text:
    Mrs. Edna Dawes WRIGHT et al. v. Osber CYPRIAN et al.
    No. 4469.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.

      Mary Purser, Amite, for appellants.
    Reid & Reid, Hammond, for appellees.
   ELLIS, Judge.

Plaintiffs, as the heirs and legal representatives of the late Malcolm B. Wright, Sr., have filed a petitory action asking that they be declared the owners of the W/2 of NE/4 of Sec. 11T5SR8E, Tangipa-hoa Parish, Louisiana. Coupled with the main demand is also a request to cancel a homestead entry made by Osber Cyprian of the property in question and to cancel and' annul a tax sale for the taxes of 1928 made in the name of T. A. Warner of the same-property, for the reason that said property was also assessed to the First State Bank and Trust Company and all taxes levied against same were duly paid on May 4, 1929,, which was prior to the attempted offering and sale of said property for non-payment of 1928 taxes under the assessment in the name of T. A. Warner, as the deed under said sale is dated August 31, 1929. As the Register of the State Land Office and the Sheriff of Tangipahoa Parish were necessary parties, plaintiff joined them as defendants.

The basis of plaintiffs’ claim was a tax sale made by the Sheriff of the Parish of Tangipahoa of the property in question for the non-payment of 1926 taxes by act dated August 2, 1927. The property was assessed and sold in the name of E. Davis. Malcolm B. Wright, Sr., acquired the property from the Succession of Thomas A. Warner at Sheriff’s Sale by act dated December 2„ 1943.

A temporary restraining order was issued by agreement of counsel in which the then Register of the State Land Office was enjoined from proceeding further with the homestead entry of the defendant Cyprian. Thereafter, preliminary writ of injunction issued upon the plaintiff furnishing bond in the sum of $500. It appears that Cyprian employed his present counsel who, on November 21, 1955, filed a motion alleging that the tax sale to T. A. Warner for the 1926 taxes sold in the name of E. Davis is null, void and of no effect in that E. Davis was never the owner of the property but had only acquired a contract to purchase from the Loranger Community, and, secondly, that the taxes for the year 1926 had been paid prior to the date of the tax sale under assessments in the name of First State Bank & Trust Company and Loranger Community. Counsel then prayed for a rule to issue in order that the plaintiffs might show cause why the writ of injunction should not be dissolved and set aside and plaintiffs condemned to pay $300 attorneys fees for the dissolution of the injunction. By way of answer to this rule, counsel for plaintiffs plead the peremptive period of five years as set forth in Article 10, Section 11 of the Constitution of the State of Louisiana-LSA as a bar against any attack upon the validity of the tax sale on the ground that E. Davis was not the owner thereof, and as to the second ground of prior payment of taxes this allegation was denied. The minutes fail to reveal that the lower court passed upon the motion to dissolve and thereafter counsel for defendant Cyprian, with full reservation of all rights under the motion to dismiss, filed exception of no cause of action and no right of action based upon one of the same grounds set forth in the motion to dissolve, viz., prior payment of the taxes by the First State Bank and Trust Company. Both of these exceptions were referred to the merits by the District Court. Answer was filed reurging the defense of erroneous assessment in the name of E. Davis and prior payment of taxes by the First State Bank and Trust Company. Defendant further set forth that Cyprian had entered into an agreement to purchase about the year 1923 and that he had remained in possession of the property since.

Plaintiffs reiterated the prescriptive or peremptive plea of five years under Article 10, Section 11 of the Constitution of the State of Louisiana.

The case was duly tried and judgment rendered in favor of the plaintiffs, recognizing them as the owners of the property and restraining and enjoining Cyprian and the Register of the State Land Office from proceeding toward the completion or processing of the application for homestead and the granting of any final certificate or patent covering the property. The District Court further annulled and can-celled the tax adjudication made to the State of Louisiana in the name of T. A. Warner for nonpayment of 1928 taxes.

From this judgment the defendant Cyprian has appealed.

Whereas plaintiffs have given practically a complete abstract of the ownership of the property in question, it is sufficient to state that the Genessee Lumber Company on Nov. 21, 1917, sold the property to Loranger Community, Inc., and that on the 30th day of June, 1922, the Loranger Community, Inc., through its vice president and secretary mortgaged the property in question, together with other property, to First State Bank and Trust Company of Hammond, La. Thereafter on May 19, 1923, the Lor-anger Community, Inc., entered into an agreement to sell the property to E. Davis and in this agreement E. Davis was chargeable with the payment of taxes, and it is presumably for this reason that the assessor, taking the instrument for a sale, assessed the property to E. Davis for the year 1926. However, on the 17th day of September, 1925, foreclosure proceedings were entered on the mortgage by First State Bank and Trust Company against the Lor-anger Community, Inc., and the property was duly sold at Sheriff’s Sale and bought by the First State Bank and Trust Company, on December 26, 1925 and was, accordingly, assessed to First State Bank and Trust Company for the year 1926. Thus, we have a dual assessment on the property in the name of E. Davis, who only had an agreement to purchase, and in the name of the record owner, First State Bank and Trust Company.

Opposite the assessment in the name of First State Bank and Trust Company on the record is marked the word “Paid”, however, the specific date of the payment is not shown by the record and could not be shown by positive testimony as the officials who handled the transaction were not living, and possibly would not remember the exact date. It is, therefore, contended that Cyprian has failed to show the payment of taxes prior to the sale in the name of E. Davis, and it is on this basis that the District Court gave judgment in favor of the plaintiffs.

It is a well recognized doctrine that the plea of peremption based upon Section 11 of Article 10 of the Constitution of Louisiana of 1921 as amended applies to all tax sales except those specifically excepted therein and those where the tax debtor remains in corporeal possession of the premises. In other words, the burden of proof in this case is upon Cyprian to show payment of the taxes for which the property was sold prior to the date of the sale and that the tax debtor had remained in corporeal possession of the property as a continual protest against the tax sale which would open the door for an attack upon the first ground that the property was improperly assessed in the name of E. Davis. See King v. Moresi, 223 La. 54, 64 So.2d 841; Stevens v. Johnson, La.App., 81 So.2d 464; Yuges Realty Ltd. v. Jefferson Parish Developers, 205 La. 1033, 18 So.2d 607; Egle v. Constantin, 198 La. 899, 5 So.2d 281; Magnolia Petroleum Company v. Marks, 225 La. 805, 74 So.2d 36.

Counsel for plaintiffs in answer to the contention that sufficient proof was not introduced by the defendant to show prior payment of the taxes, argues that the official stamp on the assessment in the name of First State Bank and Trust Company for the year 1926 marked “Paid” fully satisfies the requirements of the law when considered in the light of the fact that there was absolutely no sale for unpaid taxes for the year 1926 ever made in the name of First State Bank and Trust Company. Had the taxes not been paid prior to the date of the sale, viz., August 2, 1927, in the name of E. Davis to T. A. Warner, there would also have been held on the same day a sale of this same property for the unpaid taxes due by First State Bank and Trust Company according to its assessment. Counsel for plaintiffs in his brief correctly states the law when he says: “ * * * the further general presumption that the officers of the State properly carry out their duties.”

The same presumption applies in the case at bar and we have no doubt but that the sheriff would have sold this property in the name of First State Bank and Trust Company for the. taxes of 1926 had they never been paid prior to the date of the same tax sale at which the property was sold in the name of E. Davis. We believe this proof is sufficient to show a prior payment of the taxes in this case. If we are incorrect in this conclusion it would offer no relief to the plaintiffs for this court in the case of Little v. Smith, La.App., 44 So.2d 377, held under facts practically on all fores with the present case, except that it was clearly shown in the cited case that the taxes for the year 1927, being the year for which the property was adjudicated to the State of Louisiana, were paid within six months from the date of the tax adjudication to the State to the Sheriff and Ex Officio Tax Collector of Vernon Parish, and were to be considered as a redemption of the property even though the Sheriff neglected to perform his ministerial duty by the issuance of a redemption certificate. Cited in the Little case, supra, as a basis for the decision is the case of La Frenz v. La Baw, La.App., 23 So.2d 780. In the Little case the property was erroneously assessed to the Anacoco Lumber Company, which never owned the land in question, and was sold under this erroneous assessment to the State of Louisiana in 1948. Homestead entry was granted to defendant Smith. The suit by Little was to cancel the tax sale and the homestead entry and to have the plaintiff recognized as the owner of the property. This court affirmed the judgment of the lower court annulling the tax sale and the homestead entry and recognizing the plaintiff as the owner of the property for two reasons, viz., that the payment of taxes subsequent to the tax sale to the State of Louisiana and within the redemptive period amounted to redemption and the negligence of the sheriff in failing to issue a redemption certificate was immaterial, and there was a presumption that the sheriff collected all monies due necessary to redeem the property. Another reason given by the Court of Appeal for its affirmation of the judgment was that the owner of the property remained in continuous possession as owner and “later as caretaker” for the petitioners herein after he sold the property to them. This possession amounted to a continual exercise of ownership and, therefore, the three year prescription would not apply.

