author: REGAN, Judge.

text:
    Irma CAVALIER v. NOLA CABS, Inc., and Joseph Taylor.
    No. 20816.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Henry L. Culliber, Jr., and Robert J. Pitard, New Orleans, for defendants-appellants.
    Edgar Corey, 'New Orleans, for plaintiff-appellee.
   REGAN, Judge.

Plaintiff, Irma Cavalier, a passenger, instituted this suit against the defendants, Joseph Taylor, the owner and operator of a taxicab bearing the trade name of Elk Cab and his insurer, Nola Cabs, Inc., endeavoring to recover the sum of $61,369, representing personal injuries and other expenses incidental thereto, incurred on September 18, 1954, at 10:05 P.M., when the operator of the taxicab negligently drove into a depression in Apricot Street resulting in the injury to plaintiff’s back which is the special subject matter of this litigation.

Defendants answered and generally denied the allegations of plaintiff’s petition and then asserted that the operator of the taxicab carried plaintiff safely to her destination and that if plaintiff sustained any injury it did not occur while she was a passenger in the taxicab.

This cause was tried before a jury and predicated on their verdict a judgment was rendered in favor of plaintiff for $2,400 against both defendants jointly and in solido. From this judgment, both defendants have prosecuted this appeal.

Plaintiff has answered the appeal requesting that the award be increased to $5,000 and that the expert fees of the two doctors called by plaintiff be fixed at the sum of $100.00 each.

There were only two witnesses who possessed knowledge of this accident, namely, the plaintiff and the defendant taxicab driver, Joseph Taylor.

On the night of September 18, 1954, at about 10:05 P.M., the defendant, Joseph Taylor, the owner and operator of the taxicab, called for the plaintiff at her home in 9135 Apricot Street in the City of New .Orleans. The cab was insured or bonded by the defendant, Nola Cab Company and it was stipulated that the plaintiff was a passenger for hire. In the unimproved street adjacent to the residence 9135 Apricot Street, there existed a large hole or depression measuring 10 feet in length and inches in depth. The record does not reveal the width of the hole, except through the medium of a photograph thereof.

The plaintiff entered the cab and informed the operator that her destination was 2600 St. Louis Street. Shortly after the cab was set in motion, both the front and the back wheels struck the hole causing the plaintiff’s body to be thrown forward and then backward, resulting in the alleged injury to the lumbo-sacral region of her spine.

The operator of the taxicab asserted that he was travelling only one mile per hour when the front and rear wheels of the cab were driven into the depression. However, despite the slow movement of the cab, he was unable or made no effort to stop after his front wheels struck the hole.

After the occurrence of the foregoing incident, the plaintiff changed her destination from 2600 St. Louis Street to 9134 Forshey Street which is the home of her sister. She stated that she decided to change her destination because of the pain that she experienced in her back shortly after the mishap occurred.

When she arrived at her sister’s home, she complained of pain and in an effort to provide relief, her sister offered her aspirin and suggested that she rest her back. Approximately forty-five minutes after the plaintiff arrived there and no relief had been obtained by the use of improvised remedies, the plaintiff requested that her sister call the same cab and its operator to drive her to the Charity Hospital.

After her admittance into that hospital, an official thereof decided that she should be referred to Flint-Goodridge Hospital, where her injuries were diagnosed by Dr. Frederick Rhodes as lumbo-sacral sprain. He prescribed rest, heat and massage with external analgesics. This was the only time that he examined and prescribed for plaintiff’s injuries. She was released from this hospital on the night after the accident.

Despite rest and home treatment, the pain in the lower part of plaintiff’s back persisted and she then consulted Dr. William Quinn for the purpose of having her back x-rayed and treated. She was seen by this physician on September 22, 27, October 4 and 11, 1954. There is some dispute as to why she terminated the professional services of Dr. Quinn. She asserts that both his attitude and the results of his treatment were so unsatisfactory that she never visited him again after October 11, 1954.

Defendant, on the other hand, asserted that she had “trouble with Dr. Quinn” and, therefore, the inference, which defendants desired to create, was that Dr. Quinn was of the opinion that the plaintiff had fully recovered from her injuries without residual disability.

In any event, several days later she consulted Dr. L. J. Gehbauer, who diagnosed her injuries as a fairly severe sacro-iliac sprain accompanied by spasms of the lower lumbar muscle.

From October 13 to December 4, 1954, the plaintiff visited this physician on nineteen occasions. On her initial visit, he prescribed a surgical type belt to strengthen and support her sacro-iliac muscles, and seventeen months after the accident she asserted that she was still wearing this belt.

Dr. Gehbauer administered numerous diathermy treatments to plaintiff and also prescribed medication for relief of pain; he also instructed her to apply heat to her back, to sleep on a hard mattress and to avoid strenuous forms of body exercise. In conclusion he testified that the plaintiff had informed him voluntarily that she had been treated by Dr. Quinn, who told her “that she didn’t have much wrong with her back and that the X-rays were negative.”

On October 25, 1954, the defendants had the plaintiff examined by Dr. George D. B. Berkett, a specialist in orthopedics. He testified that from the history given to him by the patient, that she complained of pain first in the. left buttocks and later on in the right buttocks, and that she formerly had been a patient of Dr. Quinn, who had treated her for her injuries before she terminated their professional relationship. Dr. Berkett stated that he gave her the Lasegue and the Patrick tests and that he could find nothing wrong with her back. In conclusion he asserted :

“It was my opinion that the physical examination revealed no evidence of pathology in the low back region to account for this patient’s complaints. The difference in the circumference of both calves is not attributable to the accident described. It was my opinion that this patient has fully recovered, without residual disability.”

The only questions which the foregoing pleadings and the evidence have posed for our consideration are ones of fact and that is, whether the accident occurred and if so, what were the extent of plaintiff’s injuries emanating therefrom.

A comprehensive analysis of the evidence convinces us that the accident was proved not only by the testimony of the plaintiff but by the defendant as well.

An examination of a photograph which appears in the record, reflecting the situs of the accident, shows that the particular condition of Apricot Street created a sufficient hazard to vehicles adventurously operating therein so as to cause such an accident as occurred herein.

In his deposition, the defendant driver testified that when he struck the hole, his cab bounced twice, that is, initially, when the front wheels and then subsequently, when the back wheels struck the depression. Therefore, he could hardly deny that, at least, an accident occurred on the night of September 18, 1954. He laboriously asserted in this deposition that he was moving only one mile per hour when he struck' the hole.

It taxes our credulity to accept this latter statement as true because, at this speed, we do not believe that any unusual motion of the cab would have occurred, and therefore, the jury was fully justified in disregarding this phase of his testimony.

We believe that the proximate cause of the accident was both the failure of the operator of the taxicab to maintain a proper lookout, and the excessive speed at which the cab was moving in a street which obviously dictated that a vehicle entering therein should only move slowly and cautiously.

It is too well settled to need citation in support thereof, that a carrier is required to exercise the highest degree of care, vigilance and caution for the safety of those it undertakes to transport and is liable for the slightest negligence. The burden of proof was, therefore, on the operator' of the taxicab to prove that he was free of fault, which he has failed to do, consequently, the operator and his insurer must respond in damages to the plaintiff for even the slightest injury resulting from the accident.

Defendants’ counsel argues that since plaintiff failed to call Dr. Quinn, who was one of the physicians that had treated her for her alleged injuries, we should presume that had he testified his medical opinion would have been adverse to the interest of the plaintiff. Assuming arguendo that this was a fair inference to draw because of Dr. Quinn’s absence at the trial, we still believe that the whole evidential context of the record preponderates in favor of the fact that plaintiff was injured as a result of the accident.

The record clearly establishes as a fact that on the night of the accident the plaintiff suffered a lumbo-sacral sprain and that as a result thereof, she was hospitalized for one night and a day in the Flint-Good-ridge Hospital. Following her release from that institution, she was compelled, by virtue of the persistence of pain, to remain intermittently in bed, from September 27, 1954, to December 4, 1954. During this per-ion, she was treated by Dr. Gehbauer nineteen times. Thereafter, the injury necessitated the wearing of a sacro-iliac belt for a period in excess of seventeen months and during this time she was advised to treat herself at home with hot baths and other medication.

For the foregoing injuries, the jury awarded plaintiff the sum of $2,400, which we believe was excessive for the injury and that the award should, therefore, be reduced to the sum of $1,500.

On appeal, counsel for plaintiff has argued that she was entitled to recover individually, the sum of $289.93, representing wages which she was forced to expend to secure help in operating a grocery store while she was confined at home, for medicines, a sacro-iliac belt and the cost of hospitalization. It is conceded that the plaintiff was married and not judicially separated from her husband when the foregoing expenses were incurred, and when she instituted this suit.

It is axiomatic in our law, that in all suits for restitution of a community asset or debts due to the community, an action for the recovery thereof must be prosecuted by the husband as head and master of the community, and the wife cannot stand in judgment therefor. The vindication of community rights is vested alone in the husband. This doctrine is sustained not only by our codal law, the economic and social philosophy of which is sound, but by an unbroken and uniform line of decision.

Plaintiff’s counsel has also requested that we award expert fees of $100 each to Dr. Frederick Rhodes, the physician who administered to her in Flint-Goodridge Hospital on the night of the accident, and to Dr. L. J. Gehbauer, who subsequently treated the plaintiff.

