipe became dislodged and rolled from the rack, pinning plaintiff’s right aqn against the wall and jerking his, body forward and across the top of the ladder. Following the accident plaintiff reported to the plant hospital for emergency treatment and then drove his truck to his home. Shortly after his arrival at his home plaintiff became violently nauseated and thereupon went to the Sentell Clinic in Minden, where he consulted Dr. Van Horn, who sent him to the Minden Sanitarium where he was hospitalized for a period of thirteen days. Plaintiff was under Dr. Van Horn’s treatment until April' 16, Í954, on which date, dissatisfied with his lack of improvement, he sought the services of Dr. C. S. Sentell, under whose treatment he remained until date of trial, Márch 24, 1955.

On May 26, 1954, plaintiff was examined by Dr, W. S. Harmon, to whom he had been referred by Dr; Sentell. Dr. Harmon réc-ommended additional hospitalization and on June 2, 1954 plaintiff was re-admitted to the Minden Sanitarium, where he was placed in traction until June 29th and released from the hospital on July 1st. On October 11, 1954, Dr. Sentell • referred plaintiff to Dr. E. C. Simonton for orthopedic examination and to Dr. F. C. Boykin for neurological consultation. At Dr. Boykin’s direction an x-ray examination of plaintiff was made by Dr. W. R. Har-well.

Compensation was paid plaintiff from the date of the accident through date of September 20, 1954, at which time payments were discontinued on the ground that plaintiff had fully recovered from the effects of the injury, which is the contention here urged by defendants.'

In his written opinion the district judge made the following observation:

“The plaintiff testified in Open Court during the course of trial and impressed the court that he was exaggerating his injuries. All of the doctors, who ‘ testified in the case, were also of the opinion that he was exaggerating to a certain extent. According to the plaintiff, he is suffering from various things ranging from his head to his feet. However, it is my further conclusion that he is definitely not a malingerer and that he has some real disability; the only serious problem being whether or not his disability has any causal connection with the injury.”

Careful study of the record serves to impress us with the correctness of our learned brother’s observation as to plaintiff’s exaggeration of his injuries. The original diagnosis made by Dr, Van Horn, who was voluntarily consulted by plaintiff on the day of his injury, shows that he found plaintiff to be suffering, from a contusion of the abdomen, a sprain of the right wrist and a lumbosacral sprain. At the time of trial plaintiff testified that he suffered from almost continuous headaches, pain in the neck and shoulders, almost complete loss of use of his right hand by reason of pain in the wrist, severe and continuous pain in the lumbosacral area of the back and swelling and pain in. the ankles. The one certain fact of which, we-are conclusively convinced, from examination of plaintiff’s testimony and the findings o'f the examining doctors, is that plaintiff grossly exaggerated his injuries and resultant suffering and disability. This unwarranted multiplicity of physical disabilities serves to raise doubt as to the verity of any enduring, disabling affection.

The medical testimony directly presented in the record consists of the testimony of Dr. Sentell, the testimony, by deposition, of Drs. Harmon and Simonton, all for plaintiff, and the testimony, by deposition, of Dr. Eugene D. Caldwell for defendant. The record does not contain the testimony of Dr. Van Horn, who first treated plaintiff, nor the testimony of Dr. Boykin, to whom plaintiff was referred by Dr. Sentell, nor the testimony of Dr. Harwell, with reference to his x-ray examinations made at the request of Dr. Boykin.

The record does contain a very detailed and somewhat unusual report signed by Dr. C. S. Sentell, dated February 14, 1955, only some five weeks before trial and directed “To Whom It May Concern”, and written partly in the first person and partly in the third.person singular. This report is primarily remarkable in that it gives the impression of being designed for use as a medical brief in support of plaintiff’s claims, and is replete with purely hearsay observations and comments with reference to the reports of a number of the examining doctors above named, even those whose testimony or reports do not appear in the record. Though we recognize the fact that great latitude is permitted medical experts in connection with their expressions of opinion, we do not. feel that -even the utmost liberality enjoins upon us the obligation to accept a hearsay evaluation of opinion. Such an acceptance might, and we believe would, effect prejudice against parties litigant who. are denied the right of examination either in open court or by deposition.

It is urged by counsel for defendants, on the basis of well established authority, that the court would be justified in assuming that the testimony of Drs. Van Horn, Boykin and Harwell would be unfavorable to plaintiff’s contentions, in view of plaintiff’s failure to tender these doctors as his witnesses or to explain his failure to do so. While we concede the-' merit of this contention, we are loath, in the instant case, to adopt such a course, preferring to avail ourselves of an alternative proceeding, which is hereinafter set forth.

In the present condition of the rec-, ord we find it impossible to-make a definite and satisfactory pronouncement upon the issue which is here presented. The con-' flict in the medical testimony, the uncertainty as to degree and effect of plaintiff’s evident exaggeration of his injuries, are factors which preclude a just resolution. Unfortunately, the testimony of láy witnesses contributes little, if anything, of value. In the belief that the testimony of Drs. Van Horn, Boykin and Harwell should serve to turn the balance, we have concluded, in the interest of justice and under the authority of Article 906 of the Code of Practice, to remand this case to the district court for further action in accordance with the instructions hereinafter set forth.

This action, for identical reasons, was taken by this court in Beard v. Coal Operators Casualty Company, 61 So.2d 255, 257, in which we said:

“However, in the instant case where the issue is so controverted and the opinion so evenly divided, we think the additional testimony of Dr. Eddy would have a substantial effect in aiding this court to reach a proper com elusion. Rather than construe the failure of plaintiff to produce this witness who made examination at his own request, as militating . against his claims, we prefer to avail ourselves of the authority granted by the provisions of Article 906 of the .Code of Practice.”

Accordingly, it is ordered that this case be, and it is hereby, remanded to the Honorable the Twenty-Sixth Judicial District Court in and for the Parish of Webster, State of Louisiana, with instructions to the said court to receive the testimony of Drs. R. B. Van Horn, F. C. Boykin and W. R. Harwell, either in open court or :by deposition,-as‘may he determined by counsel for the parties litigant, and then to return the record to this court for determination of' the appeal. Taxing of costs will await pronouncement of judgment on the appeal.


source: Caselaw Access Project

author: AYRES, Judge.

license: Public Domain

text:
    Howard Lee CAHEE, Plaintiff-Appellee, v. UNITED STATES CASUALTY COMPANY, Defendant-Appellant.
    No. 8486.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.

      George J. Ginsberg, Alexandria, for appellant.
    Godfrey & Edwards, Many, for appellee.
   AYRES, Judge.

This is a workmen’s compensation suit instituted by- plaintiff against defendant as the compensation insurer of T. B. Godfrey, wherein plaintiff prays for compensation at the maximum statutory rate and as for total and permanent disability, for accidental injuries sustained March 9, 1955, together with 12 percent thereof additional as penalties, and a reasonable attorney’s fee, plus the maximum allowance for hospital and medical expenses.

From a judgment awarding plaintiff compensation at the weekly rate of $27.30 and as for total and permanent disability an'd $179.50 for medical and hospital expenses, defendant moved for and was-.granted orders of suspensive and devolutive appeals.

For defendant’s failure to comply with Code of Practice, Art. 575 with respect to suspensive appeals in not filing an appeal bond within the ten days' provided for therein, plaintiff has in this court moved for a dismissal of that appeal. Plaintiff, however, has answered the devolutive appeal and prayed that the judgment be amended by the allowance of statutory penalties and attorney’s fees for defendant’s arbitrary and capricious refusal to pay compensation.

With respect to the motion to dismiss the suspensive appeal, the facts are that the judgment appealed was signed and filed November 16, 1955, whereas the appeal bond was not filed until December 3, 1955, or after the expiration of the time provided therefor, so as to- perfect a sus-pensive appeal. While the bond was not timely filed so as to suspend the execution of the judgment of the trial court, it was filed within the year during which devolu-tive appeals may be granted and perfected. Therefore, under the well-established jurisprudence of this State, the appeal will not be dismissed but will be entertained as a devolutive appeal. Ramizest v. Ramizest, 226 La. 973, 77 So.2d 733; Probst v. Di Giovanni, 226 La. 625, 76 So.2d 909, 910; Graziani v. Elder & Walters Equipment Co., Inc., 208 La. 80, 22 So.2d 841; Diamond Match Co. v. Moran, La.App., 82 So.2d 784.

Therefore, the appeal is dismissed as sus-pensive but maintained as devolutive.

Plaintiff contends that he was either an employee of Godfrey, or, in the alternative, an employee of a subcontractor of Godfrey, whereas -defendant’s position is that plaintiff was neither an employee of Godfrey nor of any agent, contractor or subcontractor of his, but that plaintiff was-an employee of one Lemon Maxey, an alleged independent contractor with whom a contract had been entered into by one E. E. Weldon for the loading into railroads cars of pulpwood then situated on the railroad yards at Florien, Louisiana, and that the relationship between Weldon and Godfrey was that of vendor and vendee of the wood to be loaded....