Applying the principles enunciated in the cited case to the case at bar, while we believe that the proof is sufficient to show a payment of taxes previous to the tax sale, if it is taken as a subsequent payment of taxes, it would have been within the redemptive period as the receipt of payment of the taxes for 1926 was stamped upon that assessment roll, and the next year it was undisputed that the First State Bank and Trust Company paid the taxes, in fact, plaintiffs have introduced the assessment rolls showing payment by the First State Bank and Trust Company on May 4, 1928, which is introduced for the purpose of annulling the tax sale in the name of T. A. Warner for the taxes of 1927 to the State of Louisiana, and it was under and by virtue of this tax sale that the state granted a homestead entry to defendant Cyprian. Therefore, if the proof were not sufficient to show previous payment of taxes, it would be valid as a redemption.

While it is not necessary to decide the question of whether or not there was continuous possession on the part of the tax debtor, First State Bank and Trust Co., through the defendant Cyprian, the testimony is undisputed that Cyprian went on this property prior to its acquisition by First State Bank and Trust Company and immediately after its acquisition by First State Bank and Trust Company in 1925 there is no doubt but that First State Bank and Trust Co. continued to allow him to remain on the property, either as their tenant at will and more likely under an arrangement of agreement to purchase, the property from them. There was a house on the property, part of the land was fenced and Cyprian cultivated this land and exercised open corporeal possession over the entire 80 acres and was still doing so on the date the suit was filed. The First State Bank and Trust Company went into liquidation and is out of existence and when they ceased trying to collect from Cyprian is not shown in the record. (Whether Cyprian could plead his possession which was held by the First State Bank and Trust Company, the actual owner and tax debtor, so as to toll the prescriptive period and allow proof of nullity of the tax sale in the name of E. Davis on grounds other than previous payment of taxes is an interesting question, yet we are not required nor is it necessary to answer same.)

For the above and foregoing reasons we believe that there was a previous payment of taxes by the First State Bank and Trust Company prior to the tax sale to Warner in the name of E. Davis, and secondly, that were this not true plaintiffs’ demands would still have to be denied under the authority of Little v. Smith, supra, in that the subsequent payment within the period for redemption allowed by law amounted to redemption.

It is therefore ordered that the judgment of the District Court be reversed and that there now be judgment dismissing plaintiffs’ suit at their cost.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Andrew BRAZIL and Evelyn Wells Brazil, v. Roosevelt McCRAY.
    No. 4475.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.
    W. S. Rownd, Hammond, for appellants.
    Mary Purser, Amite, for appellee.
   LOTTINGER, Judge.

This is a tort action filed by husband and wife seeking damages suffered as the result of an altercation which occurred in a Negro saloon in the City of Hammond, Louisiana, on September 20, 1954. The petition alleges that on the aforesaid date the defendant, Roosevelt McCray, attacked the plaintiff Evelyn Wells Brazil with a shovel, inflicting serious injury to her head, back, left arm, hip and face, and in addition, filed charges against her for disturbing the peace. For the pain and suffering thus suffered together with the “malicious persecution” (as it is termed in the petition) and permanent disability this plaintiff seeks the sum of $15,000, while her husband seeks the sum of $224.80 which represents ambulance service, bus fare, doctor bills, medicine, the cost of a dental plate and the like.

In his answer the defendant averred that he was the proprietor of the establishment where the fracas arose, and, while admitting that he had struck the plaintiff Evelyn Wells Brazil, averred that he had done so only in defense of his person after she had attacked and cut him with a razor. The answer further set forth that as this plaintiff had entered his place of business in a drunken condition and had created a disturbance by using vile and profane language, he was entitled in reconvention to the sum of $500 for the mental pain caused by the disturbance in addition to $500 for the physical pain caused by the attack with the razor.

Following trial on the merits, judgment was rendered in favor of the plaintiff Andrew Brazil in the amount of $203.50 and in favor of the plaintiff Evelyn Wells Brazil in the amount of $500. The defendant has appealed and the plaintiff Evelyn Wells Brazil has answered the appeal asking that the judgment in her favor be increased to the sum of $1,790.

The trial judge rendered written reasons for judgment wherein he concluded that, in substance, the following is what transpired: Evelyn Brazil, together with two or three other women, went to the defendant’s place two or three times and on the last time became involved in an altercation with one Thelma Williams (also known as Thelma Knight). In an effort to quiet them down, another patron, one S. L. Campbell, bought a bottle of whiskey, and asked them to take a drink and.then leave. Shortly thereafter the argument was resumed and at this time the defendant approached the parties in order to stop it. The plaintiff then pulled a razor and slashed at the defendant with the result that he received some small cuts on his hand. He got her to the door and out of the establishment when she picked up the shovel and “made a pass” at him. He then took the shovel and proceeded to hit her with it.

The trial judge concluded further that the plaintiff Evelyn Wells Brazil was the aggressor and provoked whatever measures were taken by the defendant to evict her from his place of business. On the other hand, however, he felt that, considering that the defendant was a man, sober and weighing about 200 pounds while the plaintiff Evelyn Wells Brazil was a woman, drunk and weighing only about 120 pounds, the former used excessive measures in beating her with the shovel handle after she was outside of his place of business. He then held (following Broussard v. Citizen, La.App., 44 So.2d 347, and Livingston v. Steger, La.App., 58 So.2d 420) that while provocation may not justify an assault, it will be taken into consideration in mitigation of damages, and that here the conduct of the plaintiff was such as to mitigate the damages to which she was entitled to a considerable extent.

The evidence concerning Evelyn Wells Brazil’s sobriety and that concerning her assault with the razor is, as might be expected, most conflicting. A review of the record, however, fails to disclose any manifest error in the conclusions of the trial judge in these respects. This being the case it necessarily follows that while the defendant did go to an unnecessary extreme in beating the plaintiff Evelyn Wells Brazil, her conduct should be taken into consideration in assessing damages to which she may be entitled as was correctly held by the Lower Court.

The award to plaintiff Andrew Brazil is substantiated by the record and its correctness is not assailed by defendant. And, considering all the facts and circumstances, we cannot say that the award to plaintiff Evelyn Wells Brazil is either excessive or inadequate. She was administered a rather severe beating with the shovel handle, and while she apparently suffered no permanent disability, she was taken to a hospital for first aid treatment immediately afterward and later made four other trips to the hospital for treatment. There is no evidence to support the claim based on malicious prosecution, which was disallowed by the trial judge and which the plaintiffs have not raised on this appeal.

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

Judgment affirmed.


author: DREW, Justice.

text:
    Thomas FARREY, a minor, by his father and next friend, I. Lloyd Farrey, and I. Lloyd Farrey, individually, Appellants, v. Joseph BETTENDORF and Joseph R. Stein, Appellees (two cases).
    Supreme Court of Florida, Special Division B.
    June 5, 1957.
    Rehearing Denied Oct. 3, 1957.

      Nichols, Gaither, Green, Frates & Beck-ham, Miami, for appellants.
    Dixon, Dejarnette & Bradford, Miami,, for appellee Joseph Bettendorf.
    Blackwell, Walker & Gray, Miami, for appellee Joseph R. Stein.
   DREW, Justice.

Thomas Farrey, a minor, sustained injuries when the motor scooter on which he was riding as a passenger collided with a parked automobile. Through his father and next friend he sued appellee Bettendorf (father of the minor operator of the motor scooter) and Stein (the owner of the parked car) for compensatory and punitive damages arising out of the said accident. In the same cause the father of Far-rey sued both appellees for medical expenses and loss of services of the son.

The trial court dismissed the second amended complaint with prejudice as to Bettendorf and granted summary judgment as to Stein. Final judgments were entered as to both defendants, appeals were duly taken from both judgments and consol1 dated for our consideration.

Three points are presented on these consolidated appeals. First, the propriety of the entry of the summary judgment; second, whether Thomas Farrey, a minor on the way home from a regularly scheduled high school basketball game held in the high school gymnasium in the school in which he was a student, was a school child “being transported to or from schools or places of learning in this state” within the meaning of Sec. 320.59, Florida Statutes 1955, F.S.A., third, whether the second amended complaint failed to allege gross negligence within the meaning of Sec. 320.59.

We shall discuss and dispose of these propositions seriatim.

The second amended complaint alleged that at approximately 10:45 in the evening Thomas Farrey was riding as a passenger •on a motor scooter being operated by John Bettendorf, the son of the appellee Joseph Bettendorf; that said John Bettendorf negligently ran into Stein’s automobile which "“was negligently and/or illegally parked in the street so far from the curb so as to obstruct traffic and create a dangerous traffic hazard at the aforesaid time and place.” Affidavits of two police officers and photographs taken by one of them, together with an affidavit of the traffic maintenance supervisor for the City of Miami Beach were filed and served as provided by the rule in support of the motion for summary judgment. The affidavit of the police officer who took the photographs stated that he was called to the scene of the accident about 11:05 p. m. (some twenty minutes after the accident) and that the photographs attached to his affidavit and included in the record here fairly represented the position of Stein’s car in the street at the time he arrived on the scene. The affidavit of the other officer stated that when he arrived at the scene (about 11:05 p. m.) Stein’s car was parked less than twelve inches from the west side of the road and about 20 feet south of 56th street. The substance of the traffic maintenance supervisor’s affidavit was to the effect that there was no Miami Beach City ordinance and no “no parking signs” prohibiting the parking of vehicles at the place where Stein’s car was parked.