We are of the opinion that when a doctor of medicine, who has previously been consulted by the patient for the purpose of diagnosis and treatment, subsequently testifies on behalf of the plaintiff, merely to relate a detailed account of his treatment as attending physician, he is not entitled to compensation as an expert witness in conformity with the provisions of law made and provided therefor.

For reasons assigned, the judgment appealed from in favor of plaintiff, Irma Cavalier, and against the defendants, Joseph Taylor and Nola Cabs, Inc., jointly and in solido, is amended by reducing the amount thereof from $2,400 to the sum of $1,500, and as thus amended, it is affirmed.

Amended and affirmed.

      . McDaniels v. Doll, La.App.1949, 40 So.2d 530; Prats v. Prats, La.App.1955, 77 So.2d 205.

      . LSA-B..S. 13:3666 which reads: “Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to he fixed by the court, with reference to the value of the time employed and the degree of learning or skill required.”


source: Caselaw Access Project

author: McBRIDE, Judge.

license: Public Domain

text:
    Luke BONURA, Jr. and Douglas P. Esteve v. TOYE BROTHERS YELLOW CAB CO. et al.
    No. 20890.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Rudolph R. Schoemann, 'New Orleans, for plaintiff and appellant.
    Deutsch, Kerrigan & Stiles, New Orleans, and Breard Snellings and William A. Glennon, Jr., New Orleans, of counsel, for defendants and appellees.
   McBRIDE, Judge.

This appeal presents a claim for damages asserted by Douglas P. Esteve, appellant, who was a guest passenger in the automobile driven by Luke Bonura which collided with a taxicab on the afternoon of February 4, 1956, in the intersection of North Prieur Street and Bayou Road in New Orleans. Said appellant seeks recovery of $1,134.50 for personal injuries and loss of wages allegedly resulting from the accident. Impleaded as defendants, in solido, are the cab company, its component partners, and the driver of the taxicab. Bonura joined in the suit as a plaintiff seeking to recover the amount of property damages to his car, but his claim is not before us.

The defendants denied negligence on the part of the taxicab driver and make the affirmative allegation that the accident was caused through the fault of Bonura in several enumerated respects which need not be detailed in this opinion. After a trial in the lower court, the claims of both plaintiffs were dismissed and only Esteve has appealed therefrom.

The evidence shows that Bonura was driving in an uptown direction on North Prieur Street, and Esteve, who was riding on the front seat, testified that Bonura “stopped at the stop sign” and “as Bonura started out he was hit” by the taxicab which was traveling in the general direction of the Mississippi River on Bayou Road. Bonura stated: “I didn’t see nothing,” and when asked how far his car had proceeded into the intersection when the impact occurred, he replied: “That’s something I can’t answer.”

Bonura’s negligence is evident. The day on which the accident happened was rainy, the sky was overcast and the street was wet. From a stopped position he heedlessly drove out into the intersection without being able to observe traffic conditions on Bayou Road, his inability to see resulting from the fact that the window on the side of the car from which the taxicab approached was raised and “fogged.”

However, under the well-settled jurisprudence of this state, whatever negligence Bonura may have been guilty of cannot be imputed to his guest passenger in the circumstances of this case, and Esteve’s appeal presents the sole question whether the operator of the taxicab was guilty of the negligence charged against him, i.e., speeding and failure to have his vehicle under such control as would have permitted it to be stopped before running into the Bonura car. If there be the slightest degree of fault on the part of the cab driver, then defendants are liable unto appellant for the amount of his damages.

The cab driver, Hagan, testified that he was traveling “about 20 miles per hour” as he approached the intersection, and that when he was about 50 feet away from it, he first observed the front of the Bonura automobile behind a parked car and that the ■ Bonura automobile . was in a stopped position, and he, believing that Bonura would remain stopped and accord him the right of way, continued onward at the same rate of speed. Hagan declares that :he'was only IS or 20 feet away when the Bonura car emerged into the intersection at a speed of about 10 or IS miles per hour. He says he applied his brakes and did not skid, hut his attempt at stopping was ineffectual and the cab while still moving at about IS miles per hour struck the other car. There is no eyewitness to contradict Hagan’s assertions.

Appellant relies exclusively on the testimony of Walter J. Vollenweider, who, in his capacity as brake inspector for the New Orleans Police Department, investigated the accident shortly after it happened. Counsel contends that this officer’s testimony conclusively demonstrates that the taxicab was exceeding the lawful speed limit of 20 miles per hour, and consequently its operator was guilty of concurring negligence.

We have carefully analyzed Vollen-weider’s testimony, which is to the effect thqt certain skid marks were impressed on .the wet pavement by the tires of the taxicab and that these skid marks measured 34 feet in length which fact forced him to believe that the cab was moving at about 23 miles per hour. The witness stated further that the cab would have skidded a longer distance which would have indicated a greater speed had it not hit the other, vehicle. Vollenweider did not state how much greater the indicated speed would have been had there been longer skid marks.

We do not think that from the brake inspector’s testimony alone we can possibly reach a conclusion that the taxicab was exceeding the speed limit. It is true in Druilhet v. Labiche, La.App., 88 So.2d 60, we accepted Vollenweider’s estimate of the speed of a truck based on the length of the skid marks as a predicate for the judgment we rendered, but the estimation was that the speed of the vehicle was 25 or 30 miles per hour. In the instant case, however, Vollen-weider calculated the speed of the taxicab to be 23 miles per hour, which is only slightly above the 20 miles per hour permitted by city ordinance, and the estimate is entirely too close to the lawful speed limit to be useful in deciding the case. It must be remembered that rain was falling and the pavement was very wet when the cars collided, and these conditions could conceivably affect the correctness of the officer’s conclusion. A very slight miscalculation by Mr. Vollenweider could have produced an erroneous estimation.

. [3,4] Assuming, however, but without deciding the question, that Hagan was driving at a rate of speed slightly in excess of that permitted by local ordinance, we do not think that the speed of the cab had causal connection with the occurrence. It is well settled that even when there is a technical violation of regulations governing the speed of vehicles, liability does not result unless it appears the violation was responsible to some extent for the accident. Ver-naci v. Columbia Cas. Co., La.App., 71 So. ' 2d 417.

The evidence in this case is convincing that Bonura’s car suddenly emerged from North Prieur Street into the intersection when the taxicab was but a short distance away and that the accident insofar as the driver of the cab was concerned was unavoidable. He did what he could to avert an accident by attempting to bring his car to a stop. When Hagan saw Bonura’s car stopped at the sign, he had every right to believe that its driver saw the cab and would remain in the stopped position until it passed. The taxicab driver was guilty of no negligence in this situation.

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

Affirmed.


author: LOTTINGER, Judge.

text:
    Prince JONES v. James Stewart MORGAN et al.
    No. 4439.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Fournet & Adams, Lafayette, Jos. A. Nicolosi, Plaquemine, for appellant.
    Dupont & Dupont, Borron, Owen, Borron & Delahaye, Plaquemine, for appellee.
   LOTTINGER, Judge.

This is a tort action wherein the plaintiff, Prince Jones, seeks judgment against the defendants, James Stewart Morgan, Fred Clay Morgan, Chester Hubert Morgan, Eugene A. Morgan, Babin and Crusta Flying Service, Incorporated, and General Accident Fire and Life Assurance Corporation in the sum of $556.45 for the loss of six acres of cotton planted by the plaintiff in the year 1953 and allegedly destroyed by the chemical 2-4D when sprayed from an airplane by defendant Babin and Crusta Flying Service, Incorporated to control weeds on a nearby rice farm belonging to the Morgan defendants. The remaining defendant, General Accident Fire and Life Assurance Corporation, is the liability insurer of the Morgans.

The matter was consolidated for trial in the Court below with case Ño. 6262 of said Court wherein the plaintiff Eddie Jackson seeks from the same defendants the amount of $936.55 for nine acres of cotton alleged to have been similarly destroyed.

The General Accident Fire and Life Assurance Corporation filed, exceptions of no right and no cause of action predicated upon an “Aircraft exclusion clause” contained in the policy issued the Morgans by it, which exceptions were sustained. Following trial on the merits judgments were rendered in favor of each plaintiff against the Morgans and Babin and Crusta Flying Service, Incorporated, as prayed for and the matter is now before us on an appeal taken by these defendants.