The defendant concedes that plaintiff sustained accidental injuries in the loading of the aforesaid wood and within the course and scope of his employment, which entitled him to workmen’s compensation, and that such injuries are of a total and permanent nature.

Godfrey explained in detail his usual or general method of operation. In the course of his business he sometimes bought pulpwood delivered on railroad cars and at other times produced the pulpwood from standing timber purchased by him. He advanced large sums of money to his producers to finance them in their operations. Godfrey assigned quotas to his producers, such as Weldon, from the allowance of production assigned to him by the mill. Godfrey paid the severance tax and compensation insurance for the production of all wood handled by him. These charges were passed on to the initial producer.

However, with respect to the particular wood which plaintiff was handling at the time, he was injured, Godfrey was pursuing another method of operation. Both Weldon and Godfrey explained that in December, 1954, Godfrey had no orders from the mill for wood and, therefore, wood could not be loaded onto the railroad cars and shipped. Wherefore, Godfrey instructed Weldon to purchase certain wood for him and unload it on the ground and hold it subject to Godfrey’s orders. Godfrey gave Weldon instructions to load the wood, supervised its loading, and while it was being loaded plaintiff was injured. In this connection Godfrey testified:

“Q. Did you advance Mr. Weldon the money for the loading of the wood ? A. We didn’t consider it in the nature of an advancement. The arrangement I had with Mr. Weldon was, that he bought this wood on my authority, and I told him, specifically, that I would reimburse him for any amounts that he spent for this wood to be put on the ground; and later, when the wood was scaled, I would give him an increased amount to offset the cost of reloading it, which was to be reloaded at my direction.
“Q.. In other words, Mr. Weldon bought the wood? A. That’s correct.
“Q. . In Weldon’? name? A. I don’t, technically — I don’t know whether he bought it in his name or mine. He actually paid for it with his check, and I reimbursed him with mine.
' “Q. Would you say that you bought 'the wood from Weldon? A. I would say Mr. Weldon bought it for me.
“Q. Bought it for you, as your agent? A. I would think so.
“Q. That’s just your conclusion? A. That’s my — that’s the way I feel about it.”

Therefore, it is seen that, according to Godfrey’s own testimony, the wood belonged to him, and that in purchasing it Weldon acted for him as his agent. Weldon likewise* testified that the wood belonged to Godfrey and that he was acting as Godfrey’s agent *in having the wood loaded for shipment. Plaintiff and Lemon Maxey also testified that it was their understanding that the wood was the property of Godfrey and that it was being loaded for him. After carefully checking his books, Weldon testified that at the time the wood was being loaded, Godfrey had paid him in full for the amount expended for the wood, including $1.25 per unit as compensation for his services, and that all that remained to be paid him was the reimbursement of the expense of the loading. Godfrey admitted that he had paid for the wood entirely other ■ than the loading expense. Godfrey gave Weldon detailed instructions as to the loading of this wood and, in addition, the loading was supervised by a Mr. Dewitt, one of Godfrey’s regular employees. Weldon, acting as Godfrey’s agent and for and on his behalf, employed Lemon Maxey to load, at least, a portion of this wood. Maxey, in turn, employed plaintiff and others to assist-.him ,in this work.

From the foregoing it could only be concluded that Weldon was acting as Godfrey’s agent, even in the acquisition by Godfrey of this wood, but, even though it could be said that a relationship of vendor and ven-dee originally existed between Weldon and Godfrey when this wood was acquired and delivered to the railroad yard, this relationship had definitely been terminated as to this particular wood long before plaintiff was employed to assist in its loading. It has, therefore, been established to our satisfaction and by a great preponderance of the evidence that Weldon, in the loading of this wood, was acting as Godfrey’s agent and in that capacity contracted with Lemon Maxey to perform services in connection therewith, who likewise employed plaintiff to assist therein.

For the foregoing reasons, the conclusion is inescapable from a review of the record in this case that as to the wood being loaded by plaintiff at the time of the accident and his injury, Weldon acted as the agent and servant of Godfrey in contracting with Maxey to load said wood on the railroad cars and that plaintiff was an employee of Maxey; that there was, therefore, no relationship of vendor and vendee between Godfrey and Weldon, but that plaintiff was an employee of a contractor of Godfrey, who had undertaken the performance of an essential part of Godfrey’s operations in connection with Godfrey’s business and occupation, ahout which, as logging operations, there could be no doubt of its hazardous character, as defined in the Compensation Statute.

Where any person undertakes to execute any work, which is a part of his hazardous trade, business or occupation, or which he has contracted to perform, and contracts with any person for the execution of the whole or any part of the work undertaken by such principal, the principal is liable to any employee engaged in the exe-cutipn of the work, or to his dependent, for compensation which he would have been liable to pay if the employee had been directly employed by him. LSA-R.S. 23:-1061. Under this section, the jurisprudence is firmly settled'that a'principal employing a contractor, subcontractor or independent contractor, is liable for compensation to an injured employee of such contractor, subcontractor or independent contractor, direct contractual relations between the employee and the principal being unnecessary. Hollingsworth v. Crossett Lumber Co., 184 La. 6, 165 So. 311; Carter v. Colfax Lumber & Creosoting Co., 9 La.App. 497, 121 So. 233; Seabury v. Arkansas Natural Gas Corp., 171 La. 199, 130 So. 1; Helton v. Tall Timber Lumber Co. of Louisiana, Inc., 148 La. 180, 86 So. 729; Lindsey v. White, La.App., 22 So.2d 689; Owers v. Louisiana Long Leaf Lumber Co., La.App., 14 So.2d 275; Lyons v. Wireless, La.App., 2 So.2d 719; Hatch v. Industrial Lumber Co., La.App., 199 So. 587; McKay v. Crowell & Spencer Lumber Co., La.App., 189 So. 508.

See, also, 10 La.L.Rev. 25.

The authorities cited by defendant, on the theory that plaintiff was an independent contractor and as such was excluded from the benefits of the Compensation Act, are inapplicable to the facts of this case. Plaintiff was not an independent contractor. The entire work undertaken by him required the exercise on his part of manual labor. Should his relationship in all other respects fulfill the requisites of an independent contractor, he is nevertheless included within the coverage of the statute, LSA-R.S.' 23:1021(6), as amended by Act 179 of 1948, which recites as to independent contractors that they “are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.” (Emphasis supplied.) The authorities cited antedate this amendment.

The judgment awarding plaintiff compensation is, in our opinion, correct and should be affirmed.

Plaintiff urges that, pursuant to the provisions of LSA-R.S. 22:658, we should assess the defendant with the statutory damages therein prescribed .of 12 percent of the total amount of the compensation awarded, together with a reasonable attorney’s fee, .on the ground that defendant’s failure to pay compensation was arbitrary, capricious and without probable cause. Defendant counters with the contention that its actions were in good faith. The statute is a penal statute and as such is subject to strict construction. The defense in this action that a relationship of vendor and vendee existed between plaintiff’s immediate employer and defendant’s assured, Godfrey, was seriously presented and urged by defendant. We deem that defendant was in good faith and that it was not wholly without justification in presenting the issue to the court for determination. We are of the opinion that the judgment of the trial court, in rejecting plaintiff’s demands as to this item, was likewise correct.

For the reasons assigned, the judgment appealed is affirmed at appellant’s costs.

Affirmed.


author: GLADNEY, Judge. ■

text:
    Dan S. HENRY, Plaintiff-Appellee, v. Andrew W. RADISCISH et al., Defendants-Appellants.
    No. 8479.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.
    Writ of Certiorari Denied June 11, 1956.
    Russell E. Gahagan, Natchitoches, for appellants.
    Blount B. Breazeale, Arthur C. Watson, Richard B. Williams, G. F. Thomas, Jr., Natchitoches, for appellee.
   GLADNEY, Judge. ■

This action is to establish title to real estate where none of the claimants is in actual possession and is brought under, and by virtue of the provisions of LSA-R.S. 13:5062 (formerly Acts of 1908, No. 38). Involved in the litigation are 122.53 acres of land in Natchitoches Parish, title claims to which are asserted by: first, Dan S. Henry, Arthur C. Watson and Richar.d B. Williams, who acquired an undivided one-half interest from Mary Richard Webb, and, second, Russell E. Gahagan, Andrew W. Radiscish, Jr., and H. E. Townsend, who trace their claims to the whole tract from Lucy Dupree Dewhart and Peyton Dewhart. Following a judgment adjudicating the respective title interests of all the claimants, Gahagan, Rádiscish and Townsend have appealed. • •

Appellees filed herein a motion to dismiss the appeal on the ground the record contained no transcription of testimony, following which motion appellants moved for and were granted a definite time to supplement the record. LSA-R.S. 13:4433. The record has been thus completed by means of a certificate of the trial judge as to material • facts adduced upon trial, it having been certified also that the transcript of testimony is not available. The evidence so supplied is relevant to consideration of the special pleas of prescription of ten years acquirendi causa under LSA-C.C. art. 3478. These facts disclose only that Lucy Dupree Dewhart shortly after the death of Peyton Dewhart in 1930 tore down the house, moved away and abandoned the property; further that during 1936, while living off of the subject land she secured a judgment recognizing her as the sole heir to Peyton Dewhart. The meager evidence totally fails to meet the requirements of establishing title through the operation of LSA-C.C. arts. 3478, 3479, et seq. Furthermore, when the land became community property in 1909 by reason of completion of final proof of homestead entry, Mary Richard Dewhart, as a partner in the community, became the owner of a one-half interest therein. Subsequent to the dissolution of the community, therefore, the actions of Mary Richard Dewhart alone could divest the title to this property interest. The pleas of prescription so asserted are therefore without merit.