The location of Stein’s car at the time of the accident was not established by the affidavits. Stein’s counsel argued in his brief here that “The photographic exhibits clearly show the point of impact on the left rear of the vehicle and the debris and dust on the road which was knocked from under the left rear fender. If we disregard everything else, the photographs unmistakenly show that the Stein vehicle was in the same position from the time of impact until [the police officer] arrived on the scene to take the pictures.” Moreover it is said in the brief that the photographic exhibits establish:

“1. The damage to the left rear bumper of the Stein vehicle.
“2. The debris and dust on the road which was knocked from underneath the left rear bumper and fender by the impact.
“3. Scratches on the road where the motor scooter swerved to the left as alleged in the second amended complaint. (R. 35-40.)
“4. Damage to the right rear fender of the motor scooter.
“5. Police officer directing traffic.
“6. Other vehicles parked on both sides of the street.”

We cannot accept as facts — nor could the lower court properly have done so — the conclusions drawn by counsel for Stein from the photographs. The record does not connect the quoted conclusions with the operator of the motor scooter. If there is damage to the left rear bumper of the Stein vehicle, a conclusion not justified by an examination of the photograph, there is no showing that it was caused by the motor scooter nor is there any connection in this record between the debris and dust on the road with the motor scooter nor even for that matter with the Stein vehicle. The record fails to show that what counsel conceives to be dust or debris on the street is actually that. Nor can we find from the photograph any scratches on the street which are connected with the motor scooter nor does the record show that the dent on the motor scooter was caused by the accident. The photograph does show a police officer directing traffic but he was doing so admittedly at the time some twenty minutes at least following the event.

Rule 1.36(c), 1954 Rules of Civil Procedure, 30 F.S.A., provides that “The judgment or decree sought shall be rendered forthwith if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment * * * as a matter of law.” We have repeatedly held that the rule providing for summary judgments in appropriate instances was never intended to be a substitute for jury trials. Not only does the rule provide that the movant must show that there is no genuine issue as to any material fact but in addition thereto, that the moving party is entitled to a judgment as a matter of law. The courts have been necessarily cautious in those instances where the rule was invoked in tort actions because of the well-settled principle that the question of negligence is ordinarily one to be resolved by a jury from the particular facts and circumstances in each case. Where it has been invoked and in those instances where summary judgments have been approved, the burden on the moving party is to establish the essential requirements of the rule. It is only in those instances where all essential facts are beyond dispute and nothing remains but to determine whether the moving party is entitled to a judgment based on those facts that the summary proceeding may be invoked. Whitehall Realty Corp. v. Manufacturers Trust Company, Fla.1955, 81 So.2d 475, Williams v. City of Lake City, Fla. 1953, 62 So.2d 732, 733. The location of Stein’s car at the time of the accident is the material fact basically essential to support the questioned judgment. The complaint alleged that the car was “negligently and/or illegally parked at the time the accident occurred.” The location of the car some twenty minutes later sheds little or no light upon this material point unless it be shown — as admittedly it was not — that the location of the car had not been changed. It is, therefore, obvious that the affidavits of the police officers and the photographs do not place the essential facts beyond dispute. The missing links in the chain of evidence render the affidavits meaningless in the disposition of the motion.

It is contended by appellant that the affidavit of the traffic maintenance supervisor was a nullity for the reason that the facts therein contained would not be admissible in evidence as provided by Rule 1.36(c), 1954 Rules of Civil Procedure because he is not competent, so it is argued, to testify as to the matters related. We do not agree. Whether there were “no parking signs” at the location was a fact which any competent witness could establish. His assertion that no Miami Beach City ordinance prohibited the parking of vehicles where Stein’s vehicle was located is likewise evidence which we think is admissible. At least it was sufficient to require the production of a counter-affidavit establishing the existence of such an ordinance if in fact one was in effect. It was the duty of the plaintiff to do so, under such circumstances, for the purpose of resolving this issue of fact. If an ordinance existed which prohibited parking in this area, this issue could well and properly have been determined on the motion for summary judgment and at least that much of the case eliminated from the trial of the cause under the provisions of Rule 1.36(c), 1954 Rules of Civil Procedure. On the first point raised, therefore, the judgment as to Stein is reversed with leave to the lower court to consider anew the motion for summary judgment and to allow the filing of additional affidavits by both parties if in his judgment it should be desirable to secure a just, speedy and inexpensive determination of this action.

It is alleged in the second amended complaint :

“That at the time of the accident as heretofore described the said driver of the defendant’s motor scooter vehicle, John J. Bettendorf, a minor, and the minor plaintiff, Thomas Far-rey, a passenger on said vehicle, were students at St. Patrick’s High School at Miami Beach, Florida, and had attended a regularly scheduled High School Bastketball Game at their school’s gymnasium as they were encouraged to do by their school officials as a part of the school’s physical, mental and social training of its students; and after a deviation by a friend’s house and finding no one home, resumed their trip home from school when the accident occurred.”

Sec. 320.59, Florida Statutes 1955, F.S.A., provides that to enable a guest riding in a motor vehicle to recover from the owner or operator, he must prove that the injury received was occasioned by the gross negligence of the operator. This statute is usually referred to as the guest statute. It contains a proviso, however, “that nothing in this section shall apply to school children or other students being transported to or from schools or places of learning in this state.”

The Legislature of this State in its wisdom determined that the class of persons included in the proviso above quoted may recover damages for injuries received when riding as a guest in an automobile upon proof of simple negligence rather than gross negligence. We do not believe, however, the Legislature intended to extend the proviso to the extent of allowing recovery upon such degree of proof to any of the described class except those children or students being transported to or from regular school sessions conducted by such schools or places of learning. The office of a proviso in a statute is not to enlarge or extend the act of which section it is a part but rather to be a limitation or a restraint upon the language which the Legislature has employed. A proviso is to be construed strictly and limited to objects fairly within its terms, or to qualify or restrain its generality. Applying the rule of strict construction, we must conclude that the proviso was not intended to encompass a multitude of situations nor enlarge its operation to include classes of people or situations not reasonably contemplated nor intended to be included by that body of the government in which this exclusive jurisdiction rests. The common man would comprehend the limitation as being confined to those instances where, as occurs daily throughout the land, children and other students are transported to a school session in their respective schools or places of learning in the morning and returned later in the day from such school sessions to their respective abodes. Obviously it was not the purpose of the lawmakers to extend the proviso to extra-curricular functions such as basketball and football games, school parties, plays and an unknown and unlimited number of similar activities.

This question has not before been decided by us but we are impressed with the logic of the New York Court of Appeals in the recent case of People v. Harms, 1954, 308 N.Y. 35, 123 N.E.2d 627, 628, where that court dealt with somewhat similar provisions contained in a New York City ordinance. The ordinance prohibited minors of a designated age from driving at night without an older licensed driver “other than going to and from school.” The stipulated facts were startlingly similar to those involved here and disclosed that the minor involved was going to his home in the evening after a basketball game at his high school — a game in which the students were encouraged to attend by the school officials. In that case the court said:

“The word ‘school’ has a number of different shades of meaning, Webster’s Collegiate Dictionary, 5th Ed., p. 889. But when ‘school’ is used without the preceding article in a phrase like ‘going to school’ it means, according to the lexicographers, as well as the usage of the ‘man in the street’, a school session, Oxford Dictionary, Vol. 8, part 2, p. 213. We see no reason for giving it a different connotation here. The general scheme of paragraph b of subdivision 1 is to permit youngsters between sixteen and ■eighteen years of age, unaccompanied by elder licensees, to drive cars during daylight hours only. The exception as to going to and from school was added to allow a junior operator to drive an automobile during the hours of darkness, if his journey was to or from school sessions. * * *
“Much of appellant’s brief is an argument that recreational and social activities sponsored by a school and conducted on school premises are as much a part of the educational process as formal class instruction, etc. That may well be, and our decision does not challenge it. But policy questions are for the Legislature. Our task is merely to discover legislative intent. * * * ”

The logic and reasoning applied in the determination of that case is sound and we adopt it. We think this conclusion is in accord with the evident intent of the Florida Legislature.

The third point raised on this appeal requires an analysis of that portion of the second amended complaint which purports to allege gross negligence on the part of the operator of the motor scooter. Such complaint alleges:

“That the defendant, Joseph Betten-dorf, knowingly entrusted a motor vehicle to his fourteen-year old son who was known to the said defendant to be a reckless driver and too young to lawfully drive in the City of Miami Beach and that the above-mentioned gross negligence of John J. Bettendorf consisted of knowingly operating a motor scooter under the age of sixteen in violation of the laws of the City of Miami Beach at night when his light was dim, in a dark and unlighted street area at a speed in excess of the lawfully prescribed limit, although having been warned shortly prior to the accident by a school official to cease speeding and to drive prudently, and while driving at such excessive speed the minor John J. Bettendorf, turned his head around and talked with the minor plaintiff, thereby intentionally taking his eyes off the road and intentionally not looking where he was going. Upon turning around and looking where he was going the minor Bettendorf, on discovering that he was about to run into a parked car, deliberately swerved his vehicle to the left, thereby crushing and severely injuring the minor plaintiff.”