The trial judge rendered written reasons for judgment as follows:

“During the year 1953 plaintiffs Jones and Jackson planted 5.6 and 9 acres of cotton respectively. Jones’ field is situated some 300 feet east or southeast of the Morgan property whereas Jackson’s field lies approximately 1000 feet southeast of the Morgan lands.
“Sometime during the summer of 1953 the Morgans employed defendants Babin and Crusta, operators of a flying service, to spray their rice fields first with 2-4D to kill weeds and subsequently with fertilizer both the chemical 2-4D and the fertilizer being applied by means of an airplane specially equipped for such purposes. In applying these substances the pilot flew just above the top of the growing crop most of the time at a height of only a few feet above the ground and released the chemical 2-4D in the form of a spray which settled upon the crop being treated.
“The date of the alleged 2-4D spraying is seriously disputed it being alleged in defendants’ answer that this spraying occurred August 7 and 8, 1953, whereas the testimony of the witnesses assigns various other dates to this incident such as July 7 and 8, July 8 and July 10, 1953. Defendants in their answer initially denied the spraying with 2-4D caused damage to plaintiffs’ crops but in their brief counsel for defendants admit the crops were damaged by the chemical 2^-D but again deny it was the spraying done by them which caused the loss of the crops.
“It is established beyond doubt that the crops in question were adversely affected by the harmful chemical 2-4D. Mr. E. A. Epps a graduate chemist and long time employee of the State Department of Agriculture testified that he examined the crops of both plaintiffs on or about September 10, 1953 and found unmistakable signs of 2-4D damage in that the leaves had become narrow, elongated, crinkled and ruffled around the edges and in addition the squares and flowers were deformed. According to this witness such effects are characteristic of the injury done to cotton by the chemical 2-4D.
“Regarding the date of the 2-4D spraying the evidence is both voluminous and conflicting. In Paragraph 16 of their original answer defendants alleged that the controversial spraying occurred on August 7 and 8, 1953, and in answer to interrogatories propounded prior to trial defendants testified that said spraying occurred on August 7 and 8, 1953. The trial of this cause consumed more than one day and on the morning of the second trial day defendants filed an amended answer wherein they alleged that the 2-4D spraying occurred on July 7 and 8, 1953. The Court first permitted the amended answer to be filed but, upon attention being called by counsel for plaintiffs to the fact that the amended answer changed a material fact during the course of the trial, subsequently concluded that to allow such a material change in the allegations at that stage of the trial would be an abuse of judicial discretion and thereupon revoked and rescinded the order permitting filing of the amended answer.
“Counsel for defendants introduced in evidence certain checks allegedly given in payment for the spraying. These checks indicate that the spraying was done July 7 and 8, 1953, from which defendants argue that there could be no possible connection between their spraying and crop damage which did not become manifest until mid August.
“Plaintiffs frankly admit that they have no knowledge as to the exact dates of the spraying, their testimony being to the effect that they noticed the plane operating on two consecutive days in the late summer of 1953. Plaintiffs and other witnesses called by plaintiffs testified that the spray caused an odor resembling that of creosote to permeate the atmosphere to a noticeable degree. One or two witnesses further testified further that the odor of the chemical was of sufficient strength to induce dizziness and nausea.
“Daniel F. Babin, member of the defendant firm of Crusta and Babin, testified that he personally flew the plane in question and that on the days in question the wind was blowing from the north or northeast (northwest) at velocities estimated by him to have been from 2 to 6 miles per hour. Babin further testified that he had to suspend operations one day because, in his opinion, the wind rose to a velocity that he considered dangerous to surrounding fields. See Transcript Page 13. We believe this portion of Babin’s testimony most significant inasmuch as it confirms the testimony of plaintiffs and other witnesses to the effect that the prevailing northeasterly (northwesterly) winds caused the spray to drift over their respective properties in quantities sufficient to nauseate persons exposed thereto.
“We believe no useful purpose would be served by attempting to explain or reconcile the voluminous testimony regarding the dates of the 2-4D spraying. It seems that 2-4D damage to cotton usually manifests itself within 10 to 14 days of exposure to the chemical but there is nothing in the record to indicate that such damage invariably becomes noticeable within said period. We do not deem it absolutely necessary that plaintiffs prove the exact date of the spraying which caused the damage, it being sufficient that plaintiffs merely prove, by a fair preponderance of the evidence, that the spraying conducted by defendants did in fact cause the damage of which plaintiffs now complain.
“It appears from the record that on August S, 1953, one LeBlanc of the Iberville Parish A. S. C. office, inspected plaintiffs’ crops for the purpose of measuring same and on said date found the crops in good condition. Defendants seized upon this fact to argue that since the spraying was done on July 7 and 8, and the crops were still in good condition on August 5, the only conclusion possible is that plaintiffs themselves damaged- their own crops subsequent to August 5, 1953. Such an assumption is totally without foundation in the record considering that there is no evidence whatsoever to show that plaintiffs used 2-4D during the year 1953 nor is there any evidence of record to even remotely explain why plaintiffs would have deliberately destroyed crops in good condition on August 5, 1953, which date is near normal harvest commencement.
“We believe that if the 2-4D spraying occurred July 7 and 8, 1953, plaintiffs are mistaken as to the length of time in which the effects of the spraying became noticeable. The incident in question occurred in July or August 1953 and the matter did not come to trial until some two and one-half years later. Considering the elapsed time between the incident and trial it is not beyond the realm of reasonable probability that plaintiffs could not correlate the time element as precisely as they may have done had this case come to trial shortly after the incident complained of.
“The record establishes beyond doubt that the damage to plaintiffs’ crops was caused by the chemical 2-4D; that the only 2-4D spraying done in proximitj to plaintiffs’ properties was done by defendants; that subsequent to the spraying by defendants the plaintiffs complained to defendant J. S. Morgan who first refused to view the crops but who, finally, after repeated requests by plaintiffs did look at the condition of the fields involved, and that as a result of the 2-4D damage both crops were practically a total loss.
“It is elementary that in a civil proceeding plaintiff need not prove his cause beyond doubt but only by a fair preponderance of the evidence. Considering the circumstances hereinabove enumerated we have no hesitancy in holding that plaintiffs have proved their respective claims by a fair preponderance of the evidence as required by law and should prevail herein.
“With respect to the alleged negligence on the part of defendants the evidence shows that 2-4D is particularly harmful to broad leaf plants such as cotton and, except in large concentrations, is practically harmless to grasses and narrow leaf plants. Regulations promulgated by the Louisiana Department of Agriculture in conformity with Act 502 of the Regular Session of 1952 [LSA-R.S. 3:1621], relative to the use of 2-4D and other herbicides provides that the minimum spray distance from plants susceptible to 2-4D damage shall be one mile downwind when wind velocity is 4 to 6 miles per hour. The testimony of the witness Babin shows that at times the wind reached a velocity of six miles per hour and that it eventually, rose to such velocity that he deemed it advisable to discontinue operations temporarily. Babin further stated that in making his turns upon reaching the extremities of the rice fields his plane sometimes drifted over plaintiffs’ properties and although he testified that he shut off the spray mechanism before commencing his turns it is quite probable that with the wind coming from the direction indicated some of the chemical was blown over plaintiffs’ properties in the course of the numerous turns made by Babin. We believe that Babin’s own testimony shows him to be guilty of negligence in performing the operation despite the prevailing wind considering he was within 300 feet of one and 1000 feet of another field containing crops highly susceptible to damage from the particular chémic'al being used.
“Having established the negligence of defendant Babin and Crusta Flying Service Incorporated such negligence
is attributable to the Morgans, and renders said defendants liable in solido to each plaintiff herein.
“There remains but to assess the amount of damages due each plaintiff. The evidence shows that plaintiff Jones planted the same fields during the years 1951, 1952 and 1953. In 1951 and 1952 Jones planted five acres of cotton and achieved a 3 bale yield each of these years. In 1951 Jackson planted 6.5 acres which yielded 5 bales of lint plus 1240 pounds of lint and seed and in 1952 he produced 4 bales of cotton on 8.8 acres. In 1953 Jones’ crop produced 188 pounds of remnants which brought ten (10^) per pound or a total of $18.80 whereas Jackson’s crop yielded 222 pounds of remnants valued at $22:20.
“According to the evidence of record the state average of lint per acre for Louisiana during 1953 was 407 pounds per acre and the average price per pound for lint cotton during this same season was $.3312. It follows, therefore, that if plaintiff Jones had produced the state average for 1953 the value of the lint would have been 2279.2 x $.3312 or $754.87. Since cotton usually produces 60% seed and 40% lint the value of Jones’ seed at the prevailing price of $52.80 per ton would have been $90.26 or a total crop value of $845.13. Considering that Jones received $18.80 for the remnants produced his loss on the foregoing basis would be $826.33.
“If Jackson’s lands had produced the state average during 1953 he would have obtained 3663 pounds of lint valued at $1213;Í9 and 5494 pounds of seed valued at $52.80 per ton or $145.04 making a total crop value of $1358.23-Considering that Jackson received $22.. 20 for the remnants actually produced his total loss on the foregoing basis would be $1336.03.
“The production figures on both farms under consideration having equalled the state average for the two years next preceding 1953, we believe it both safe and fair to assume that 1953 yield on each would have been the equivalent of the state average for that year.
“It will be noted, however, that the losses of the respective plaintiffs, as hereinabove determined, do not take into consideration harvesting and marketing expenses which each plaintiff would have had to pay out of the gross value of their crops had the crops been actually marketed and sold. The sum of $556.45 sought by plaintiff Jones is $269.88 less than the projected gross value of his crop while the sum of $936.55 prayed for by plaintiff Jackson is $399.48 less than the projected gross value of his said crop. We believe that in each instance the differential would at least equal if not exceed harvesting and marketing expenses.”

The only question presented by the appeal is simply whether the 2-4D used by the defendants is that which caused the destruction of the cotton. The trial judge saw and heard the witnesses and concluded that it did and from the record as made up, we cannot say that he thereby committed manifest error.

It will be noted that the trial judge found the witness Babin negligent in performing the operation. Such a finding is, however, not necessary in view of the recent holding of the Supreme Court in Gotreaux v. Gary, 232 La. 373, 94 So.2d 293, wherein the doctrine of strict liability was applied under facts almost identical to those presented here.

The trial judge’s computation of damages is not attacked and we think it most fair and equitable.

Finding no manifest error in the judgment appealed from, the same is hereby affirmed.