Documentary evidence in the record shows that pursuant to the Act of Congress of May 20, 1862, 12 Stat. 392, “to secure Homesteads to Actual Settlers on the Public Domain” (see 43 U.S.C.A. § 161), Peyton Dewhart obtained a patent from the United States to the land involved in this suit. It is conceded by all parties Dewhart filed his entry on September 1, 1903, and established and consummated his final proof in conformity to law on January 15, 1909. A final certificate was issued on January 15, 1907, but the patent was not issued until Septembei: 7, 1917. Prior to the issuance of the -patent Peyton Dewhart, who married Mary Richard on July 3, 1903, secured a divorce on May 17, 1913. On June 1, 1913, Dewhart married Lucy Dupree who survived his death which occurred some time during 1930. Mary Richard later married Frank Webb. Two separate intestate succession proceedings appearing in the record resulted in two judgments, the first recognizing Lucy Dupree as the owner of all of Dewhart.’s succession property, and the second placed certain collaterals in possession of and decreed their ownership of said property. From two of the collaterals so named, appellants have received quitclaims.

The principal issue which confronted the trial court was whether vel non the homestead land fell into the community of acquets and gains existing between Peyton Dewhart and Mary Richard when final proof was consummated and a final certificate was issued on January 15, 1909. In the District Court it was argued title from the United States to Peyton Dewhart did not pass until the issuance of the patent which took place on September 7, 1917, at which time Dewhart was married to Lucy Dupree.

It is well settled in our jurisprudence that where final proof of entry is made during the lifetime of both husband and wife, the final proof of entry immediately vests equitable title to the land in the entryman and the property thereby falls in the community of acquets and gains existing between the entryman and his spouse. See: McCune v. Essig, 1905, 199 U.S. 382, 26 S.Ct. 78, 50 L.Ed. 237; Ford v. Edenborn, 1918, 142 La. 927, 77 So. 851; Gibson v. Pickens, 1937, 187 La. 860, 175 So. 600; Smith v. Anacoco Lumber Co., 1925, 157 La. 466, 102 So. 574; Brewer v. Hill, 1933-1934, 178 La. 533, 152 So. 75, certiorari denied 292 U.S. 626, 54 S.Ct. 631, 78 L.Ed. 1481; Cupples v. Harris, 1942, 202 La. 336, 11 So.2d 609. Thus, in Brewer v. Hill, supra [178 La. 533, 152 So. 76], the court explained the effect of the law as follows:

“Of course, the case is different where the original entryman himself completes the final proof and receives the final certificate. In such case there is, on .the part of the United States, no stripping of equities from one party and transferring of them gratuitously to another, as there is when the widow of a deceased entryman is gratuitously preferred over his natural heirs.
“In such case the entryman is a mere purchaser from the United States to whom had been granted mere preference in the right to purchase by reason of his priority of entry on the land. And accordingly the status of the land acquired becomes community property or separate property accordingly as the final certificate issued during the marriage or after dissolution thereof, regardless of when the entry thereon might originally have been made. Doucet v. Fontenot, 165 La. 458, 115 So. 655; Industrial Lumber Co. v. Farque, 162 La. 793, 111 So. 166; Smith v. Anacoco Lumber Co., 157 La. 466, 102 So. 574.”

The final certificate vests the entry-, man with an equitable title to the land, and shows, prima facie, that he is entitled to a patent conveying to him the legal title. The legal title remains in the government. See: United States v. Kennedy, 5 Cir., 1913, 206 F. 47, 124 C.C.A. 181; Moses v. Long-Bell Lumber Co., 5 Cir., 1913, 206 F. 51, 124 C.C.A. 185, appeal dismissed, 1913, 239 U.S. 625, 36 S.Ct. 162, 60 L.Ed. 473; Kromer v. Friday, 1895, 10 Wash, 621, 39 P. 229, 32 L.R.A. 671. But, after final proof and payment, the government holds the legal title in trust for the entryman. United States v. Steenerson, 8 Cir., 1892, 50 F. 504, 1 C.C.A. 552; Union Mill & Mining Co. v. Dangberg, C.C.Nev.1873, Fed.Cas.No.14,370; United States v. Freyberg, C.C.Wis.1886, 32 F. 195; Morse v. Pickler, 1912, 28 S.D. 612, 134 N.W. 809, and cases cited.

In brief filed on the appeal, appellants contend plaintiff’s action was improperly brought under LSA-R.S. 13:5062, asserting that Lucy Dupree Dewhart was in actual possession of said property. This argument is not established by evidence, but on the contrary, the record clearly indicates that none of the parties to this litigation was in possession of the property claimed and, therefore, the requirements of LSA-R.S. 13:5062 have been met.

It is our considered opinion the judgment from which appealed should be affirmed. It is, therefore, ordered, adjudged and decreed there be judgment in favor of Dan S. Henry, plaintiff, and against the defendants herein, Russell. E. Gahagan, Andrew W. Radiscish, Jr., H. E. Townsend; Arthur C. Watson and Richard B. Williams, decreeing that the said Dan S. Henry is the owner of an undivided one-third (%) interest in the following described lands, to wit:

“A certain tract of land in Natchitoches Parish, Louisiana, containing 122.53 acres more or less, being the Southeast Quarter of the Southeast Quarter, and the South Half of the Southwest Quarter of Section 14, Township 8 North, Range 9 West.”

It is further ordered, adjudged and decreed that the remaining two-thirds interest, right and title in the above described lands be decreed to be owned in the following proportions:

Arthur C. Watson one-twelfth
Richard B. Williams one-twelfth
Russell E. Gahagan one-sixth
Andrew W. Radiscish one-sixth
H. E. Townsend one-sixth

It is further ordered that appellants pay-all costs of this suit, including cost of the appeal.


author: GLADNEY, Judge.

text:
    W. A. SPROWL, Plaintiff-Appellant, v. J. M. FOSHEE, Defendant-Appellee.
    No. 8478.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Rehearing Denied April 19, 1956.
    Writ of Certiorari Denied June 11, 1956.
    Woodrow A. Sprowl, in pro. per.
    Russell E. Gahagan, Natchitoches, for appellee.
   GLADNEY, Judge.

This suit was brought by W. A. Sprowl July 9, 1953, against J. M. Foshee for the return of $310 paid by plaintiff to defendant as the purchase price of a 1940 Chevrolet one and one-half ton truck. The action is grounded upon the alleged failure of the vendor to furnish a satisfactory certificate of title. During the trial of the case plaintiff admitted a title certificate had been tendered to him, which certificate was issued by the Department of Revenue, Motor Vehicle Division of the State of Louisiana, on October 5, 1951. From a judgment rejecting plaintiff’s demands, he has appealed.

The alleged cause of action is substantially embraced in the following articles of plaintiff’s petition:

“Petitioner has attempted to secure a title to this vehicle but has been informed by the Department of Revenue, State of Louisiana, that the motor card covering the registration on this truck says that this motor number has been duplicated and that a physical inspection must be made by the State Police to correct the title. That after this notification, which came to your petitioner on May 14, 1953, petitioner made an examination of the motor on this vehicle and found that the serial number on said motor had been ground off and a new set of numbers had been placed on this vehicle.
“That your petitioner has never been able to secure a title to this property, nor has he been able to get a certificate of title because of the defective number thereon. That he has repeatedly requested defendant to have this condition corrected without avail. That he has been unable to drive this vehicle because of the fact that he cannot get a license for it because of this fact.
“That our petitioner did not have a good title to this property and that defendant has never completed delivery of this vehicle by virtue of the fact that said defendant has been unable to deliver to petitioner good title. That your petitioner is entitled to the return of the money which he has paid Mr. Foshee, together with judicial interest from date of demand until paid, together with all costs of this suit.”

The above allegations were denied by the defendant who averred a title certificate to said automobile with proper assignment was tendered to plaintiff but refused. Defendant averred further that plaintiff has had the use of the truck since the date of the sale.

The evidence indicates plaintiff, who elected to try his lawsuit without an attorney, became suspicious of the title to the vehicle, about six months after the purchase from Foshee. Apparently, this was induced by the delay of defendant in surrendering the certificate of title and from a discovery that the original motor number of the vehicle had been removed and the number appearing thereon, No. 1105142, was identical with the number of another motor.