The essence of the charge of gross negligence is that the minor Bettendorf operated said motor scooter “in violation of the laws of the City of Miami Beach at night when his light was dim in a dark and unlighted street at a speed in excess of the lawfully prescribed limit * * * and while driving at such excessive speed the minor John J. Bettendorf turned his head around and talked with the minor plaintiff thereby intentionally taking his eyes off the road and intentionally not looking where he was going.” Whether the alleged course of conduct of the operator of the motor scooter constituted gross negligence is a close question. We are inclined to the view that the question is close enough to require a jury to settle the issue. This conclusion is supported by the proviso of the statute “that the question or issue of negligence, gross negligence, and willful or wanton misconduct * * * shall in all such cases be solely for the jury.” Intentionally not looking where one is going when operating a dangerous instrumentality is essentially the same as operating such dangerous instrumentality with the eyes of the operator closed. Obviously a momentary closing of the eyes or a momentary diversion of the sight from the road ahead to the back or one side would not constitute gross negligence but if such diversion from the way ahead is for a substantial length of time, such conduct would demonstrate an obvious lack of slight care which would bring it within the area of negligence defined as gross. Faircloth v. Hill, Fla. 1956, 85 So.2d 870. Moreover, the operator of such vehicle under such circumstances would be charged under the law with the knowledge that such conduct would probably and most likely result in injuries to persons or property along the way and such conduct would fall within the rule which brands as gross negligence a course of conduct where the danger to persons or property is clear and imminent. Bridges v. Spear, Fla.1955, 79 So.2d 679.

In Faircloth v. Hill, supra, 85 So.2d at page 872 we said:

“We have held that all of the circumstances of each case entering into the particular happening must be considered in order to determine whether liability exists. See Dexter v. Green, Fla.1951, 55 So.2d 548. In the same case we held that while each separate act involved in the drama might not in and of itself establish gross negligence, nevertheless, the entire course of conduct of the automobile driver under all of the circumstances and in the light of all of the related factors taken collectively might well establish the existence of gross negligence by pointing to the conclusion that the driver of the car knew or should have known that his conduct placed others in danger of grave injury and that under all of the circumstances he could be found guilty of a conscious indifference for the safety of others.”

Reverting to the proviso in Section 320.59 last quoted above, in the case of Cormier v. Williams, 1941, 148 Fla. 201, 4 So.2d 525, where we upheld the constitutionality of this statute in an attack made upon it on the ground that the requirement for submission of the issue of gross negligence to the jury was an attempted exercise of judicial powers by the Legislature, we said that the power remained in the court to pass upon the legal sufficiency of the evidence to establish gross negligence and in numerous cases we have held that it is within the power of this court to strike down a complaint when the facts alleged there show as a matter of law that the course of conduct charged did not constitute gross negligence. We think the sound rule and one which has been followed in the recent decisions of this Court is to resolve the doubt in the pleading stage in such manner as to place the issue before the jury for its determination. The line between gross and simple negligence is a difficult one to draw. Under our system of jurisprudence which recognizes the jury system as a basic concept in the administration of justice, we think the wise course to follow is one which leaves this question in the hands of the jury in those instances where the line is indistinct.

We, therefore, conclude as to the third point that the court erred in holding that the complaint failed to charge gross neg-licence and that the cause should be and hereby is reversed on this point.

Reversed in part and affirmed in part.

TERRELL, C. J., HOBSON, J., and STURGIS, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    ARMENIAN HOTEL OWNERS, Inc. and Diran Papazian, Appellants, John KULHANJIAN, individually, and as a Stockholder of Armenian Hotel Owners, Inc., suing on behalf of said corporation, Appellees.
    Supreme Court of Florida.
    Sept. 13, 1957.
    Anderson & Nadeau, Miami, for appellants.
    Daniel L. Ginsberg, Miami, for appellees.
   ROBERTS, Justice.

This cause is before the court on an interlocutory appeal taken by the appellant, Dirán Papazian, from an amended final decree entered by the lower court pursuant to the mandate of this court in Armenian Hotel Owners, Inc., v. Kulhanjian, 1957, 96 So.2d 146, 147. Jurisdiction to review the amended final decree on an interlocutory appeal under Florida Appellate Rule 4.2 is assumed by this court under the policy, hereby declared, that where a cause was pending in this cotirt prior to the effective date of revised Article V of the constitution, F.S.A., all orders, judgments or decrees entered by the lower court in such cause to effectuate the mandate of this court are reviewable by this court as the court of prior appellate jurisdiction.

By our original opinion on rehearing granted, we reversed the decree of the lower court awarding “damages” against Papazian in the amount of $26,000 and directed the lower court “to require Papazian to account for his trusteeship of the corporate assets and thereafter to enter such decree as in justice and equity may be required.” It was our intention, perhaps imperfectly expressed, to direct the court to vacate that portion of the decree assessing damages against Papazian and to require Papazian to account for his stewardship of the corporate assets, including all monies received by him in the operation of the leased premises, and the security deposit (whether in cash or by credit memorandum), less such expenditures by him for the benefit of the trust property as the Chancellor finds, in equity and good conscience, should be credited to his account.

The decree here reviewed did not properly follow the mandate of this court. Accordingly, it is reversed and the cause remanded for further proceedings.

THOMAS, Acting Chief Justice, and DREW, THORNAL and O’CONNELL, JJ., concur.


author: TERRELL, Chief Justice.

text:
    Harry Frank LONG, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Sept. 11, 1957.
    Lloyd Bass, Jacksonville, for appellant.
    Richard W. Ervin, Atty-. Gen., and David U. Tumin, Asst. Atty. Gen., for appellee.
   TERRELL, Chief Justice.

In March, 1955, appellant Harry Frank Long, John Malcolm Courson, Clyde Marvin Salis and John Paul Smith were indicted for murder in the first degree in that on January 1, 1954, they did kill or murder Thomas Kimball Coleman, Sr., in Duval County. The indictment was in one count and charged Harry Frank Long as principal in the first degree, while John Mai com Courson, Clyde Marvin Salis and John Paul Smith were charged as being principals in the second degree. On motion of the state and the other three defendants severance was granted as to Harry Frank Long. Long was adjudged insolvent and council was appointed to represent him. A plea of not guilty was entered and the trial resulted in a verdict and judgment of murder in the first degree for which the death penalty was imposed and to which this appeal was prosecuted.

It is first contended that the trial court committed error in granting motion of the state to dismiss appellant’s motion for new, trial.

It appears that the verdict was rendered May 28, 1955, the court granted appellant 15 days from date of the verdict within which to file his motion for new trial but it was not filed until June 13, 1955, one day after the expiration of the time allowed. Appellant contends that the last day happened to fall on Sunday and being so, since it was the custom to close the courthouse on Saturday and Sunday, the motion should have been properly filed on Monday, the day after the time allowed expired. Section 920.02, Florida Statutes, F.S.A., is the governing law and requires that motion for new 'trial be filed within four days or at such further time as the court may allow not to exceed 15 days after the verdict or the finding of the court. The trial court, relying on Farrior v. State, Fla., 76 So.2d 148, found that the time limit in the statute was absolute and being so the motion came too late and dismissed it. We adhere to the rule established by the Farrior case that the rules of civil procedure do not control in criminal cases, consequently there was no error.

The only other error assigned and argued goes to the sufficiency of the evidence to sustain the verdict of murder in the first degree.

Section 782.04, Florida Statutes, F.S.A., defines murder in the first degree as the unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery, burglary, the abominable and detestable crime against nature or kidnapping, and shall be punishable by death.

Summarizing the evidence as to conduct of appellant and his three companions on the night of the murder, the record shows that they -resided in or about Jacksonville, Florida; that they, traversed parts of the city on the evening of December 31, 1954, with robbery as their objective; the first place they robbed was a certain Shell filling station from which they secured $70 or $80; they proceeded on their way and late in the night came to the Texan Motel on U. S. Highway 1, north of Jacksonville. As they were passing said motel, appellant told the driver to pull in there and stop in front of the motel. As soon as the car stopped, he got out and.said that he would go in and get permission of the man in charge to use the restroom and that when he came out he would hold him up. He told his companions to stay in the car and keep the motor running. Appellant proceeded to the office of the motel, went to the restroom, soon came out when the shooting started between the appellant and the man in charge of the motel. Herschel C. Chesley had just driven up to the motel to secure a room and witnessed the shooting between appellant and Thomas Kimball Coleman, Sr., the owner of the motel. Chesley not only told of the shooting but said appellant left the motel after the shooting with pistol in hand and got in the automobile and left with his companions. Chesley also testified that he went in the motel immediately after appellant left, saw Coleman on the floor with several bullet holes in his shirt front and called the police.

On cross examination Chesley testified to the number of shots that were fired; that when appellant got in the car somebody said, “Let’s get away from here in a hurry.” He also testified that Coleman had no gun beside him when he was on the floor immediately after he was shot; he positively identified appellant as the man who left the motel after the shooting with a gun in his hand. His evidence also shows that appellant killed Coleman attempting to rob the motel.

Officer Russell E. Dowling, Deputy Sheriff, testified he and road patrol officer George Troeger arrived at the motel a few inmutes after the robbery, that Coleman was still alive when they arrived; that there were bullet holes in various parts of the room, and that Chesley was still there. He testified further a .32 caliber Beretta automatic pisitol was found near the right side of Coleman which was delivered to Deputy Sheriff Roy Sands. The testimony of Sands showed that this pistol contained six unfired cartridges in the clip, which usually holds eight or nine. Donald Coleman, the son of the victim, testified this gun was his, that he gave it to his father that night because it had been a long time since his father had “closed up” and he [Donald] always had the pistol with him when he closed the office at late hours. From all the evidence there is little doubt that there was an exchange of shots between Coleman and appellant.