Judgment affirmed.


text:
    Eddie JACKSON v. James Stewart MORGAN et al.
    No. 4440.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Fournet & Adams, Lafayette, Jos. A. Nicolosi, Plaquemine, for appellant.
    Dupont & Dupont, Borron, Owen, Bor-rón & Delahaye, Plaquemine, for appellee.
   LOTTINGER, Judge.

For the reasons this day rendered in the companion case of Jones v. Morgan, 96 So.2d 109, the judgment appealed from is hereby affirmed.

Judgment affirmed.


text:
    Joseph L. THOMPSON v. Mrs. M. FERRARA.
    No. 20911.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Eugene D. Brierre, Louis Fenner Claiborne, New Orleans, for plaintiff-appellant.
    Lemle & Kelleher, Charles E. Lugen-buhl, Shirley C. Friend, Jr., New Orleans, for defendant-appellees.
   REGAN, Judge.

Plaintiff, Joseph L. Thompson, instituted this suit against the defendant, Mrs. Marguerite D. Ferrara, endeavoring to recover the sum of $169.96, representing property damage incurred to his vehicle on February 19, 19S6, at 9:00 A.M., by virtue of a collision between their respective automobiles in the intersection of North Claiborne Avenue and Clouet Streets.

Defendant answered and denied that she was guilty of any negligence in the premises and alternatively pleaded the contributory negligence of the plaintiff. Defendant then reconvened for the sum of $272.88, representing the damages incurred to her vehicle as a result of the collision.

From a judgment dismissing plaintiff’s suit and awarding defendant, in conformity with the prayer of her reconventional demand, a judgment in the amount of $272.88, plaintiff has prosecuted this appeal.

The facts are relatively simple. The only witnesses to the accident were the operators of the respective vehicles, and, as usual, their testimony was conflicting when vital facts were at issue.

In any event, both vehicles were moving in North Claiborne Avenue in the general direction of the Parish of St. Bernard. Defendant was operating the lead car and plaintiff was following close behind. It is conceded that when the automobiles were traversing the North Claiborne Avenue overpass which is composed of two traffic lanes and ends approximately 100 feet from the intersection, plaintiff, on at least two occasions, sounded his horn indicating to defendant that he intended to overtake her. She, on the other hand, concedes that despite hearing the horn, she maintained the course and slow speed of her vehicle because she was in the process of manually and mechanically signalling her intention to execute a left turn into Clouet Street, which was some distance away, but the manifestation of any signal is denied by the plaintiff. The record, at this point, leaves no doubt that the operators had been aggravated by each other’s actions for some moments prior to the accident.

In any event, shortly before the vehicles reached the intersection, plaintiff endeavored to pass defendant on her left. He was in about the center of the intersection with the front half of his car ahead of defendant’s, when she initiated a left turn and struck the center of his vehicle with the left front side of her automobile. Defendant then lost control of her car, and a second impact occurred; the left front of her vehicle then struck the left rear of plaintiff’s automobile.

The foregoing facts, together with a comprehensive analysis of all of the evidence herein, leads us to the inevitable conclusion that both operators of the vehicles were guilty of concurrent negligence which was the proximate cause of the collision. The plaintiff was negligent in attempting to overtake defendant’s vehicle in an intersection, which is prohibited by the Highway Regulatory Statute.

We, are fully cognizant of the fact that the violation of a traffic regulation will not be regarded as actionable negligence if it is without causal connection to the accident but, here, we entertain no doubt that the overtaking and attempted passing of the defendant’s vehicle in the intersection by the plaintiff was at least, a factor which contributed to the accident.

Defendant was negligent in failing to observe, to her rear, the proximity of plaintiff’s car, although she knew or should have known that it was there, before she initiated a left turn which caused her vehicle to run into the side of plaintiff’s vehicle.

We have repeatedly expressed the opinion that a motorist, endeavoring to execute a left turn, must initially ascertain by careful observation that the maneuver can be executed safely.

For reasons assigned, it is now ordered, adjudged and decreed that the judgment appealed from be and it is hereby reversed insofar as the reconventional demand is concerned, and that there now be judgment in favor of plaintiff, dismissing defendant’s suit in reconvention. In all other respects, the judgment appealed from is affirmed. Each party is to pay his own costs.

Affirmed in part, reversed in part.

      . An inbound and outbound roadway.

      . Highway Regulatory Statute, LSA-R.S. 32:233, subd. B
      “The driver of a vehicle shall not, under any circumstances, overtake or pass another vehicle proceeding in the same direction at any railroad grade crossing or any intersection of the highway, unless permitted or instructed to do so by a duly authorized traffic or police officer.”
      The litigants have inferred that this act is not applicable to the streets of a city, being intended only as a safeguard for the traffic at highway intersections. This inference is not well founded. Subsection (8) of Section 1 of the Highway Regulatory Statute is determinative of this question. This section is to be found under title “Definitions and General Authority,” it reads:
      “ ‘Highway’ includes every way or place of whatever nature open to the use of the public for the purpose of vehicular travel.” Holliday v. Hartford Accident & Indemnity Co., La.App.1949, 38 So.2d 235; Parker v. Home Indemnity Co. of Now York, La.App.1949, 41 So.2d 783.

      . Jackson v. Eischbein, La.App.1957, 92 So.2d 602.


text:
    Philip C. TREADAWAY v. LAMBERT & SARRAZIN.
    No. 20780.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.

      Polack & Rosenberg, New Orleans, for plaintiff and appellant.
    Edgar Corey, New Orleans, for defendant and appellee.
   McBRIDE, Judge.

This case comes before us .on plaintiff’s appeal from an adverse judgment. The trial judge in his reasons for judgment has so well stated the case and discussed and decided the issues it presents, we now adopt those reasons as our own judgment.

“Plaintiff, a real estate broker, demands a commission of $1,420.00, plus $355.00 attorney’s fees, for procuring a purchaser for defendants’ property, to whom defendants ultimately made a sale. The facts are these:
“Plaintiff’s employee (Polito) secured an exclusive listing contract from defendants, dated November 9th, 1953. Polito had previously done business with defendants. The contract contained tw.o periods, a primary 30-day term (expiring December 9th, 1953) giving plaintiff the exclusive right to sell; and a secondary term of 45 days (expiring January 23rd, 1954) providing that, should defendants sell the property within such period to any prospect furnished by plaintiff during the first 30-day period, plaintiff would be entitled to the stipulated commission. The property was listed for sale at $39,500.00.
“On November 29th plaintiff submitted to defendants a written offer for $32,000.00 from one Riccobono, but defendants promptly rejected it.
“On January 28th Riccobono made another written offer, which defendants accepted on January 30th, on which latter date Riccobono gave his check for $3,300.00, representing 10% of the purchase price of $33,000.00.
“On January 15th (Ex. P-2) plaintiff’s attorney wrote defendants claiming a sale to Riccobono and that, if so, his client was entitled to a commission. Defendant (Sarrazin) admitted receipt of the letter, but paid it no attention because the 30-day period had expired. Plaintiff’s attorney wrote to defendants again on January 25th (Ex. P-3) threatening suit unless he had a reply to his letter of January 15th. On January 28th (Ex. P-4) defendants’ attorney replied that he was retained and requested a copy of the listing contract, which plaintiff’s attorney forwarded with his letter of January 30th, (Ex. P-5).
“While there was no allegation of fraud against defendants in the pleadings, and plaintiff’s counsel in oral argument conceded defendants’ good faith, he nevertheless insists that defendants completed all details of the sale to Riccobono within the secondary 45-days, but delayed executing the written agreement until January 28th, after the 45 days had expired, to evade payment of the commission. This position is rather inconsistent. If defendants actually made the sale to Riccobono within the 45-day period, but waited until it had expired before completing formal agreement in order to defeat plaintiff’s claim, they practiced a fraud on plaintiff, and would owe the commission. However, if defendants waited until the expiration of 45 days before dealing with Riccobono, they were well within their contractual rights, and would owe no commission.
“Riccobono, certainly without any interest testified that plaintiff’s man (Aicklen) took him to see the premises, and he made his offer on November 29th for $32,000.00, which was rejected, and though Aicklen tried to get him to increase his offer, he refused; that on January 28th he passed the property, saw a for sale sign on the house giving the names and telephone numbers of defendants. He contacted one of them resulting in a call at his home on January 28th, and his offer to purchase for $33,000.00.
“Riccobono and defendants insist the contract between them, which resulted in the sale, took place on January 28th, and not before.
“However, counsel for plaintiff suggests his letter of January 15th alerted defendants to the 45-day period, which they had forgotten, so they suspended completion of the negotiated deal with Riccobono until January 28th. Further, plaintiff’s counsel argues that the passage of the sale on February 9th, 10 days later, proves the deal was completed long before January 28th since a transaction such as this takes two or three weeks, at least, to complete. Ordinarily, this argument would be persuasive, but here defendants were engaged in the multiple building and selling of homes, financed by Jackson Homestead Ass’n. The title was taken in the name of the Jackson Homestead for account of defendants. Since that Homestead retained the loan for Riccobono, all the parties had to do was to go to the Homestead’s notary and complete the transfer from Jackson to Riccobono. Had another association handled the sale and loan for Riccobono, their attorney would have examined title with two or three weeks delay.
“Certainly, the Jackson Homestead would not have made the construction loan in the first place and retained title in its name unless its attorney had first approved the title. So it was a simple transaction to transfer title from the Homestead to Riccobono.
“Whether plaintiff was the procuring cause that entitles him to a commission, must be tested by the terms of the listing contract and the facts. The contract must be divided into three periods:
“(1) The exclusive period of 30 days, during which the broker was entitled to a commission, whether he made the sale or the owner made it direct;
“(2) The following 45 days, during which the broker would be entitled to a commission only if the owner sold it to a prospect to whom broker had offered it during the 30-day period;
“(3) After the expiration of the 45-day period, the owner was free to sell it to anybody, without liability for the commission, unless the sale was, in fact, the mere formal closing of negotiations carried on within the 45 days with one of the broker’s prospects.
“There is no reason why an owner cannot stand by, do nothing until after the 45 days have expired, and sell his property to the broker’s prospect. The parties are bound by their contract. Lewis v. Manson, 132 La. 817, 61 So. 835; Lawrence v. Bailey, La.App., 41 So.2d 474.
“Defendants took the risk of having to pay a commission during the first 30 days, even though plaintiff had nothing to do with procuring the purchaser, so there is no reason why plaintiff should not risk his prospect being sold by defendants without liability for the commission after the 45th day.
“By stipulation between the parties after the case was submitted, the following stipulation was agreed upon and admitted in evidence with reference to additional testimony, to-wit:
“ ‘That if Andrew Montz, the manager of the Central Appraisal Bureau, had been called as a witness in this cause, he would have testified that the records of his office indicate that the property involved in this law suit was appraised by the Central Appraisal Bureau on May 20,1953 for $29,550.00; that on January 11, 1954 acting upon a request received by them on January 6, 1954, from Jackson Homestead, the subject property was appraised by the Central Appraisal Bureau for $32,000.-00; that on January 13, 1954, acting upon a verbal request from the Jackson Homestead for a review of said appraisal, the Central Appraisal Bureau appraised the subject property for $32,900.00.’
“This stipulation adds nothing of particular importance to the evidence already taken, except that it admits on January 6, 1954, the Jackson Homestead asked for an appraisal by the Central Appraisal Bureau, which appraises all properties for building and loan associations in New Orleans. It merely creates a suspicion that in anticipation of selling the property to Ric-cobono after the 45 days, the defendants sought a reappraisal to be sure that the price of $32,000.00 that Ricco-bono had originally offered through the plaintiff was a proper price to sell.