On May 7, 1953, plaintiff wrote the State Motor Vehicle Division and requested information as to whether there were two or more certificates of title with the above motor number. The reply to this letter from the Chief of the Motor Vehicle Division stated:

“Our files show that Title No. 680956 was issued to J. M. Foshee, 1706 Texas Street, Natchitoches. However, the motor card covering that registration bears this notation:
“ ‘This motor number has been duplicated. Before issuing another title on this vehicle have a physical inspection made by State Police and correct title.’
"You zvill be safe in purchasing this vehicle, but before making application you must comply with the notation quoted above/' (Emphasis supplied.)

About the time he received the foregoing letter plaintiff was tendered the certificate of title by Foshee, yet notwithstanding the suggestion made in the letter from the Motor Vehicle Division, plaintiff admits he made no effort to have the proper inspection made. Sprowl’s position is clearly set forth in the following testimony:

“Mr. Sprowl: The first time that I ever saw it (the certificate of title) Mr. Foshee walked out of the back door of his house with it. That was the first time that I ever saw it. And by then I had done got suspicious and I had wrote * * *
“The Court: We are not interested in how you felt. We are trying to find out what happened.
“Mr. Sprowl: Alright, then after we received this first letter from the Revenue Department I went * * *
“The Court: Was that before or aiter you went up tp the Valley Finance Company ?
“Mr. Sprowl: That was — that was along about the same time because when I found out there was something wrong with it, well, I demanded the title from Mr. Foshee. Well, after I demanded it from him I told him that I had to have the title * * *
“The Court: And after he offered it to you, you didn’t want it because you were suspicious?
“Mr. Sprowl: Yes, sir.
“The Court: Well, that’s all right, there’s no use rehashing it, we’ve been through all of that.
“Mr. Sprowl: The last time that I went to see him was about May of 1953. After I demanded it of him kind of strongly he went in the back door of his house and come out with two shoe boxes full of old titles and he reached in one of those shoe boxes and brought out this title and he handed it to me. Now that was at the back door of his house. Well, I looked at it — he signed it then and he give it to me and I turned it over and looked at it on the back and it hadn’t been notarized and I said: Well, it hadn’t been notarized’ and he said: Well, meet me down at Valley Finance Company and we’ll get it notarized down there.’ So about thirty minutes later or an hour later I met him down there and then this other conversation took place.
“The Court: And it ended up that you wouldn’t take the title ?
“Mr. Sprowl: That’s right.
“The Court: You don’t know but what they could have gotten you title if you had accepted it?
“Mr. Sprowl: Oh, they might have but it still — the engine numbers would ■still be messed up. There is two vehicles with the same engine numbers and there’s this truck with the marks of a grinding wheel on it and I didn’t want to accept the responsibility.”

The Vehicle Certificate Title Law, LSA-R.S. 32:706 et seq. as amended by Act 228 of 1954, provides, subject to the exceptions mentioned in Sections 705 and 712 of the Act that “no person buying a vehicle from the owner thereof, whether such owner be a dealer or otherwise, hereafter shall acquire a marketable title in or to said vehicle until the purchaser shall have obtained a certificate of title to said vehicle * * * It was held in General Motors Acceptance Corporation v. Daigle, 1954, 225 La. 123, 72 So.2d 319, that a buyer’s title to an automobile was not merchantable or marketable until the purchaser received a certificate of title. This, of course, does not mean that the actual possession of the certificate of title need be in the hands of the purchaser. The holder thereof may possess in trust, or for future delivery, for the one having actual title to the automobile. Thus, in Hamner v. Domingue, La.App.1955, 82 So.2d 105, 107, the court stated:

“LSA-R.S. 32:706, quoted in part above, does not provide that no valid title shall be perfected until the purchaser obtains a title certificate, but that no marketable title shall be perfected until that time. The term ‘marketable title’ does not connote that the vendor cannot sell, but that he cannot enforce an agreement to buy, in absence of same, Words & Phrases (Perm.Edition), Volume 26A, pp. 35-55, Verbo ‘Marketable Title’. Thus third-opponent Hernandez could not have enforced the agreement of another to purchase his car until he had received his certificate of title on September 2, 1953. But on receiving said certificate, Hernandez not only had a good and valid title, but also a ‘marketable’ title to said car.”

Despite his objections and suspicions plaintiff was tendered a title which the Motor Vehicle Division declared valid.

Nor can we ignore the' failure of plaintiff to return defendant the vehicle in question. Surely, he should not have retained and used the truck and also obtained return of the full sum paid for it. It was incumbent upon plaintiff at or before demanding the return of the purchase price to deliver the truck back into the hands of defendant, or at least he must have made á bona fide attempt to do so.

Our careful examination of the record has not brought to our attention manifest error in the ruling complained of and we must affirm the judgment. We may add that the record convincingly shows the trial-judge conscientiously sought within the bounds of propriety to render all possible assistance in the presentation of the evidence by plaintiff, who was not aided by attorney, to the end that a just decision could be reached.

For the reasons assigned, the judgment from which appealed is affirmed at appellant’s cost.


author: HARDY, Judge.

text:
    LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. B. D. MOORING, Defendant-Appellant.
    No. 8485.
    Court of Appeal of Louisiana. Second Circuit.
    March 23, 1956.
    Irving Ward-Steinman, Alexandria, for appellant.

      Adams & Reese, New Orleans, James T. Adams, Shreveport, for appellee.
   HARDY, Judge.

This is an injunction suit which wa.s instituted by plaintiff for the purpose of restraining defendant from the practice of medicine as defined by LSA-R.S. 37:1261— 37:1290. From a judgment granting a permanent injunction and imposing the statutory penalty and attorney’s fees, defendant has appealed.

Contemporaneously with the filing of answer defendant filed an exception of vagueness, an exception of no cause nor right of action, and a plea of unconstitutionality, all of which were overruled.

On the merits the record abundantly establishes the fact, through the testimony of witnesses tendered by both plaintiff and defendant, that this defendant engaged in the practice of chiropractic, which has long been conclusively pronounced by the courts of this State to constitute the practice of medicine and, as such, subject to statutory regulation; State Board of Medical Examiners v. McHenery, La.App., 69 So.2d 592, and cases cited therein.

It being further established that defendant was engaged in the practice of medicine without having obtained a certificate or license therefor under the provisions of the statute, the conclusion necessarily follows that he is without right to continue such unauthorized practice, and plaintiff was properly entitled to the issuance of an injunction and the allowance of the statutory penalty and attorney’s fee.

Before this court, counsel for defendant insistently re-urges the exception of no right nor cause of action and the plea of unconstitutionality. Despite the fact that we have failed to discover any issues tendered by these exceptions which have not heretofore been thoroughly considered and conclusively disposed by our jurisprudence, we think it proper to briefly note the principal grounds for counsel’s contentions.

It. is urged that plaintiff’s petition in the instant case is defective in that it alleges the violation of “Sections 37:1261-1290 of the Louisiana Revised Statutes of 1950.” Learned counsel attempts to distinguish this case from the McHenery case, cited supra, and the case of Louisiana State Board of Medical Examiners v. Tackett, La.App., 71 So.2d 137, on the ground that in the cited cases defendants were charged with violating a specific section of the statute, whereas in the present cause defendant is charged with violating every section of the Act. We think this is a distinction without a difference for, certainly, the charge of violating the whole constitutes the charge of violating a part and the greater comprehends the less.

The plea of unconstitutionality appears to be aimed at much the same proposition, for counsel contends that

“defendant is charged with violating an entire act and no specific component thereof. The effect is that the defendant is charged by reference to matters no concern of his, such as quorum, appointment- of the board, duties, etc. It would appear farcical to hold defendant responsible for failure of.the Governor to act, etc.”

It must be considered, in the light of reason, that the general charge of violation of a particular statute is restricted to the only violations with which defendant could be charged. Since it is apparent that defendant could not be charged with a violation of any of the administrative provisions of the statute, we find no validity in the super-technical and utterly unreasonable argument.

There can be no question as to the correctness of the conclusion that defendant was sufficiently informed of the offense with which he was charged, nor is there ground for the finding that he has been in any sense or any degree prejudiced by the general nature of the allegation of plaintiff’s petition.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.


author: O’CONNELL, Justice.

text:
    VIRGINIA SURETY COMPANY, Incorporated, a corporation, Appellant, v. T. N. RUSS, Appellee.
    Supreme Court of Florida. Special Division A.
    April 4, 1956.
    J. Thomas Gurney, Orlando, for appellant.
    Rodgers & Kirkland, Orlando, for ap-pellee.
   O’CONNELL, Justice.

The appellant company challenges a judgment and verdict rendered against it in an action at law by appellee based upon a policy of insurance issued' by appellant, covering vehicles used by appellee' in his truck line.