Dr. Lombardo, who performed the autopsy, testified that there were five bullet wounds in the body of Coleman, three of them being in the lower chest and abdomen, any one of the latter three being sufficient to cause death. The doctor recovered two bullets from the body, one from the hand, one from the chest cavity near the spine, which were delivered to Deputy Sands on January 5. Deputy Sands personally recovered a bullet from the left hip of Coleman soon after his body was delivered to the morgue the morning of the robbery. Sands testified that one of the bullets received from the doctor was quite battered and deformed, while the other was “considerably more whole.”

Clyde Marvin Salis, John Malcolm Cour-son and John Paul Smith, appellant’s accomplices in the crime, told of meeting with appellant early in the evening, that they planned the robberies and that they were out looking for places to rob; that all appellant secured at the Texan Motel was a roll of one-half silver dollars amounting in all to $10, which they divided between them. They also testified that when Long returned to the car from the shooting he asked for more bullets, that he wanted to return to the motel and get more money. Donald Coleman testified he had put a roll of half dollars in the cash drawer which was missing after the robbery.

Appellant was not apprehended that night but a patrolman from Pensacola testified that he arrested him as result of a police lookout broadcast on January 18, 19S4, and found a pistol and zipper bag in his [appellant’s] car. The pistol and zipper bag were turned over to Deputy Sheriff Sands of Duval County and the zipper bag was found to contain a Smith and Wesson Blue Steel, .32 revolver. Sands took the three ■bullets recovered from the victim’s body and the two guns to Marion E. Williams, Special Agent for the Federal Bureau of Investigation, at Washington, who testified that he had received and examined the bul-, lets and revolvers to determine whether or not the bullets had in fact come from appellant’s gun. He concluded positively that two of the bullets had in fact been fired from appellant’s .32 caliber Smith and Wesson revolver and so testified. The third bullet was so battered that his only positive conclusion was that it was also .32 caliber and fired from a gun having the same characteristics as appellant’s. All this adds up to the fact that the bullets found in the body of deceased had been fired from appellant’s gun. All three of appellant’s companions testified that the guns found in appellant’s possession by the Pensacola patrolman were the ones he had and used on the night of the robbery.

In fine, the evidence of Chesley, the eyewitness, shows (1) that appellant committed the murder and robbery; (2) that the three co-defendants were constructively present waiting for appellant on the outside of the motel and fled with him after the robbery and murder were perfected; (3) the testimony of the FBI agent, though circumstantial, was most convincing and when considered with other evidence makes out a conclusive case of murder in the first degree.

The appellant interposed the defense of intoxication and lapse of memory but it was not convincing and the jury did not elect to believe it. He contends that at best he was guilty of no more than murder in the second degree. It is difficult to reconcile this 'contention with the record which shows conclusively that appellant planned with his confederates to rob, this being the second attempt that evening and both were successful. When read as a whole the evi-; dence is so conclusive that we have not attempted more than a brief review of it. There can be no doubt that appellant killed Coleman while attempting to rob his motel, that the robbery was deliberately planned and executed by appellant and his confederates.

We find no error so the judgment must be, and is hereby, affirmed.

Affirmed.

THOMAS, HOBSON, ROBERTS, THORNAL and O’CONNELL, JJ., and LOPEZ, Circuit Judge, concur.


author: PER CURIAM. /s/ ELWYN THOMAS Elwyn Thomas Acting Chief Justice /s/ B. K. ROBERTS B. K. Roberts /s/ E. HARRIS DREW E. Harris Drew /s/ CAMPBELL THORNAL Campbell Thornal /s/ STEPHEN C. O’CONNELL Stephen C. O’Connell Justices.

text:
    In re ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida.
    Sept. 10, 1957.
   PER CURIAM.

Supreme Court of Florida Tallahassee
September 9, 1957
The Honorable LeRoy Collins Governor of the State of Florida
Dear Sir:—
We have your request of August 28, 1957, for our opinion, reading as follows:
“August 28, 1957
“To the Honorable Chief Justice and the Justices of the Supreme Court of Florida Supreme Court Building Tallahassee, Florida
“Sirs:
“During the 1955 biennial session of the Florida Legislature, there was adopted Senate Concurrent Resolution No. 555, which provided for the establishment of the Florida Constitution Advisory Commission. This Commission was charged with the duty of submitting to the Govern- or and to the members mf the Legislature-prior to the 1957 regular session a report and recommendations for revision of the' Constitution of the State, which duty the-Commission performed most competently.
“In the course of the 1957 session, committees of the House and Senate considered the work of the Commission and reported resolutions proposing revision of the various articles of the constitution to their respective houses. There was not, however, sufficient time for the proper consideration of these proposals during the regular session, even though the same was extended under the provisions of Section 2 of Article III of our State Constitution [F.S.A.].
“Before the expiration of such extension, the Legislature adopted Senate Concurrent Resolution No. 1414, which provided for the appointment of an interim committee, to he composed of five members of the Senate appointed by the President thereof and five members of the House of Representatives appointed by the Speaker thereof, who were given the duty of presenting a revised constitution to a special session of the Legislature. The same resolution requested me, as Governor, to call such a session not earlier than September 15 and not later than December 1 of this year.
“This committee has met and, in addition to taking action upon various proposed new articles of the Constitution, has voted to recommend to the Legislature that each resolution proposing a new article include a provision that none of the resolutions take effect unless all in the series of resolutions, making up a complete new constitution, are ratified by the electors. Such a provision was contained in each of the resolutions introduced by the House Committee on Constitutional Amendments during the 1957 regular session. Each such provision enumerated all of the other resolutions in the series and stated:
“ ‘It is recognized that under the provisions of the constitution any revision or ániendment thereof may relate to one or more subjects, but that not more than one article thereof may be amended or revised pursuant to the provisions’ of any single joint resolution of - the legislature.
“ ‘The interlocking details and the frariie-work of the constitutional provisions’ contained in the within mentioned series of joint resolutions is such that it would be impracticable to have the provisions of either of the proposed changes in the constitution become operative unless all of them do so, therefore: The within proposal for revision of the constitution shall take effect only in the event the electors ratify each and every one of the proposals for revision of the constitution as contained in the within mentioned series of joint resolutions; and in the event of such ratification the constitutional revision provided for in this resolution shall take effect July 1, 1959.
“ ‘Ballots for voting upon the subject shall be prepared in such manner that each elector may by a single vote cast his vote for or against ratification of all of the within mentioned series of proposals relating to revision of the state constitution, and also in such manner that each elector may, in the alternative, cast his vote for or against ratification of any or either of them.’
“In providing for the establishment of the Constitution Advisory Commission (SCR No. 555, regular session of 1955), the Legislature found our State should have ‘a well ordered and properly arranged constitution * * * so framed and projected as to provide a simple, direct and easily understandable reference to the basic law of the land’ and further that, ‘during the 70 years since adoption of our State Constitution, the economic and social conditions of the State of Florida have gone through an evolution and change unparalleled in any like time in our history.’
“Constitutional revision, therefore, is a matter of primary and urgent public concern and-it is my desire to convene a special session of the Legislature, pursuant to the provisions of Section 8 of Article IV, and in accordance with the aforesaid legislative request for such a session. In view of the interim committee’s recommendation that ratification of each of the series of joint resolutions be made contingent upon ratification of all, which recommendation I am now inclined to endorse upon the calling of a special session, it appears likely that the Legislature would proceed to consider revision under such an arrangement, which, if later found to be unconstitutional would result in the nullification of the work of the Constitution Advisory Commission and of the Legislature. Thus the expenses which have already been incurred in this work and which would be incurred in the special session and in the submitting of the revised articles to the electors would be for nought and a waste of public funds would result. Or, it is possible that the revised constitution, if valid at all, would be left in a state of confusion since conflicts or omissions could very well result from rejection by the electors of certain proposed articles and approval of others.
“I, therefore, have the honor to request of you, pursuant to Section 13 of Article IV of the Constitution, your opinion in writing as to the validity of the interdependent arrangement which will be projected in language similar to that quoted above from the resolutions introduced during the 1957 regular session by the House Committee on Constitutional Amendments.
“Respectfully,
/s/ LeRoy Collins
Governor”

Sympathetic as we are with your effort, in good faith, to avoid the complexities of the situation hypothesized by you, as detailed in your letter, we have sought in vain to find some way in which the question presented can be brought within the orbit of our jurisdiction under Sec. 13 of Article 4 of the Constitution. As you know, our authority to give advisory opinions is limited to the interpretation of any portion of the Constitution upon any question affecting your executive powers and duties. Since it does not appear that the exercise of an executive power or duty is or will be affected by the requested interpretation of the legislative action proposed, we are compelled, under numerous precedents of this court, to decline to answer your request. See Advisory Opinion to the Governor, 1911, 61 Fla. 1, 55 So. 460; In re Advisory Opinion to the Governor, 1912, 64 Fla. 1, 59 So. 778; In re Advisory Opinion to the Governor, 1931, 103 Fla. 668, 137 So. 881.

Respectfully,

/s/ ELWYN THOMAS Elwyn Thomas Acting Chief Justice

/s/ B. K. ROBERTS B. K. Roberts

/s/ E. HARRIS DREW E. Harris Drew

/s/ CAMPBELL THORNAL Campbell Thornal

/s/ STEPHEN C. O’CONNELL Stephen C. O’Connell Justices.


author: KNOTT, Circuit Judge.

text:
    Ray E. GREEN, Successor In Office to C. M. Gay, Comptroller of the State of Florida, resigned, Appellant, v. Leon E. FORBES, as Assessor of Taxes for Duval County, State of Florida, Appellee.
    Supreme Court of Florida.
    Sept. 11, 1957.