“If the evidence satisfied me\ that defendants had completed all details with Riccobono during the 45-day period, but colluded with him to postpone formal agreement until the 45 days expired, in order to defeat plaintiff’s claim for a commission, I wouldj give judgment for plaintiff. However” I am satisfied from the evidence that defendants had no contact with Ricco-bono until January 28th, even though they may have been alerted not to deal with him by counsel’s letter of January 15th.”

The judgment appealed from is affirmed.

Affirmed.


text:
    Seymour J. STEWART v. OWESEN & COMPANY, Inc.
    No. 20865.
    Court of Appeal of Louisiana. Orleans.
    June 24, 1957.
    Solomon S. Goldman, New Orleans, for plaintiff-appellant.
    Sidney W. Provensal, Jr., New Orleans, for defendant- appellee.
   REGAN, Judge.

Plaintiff, Seymour J. Stewart, the buyer, instituted this action of redhibition against defendant, Owesen & Company, Inc., the seller, to recover the sum of $125 representing the purchase price paid on July 3rd, 1953, for a used “Philco York Console Model ¿4 Ton Air Conditioning Unit” which plaintiff insists was defective before the date of the sale, since the vice made its appearance within three days after the sale and therefore, the legal presumption is that it existed before the sale. Plaintiff asserts that it has offered to return the unit to the defendant in exchange for the purchase price thereof which tender has been rejected.

Defendant pleaded the exceptions of “no cause or right of action” which it ultimately waived and then answered admitting that plaintiff had offered to return the unit in exchange for the purchase price thereof, which offer was rejected, but denied that the unit was defective at the time of the sale.

From a judgment in favor of defendant dismissing plaintiff’s suit, he has prosecuted this appeal.

The record reveals that on July 3rd, 1953, plaintiff, through his employee, Walter Lark, purchased the air conditioning unit from the defendant and simultaneously sold it to the United Tourist Court which, it appears, was owned and operated by Anthony J. Dodt and Joseph Drolla . An employee of the United Tourist Court was instructed to drive their truck to defendant’s office and pick up the unit, which was done on July 6th, 1953; however, the unit was operated in defendant’s business establishment, in the presence of the driver, before it was placed in the truck to be transported to the tourist court.

On July 8th, either Drolla or Dodt called the plaintiff to adyise him that a “tube was popped” and they wanted that part of the unit repaired before attempting to operate it. Plaintiff then informed the defendant of the foregoing difficulty and on the same day it sent Victor Sommers, a mechanic, employed by the Dependable Refrigeration Service to repair the unit. He testified on behalf of the plaintiff that “the return line going to the compressor had broken due to the fact * * * that the unit should have been bolted down in shipment.” He repaired the “broken line” and then when he was recharging the unit “with freon gas the motor stopped.”- * * * “It was the multibreaker that had tripped. * * * In other words, they had - one line that was overloaded. They should have had separate circuits. * * * I told him that * * * when he got it in place, that I would come back and check it over completely.” In conclusion Sommers asserted that when he departed from the tourist court, that evening, the motor was not “burnt out.”

Joseph F. Trahan, a mechanic, also employed by the Dependable Refrigeration Service, testified on behalf of plaintiff, that béfore the defendant sold the unit to plaintiff, he had repaired and serviced it and it “was putting out according to specifications” ; he knew, as Sommers did, that the tourist court was not properly wired for the unit. Sometime in August he received a call from the United Tourist Court and when he arrived there he found “the motor was burned up and it wasn’t running.”

Walter Lark, an employee of plaintiff, testified that he had negotiated the purchase of the unit for the plaintiff and that he was thoroughly familiar with the details of the transaction. He said he purchased it on July 3, 1953, and sold it to the United Tourist Court, who had an employee of theirs pick the unit up on July 6, 1953; .that, on July 13th, Dodt reported to him that the Dependable Refrigeration Service mechanic had been there on July 8th in response to his request, and when he attempted to operate the unit it would “kick the multibreaker,” so he suggested that the unit; be moved to a “fused circuit.” On August 19th, he received another telephone call from Dodt, who informed him that he had connected the unit to a “fused circuit” but that it was blowing the “fuses” after two or three minutes of operation. In conclusion Lark testified, that it was not until September 4th, 1953, when he informed the defendant “that the motor was burnt out.”

John Key, the president of the defendant company, testified that the unit was checked and serviced by the Dependable Refrigeration Service before it was sold to the plaintiff and that it was operated in the presence of the driver from the United Tourist Court, who called for the unit on July 6th, 1953.

Wassyl Zebrick, an employee of the defendant company, testified that he “saw the unit running” before it was picked up by the driver for the United Tourist Court.

The only question posed for our consideration by virtue of the foregoing pleadings and evidence is one of fact, and that is, was the motor “burned out” before the sale to the plaintiff so as to permit him to successfully maintain an action of redhibition in conformity with the rationale expressed in LSA-C.C. Articles 2520 and 2530?

In a relatively recent case, we said:

“There exists in every sale consummated under the laws of this State, the seller’s zvarranty against hidden defects in connection with the article or merchandise sold, or its redhibitory vices. The seller’s warranty is an implied part of the contract which need not be expressed. See Civil Code Article 2476. Nelson v. M. C. M. Truck Lines, 209 La. 582, 25 So.2d 236. This warranty originated by virtue of a philosophy which is the antithesis of the common law’s classic doctrine of caveat emptor, which incidentally has never prevailed in this State. Where this implied warranty is breached, the action of redhibition permits a vendee to resist payment of the purchase price or to recover the price already paid.
“Article 2520 of the Louisiana Civil Code reads: ‘Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.’
“The fundamental effect of redhibition is the complete rescission of the sale of the property which the vendee alleges was defective before the date of the sale. However, Civil Code, Art. 2530 expressly places the burden of proof on the buyer to establish that the vice existed before the sale to him.
“The same article presumes the existence of the ‘vice’ before the sale, if it ‘has made its appearance within three days immediately following the sale.’ ”

In the instant case plaintiff has not introduced one scintilla of evidence to establish, as a fact, that the air conditioning unit’s motor was not operating at the time of the sale, or the delivery thereof, or that the alleged “burned out” motor made its appearance within three days following the sale. In fact, the only expert testimony appearing in the record, adduced from witnesses called by the plaintiff, indicates that the air conditioning unit’s motor was operating several weeks after it was in the possession of the United Tourist Court and that it ceased operating only because the electric circuit to which the unit was attached was “overloaded” with other appliances which caused the multibreaker “to trip” or the fuses to “blow out.”

The president of the defendant company and one of its employees both testified emphatically that the motor was operating before it was delivered to the driver of the United Tourist Court’s truck. The whole context of the record leads us to the inevitable conclusion that their statements were entirely true.

Plaintiff has not successfully borne the burden of proof imposed on the buyer by virtue of the provisions of LSA-Civil Code, Article 2530, nor did he relieve himself of that burden of proof and acquire the benefit of a presumption of the existence of a vice in the motor by proving that is was “burned out” within three days immediately following the sale.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . LSA-C.C. Art. 2520 provides as follows: “Kedhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

      . LSA-C.C. Art. 2529 provides as follows: “A declaration made in good faith by the seller, that the thing sold has some quality which it is found not to have, gives rise to a redhibition, if this quality was the principal motive for making the purchase.”