The appellee was the owner of two trucks, which were insured under a policy of liability insurance issued by appellant. We shall identify the trucks as Truck A and Truck B. Truck B was following Truck A. Truck B had picked up á “hitchhiker”. Truck A stopped and was struck by Truck B. The hitchhiker' was killed. The father of the hitchhiker brought suit for wrongful death against the owner of the trucks. The declaration filed against appellee consisted of several counts. These counts separately alleged .negligence on the part of appellee in the operation of Truck B, negligence on the part of appellee in the operation of Truck A, and then concurrent negligence in the operation of both trucks. The appellant insurer declined to defend the action and denied liability. Ap-pellee obtained counsel and successfully defended the suit against him. Thereafter this suit was instituted by appellee to recover the attorney’s fees he incurred in defending the principal suit for damages for the death of the hitchhiker and attorney’s fees incurred in ■ bringing this Suit, under the provisions'of Section 625.08, F.S.1953, F.S.A. •'

The policy here involved was what is described as a “fleet policy” of insurance, containing a provision that “when two or more automobiles are insured hereunder the terms of this policy shall apply separately to each.” Sec. 4, Insuring Agreements. By an endorsement to the policy there is incorporated a passenger hazard exclusion in the following language:

“It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability does not apply to Bodily Injury including death at any time resulting therefrom, sustained by any person while in or upon, entering or alighting from the automobile.”

It was the opinion of the court below that the paramount question of coverage should be decided in favor of the insured, the appellee, under the provision first above quoted, and a summary judgment to that effect, on the issue of liability only, was accordingly entered. We are referred to no decision to the contrary under such a policy, and the reasoning in support of this conclusion has considerable strength — to the effect that the insurer should not be permitted to invoke the exclusion clause where the claimant was a passenger in a vehicle other than the one alleged to have caused the accident. Clearly such would be the case where the injured person was a passenger in a third-party vehicle, and under Section 4, supra, the policy should have the same force and effect as if issued for each vehicle independently. If the latter proposition is-true, as appellant would admit, in relation to maximum sums specified in the provisions for limitations of extent of liability, -then it should be equally true on issues of coverage or exclusions.

It is true that the declaration charged negligence of the appellee in the operation of Truck B, in which the hitchhiker was riding, liability for which would not have been covered under the policy in question, because of the passenger hazard exclusion. But the declaration also charged negligence of the appellee in the operation of Truck A. If Truck A was the proximate cause of the accident, there would be no question as to liability on the part of the insurer, as it is clear that the passenger hazard exclusion clause could not be invoked to defeat liability for negligence in the operation of the truck in which the passenger was not riding. Only a trial could determine this issue. Therefore, it is our opinion that the appellant insurer had a duty to defend the action.

Appellant contends, secondly, that F.S. § 625.08, F.S.A., supra, "does not authorize assessment of attorney’s fees in a proceeding of this nature. But from a consideration of the literal terms of the statute, as well as its general objectives, it seems to have been plainly intended that an insured should not be forced to bear the cost of representation in such litigation with his insurer when it terminates favorably to him. The construction placed upon it in cases .arising thus far lends support to the finding of the court below in this respect. Continental Cas. Co. v. Giller Concrete Co., 5 Cir., 116 F.2d 431; Phoenix Indemnity Co. v. Anderson’s Groves, Inc., 5 Cir., 176 F.2d 246.

The remaining points urged, with respect to the propriety of certain instructions to the jury, do not appear to warrant reversal of the cause.

The judgment appealed from is therefore affirmed.

DREW, C. J., TERRELL, J., and DICKINSON, Associate Justice, concur.


author: TERRELL, Justice.

text:
    STATE of Florida ex rel. R. L. WATSON, Petitioner, v. D. O. ROGERS, as Circuit Judge, Tenth Judicial Circuit in and for Polk County, Florida; The Circuit Court, Tenth Judicial Circuit in and for Polk County, Florida, Respondents.
    Supreme Court of Florida. En Banc.
    March 16, 1956.
    Rehearing Denied April 26, 1956.

      William P. Tomasello, Bartow, for petitioner.
    Oxford & Oxford and Chas. F. Chas-tain, Lakeland, for respondents.
   TERRELL, Justice.

August 31, 1954, Clem Harris Watson was granted a divorce from Judy Watson in Polk County. The custody of their three minor children, Judith Clemine Watson, Lorena June Watson and Clem Harris Watson, Jr., was awarded to Judy Watson. April 8, 1955, pursuant to petitions filed in the Juvenile Court - of Hillsborough County, said court entered an order taking custody of Clem Harris (Sonny) Watson, Jr., as a dependent child. On the following date, April 9, 1955, under like representations, the said Juvenile Court entered an order taking custody and control of Judith Clemine Watson and Lorena June Watson as dependent children and placed all three minors in custody and control of R. L. Watson, their grandfather.

April 18, 1955, Clem Harris Watson filed a second suit in the Circuit Court of Polk County in which he sought to modify the final decree of divorce entered August 31, 1954, in so far as it affected the custody of the minor children. The court entered an order on the same date restraining Judy Watson from removing the children and ordering them to be held in the custody of R. L. Watson. April 21, 1955, after a hearing on the petitions of April 8 and 9, the Juvenile Court of Hillsborough County adjudicated said minors to be dependent children in contemplation of law and placed them in the home of their father, Clem Harris Watson, under the supervision of a counselor of the court. Despite the latter order of April 21, 1955, the Circuit Court of Polk County entered an order authorizing defendant, Judy Watson, to visit said minor children three mornings each week from 9:00 A.M. to 10:30 A.M. and to have said children visit her on Tuesday of each week from 9:00 A.M. to 7:30 P.M.

June 6, 1955, on petition of Judy Watson, the Circuit Court of Polk County entered an order without notice or hearing directing the relator, R. L. Watson, to deliver the minor children to Judy Watson instanter and upon failure to do so, to ap-' pear before said court at 2:00 P.M., Thurs-. day, June 9, 1955, at Lakeland, Florida, and-show cause why he refused to do so.- Said hearing was not conducted account of the inability of the judge to attend. June 14, 1955, relator, R. L. Watson, moved to stay further proceedings in the Circuit Court on the ground, that the Juvenile Court of Hillsborough County had original and exclusive jurisdiction of said minor children by virtue of their having been declared dependent and prayed the court to take no further action in regard to their custody until the Juvenile Court of Hills-borough County transferred or relinquished its jurisdiction. In response to this petition the Circuit Court entered an order holding that it had jurisdiction of said minor children by virtue of the proceeding filed April 18, 1955, by Clem Harris Watson, denied the motion to stay and .di-; rected R. L. Watson to place custody of said children in their mother, Judy Watson, Thursday of each week.

Account of the latter order, suggestion for writ of prohibition was filed in this court by R. L. Watson, a rule nisi was issued so the cause comes on for final disposition on motion of respondent to quash the rule nisi and dismiss the suggestion for the writ of prohibition.

The point for determination is whether or not after minor children of divorced parents have been declared to be dependent by the Juvenile Court pursuant to F.S. Chapter 39, F.'S.A., may the Circuit Court in proceedings supplementary to divorce exercise jurisdiction over said minor children and enter orders relating to their care, custody and control.

The answer to this question turns on the interpretation of Sections 11 and 50, Article V of the Constitution, F.S.A., and F.S. § 39.02(1), F.S.A., the pertinent parts of which are as follows:

“39.02(1). The juvenile court shall have exclusive original jurisdiction of dependent and delinquent children domiciled, living or found within the county or - district in which the court is established. * * * ”

Section 11, Article V of the Constitution:

“The Circuit Courts shall have exclusive original jurisdiction in all cases in equity, also in all cases at law, not cognizable by inferior courts, * * * to the estates and interests1 of minors, * * *» -

Section 50, Article V of the Constitution:

“The Legislature shall have power to create and establish Juvenile Courts in such County or Counties or Districts within the -State as it may deem proper, and to define the ' jurisdiction and powers of such courts and the officers thereof, and to vest in such courts exclusive original- jurisdiction of all or any criminal cases where minors under any age specified by the Legislature from time to time are accused, including the right to define any or all offenses committed by any such persons as acts of delinquency instead of crimes; * * * without being limited therein by the provisions of this Constitution as to trial by jury in Sections 3 and 11 of the Declaration of Rights, as to use of the terms ‘prosecuting attorney’ and ‘information’ in Section-10 of the Declaration of Rights, as to election or apportionment of officers in Section 27 of Article 3, as to jurisdiction of criminal cases in Sections 11, 17, 22 and 25 of Article 5, as to original jurisdiction of the interests of minors in Section 11 of Article 5, and as to style of process and prosecuting in the name of the State in Section 37 of Article 5, or other existing conflicting provisions of " this Constitution.”

An examination of the quoted part of F.S. § 39.02(1), F.S.A., shows that the legislature gave juvenile courts “exclusive original jurisdiction of dependent and delinquent children domiciled, living- or found within the county or district in which the court is located.” In construing this act, however, we are not to overlook the fact that whether the act says so or not, it is limited by Sections 11 and 50, Article V of the Constitution, the pertinent parts of which are quoted above. It is further limited by the purpose for which juvenile courts are created.