      Richard W. Ervin, Atty. Gen., T. Paine Kelly, Asst. Atty. Gen., and Lewis H. Tribble, Tallahassee, for appellant.
    Truett & Watkins, Tallahassee, and Walter C. Shea, Jacksonville, for appellee.
   KNOTT, Circuit Judge.

This appeal raises the question whether a foreign corporation which does business, and owns intangible personal property, in several counties of this state should file an intangible tax return in each county within which it owns intangibles

Ch. 199.08, Florida Statutes, F.S.A., provides as follows:

“Intangible personal property shall be assessed in the county where the taxpayer resides or has his usual domicile. In case of corporations such intangible personal property tax returns shall be assessed and levied in the county in which the corporation has its principal office, or place of business.”

Lacking a clearly expressed legislative intent to the contrary, the statutory language must be deemed to include foreign as well as domestic corporations. Therefore, a foreign corporation which is doing business and owns intangibles in several counties of the state complies with the requirement of the statute when it files in the county wherein is located its principal office or place of business a single return of all its intangibles within the state.

As observed by the learned Chancellor below, in granting motion for summary decree:

“In the case of a natural person, it is clear that the situs of the residence of the owner is the place of taxation. This is true, although a citizen of Leon County may own no intangibles having a business situs in Leon County, but may own many thousand of dollars worth of such property located in Du-val, Dade or Hillsboro County. In the case of a domestic corporation, the principal office is the situs of the taxation of intangibles no matter where they may be located in the state. For example, ‘A’ may reside in Leon County, and have money on deposit and stocks and bonds in a lock box in a bank in Jacksonville. ‘A, Inc.,’ may have its principal place of business in Leon County and may have notes secured by chattel mortgages on property in Dade County, and the notes themselves may be kept in a lock box in a Miami Bank. In each instance the police of. another county protect the property, and the courts of another, county may be called upon to enforce the owner’s rights. But the property is assessed and the taxes must be paid in Leon County. There may be elements of injustice in this. If so, it is a legislative and not a judicial problem. The law is clear and the courts and administrative officers cannot change it.”

The decree appealed from should be and is hereby—

Affirmed.

THOMAS, Acting Chief Justice, and ROBERTS, DREW and THORNAL, JJ., concur.


author: PER CURIAM. ELWYN THOMAS, Acting Chief Justice, B. K. ROBERTS, E. HARRIS DREW, CAMPBELL THORNAL, STEPHEN C. O’CONNELL, Justices.

text:
    In re ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida.
    Sept. 11, 1957.
   PER CURIAM.

Supreme Court of Florida Tallahassee

September 11, 1957

Honorable LeRoy Collins

Governor of Florida

State Capitol

Tallahassee, Florida

Dear Sir:

We have your letter of September 5, 1957, which, omitting formal parts, reads as follows:

“Under section 6, article IV, of the state constitution [F.S.A.], I am directed to take care that the laws of this state are faithfully executed; and under section 13 of said article IV, I am authorized to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the state constitution concerning any question affecting my executive duties and powers.

“In 1955 the Legislature passed Committee Substitute for House Joint Resolution No. 810. This‘resolution proposed the revision of article V of the constitution of the State of Florida relating to the Judicial Department of the Government. The constitutional amendments proposed therein were adopted at the General Election held on November 6, 1956.

“Section 9 of article V of the state constitution, as amended, relates to criminal courts of record. The second unnumbered paragraph of subsection (a) of said section provides:

“ ‘In any county having a population in excess of 125,000 and not more than 250,000, according to the last decennial federal census, or census authorized by the legislature and paid for by the county, the legislature may provide for an additional judge of the criminal court of record for such county, provided that any law having for its purpose the creating of an additional judge of said court in such county shall not become effective unless ratified by a majority of the participating voters of such county in an election presenting the same for approval or rejection. In any county having a population of more than 250,000 according to such census, the legislature may, without referendum thereon, provide for one additional county judge for each additional 250,000 of population or major fraction thereof.’ (Emphasis Supplied)
“Similar provisions of the second unnumbered paragraph of subsection 7(b) of said article V, relate to county judges, and the concluding sentence thereof: ‘In any county having a population of more than two hundred and fifty thousand according to such census, the legislature may, without referendum thereon, provide for one additional county judge for each additional 250,000 of population or major fraction thereof.’ (Emphasis Supplied)
“The original Joint Resolution No. 810 was introduced in the House of Representatives on April 29, 1955, as is shown from the Journal of that day. The provisions relating to the judges of the criminal court of record here under consideration do not appear in that text.
“In 1957 the Legislature passed Chapter 57-882 which purports to he an enabling act creating and establishing the offices of two additional judges in and for the criminal court of record as provided for in said article V of the constitution.
“Sections 1 and 2 of Chapter 57-882, Laws of Florida, 1957, are quoted:
“ ‘Section 1. Judges. — There is hereby created and established the offices of two (2) additional judges in and for the criminal court of record, as provided for by Article V Constitution of Florida, in each county of this state having a population of more than four hundred fifty thousand (450,000), by the latest statewide official census and having a population in excess of seven hundred thousand (700,000) according to any census heretofore or hereafter authorized by the legislature.
“ ‘Section 2. Appointment. — As soon as practical after the effective date of this act the governor shall appoint two (2) qualified persons to the offices created by this act, whose term shall expire on the first Tuesday after the first Monday in January, 1959.’

“Chapter 57-882 has further provisions relating to said courts and the judges thereof, concluding with Section 13, which provides : ‘This act shall take effect upon the first day of October, 1957.’

“In light of the above, I am uncertain as to the proper answer to the following question affecting my executive powers and duties under the state constitution, and respectfully require the opinion of the Justices of the Supreme Court with respect thereto:

“In view of the language of section 9 (a), article V of the constitution, can I lawfully appoint the two additional judges provided for by Chapter 57-882, Laws of Florida, 1957?”

We understand your question as requesting an interpretation of Article V, section 9(a) of the Florida Constitution. More particularly, it requests an interpretation of the last sentence in section 9 (a) : “In any county having a population of more than 250,000 according to such census, the legislature may, without referendum thereon, provide for one additional county judge for each additional 250,000 of population or major fraction thereof.” (Emphasis supplied.)

The sentence quoted above should be read as if the term, “county,” modifying, “judge,” were stricken and the term, “of the criminal court of record,” inserted following the word, “judge.”

We arrive at this conclusion because we must assume that every sentence of a constitution is designed to have some effect. If the term, “county,” were accepted to modify, “judge,” in the questioned sentence, the sentence could serve no useful purpose, since the last sentence in Article V, section 7(h) (which provides for county judges) is exactly the same. Article V, section 9, which contains the questioned sentence, deals solely with criminal courts of record, if the anomalous reference to a county judge is stricken. Bearing in mind the extreme caution which must accompany any construction of the organic law of this State, it is our opinion that in the context of Article V, section 9, the questioned sentence provides for additional judges of the criminal court of record.

Respectfully,

ELWYN THOMAS,

Acting Chief Justice,

B. K. ROBERTS,

E. HARRIS DREW,

CAMPBELL THORNAL,

STEPHEN C. O’CONNELL, Justices.


author: PER CURIAM. ALLEN, Judge.

text:
    Margaret LINGUANTI, Appellant, v. Anthony LINGUANTI, Appellee.
    No. 93.
    District Court of Appeal, Florida Second District.
    Sept. 3, 1957.
    Rehearing Denied Sept. 25, 1957.
    Beigel & Teitelman, Miami, for appellant.
    Boone & Smith, Venice, for appellee.
   PER CURIAM.

This cause came on to be heard, on the motion of Appellee to quash the appeal or affirm the judgment appealed from and it appearing to the Court from an examination of the record that said motion to affirm 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 and Adjudged and Decreed that the motion to affirm the judgment appealed from be and the same is hereby granted and the judgment is

Affirmed.

KANNER, C. J., and PLEUS and ALLEN, JJ., concur.

On Petition for Rehearing

ALLEN, Judge.

This court entered an order Tuesday, September 3, 1957, granting the motion of the appellee to affirm an order of the lower court entered the 22nd day of August, 1957, which denied the petition of the defendant below, appellant here, to stay the proceedings in the lower court and which stated:

“That the date for final hearing previously set herein for Monday and Tuesday, August 26 and August 27, 1957, before The Honorable John D. Justice, Circuit Judge, at the Court House in Sarasota, Florida, shall be adhered to by the parties to this action.”

The defendant, Margaret Linguanti, entered her interlocutory appeal from said interlocutory order.

The appellee filed his motion to quash the appeal or affirm the order of the lower court on the 29th day of August, 1957, and gave notice to the appellant that the motion would be called up for hearing on Tuesday, September 3, 1957. The parties were advised by this court that the motion would be considered without oral argument. The court on September 3, 1957 granted the motion to affirm the lower court.

The question presented by the interlocutory appeal was whether or not the Judge below abused his discretion in refusing to grant a supersedeas on the appeal.