      . Plaintiff contends that the motor was “burned out” before the sale.

      . LSA-C.C. Art. 2530 provides as follows : “The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”

      . They have never paid the plaintiff for the air-conditioning unit.

      . Womack v. Lafayette Furniture Co., Inc., 1951, 50 So.2d 843, 845.

      . Victor Sommers and Joseph F. Trahan.


author: THOMAS, Justice.

text:
    Gusto TOLLIUS, Appellant, v. CITY OF MIAMI, a municipal corporation of the State of Florida, and Brickell Hammock Civic Association, a non-profit corporation organized under the laws of the State of Florida, Appellees.
    Supreme Court of Florida, Division A.
    June 7, 1957.
    Rehearing Denied July 8, 1957.
    Hall, Hedrick & Dekle, Miami, for appellant.
    Olavi M. Hendrickson, Miami, for City of Miami.
    Pallot, Silver & Mulloy, Miami, for Brickell Hammock Civic Ass’n.
   THOMAS, Justice.

In his decree the chancellor denied the relief sought by the plaintiff, that is, the re-zoning of three lots located at the southwest corner of 25th Road and Brickell Avenue so as to permit its use for buildings other than single-family dwellings. The plaintiff’s effort to secure re-zoning, had been rejected by the Planning Board,, and the Board’s decision had been sustained by the City Commission. The chancellor observed that although his “personal opinion * * * might be such [that he] would favorably vote to re-zone-the plaintiff’s property administratively,, nevertheless, [he was] of the opinion that the plaintiff [had] not sustained the extraordinary burden required” of him to-“overcome the principle that before a Court can grant re-zoning the case presented must show that the matter is not fairly debatable.” Miami Beach United Lutheran Church of the Epiphany v. The City of Miami Beach, Fla., 82 So.2d 880.

In order clearly to understand the prime issue in this case it seems fitting now to record a sketch showing the location of the property in question, the nature of the neighboring property and, especially, the system of streets and highways nearby.

In this sketch the numerals 1 to 9 will be used. The number “1” indicates the property involved, number “2” a motel situated diagonally across Brickell Avenue, which is also highway U. S. 1 leading from Miami to Key West, number “3” the future location of a Howard Johnson restaurant, number “4” the entrance of Rickenbacker Causeway, number “5” a four-lane street adjoining the property on the north, number “6” a four-lane street adjacent to the west side of the block in which the property is located, number “7” a five-lane street along the south side of the block, and number “8” the intersection of Brickell Avenue, highway U. S. 1, and the wide street leading to the causeway. The number “9” is used to designate tracts on which there are few, or no, improvements.

There is extremely heavy vehicular traffic on Brickell Avenue, highway U. S. 1, and particularly at the point where it crosses 26th Road, number “7”, near the entrance to Rickenbacker Causeway leading to Crandon Park, a popular recreation spot.

The plaintiff charged that the zoning regulation of 1936 placing the property in question in an area limited to use for single-family residences, designated Zone R-l, had become unconstitutional and void as applied to his parcel because of changed conditions and that the regulations should be modified to permit use of the land as a location for an apartment-motel.

The limitation fastened on the use of the tract designated number “2” was removed by a decree of the circuit court of the Eleventh Judicial Circuit 6 July 1951 in which the chancellor declared that the restriction to use for single-family residences was “unreasonable, oppressive, unconstitutional and void.” The city appealed and the decree was affirmed. City of Miami v. Hammock Homes, Inc., Fla., 57 So.2d 459.

We repeat that this property is located at the northeast corner of the intersection of highway U. S. 1 and a street running east and west, while the property in litigation is situated at the southwest corner of the same intersection.

We are well aware of the position we have taken that lines of demarcation between zones must be placed somewhere and that there is no force to the argument that property situated on one side of a street need by proximity alone be put in the same zone with property on the other side. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364. But we find no conditions in the present litigation calling for application of the rule because in the setting we have undertaken to depict by the sketch there is too much similarity between the parcel on which an apartment-motel now exists and the property on which the appellant proposes to build one, and between appellant’s property and that which a restaurant will occupy.

The decision of this court in City of Miami v. Ross, Fla., 76 So.2d 152,. casts some light on the present controversy. We state at the outset of an analysis of the opinion that it appears from the record in this court the property then involved was located about eleven blocks nearer the center of the city, but through traffic on Brickell Avenue and traffic between the center of the city and Rickenbacker Causeway are common to both and there were other circumstances in the cited case that are relevant to the present one.

The plaintiffs had assailed the zoning ordinance as a violation of their constitutional rights because it restricted their land to use for single-family dwellings, and they had prevailed. The city had admitted that the character of the area had changed making the restriction too severe but assumed the position that construction of buildings allowed in an R-3 zone would be detrimental, and represented that the city was then engaged in developing a plan for the entire district which would allow multiple family residences but would differ in important respects from an area then given an R-3 classification.

The author of the opinion remarked that in view of such change of circumstances and the attitude of the city itself that restrictions should be relaxed, the decision whether or not to re-zone was no longer a matter of discretion but had become one of duty. The court after first deciding that the city should accomplish general rezoning because property in the whole neighborhood had been affected by change of conditions held that this operation on the part of the city should not be interrupted in 'behalf of owners who suffered no hardship peculiar to them.

Upon rehearing, however, the court concluded that the principles embraced in the main opinion should not be abandoned, but that the complaining property owners were, after all, entitled to relief, citing City of Miami Beach v. Kay, Fla., 71 So.2d 725; City of Miami Beach v. First Trust Co., Fla., 45 So.2d 681; and Lippow v. City of Miami Beach, Fla., 68 So.2d 827.

We cannot agree with the chancellor that the question whether or not the propriety of the restrictions on the use of the appellant’s property can he said to he “fairly debatable.” The position — we fully understand the chancellor’s inclination to hold otherwise were he acting in an administrative instead of a judicial capacity — seems to us refuted by the affirmance of the decree in City of Miami v. Hammock Homes, Inc., supra; it seems refuted by the existence of the four-lane street to the north, and by the existence of the five-lane street to the south through which vehicles flow to and from the causeway; it seems refuted by the nearness of the entrance to the causeway and by highway U. S. 1 passing in front of the very property.

The block in which appellant’s property lies is a “.veritable island,” to borrow a term from appellant’s brief. It is surrounded by highways or streets of four or more lanes in width. The south half of the block is owned by the county while that part of the north half lying west of the property in question is also owned by the appellant.

Aside from the characteristics of the land, and the land around it, apparent from the sketch, there was abundant testimony that the property in litigation no longer retained the features which at the time of passage of the zoning ordinance justified classifying it as a site usable only for one purpose. Four witnesses produced by the appellant, and evidently qualified to testify as experts on the subject, agreed that the parcel was no longer suitable for such use. In rebuttal the city offered one expert who stated on direct examination that the property was still properly classified, but weakened the position of the appellees by admitting on cross examination that there were “more people who like to live off a main thoroughfare than on” although some people “like to sit on the front porch and watch the traffic * * * go by * * *. ” This seemed to be as strong an answer as he could give to the question whether or not the witness would advise, a client to buy the property in question for use as a place for a private residence.

The Director and Secretary of the City Planning and Zoning Board conceded that the change in zoning regulations permitting the construction of the apartment-motel designated on the sketch as “2” and the change of the regulations affecting the Howard Johnson property, shown on the sketch as “3” had “possibly * * * made [the property in litigation] a little less desirable * * * for strictly residential use.”

Arrayed against the faint showing of the city are the physical facts obvious from the sketch, the overwhelming testimony introduced by the appellant and the additional circumstances that the parcel directly across the street had been purchased by a corporation for the operation of a Howard Johnson restaurant because of its suitability as a site for such a commercial enterprise and that the regulations had been relaxed to permit its use for that purpose.

It appears from evidence in the record that but three dwellings have been built on either side of Brickell Avenue between 26th Road, the street leading to the causeway, and 15th Road since 27 June 1949, and the. nearest of these to the property in question is located between 21st Road and 22nd Road. This area extending to 15th Road comes within the territory considered in City of Miami v. Ross, supra.

There must be a substantial and reasonable relationship between the need for zoning restrictions and the public health, morals, safety or welfare to justify interference, by exercise of the police power, with an owner’s right to the enjoyment of his property. Only in the presence of such necessity will he be required to make a personal sacrifice for the good of the people. City of Miami Beach v. Lachman, Fla., 71 So.2d 148.

It may be that when the zoning ordinance was passed this need existed and the legislative act could not have been defeated or thwarted because then it could have been fairly debated. But the need twenty years later seems to have been so dissipated by the intervening phenomenal growth of the City of Miami that it is now so out of proportion to the interference with the use of the appellant’s property that the exercise of the police power cannot be upheld. Forde v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642.

We are impelled to the view that the decree should be reversed with directions to grant appellant the relief he sought.

Reversed.