Section 11, Article V of the Constitution as related to this case limits the jurisdiction, of circuit courts to “all cases in equity * * * the estates and interests of minors.” Section 50 of Article V authorizes the creation of juvenile courts and to vest them with “exclusive original jurisdiction of all or any criminal cases where minors under any age specified by the Legislature from time to time are accused, including the right to define any or all offenses committed by any such persons as acts of delinquency -instead of crimes.” After all is said, the jurisdiction of the Circuit Court over minors as provided by Section 11, Article V, goes to bread and butter and the spiritual, while the jurisdiction of the Juvenile Court over them as conferred by Section 50, Article V, goes to criminality, delinquency, dependency or other form of parental neglect.

It will be observed from reading Section 50, Article V, in full that it carries the foregoing authorization without being limited by Sections 3 and 11, Declaration of Rights, relating to jury trial; Section 10, Declaration of Rights, Section 27, Article III as to jurisdiction in criminal cases; Sections 11, 17, 22 and 25, Article V, as to original jurisdiction of the interest of minors and as to Section 37, Article V, relating to style and conflicting provisions of the Constitution. In other words, when read as a whole, Section 50, Article V, is directed to jurisdiction of criminal cases or some phase of child delinquency and does not involve child custody in a divorce case where “estates and interests of minors” are involved.

Since Section 50, Article V of the Constitution applies only to “criminal cases” where “minors under any age specified by the Legislature” are involved, the legislature would have the power to classify them (minors) as dependent- or .delinquent. F.S, § 39.01(10.), F.S'.A.; defines dependent child as one “who, for any reason, is destitute, -homeless, dependent upon the public for support, or has not proper parental support, maintenance, care * * * or who is neglected.” The same act defines a delinquent child as one who commits a violation of law regardless of where the violation occurred, is incorrigible, is a persistent truant from school, who is beyond, the parents’ control, is a reputed criminal or associates with elimináis, etc.

It follows that when the provisions of Section 50, Article V of the Constitution are read with other provisions of the Constitution referred to therein including 'Sections 39.01(10, 11) and F.S. § 39.-02(1), F.S.A., the jurisdiction of juvenile courts goes only to matters that are essentially delinquent or criminal unless the question of dependency enters the picture. In a proceeding for divorce, being a suit in “equity,” the circuit court has jurisdiction under Section 11, Article V of the Constitution, including the “estates and interests of minors.” The custody or guardianship of a minor child would naturally come under the head of “interests of minors”, and it would be an incident to the divorce suit and should be adjudicated in connection with the divorce suit. Estates and “interests of minors” are an entirely different incident from their delinquency or criminality and there is not the slightest indication in the statute or the Constitution that there was a purpose to remove the power to adjudicate “estates and interests of minors” from the circuit courts.

In the case at bar it is contended that the children in question are not delinquent or dependent as contemplated by Section 39.01(10) and (11) because the Juvenile Court found: “After the divorce and the father’s (Clem Harris Watson) remarriage, his manner of life appears to have entirely changed. He has established a home with his new wife that offers security and wholesome environment to the children. There was no evidence that it was in any way an improper place for the children.” Certainly there is nothing in such a finding to indicate that the children were “dependent” as contemplated by the statute quoted herein defining such terms.

The finding of the Juvenile Court was limited to “dependency” but there'was also a finding that in the divorce decree the father was required to pay the mother $200 per month support for the children and that it has been regularly paid. The Juvenile Court and the Circuit Court both found that R. L. Watson was a suitable guardian for the children. The finding of 1 dependency appears to have been based on the fact that the mother was an alcoholic.

It further appears from the decree dated August 31, 1954, granting Clem Harris Watson a divorce from Judy Watson that the Circuit Court also adjudicated the custody of the minor children. He had jurisdiction to do this and not only that, he had jurisdiction to reconsider that degree and make such other order as to their custody as circumstances and the “interests” of the minors dictated. He pursued such a policy in his decree of April 18, 1955, wherein he required that they continue in the custody of R. L. Watson, their grandfather.

From what has been said we are impelled to hold that the Circuit Court has jurisdiction of the estates and interests of minor children when brought into a divorce suit, that the Circuit Court could adjudicate their “estates and interests” at any time the circumstances warrant or the condition of the minor children required. Such “estates and interests”, particularly their “estates,” the juvenile court had no jurisdiction to adjudicate and the Constitution is silent as to any intent to clothe them with such jurisdiction.

In this holding we do not overlook the fact that in some states the juvenile court may acquire jurisdiction over the children of divorced parents who later become “dependent” or “delinquent” within the meaning of the law, but our statutory and constitutional provisions regulating the status of such children in a casé like this does not so provide. When the Circuit Court finds itself confronted with a case within the jurisdiction of the juvenile court, the practice has been to certify it to that court for disposition. Orderly procedure would require this in any case where the Circuit Court finds that a minor child or children have become delinquent or otherwise in the criminal class as contemplated by F.S. §; 39.01, F.S.A.

It is accordingly our view that the Circuit Court did nothing more than exercise his discretion in a matter properly brought before him, that he had jurisdiction of the parties and the subject matter and being so, the rule nisi is quashed and the writ of prohibition is dismissed.

It is so ordered.

DREW, C. J., and THOMAS, HOB-SON, ROBERTS and THORNAL, JJ., concur.

SEBRING, J., dissents.


author: PER CURIAM.

text:
    The STATE of Florida et al., Appellants, v. CITY OF TREASURE ISLAND, Appellee.
    Supreme Court of Florida. Special Division B.
    April 4, 1956.
    Clair A. Davis, St. Petersburg, for appellants.
    Ed W. Harris, St. Petersburg, for ap-pellee.
   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, 30 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 and O’CONNELL, JJ., and ANDERSON, Associate Justice, concur.


author: THOMAS, Justice.

text:
    Daniel L. GINSBERG, Appellant, v. George E. HOLT, Appellee.
    Supreme Court of Florida. Special Division B.
    April 4, 1956.
    Daniel L. Ginsberg, Miami, pro se.
    No appearance for appellee.
   THOMAS, Justice.

The appellant, a member of the bar practicing in the Eleventh Circuit, represented in his complaint that the appellee was so prejudiced against him that no client of the appellant could get a fair and impartial trial at the hands of appellee. The appellant alleged that in two cases the appellee had voluntarily recused himself because of such prejudice against the appellant; that in a third case the appellee had recused himself on motion of the appellant; and that in subsequent cases the appellee had declined to disqualify himself.

The appellant contends that if the appel-lee continues to entertain cases in which the appellant appears as attorney, the work of the Supreme Court will become more burdensome because all such controversies will “of necessity” be brought here for review. It is insinuated in the complaint that the appellee has spoken disparagingly of this court, and, by innuendo, charged that the appellant cannot receive a fair trial from the appellee because he does not accept and enforce the decisions of this court.

The rest of the complaint is an accusation that the appellee harbors intense, antipathy toward the appellant, and an account of situations from which the appellant evidently wishes us to deduce that the ap-pellee has been indulging in retaliation because the appellant’s partner was a candidate against the appellee at a recent election. The complaint contains details of various cases decided by the appellee and brought here for review. Evidently the purpose of these allegations is to show that success by the appellant in this court demonstrated that the appellee’s judgment was warped by his hatred of the appellant.

The appellant asserted in his complaint that the last four cases filed by him have “fallen in” the appellee’s division and he charged that “[sjince the [appellee had] signed an order to show a cause why a minister should not be held in contempt for filing an affidavit of prejudice concerning the [appellee], the [appellant had] found it impossible to get sufficient supporting affidavits to the effect that said [appellee] is prejudiced against him, but the facts in this case and the record will conclusively show, prejudice on the part of the [appel-lee].”

Based upon this indictment of the appellee for his attitude toward this court as well as his hostility toward the appellant, the circuit court was asked to hold “as a matter of law and fact that the [appellee was] prejudiced against the [appellant]” and disqualified “from hearing any cases wherein your plaintiff is involved" (Italics supplied.)

As we understand the appellant, he insists that he is entitled now, in effect, to an injunction forever to, restrain the appellee from entertaining any case in which the appellant may appear.

We are not conscious of any power vested in the circuit court to preclude one of its judges from adjudicating a given case, of which the court has, jurisdiction, upon the appearance, as counsel in the case of an attorney whom one of the litigants chooses to represent him. The jurisdiction of the 'circuit court is fixed by organic law. Each judge of the court exercises the same jurisdiction and one judge may not oust his colleague from the trial of a case on any such theory as the appellant proposes.

Nor is this court empowered to interfere in the jurisdiction of the circuit court in any such fashion. It is only when that jurisdiction is wanting or is exceeded -that this court is empowered to reach beyond! the sphere of its jurisdiction and curb the actions of a judge of the circuit court. True, this court may reverse orders, judgments and decrees and even direct what orders, judgments and decrees the circuit court should enter in their stead, but this is not an invasion of the jurisdiction of the circuit court. It is done only to correct errors this court determines to have been committed.