The plaintiff below, appellee here, filed a divorce complaint against his wife in the Twelfth Judicial Circuit. The appellant, defendant below, prior to answering the complaint, filed a suit in the State of New York for a divorce against her husband, the plaintiff in the Florida action. Subsequently, she filed an answer to the Florida action and was allowed counsel fees and! suit money by an order of the court, July 29, 1957, and in the same order the court below set a date for final hearing for the 26th and 27th of August, 1957. The defendant in the Florida action and the plaintiff in the New York action requested the New York trial court to issue an injunction restraining her husband from proceeding with the Florida action. The trial court declined to issue a restraining order and an appeal was taken by the defendant in the Florida action from such order declining the issue of the restraining order and the .appellate court in New York granted such a restraining order.

On August 16, 1957, the defendant, appellant here, filed a petition to stay proceedings in the Florida action pending an appeal in New York from an order of the New York court denying an injunction to restrain further proceedings in the Florida action. The court below refused to stay the Florida proceedings.

It is apparent that the purpose of the plaintiff’s interlocutory appeal is to secure a stay of the Florida proceedings until her action in New York is completed, thus giving the New York court time to decide the case filed in that State before the Florida court enters a decision in the Florida case, which was initiated before the New York action, and where the Florida court had jurisdiction of the subject matter and the parties.

Florida Appellate Rule 5.1, effective July 1, 1957, provides:

“When it shall be made to appear to the lower court that an appeal to review an interlocutory order or decree in equity has been or is about to be taken to the court, the lower court may, in its discretion, grant a super-sedeas or stay upon appellant’s giving a good and sufficient bond conditional that such appeal shall be taken within ten days, and to pay all costs, damages and expenses occasioned by reason of .the stay of proceedings, together with such other and further conditions as may be fixed by the lower court in the event the order or judgment of which a review is sought, is not quashed, modified or reversed.”

Rule 5.10 of the Florida Appellate Rules provides:

“If the lower court refuses to grant a supersede.as or stay, or if any bond required by said court is deemed to be arbitrary or unreasonable or such as is for any other reason not proper, the .order of refusal, or the order fixing the terms and conditions of the bond, may be reviewed and over-ruled, modified or discharged by the Court on motion, provided reasonable notice of the hearing on said motion is given to the adverse party.”

, It was apparent to this court on a review of the record that the Judge below had not abused his discretion in refusing to stay the proceedings below or to grant supersedeas on this interlocutory appeal, and the motion of the appellee to affirm was granted.

The appellant vigorously contends that this court acted too soon on the motion to affirm, since there was1 less than 5 days between the filing of the motion and the date of hearing of said cause.

The order granting the motion to affirm was entered September 3, 1957. If, in fact, there were not 5 days intervening between the notice of hearing and the date of the court’s order, the appellant, if she needed additional time, could have petitioned the court for delay in hearing the motion, which she failed to do. Notwithstanding this court’s order of affirmance, the appellant, through her attorney, appeared personally before this court on September 10, 1957 at Orlando, Florida, where the court was at that time hearing oral arguments, and presented to the court and argued a motion for supersedeas in the following words:

“The appellant respectfully shows unto this Honorable Court that she has filed in a cause therein pending in the Circuit Court, Twelfth Judicial Circuit, Glades County, Florida, in Chancery, Case No. 1037, her Notice of Appeal to'this Honorable Court from the Interlocutory Order heretofore rendered therein and that she desires said Appeal to operate as a Superse-deas and thereupon had applied to -the Lower Court pursuant to Rule 5.1 of Florida Rules of Appellate Procedure for a Supersedeas which was denied by the Lower Court and she now applies to this Court for an order entering a supersedeas in order that the Appeal may operate as a Supersedeas pursuant to Rule 5.10 of Florida Rules of Appellate Procedure.”

The above motion presented the identical question that is the subject matter of this appeal.

This court, after argument of appellant’s counsel, entered its. .order denying the appellant’s motion for supersedeas in this cause.

. We believe that no good.purpose would be 'served by granting the appellant’s petition for rehearing.

The petition for reheáring is denied and the order of affirmance is. adhered to.

KANNER, C. J., and PLEUS, J., concur. ’ • ;


author: TATE, Judge.

text:
    Louis PIERRE et ux., Plaintiffs-Appellants, v. Clifford E. GALLOWAY et al., Defendants-Appellees.
    No. 4471.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Denied Noy. 12, 1957.
    Mery Purser and E. H. Bostick, Jr., Amite, for appellant.
    Reid & Reid, Hammond, for appellee.
   TATE, Judge.

About 2:30 P. M. on the sunny afternoon of Sunday, September 12, 1954, Cornelius Pierre was killed in a motor vehicle accident. This suit is brought by his parents for the damages occasioned by the death of their unmarried major son. The co-defendants are the owner and liability insurer of a dump truck driven by Rober Baham, the other vehicle involved in the head-on collision between it and the decedent’s 1948 Chevrolet car.

After trial, the District Court dismissed this suit on the ground that the fault of the decedent was a proximate cause of the accident.

Primarily, this appeal raises a factual question. The District Court found that the accident occurred because the decedent, rounding a curve on a gravel road, had lost control of his vehicle and skidded into defendants’ opposite-bound truck in its correct and decedent’s left-hand (or wrong) lane. If so, decedent’s negligence was a proximate cause of the accident, LSA-R.S. 32:231, 32:232, 32:233 Subd. C, Noland v. Liberty Mutual Ins. Co., 232 La. 569, 94 So. 2d 671, Mershon v. Cutrer, La.App., 85 So. 2d 639, and plaintiffs’ recovery is barred.

Able counsel for plaintiffs-appellants argue that, instead, the accident was occa■sioned by the defendants’ truck’s encroachment, at high speed, onto the decedent’s .■lane of traffic; rather than contrariwise, as found by the trial court.

The District Court’s determination was reached by accepting as correct the testimony of defendants’ truck driver and his wife, his passenger, as corroborated to some extent by the physical situation after the accident of the truck in its right-hand ditch and the decedent’s demolished car athwart the middle of the road. Partly on the basis •of a visitation to the scene in company of ■counsel herein, the District Court discounted as mistaken the testimony of the ■only other eyewitness to the accident testifying, who did so on behalf of plaintiff, that from one-fourth mile away, at an angle, she had been able to see and notice prior to the accident the position of the vehicles involved in the collision relative to their respective lanes.

We are unable to hold that in so accepting and rejecting testimony the District Court committed error. And the trial court’s factual determinations should not be disturbed on review unless manifestly erroneous, Jones v. Jones, 232 La. 102, 93 So.2d 917, especially when based upon an evaluation of the credibility of opposing witnesses, Fouquier v. Fouquier, 231 La. 430, 91 So.2d 591.

The several witnesses who testified on behalf of plaintiffs to the effect that at various distances away from the site' of the accident, the defendants’ truck was proceeding at a speed of 60 mph, while the decedent’s car was travelling at 35-40 mph, are .impressive; and, if accepted as accurate by the District Court, may have afforded some grounds to discount the credibility of the Bahams. But this testimony does not present on appeal a compelling reason to discard, as manifestly erroneous, the District Court’s determination that at the subsequent time and different place of the accident, the decedent was proceeding around the curve at such a rate of speed, in the lane of traffic reserved for opposing traffic such as defendants’ truck, that upon suddenly perceiving said truck in his path the decedent lost control of his own vehicle, ■precipitating the fatal accident.

Likewise, the appellants’ argument that the defendant’s failure to produce as a witness the other adult passenger in . the truck at the time of the accident should raise a strong presumption that his testimony would have been unfavorable to the defendant, not only overlooks that such presumption arising from the failure to produce the witness is not sufficient to out- ■ weigh positive sworn testimony of eyewitnesses accepted as true as in this case by the trial court, Franz v. Shushan, 14 La. App. 465, 131 So. 591, cf., Turner v. Southern Industries Co., La.App. 1 Cir., 88 So.2d 238 (syllabus 4). Such presumption seems inapplicable under the facts of this case, where the defendants had the witness available to testify on the date the case was initially set for 'trial, but were refused a continuance for such purpose when- said witness failed to appear at a subsequent date to which the trial was continued; and when their request to have the note of evidence reopened to take said testimony, when plaintiffs raised the issue in their trial brief, was refused.

For the above and foregoing reasons, the judgment dismissing plaintiffs’ suit is affirmed. •' ‘ ■’

Affirmed.


text:
    Lillian WILLIS v. The STRUCTURAL WATERPROOFING CORPORATION et al.
    No. 4457.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.
    Joel B. Dickinson, Baton Rouge, for appellant. Major & Ponder, Baton Rouge, for intervenor.
    Dale, Richardson & Dale, Baton Rouge, for appellees.
   LOTTINGER, Judge.

Petitioner, Lillian Willis, filed suit for damages resulting when she slipped and fell down a flight of stairs in the State Capitol Building at Baton Rouge, Louisiana. The defendant is The Structural Waterproofing Corporation and its insurer United States Fidelity and Guaranty Company. Maryland Casualty Company, the compensation insurer for the State of Louisiana, Division of Buildings, intervened and asked for payment of funds expended by it as medical expenses for the petitioner, no compensation payments had been made by the intervenor. The Lower Court awarded judgment in favor of defendant and dismissed petitioner’s suit. The petitioner has taken this appeal.

The facts show that for several years the petitioner had worked for the State of Louisiana. Her duties placed her in the State Capitol Building as a maid to clean water fountains, dust furniture, inspect rest rooms and to perform other similar cleaning jobs.