TERRELL, C. J., and 'ROBERTS and THORNAL, JJ., concur.


author: DREW, Justice.

text:
    Herbert MAY, trading as May Plumbing Company, Petitioner, v. STATE of Florida ex rel. Richard W. ERVIN, Attorney General, and State Tuberculosis Board, a public body corporate, Respondents.
    Supreme Court of Florida, Special Division B.
    June 19, 1957.
    Carroll R. Runyon and Bussey & Simmons, St. Petersburg, for petitioner.
    Richard W. Ervin, Atty. Gen., Mary Schulman and T. Paine Kelly, Asst. Attys. Gen., for respondents.
   DREW, Justice.

' On March 1, 1957, the petitioner here, the defendant below, moved, pursuant to Sec. 45.19, F.S.A., to dismiss this cause because no action had been taken in the trial court for a period of more than fifteen months. The trial court denied the motion, reciting in his order:

“It is true that the purpose of Section 45.19 is to expedite litigation, keep dockets current, and to penalize those who would allow the litigation to become stagnant and while plaintiff, by counsel, may have been lax in the prosecution of this suit, because of the merits herein involved including what may be a substantial amount of public funds, this Court is of the opinion that this case should be disposed of on its merits rather than dismissed pursuant to the motion, particularly in view of the fact that this cause is new at issue.”

The purpose of Sec. 45.19, F.S.A., supra, is to expedite the course of litigation and keep the court dockets of this State as nearly current as possible. The statute is a declaration that the public policy requires the prompt dispatch of the court’s business. Gulf Appliance Distributors, Inc., v. Long, Fla.1951, 53 So.2d 706; Yelvington & Son v. Sheridan, Fla. 1953, 65 So.2d 44. We have held that the foregoing statute was not self-executing, Dudemaine v. Shaw, 1944, 153 Fla. 899, 16 So.2d 114, where it has been made to appear that the cause has not been prosecuted for a period of more than one year. Upon motion to reinstate the burden is upon the plaintiff to show that good cause exists why the motion should be granted. The record before us fails to show any basis for the court’s order denying the motion to dismiss.

Should the respondents establish good cause for reinstatement of the action the controversy may be then heard on the merits and even if the movants do not prevail the merits of the dispute may be determined in a subsequent suit for such a dismissal does not amount to an adjudication of the merits, Hassenteufel v. Howard Johnson, Inc., of Florida, Fla., 52 So.2d 810; Zukor v. Hill, Fla., 84 So.2d 554; Alson Mfg. Co. v. Silvers, Fla., 95 So.2d 16, notwithstanding any expression in Hinchee v. Fisher, Fla., 93 So.2d 351, with reference to Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A., apparently to the contrary.

The order under review is hereby quashed with directions that an order be entered dismissing the cause for failure to prosecute under the statute but with leave to the plaintiff to file and have considered within the time fixed by the statute his petition to reinstate the cause. In such event, the plaintiff will be afforded the opportunity to show, if he can, that good' cause exists why the action should not be abated and the cause dismissed.

Certiorari granted.

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


author: PER CURIAM. CLAUDE OGILVIE, Associate Justice

text:
    SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. Virgil BRADDOCK, Appellee. SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. James M. BRADDOCK, Appellee.
    Supreme Court of Florida, En Banc.
    May 8, 1957.
    Rehearing Denied July 11, 1957.
    Claude Ogilvie, A. J., dissented.
    See also Fla., 80 So.2d 662.

      Smathers, Thompson & Dyer, Miami, and Fleming, Scott & Botts, Jacksonville, for appellant.
    Nichols, Gaither, Green, Frates & Beck-ham, William S. Frates, Walter H. Beck-ham, Jr., and Sam Daniels, Miami, for ap-pellee.
   PER CURIAM.

Affirmed.

TERRELL, C. J., and THOMAS, HOB-SON, DREW, THORNAL and O’CON-NELL, JJ., concur.

OGILVTE, Associate Justice, dissents.

CLAUDE OGILVIE, Associate Justice

(dissenting).

These two suits arose out of a railroad crossing accident wherein child’s leg was amputated below the knee. Father and child brought separate actions; and lower court granted new trials on sole ground of plaintiffs’ refusal to enter remittiturs. This Court on the former appeals held that trial court was in error in its computation of amounts to be remitted; saying:

“ * * * We are mindful that no ground will be considered on an appeal from an order granting a new trial except that designated in such order by the trial court as the ground upon which the motion is granted. * * *
“[Par. 9.] In view of the limited scope of review of orders granting new trials, the question of the exces-siveness of the verdicts is neither decided nor precluded by this appeal.” [80 So.2d 665.]

The lower court entered final judgments in favor of the plaintiffs according to mandates correcting the computations of remittiturs in the two cases. And from these final judgments the railroad company brings these appeals, raising questions that were not and could not be considered on the previous appeals. See 80 So.2d 662.

The jury awarded the eight and one-half year old boy $248,439 for the amputation of the leg below his knee; and in the father’s suit for loss of services and medical expenses he was awarded a verdict of $6,500. The chief complaint by the railroad company is the excessiveness of the boy’s verdict; and several charges of improper and highly inflammatory remarks by counsel for plaintiffs in the presence of the jury are cited for grounds of reversal.

In the opening statement before the jury, counsel for plaintiffs stated that “we are going to prove to you that not only were they negligent, but that the criminal negligence of this railroad * * * We are going tó prove that their criminal negligence was responsible for this little boy losing his leg * * * ”. And again in his closing argument to the jury, over the objection of defendants, the plaintiffs’ counsel repeated his charge that the railroad company was guilty of criminal negligence. As a ruling on the objection the trial judge merely told plaintiffs’ counsel to “go ahead”. And again, he did “go ahead” by saying at least twice more, “I repeat that in my opinion this railroad and their employes are guilty of criminal negligence”. The complaint does not allege criminal negligence, nor does it allege any wilful or wanton act of negligence against the defendants ; no punitive damages were sought.

Again, when plaintiffs’ first witness was on the stand, railroad counsel objected to the introduction of a survey of the situs on the ground that it was not a faithful reproduction of the physical facts; and immediately following such objection, the following colloquy ensued:

“Mr. Frates: Your Honor, I think that is one of the most absurd arguments I have ever heard. Unfortunately we did not know the accident was going to happen, although I can’t say it is strictly true of the Seaboard. I don’t know if they have a survey of that crossing or not.”
“Mr. Julian: We object to that observation — the reflection on the Seaboard.”
“Mr. Frates: This entire case is a reflection on the Seaboard.”
“Mr. Julian: I would like for counsel to address his remarks to the Court.”

The Court merely announced that the objection was sustained, but made no effort to charge the jury to not consider same.

Through the entire trial the record discloses numerous incidents between counsel wherein improper and prejudicial remarks were made in the presence of the jury in favor of the plaintiffs and against the defendants. More than once the trial court erred in not properly charging the jury to eradicate the matter from the minds of the jurors and that they should not consider the same. Even in instances where the trial court sustained objections, the matter was not sufficiently charged out of the minds of the jury; and on one or two occasions it could not possibly have been done due to the highly prejudicial nature of the matter. The verdict was not arrived at by the fair and unimpassioned deliberation of the jury — the verdict was influenced by an appeal to prejudice and sympathy. This Court on numerous occasions has reversed judgments because of such matters. Further exposition here is unnecessary; reference to this Court’s decision in the following recent case will suffice. Seaboard Air Line Railroad Company v. Strickland, 88 So.2d 519.

During final argument of counsel for the plaintiff, James M. Braddock, a placard was used to visually present to the jury the several claims or items of damages requested in the verdict, in words and figures as follows (Exhibit A, p. 652, transcript) :

“Mike" Braddock
Age 9 Expectancy 56 years
Pain and Suffering to date 395 days
Experience of accident 5,000.00
Hospital 3/25-4/5/52 1,200.—
First 30 days at home 300.—
To date 353 days 700.—
Inability to Lead Normal Life
3/25-5/31/52 crutches 340.—
6/1-10/31/52 pylon 459.—
11/1/52 to date artificial limb 348.—
Humiliation and Embarrassment 1,915.—
10,262.—
20.440days Future 56 yrs.
Medical
Checkup by doctor once a year , 440.—
Artificial legs 3,600.—
Repairs and Maintenance 2,640.—
Stump socks 985.—
Extra pants, shoes and socks 4,400.—
Limb adjustment every 2 weeks 2,912.—
14,977.—
Pain and Suffering 20,440 days 20,440.—
Humiliation and Embarrassment 20,440 days 40,880.—
Inability to Lead a Normal Life 20,440 days 40,880.—
Loss of Earning Capacity 121,000.— 5500 X 50% X 56
Total 248,439.—

The first and unusual point to be noted is that the jury returned a verdict for said minor plaintiff in the exact amount of dollars as the sum total of some eighteen itemized factors requested in the placard, viz.: $248,439. A cursory examination of the items raises the question of the overlapping of a number of said items. On the placard, and argued strenuously by counsel, were, among others, the several following items:

Pain and Suffering 20,440 days 20,440.—
Humiliation and Embarrassment 20,440 days 40,880.—
Inability to Lead a Normal Life 20,440 days 40,880.—
Loss of Earning Capacity 121,000.— 5500 X 50% X 56
Total 248,439.—

Certainly the last several items on the placard disclose just another overstepping of plaintiff’s counsel, by repetition and overlapping. I am of the opinion that the verdict for the plaintiff, James M. Braddock, was unconscionably excessive; that the verdict was not the product of fair and unimpassioned reasoning of the jury; and same was partially induced by the placard and final argument adding at least some of the elements of damages more than once into the total requested figure of $248,439— which was the exact amount of the jury’s verdict. See Loftin v. Wilson, Fla., 67 So.2d 185, at page 190; Florida Power & Light Co. v. Watson, Fla., 50 So.2d 543; Atlantic Coast Line Railway Co. v. Moore, 135 Fla. 485, 186 So. 210, at page 216.