We conclude that a circuit judge has no power to do what the appellant requested and that we have no power to order the circuit judge to do so. From a practical standpoint the granting of the relief would result in an impossible situation. Once the appellee started the consideration of a case, he could be rendered impotent to proceed immediately one of the parties engaged the appellant to participate as an attorney.

The statute, Sec. 338.10, Florida Statutes 1953, and F.S.A., provides for disqualification of judges and the appellant may resort to it as often as he finds it necessary. The law does not specify that disqualification may be accomplished by reason of prejudice against the attorney in a case, but this court seems to have extended the protection to counsel under Certain conditions, for instance, when the prejudice against the lawyer is of such degree that it adversely affects the client. State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613; State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433.

There is abundant law to .insure the clients of the appellant fair trials of "their . cases. There is no provision in the statutes or the decisions for a blanket decree restraining a particular judge from hearing all cases in which a particular attorney may appear in his professional capacity as an officer of the court and we unreservedly de-dine to introduce such, a novel and revolutionary procedure.

The circuit judge ruled properly when he dismissed the complaint and his order is—

Affirmed.

DREW, C. and ROBERTS and THORNAL, JJ., concur.


text:
    The STATE of Florida and the Taxpayers, Property Owners and Citizens in Special Tax School District No. 12, Sumter County, Florida, Including Non-Residents Owning Property or Subject to Taxation Therein, Appellants, v. BOARD OF PUBLIC INSTRUCTION FOR SUMTER COUNTY, for and on Behalf of Special Tax School District No. 12 of Said County, Appellee.
    Supreme Court of Florida. Division B.
    April 4, 1956.
    A. P. Buie, Ocala, for appellant.
    Carroll W. Fussell, Bushnell, for ap-pellee.
   THOMAS, Justice.

On -1 January 192S bonds of Special Tax School District No. 12 of Sumter County were issued and on' 10 March 1953 the bonds were reduced to judgment on which a payment was later made leaving an unpaid balance amounting to approximately $48,000. Meanwhile, on 1 January 1948, all school districts in the county became consolidated into, one school district known as “‘Special Tax School Distinct Number V” by virtue of Chapter 23726, Laws of Florida, Acts of 1947, Sec. 230.34, Florida Statutes 1953, and F.S.A. By Sec. 12(2) of the act any debt o-f a special tax school district incurred before the consolidation remained the debt “of the area which incurred the obligation * *

The board of public instruction on behalf of the original tax school district-debtor adopted a resolution, 6 September 1955, providing for the issuance of bonds to refund the remainder of the debt.

The circuit judge decided that the original district existed for the purpose of refunding the debt,- and that the obligation continued to be that of the aréa.' In this connection it is well to refer to another part of Sec. 12(2) of the 'act in which it was provided that consolidation should “in nowise impair the security of any bonds * *■ *- outstanding at the time of the consolidation,” and imposed a duty on the county board to see that the obligations of. each district were discharged. •

The lone question is the authority of the board to issue, on behalf of the old district, bonds to refund the remainder of the debt of that district which was assumed before the consolidation.' The state attorney contends that the consolidation destroyed all original tax school districts “for all purposes” and that inasmuch as .the district issuing the bonds has ceased to exist, no refunding bonds can be issued’in its behalf.

By the act, the tax school districts were merged into one with boundaries coinciding with the limits of the county but the districts did not lose their identity for all purposes. Their identity was expressly retained to insure the security of obligations contracted beforehand and the board was enjoined to see that the debts were paid. So, for the purpose of repayment of the money borrowed against the territory in the debtor-district that district survived, or, • at least, its area continued to be subject to its debts.

A similar situation was considered in the case of Fletcher v. Board of Public Instruction of Gadsden County, 160 Fla. 428, 35 So.2d 121. We held in that case that bonds issued by a district and validated before consolidation cotild be delivered afterward.

We decide in the present cáse that the board in providing for refunding the debt was simply obeying the mandate to “see that the obligations” were paid. We cannot give this language the narrow interpretation that in discharging the duty the board is restricted to payment in cash instead of issuing refunding bonds.

The board is doing what it could have done had there been no consolidation, and is doing what it was commanded to do in-the very act requiring consolidation. ‘

The decree validating the bonds is—

Affirmed.

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


author: McCALEB, Justice.

text:
    229 La. 710
    DELTA FIRE & CASUALTY COMPANY v. TEXAS & PACIFIC RAILWAY COMPANY.
    No. 42358.
    Supreme Court of Louisiana.
    March 26, 1956.
    Watson, Blanche, Fridge, Wilson, Posner & Thibaut, Baton Rouge, for plaintiff-appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appellee.
   McCALEB, Justice.

Plaintiff insurance company, brought this suit as subrogee of W. H. Gillen to recover $4,495 property damages resulting from an accident in which Gillen’s truck and trailer were virtually demolished in a collision with defendant’s train. In the lower court the claim was denied on the ground that the track driver was guilty of the grossest sort of negligence, which was a contributing, if not the sole, cause of the accident. Plaintiff has appealed.

The accident occurred on a clear day at about 10:30 a. m. on a gravel road known as Bayou Choctaw road-which proceeds in a general northwesterly direction from the Port, . Allen-Plaquemine. , Highway with which it connects some three miles north of Plaquemine. Defendant’s .railroad tracks run parallel to the main highway and cross the Bayou Choctaw road at a point approximately 95 feet from the highway. This intersection is marked on both sides with standard “Louisiana Law Stop” signs as required by R.S. 45:562.

Just prior to the collision, the Gillen truck was being driven in a southerly direction on the Port Allen-Plaquemine Highway toward the Bayou Choctáw road. When the truck driver, who was thoroughly familiar with the route, reached the intersection he had to make a sharp turn to the right of over 90 degrees in order to get on the Bayou Choctaw road. This turn is difficult with a large truck and trailer and requires a “jackknifing” of the vehicles in order to negotiate it. After the driver had completed the turn and straightened his truck and trailer on the road in a position to proceed forward, the front of the truck had arrived at a point some 15 feet from the first railroad track. At this point the driver’s companion, occupying the adjoining seat in the cab, noticed for the first time that a train, proceeding south at a fast speed, was bearing down upon them from the right about 150 feet away. He immediately apprised the driver of the emergency and the latter applied his brakes but the truck slid onto the track and then the motor died. The two men succeeded in vacating the cab just before the train crashed into the truck, carrying it about one-half mile before' finally coming to a stop. The estimated speed of the train, consisting of engine and caboose only, was 60 miles per hour, while that of the truck and trailer was 13 or 14 miles per hour, following its completion of the turn. There were no obstacles to obscure the vision of the driver of the truck other than the maneuvers necessary to the making of the sharp turn.

The truck driver frankly acknowledged his failure to stop, look and listen in conformity with R.S. 45:563 and the testimony of his helper, while tending to show that defendant’s train crew did not sound the engine’s bell or whistle until some 150 feet from the crossing, is otherwise corroborative of the driver’s carelessness. In view of this evidence, counsel for defendant elected to submit the case on the statement of plaintiff’s witnesses and the trial judge, believing that the truck driver’s negligence was a bar to recovery (irrespective of any omissions that might be attributable to the train crew), entered judgment accordingly.

The judge did not err. While counsel for plaintiff attempt in argument and brief to exonerate the truck driver from fault on the theory that' his view of the crossing was obscured by the difficulty he encountered in negotiating the sharp turn, no legal excuse can be devised to explain his failure to use his normal faculties before he reached the railroad tracks. If the negotiation of the sharp turn obscured his vision, all the more reason to exercise caution and be certain that no train was approaching. Calvert Fire Ins. Co. v. Texas & Pacific Ry. Co., La.App., 55 So.2d 693 and Perrin v. New Orleans Terminal Co., 140 La. 818, 74 So. 160.

Counsel also invoke the doctrine of last clear chance which they say is applicable in view of the testimony of plaintiff’s witnesses that they did not hear' any warning signals, by whistle or bell, until the train was approximately 150 feet from the crossing.

But we find no room in this case for the doctrine of last clear chance. In the first place, the burden of proof was on plaintiff to show that the train crew saw (or should have seen) the truck and realized (or should have realized) that it was in imminent peril in time to avoid the accident. Courtney v. Louisiana Ry. & Navigation Co., 133 La. 360, 63 So. 48 and Anderson v. Southern Bell Tel. & Tel. Co., La.App., 74 So.2d 761, certiorari denied December 13th 1954. In the absence of evidence as to the distance of the train from the crossing at the time the truck and trailer were approaching, it is well nigh impossible to say that the employees of defendant had a last clear chance to avert a collision.

Furthermore, there is another well-recognized rule of law which renders inappropriate the last clear chance doctrine— viz., that, even if the record justified a hoiding that the train crew should have noticed the truck and trailer before it reached the crossing, they would have been entitled to assume that the truck driver would comply with the statutory law and jurisprudence of this State and stop beforé undertaking to -negotiate the crossing, as there was nothing so unusual about the truck’s approach as to place ordinarily prudent men on notice that it was in distress. Jones v. American Mut. Liability Ins. Co., La.App., 189 So. 169, certiorari denied July 14th 1939; Eggleston v. Louisiana & A. Ry. Co., La.App., 192 So. 774 and Fontenot v. Freudenstein, La.App., 199 So. 677.