Several months prior to the alleged accident the Structural Waterproofing Corporation contracted to clean and waterproof the Capitol Building. The cleaning of the building was to be performed by sandblasting, which operation consisted of forcing fine grain sand under pressure against the outer walls of the building and thereby removing stains and discoloration. Up to the sixth floor the sand which had been used in the mechanism had been pulled up on the outside of the building but from the sixth floor up, because of the design of the building, the consent of the State authorities was obtained to carry the sand up in elevators. The sand would then be carried in buckets out a window and to the mechanism used for sandblasting.

The evidence shows that during the operation some sand was spilled on the floor of the building and that sand also entered the building through crevices and cracks because of the tremendous pressure under which it is discharged from the sandblasting machinery.

On April 23, 1955, while engaged in her cleaning activities, the petitioner slipped on the stairway between the twelfth and thirteenth floors and fell half the distance between said floors to a landing. She claims that as a result of said fall she received various injuries to her arm and back, and sues for damages in the amount of $20,000.

The defendant answered claiming that it was guilty of no negligence and in the alternative claimed that the petitioner was guilty of contributory negligence. The in-tervenor seeks the refund of $100 paid by it as medical expenses. The Lower Court gave judgment for defendant and the petitioner has appealed.

Mr. Warren Holden, the Superintendent of the State Capitol Building, at the time of the accident testified on behalf of petitioner. He testified that during the operation of sandblasting there was a fine film of sand on about every floor of the building. He stated that it was impossible to keep it out of the building. He further stated that the employees had safety meetings every month, and that they had been warned to use caution because of the sandy conditions. Mr. Holden testified that he went to the gcene of the alleged accident immediately after it happened- and that there was some gand present, however, he did not see any water on the stairs. From Mr. Holden’s testimony it does not appear that there was any more sand present at this particular spot than there was in other places in the building.

The petitioner herself testified that she was well acqainted with the condition of the building. She stated that she saw sand on the floor, that she knew sand was all over the building, and that she had been careful to exercise caution because of the sandy condition. According to petitioner, the whole place was full of sand and water.

There was several other witnesses who testified as to the condition of the building. The work had started some seven months prior to the time of the alleged accident, and all persons working in the building were well acquainted with the situation. Several of the witnesses testified that they did not feel that it was possible to keep sand from entering the building. The superintendent of the building stated that in his opinion the contract was being performed in a prudent and workmanlike manner.

The Lower Court held that the petitioner failed to prove any negligence on the part of the defendant. The Lower Court also stated that if the defendant was guilty of any degree of negligence, then petitioner must be held contributorily negligent.

Under the circumstances of the case, we fully agree with the conclusion of the Lower Court. The building superintendent, as well as others, testified that the work was being performed in a prudent manner. The building superintendent further testified that he inspected the scene of the accident and saw no water present, although he did see a fine mist of sand which was present all over the building. The petitioner herself testified that she was well acquainted with the situation and had been very careful to exercise due caution because she did not want to hurt herself. Although it might well have been the sandy condition to cause petitioner to slip, we do not feel that she was exercising due caution at the time.

We fail to find any error in the judgment of the Lower Court and its judgment will be affirmed. All costs of this appeal to be paid by petitioner.

Judgment affirmed.


author: ELLIS, Judge.

text:
    FIDELITY & CASUALTY CO. OF NEW YORK v. William T. CALLICOTT.
    No. 4437.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Denied Nov. 12, 1957.
    W. Frank Gladney, C. Alvin Tyler, Baton Rouge, for appellant.
    Richard PI. Kilbourne, Clinton, for appel-lee.
   ELLIS, Judge.

This suit seeks the recovery of a balance allegedly due by the defendant on the premium of a fleet insurance policy. Originally an appeal herein was dismissed since an order of appeal was issued before judgment was signed. See La.App., 83 So.2d 671. Proper appeal was taken from a judgment of the lower Court sustaining an exception of no cause and no right of action when this Court remanded the cause for trial upon the merits. See 88 So.2d 724. This trial resulted in a judgment in favor of the defendant and the plaintiff has appealed.

The policy forming the basis of this suit was obtained under the Louisiana Assigned Risk Plan through which sub-standard risks can be covered at rates especially fixed by the Casualty and Surety Insurance Division of the Louisiana Rating Commission. See LSA-R.S. 22:1401 et seq.

In order to obtain coverage through this plan the insured must execute an application in which he agrees to be governed by the rules of the Commission appertaining to assigned risks. The policy so provides.

Attached to and forming part of the agreement or contract between the parties is an “Automatic Coverage Endorsement.” Under its terms the insurer provided liability coverage “to all automobiles acquired by the Insured during the Policy period and used for business purposes”, as well as to the fleet of motor vehicles owned by defendant insured at the time the policy was issued. This endorsement further provided that the defendant insured must maintain a record of additions to and deletions from the fleet of automobiles insured, and that for the “Premium”: “The insured shall pay premiums computed on the amount of liability under such Policy at its inception date and the Company shall annually thereafter ■compute the amount of premium earned at the end of such period. Full settlement of the net amount of additional or return premium shown to be due at the end of •each such period shall be immediately due and payable.”

In holding the plaintiff was entitled to a trial upon the merits, 88 So.2d 727, we decided such a policy provision valid, citing American Employers’ Insurance Co. v. .Furr, La.App., 5 So.2d 343.

Accordingly, an audit of the defendant’s insurance account was made and on November 13, 19S3, about 4 months after the policy expired, the plaintiff rendered an invoice to the defendant showing an additional premium due of $488.14, the amount .sought to be recovered in this suit.

The reason for the additional charge was that the original rule of the Louisiana Assigned Risk Plan is that policies issued thereunder must bear a flat additional charge of 25%. When the policy was originally issued such a charge was made. When the experience record of the insured was received by the Louisiana Rating Commission, which was after the policy was issued, it assessed to the defendant an additional 60% surcharge. The defendant was so notified and this last charge is shown in an endorsement added to the policy and which of course was retroactive to its effective date. The Rating Commission made no mention of the 25% charge and when the plaintiff assessed the 60% additional charge it entered a rebate of the 25% charge, being under the impression the last surcharge replaced the original flat surcharge of 25%. Before the final premium was determined by the audit the Louisiana Rating Commission notified the plaintiff it had in no way removed or waived the original flat 25% surcharge; that the 60% surcharge was in addition to the 25%.

Upon the trial of the case on the merits the defendant objected to the introduction of any evidence as to any premium due other than as is stipulated in an endorsement upon the policy made about September 5, 1952, when the plaintiff rebated the flat 25% surcharge, and which endorsement reads as follows:

“It is agreed that a 60% debit has been promulgated on this risk. The 25% additional surcharge is hereby eliminated and a 60%. debit applies to contract. This entails additional premiums of $229.02 bodily injury, and $222.-90 property damage.
“On account of the foregoing, the additional premium is $451.92.”

The defendant maintains such evidence would enlarge the pleadings and the trial Court sustained his objection allowing the evidence to be taken subject to it.

It is further maintained by the defendant that if an error was made the plaintiff would have to bring a suit to reform, amend or change the policy and plead error; that under the pleadings it could not introduce evidence as to the erroneous charge.

The plaintiff contends the allegations of its petition are broad enough to permit proof of the true and legal applicable premium rate assessed by the Louisiana Rating Commission. And further, that the defendant admitted in his answer “that a purported audit shows a balance due of $488.-14, which said balance is due solely and entirely to an increase in the premium rate charged defendant after the 'expiration date of the policy and without any knowledge or consent on the part of the defendant whatsoever.”

There is an 'article in the petition referring to the endorsement quoted hereinabove providing the premium was to be computed from an audit of the books of the insured by the Insurance Company and that the actual earned premium should thereafter be computed at the end of each annual period and that full settlement of the net amount of the additional or return premium shown to be due at the end of such period shall be immediately then due and payable. This endorsement was made part of plaintiff’s petition.

Since the insured agreed the final premium due was to be determined by the audit it seems the petition and the policy itself and its endorsement, all of which were made part of the petition, are broad enough to allow the introduction of evidence as to the correctness of the audit. This audit reconciled all possible charges and credits as it was intended to do. The defendant has never questioned the correctness of the audit but is attempting to defeat its payment on the basis that an incorrect credit advance would not be allowed to be corrected under the pleadings. The very nature of this type of agreement,is to finally, after audit, determine the actual premium due and to allow refunds or additional premiums. If the defendant desired any further information than the petition, the policy and the endorsements, he could have interposed an exception of vagueness. However, we believe the pleadings broad enough to allow the introduction of evidence concerning the audit, its correctness and an explanation of the erroneous credit given. Of course the rates on this policy were fixed by the Louisiana Rating Commission, and neither the insured nor the insurer can change them.

The plaintiff prays for legal interest on the amount of premium shown to be due by the audit, demanding this interest from the date of the invoice, which was November 13, 1953. The “Automatic Coverage Endorsement” quoted hereinabove, provides, “Full settlement of the net amount of additional or return premium shown to be due at the end of each such period shall be immediately then -due and payable.” Article 554 of the Louisiana Code of Practice states that “Interest at the rate of five per cent shall be allowed on all debts from the time they become due, unless otherwise stipulated.”

Under the policy there is a stipulation between the parties that any amount due either became due and payable upon the completion of the audit and thus the invoice of November 13, 1953, is the due date and plaintiff is entitled to legal interest.

For the reasons alleged the judgment of the District Court is reversed and there is judgment herein in favor of the plaintiff and against the defendant in the full sum of $488.14 together with legal interest thereon from November 13, 1953 and all costs.