The judgment is affirmed.


author: SIMON, Justice.

text:
    229 La. 717
    Charles S. CARLISLE v. AMERICAN AUTOMOBILE INSURANCE COMPANY et al.
    No. 39446.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Rehearing Denied March 26, 1956.

      Henican',. James & Cleveland,, C. Ellis Henican, New Orleans, for plaintiff-appellant.
    Gordon Boswell, Robert G. Hughes, New Orleans, for defendants-appellees.
   SIMON, Justice.

Plaintiff-appellant instituted this suit against his insurer, American Automobile Insurance Company of St. Louis, for loss and damages 'by fire to various trucks, automobiles and other equipment owned by him and covered by policy No. 5334848 issued by the' defendant on June 14, 1943 for the term- from May 29, 1943 to May 29, 1944. Plaint-iff a-lso demanded statutory penalty in a sum equal to 12% of his claim and reasonable attorney fees.

To said insurance policy there was attached aii endorsement which provided an ordinary “Loss Payable Clause” in favor of the Louisiana Savings Bank & Trust Company. (At the time of the fire plaintiff had a loan with said bank secured by a chattel mortgage on the trucks and automobiles destroyed or damaged in the fire.) For this reason plaintiff also named the bank a defendant in the suit but prays for the reservation to the bank of its full rights to the extent of its interest as may be established herein.

The insurer denied liability on the theory that the policy in question was not in force at the time of the loss by fire which occurred pn October 22, 1943, the policy having been cancelled on October 8, 1943 for nonpayment of premiums.

After trial on the merits the lower court dismissed plaintiff’s suit, and plaintiff has appealed.

The record discloses that the firm of Meyer, Whitty & Hodge was the agent for the insurer- who handled the insurance policy in question between plaintiff and the insurer. Plaintiff had not paid the premiums on said policy, but payments thereof had been made by the insurance agent who extended the necessary credit to plaintiff and maintained an open account against him for payment of the' premiums so advanced. Plaintiff made no payment on his account with the insurance agent until on October 22, 1943, several hours after the fire and loss herein claimed, he made a payment in the sum of $700.

The payment or nonpayment of premiums did not affect in any way the right of the company or the insured to cancel said policy. The policy contained a cancellation clause under which either the company or the insured could cancel without any cause whatsoever. The policy provision is as follows:

“This policy may be canceled by the named insured by mailing to the Company written notice stating when thereafter such cancelation shall be effective. This policy may be canceled by the Company by mailing to the named insured at the address shown in this policy written notice stating when not less than 5 days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date and hour of cancelation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the Company shall be equivalent to mailing.”

Under this provision, on October 2, 1943, the insurer sent a notice of cancellation to plaintiff addressed to him at the address shown in the policy, making October 8, 1953 the effective date of cancellation. A copy of the said notice was also forwarded to the bank as payee in the loss-payable clause and as holder of the policy.

Plaintiff contends that he-never received this notice. However, the record contains evidence to the contrary, and we are satis-' fied that the notice of cancellation issued in accord with the method of cancellation set forth in the policy.

In spite of the fact that the insurance agent had requested the cancellation of the policy because plaintiff had not paid any sum on their open account with him, and with knowledge that said cancellation had been made, the insurance agent wrote a letter dated October 9, 1943 to the bank, as follows:

"Re: Charles S. Carlisle. ■

“This is to confirm telephone conversation had with you this morning and to advise that we are continuing the coverage under American Automobile Policy No. 5334848 to protect your" interest until such time ás this matter is straightened out between Mr. Carlisle and our office.”

On the basis of this letter plaintiff contends that the insurance coverage under this policy was continued in his favor and was in full force and effect at the time of the fire on October 22, 1943.

Defendant, on the other hand, contends that the policy of insurance, having been properly and. legally cancelled by the insurer, could not be restored to full force and effect by an agreement by the insurance agent to protect the interest of the bank as the payee named in the loss payable clause.

The loss payable clause simply designates a particular individual who is to receive all or a certain part of the proceeds to which the insured may be entitled. This •designation in no way affects the contractual relationship between the insured and the insurer.

In the case of Officer v. American Eagle Fire Ins. Co., 175 La. 581, 143 So. 500, 502, in determining the rights of the payee •named in a similar loss-payable clause of an insurance policy, we said:

“The clause in this policy making the proceeds, if any, payable to the mortgagee, as his interest might appear, is what is generally referred to ás an ordinary or open mortgage payable clause, under which the assured mortgagor remains the responsible party, or party in interest, to control the insurance and the adjustment of the loss. Under policies containing such a clause, the contract remains one exclusively between the insurer and the property owner. The mortgagee is only a conditional appointee of the mortgagor to receive part of the proceeds in case of loss. As such conditional appointee, the mortgagee was entitled to receive so much of any sum that might become due under the policy as did not exceed his interest as mortgagee, and no more.”

Plaintiff contends that on the basis of the principle that the contract of insurance remains one exclusively between the insurer and the insured and by virtue of the letter dated October 9, 1943, stating that the insurance agent was “continuing the coverage under American Automobile Policy No. 5334848”, the only coverage which could be continued was the coverage originally established by the policy in favor of plaintiff. On the other hand, the author of the letter, the insurance agent, explains that the coverage was only for the benefit of the bank and that the words “coverage under American Automobile Policy. No. 5334848” were employed to prevent the repetition of all'coverage under the policy which would have necessitated a description of all of the vehicles insured thereon. He further testified that after the cancellation of the policy he was authorized to continue the coverage but not the policy.

An unbiased examination of the letter written by the insurance agent on October. 9, 1943 clearly shows its subject matter to be the American Automobile Insurance Policy No. 5334848, and the coverage, the insurance, the risk carried thereunder by the insurer was continued and in full force and effect on the date of the loss suffered by plaintiff.

The agent admits that he was authorized to issue the policy, and that he requested the cancellation thereof for'nonpayment of premiums. The insurer was not concerned with payment or nonpayment of policies and obviously issued a notice of cancellation to accommodate the insurance agent. It follows that the .insurance agent having the authority to request and demand a cancellation also has the authority to recall and nullify this cancellation. He could also issue a new policy on the same terms and conditions as the old one or issue an extension thereon.

This is doubtless a hard’ case, but we are constrained to hold that the insurer was bound by the terms of its policy and the letter of October 9, 1943 which operated as an extension or reinstatement of the policy No. 5334848, and we find no ground upon which we can base a conclusion favorable to the insurer which would relieve it from the binding effect of the clear and unambiguous continuation of the coverage provided in said policy.

Plaintiff sets forth in his petition a detailed statement of the damages and losses sustained by him as the result of the fire on October 22, 1943. During the course of the trial, with the acquiescence of counsel, the lower court appointed experts to investigate and report the said loss and damage. Accordingly, the experts made their inspection on or about May 21, 1944.

It seems that after the report of the experts was filed, the case was reset for trial on October 9, 1945, and appellant offered further proof of his loss. There is some-discrepancy between the proof offered by the appellant and the report submitted by' the experts. This is explained as the result of the examination by the experts having been made approximately 7 months after the fire, at a time when some items had been repaired and some items had been completely destroyed, and, therefore, no evidence of damage could be seen.

At the close of the hearing counsel for defendant requested additional time to produce a number of witnesses to contradict plaintiff’s testimony as'.to the nature and extent of his loss. However, defendant never availed- himself of this opportunity; and the testimony Of plaintiff as to: the extent and nature of the loss suffered by him stands uncontradicted. We are, therefore,, constrained to hold that the plaintiff has. established his claim by a. clear and convincing preponderance of evidence, and he should be'permitted to recover damages for the losses alleged by him in the total sum of $4,320.90, plus interest from date of judicial demand, there being no definite date shown when proof of loss was established prior to institution of suit.

The remaining issue to be determined is whether under the facts plaintiff is entitled to statutory penalties and to attorney’s fees.

LS A-R.S. 22:658 provides that where the failure of the insurer to make payment under its policy within 60 days after receipt of proof of loss is found to be arbitrary, capricious or without proper cause, the insured is entitled to receive 12% damages on the total amount of the loss, payable to the insured, together with all reasonable attorney’s fees for the prosecution and collection of such loss.

The evidence as a whole convinces us that the defendant was in good faith in its- belief that the policy, under which this, suit was brought was ■ effectively cancelled: and not reinstated insofar as it covered the-interest of the insured and that it did 'not arbitrarily refuse or disclaim any monetary liability for loss claimed under the terms of the policy.

For-the reasons assigned, the judgment of the trial court is reversed and set aside, and there is now judgment in favor of plaintiff-appellee in the full sum of $4,320.90, with interest from date of judicial demand until paid; all costs to be paid by defendant..

MOISE, J., recused.