Another point present here on this appeal is whether the court below erred in failing to charge the jury that the minor plaintiff could not recover if the jury find by a preponderance of the evidence that his negligence, if any, was the sole proximate cause of his injuries. It is contended by the plaintiff that substantially that law was charged, while the defendants contend that it was not. A careful reading' of the charge (T. 608, 609) shows that the Court did charge on sole proximate cause, both with respect to defendant Poe and also with respect to defendant Seaboard Railroad; and the law of proximate cause was amply covered, even though not in the phraseology of the defendant railroad’s requested charge.

I am persuaded here that the amount of the verdict in the James M. Braddock case was not based on an unimpassioned consideration and evaluation of the evidence “uninfluenced by the appeals of counsel to passion and prejudice” ; that the trial court erred in permitting opposing counsel to engage in personalities in the presence of the jury, and failed to properly rule on objections to conduct and utterances of plain-, tiff’s counsel in the presence of the jury which were highly prejudicial against the defendants and in favor of plaintiff, James M. Braddock. Seaboard Air Line Railroad Company v. Ford, Fla., 92 So.2d 160, Paragraphs 7 and 8, at page 165.

The judgment in the case of Seaboard Air Line Railroad Company v. Virgil Braddock should be affirmed.

The judgment in the case of Seaboard Air Line Railroad Company v. James M. Braddock should be affirmed on the issue of liability, and should be reversed on the issue of damages. A new trial should be or.dered on the issue of damages alone.


author: THORNAL, Justice.

text:
    Ervine HARGROVE, Appellant, v. TOWN OF COCOA BEACH, Florida, a municipal corporation, Appellee.
    Supreme Court of Florida, En Banc.
    June 28, 1957.

      Maurice Wagner and Richard D. Ber-tone, Daytona Beach, for appellant.
    Daniel N. Meadows and Butt & Akridge, Cocoa, for appellee.
    Ralph A. Marsicano, Tampa, for Florida League of Municipalities.
   THORNAL, Justice.

Appellant Ervine Hargrove, who was plaintiff below, seeks reversal of an order of the trial judge sustaining a motion to dismiss her complaint against the appellee Town in an action seeking damages for the alleged wrongful death of appellant’s husband.

To dispose of the case we must determine whether a municipal corporation should continue to enjoy immunity from liability for the wrongful acts of police officers.

Appellant, as plaintiff, alleged that her husband was incarcerated in the town jail while in a helpless condition because of excessive intoxication. She alleged that the jailor locked all the doors and departed, leaving no guard or other attendant on duty; that during the night the cell became filled with smoke resulting in the fatal suffocation of appellant’s husband. For the alleged negligence in leaving the jail unattended and the prisoner unprotected against the fire, thereby producing the death of her husband, Mrs. Hargrove sought damages from the City. The trial judge sustained a motion to dismiss the complaint on the theory that the municipality was immune to liability for this type of tort. Reversal of his order is now sought.

The appellant recognizes our prior decisions on the subject and frankly requests us to recede therefrom.

The appellee, of course, cites our own precedents to support the ruling of the trial judge.

We are here faced squarely with an appeal to recede from our previously announced rule which immunizes a municipal corporation against liability for torts committed by police officers. The rule against municipal liability for torts has been the subject of thousands of pages of learned dissertations. We are told that since 1900 well over two hundred law review articles alone have been written on the subject. Innumerable textbooks have made their contribution, most of them adversely critical. The books are full of decisions of courts covering various aspects of the problem. Our own precedents reveal that this Court has many times had the matter under consideration. Because of these comprehensive discussions of the subject, there is very little that we can now add.

Our own present study of the matter leads us to a consideration of the problem as one arising out of an historical recognition of a division of municipal functions into two categories, to wit, governmental and proprietary. It has been held that in the exercise of so-called governmental functions, the municipality is immune to liability. In the exercise of proprietary functions, the municipality has been held responsible for the torts of its agents.

Immunization in the exercise of govern,mental functions has been traditionally put on the theory that “the king can do no wrong but his ministers may”. In applying this theory the courts have transposed into our democratic system the concept that the sovereign is divine and that divinity is beyond reproach. In preserving the theory they seem to have overlooked completely the wrongs that produced our Declaration of Independence and in the ultimate resulted in the Revolutionary War. We, therefore, feel that the time has arrived to declare this doctrine anachoristic not only to our system of justice but to our traditional concepts of democratic government.

The immunity theory has been further supported with the idea that it is better for an individual to suffer a grievous wrong than to impose liability on the people vicariously through their government. If there is anything more than a sham to our constitutional guarantee that the courts shall always be open to redress wrongs and to our sense of justice that there shall be a remedy for every wrong committed, then certainly this basis for the rule cannot be supported.

Tracing the rule to its ultimate progenitor we are led to the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788). The Men of Devon decision merely relieved the inhabitants of an unincorporated county from liability for damages resulting from a defective bridge. Aside from the fact that the case involved a county rather than a city, it is interesting to note that we ourselves have refused to follow this historic precedent so far as cities are concerned in the numerous cases in which we have held municipalities liable for negligence in the maintenance of streets and bridges. As early as 1850 in City of Tallahassee v. Fortune, 3 Fla. 19, the Men of Devon decision was very clearly explained and distinguished. Our Court then pointed out that the leading English precedent turned on the proposition that it was an action against all of the people of an unincorporated community having no corporate fund or legal means of obtaining one. The law would not impose the burden on each individual citizen.

The appellee here contends that any recession from the rule of immunity should come about by legislation rather than judicial decree. It is insisted that the immunity rule is a part of the common law which: we have adopted and that therefore its abolition should come about only by statute. We are here compelled to disagree.

Assuming that the immunity rule had its inception in the Men of Devon case, and most legal historians agree that it did, it should be noted that this case was decided in 1788, some twelve years after our Declaration of Independence. Be that as it may, our own feeling is that the courts should be alive to the demands of justice. ¡We can iSee no necessity for insisting on legislative action in a matter which the courts themselves originated.

The problem in Florida has become more confusing because of an effort to prune and pare the rule of immunity rather than to uproot it bodily and lay it aside as we should any other archaic and outmoded concept. This pruning approach has produced numerous strange and incongruous results. While holding that a municipality can be held liable for the negligent operation of a fire truck, we have exempted a municipality from liability when a jailor assaulted a prisoner with a blackjack and produced a skull concussion which resulted in his death.

Despite the exemption extended in the case last mentioned, we nevertheless in Lewis v. City of Miami, 127 Fla. 426, 173 So. ISO, had held the municipality liable to a prisoner who had contracted a communicable disease while in the city jail. Under the rule we have followed, if a police officer assaults and injures a prisoner, the municipality is immune but if the police officer is working the prisoner on the public streets and negligently permits his injury, the municipality can be held liable. If the police officer is driving an automobile and negligently injures a citizen, the municipality is liable but if the same police officer gets out of the same automobile and wrongfully assaults a citizen, the municipality is immune from responsibility,

We have mentioned these incongruities in the application of the immunization doctrine in Florida merely to justify the position, which we here take, that the time has arrived to face this matter squarely in the interest of justice and place the responsibility for wrongs where it should be. ;| In doing this we are thoroughly cognizant that some may contend that we are failing to remain blindly loyal to the doctrine of stare decisis. However, we must recognize that the law is not static. The great body of our laws is the product of progressive thinking which attunes traditional concepts to the needs and demands of changing times. The modern city is in substantial measure a large business institution. While it enjoys many of the basic p.owers of government, it nonetheless is an incorporated organization which exercises those powers primarily for the benefit of the people within the municipal limits who enjoy the services rendered pursuant to the powers. To continue to endow this type of organization with sovereign divinity appears to us to predicate the law of the Twentieth Century upon an Eighteenth Century anachronism. Judicial consistency loses its virtue when it is degraded by the vice of injustice.

We therefore .now recede from our prior decisions which hold that a municipal corporation is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat, superior. We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla. 1953, 65 So.2d 54.

Subject to the limitations above announced, we here merely hold that when an individual suffers a direct, personal injury proximately caused by„the-negl-ig-ence_fif a Qñffiiicípal^m£loyee_whil.e JLQting within the scope of his employment, the injured in-.dividuaHs entitled to redressjEoj:..tíie..y¿rong done. To support the rule we hearken hack to our original Florida precedent, City of Tallahassee v. Fortune, supra. Our judicial forebears there held that where an individual suffers a special personal damage not common to the community hut proximately resulting from the negligence of the municipal corporation acting through its employees, such individual is entitled to redress. We think this general rule was sound when it was announced in 1850 and it should be reestablished as the law of Florida. Within the framework of the above announced limitations this is the rule of our present opinion. In this vein, we therefore point out that instead of disregarding the rule of stare decisis, we now merely restore the original concepts of our jurisprudence to a position of priority in order to eradicate the deviations that have in our view detracted from the justice of the initial rule.

The further point is here made to the effect that our death by wrongful act statute (Section 768.01, Florida Statutes, F.S.A.) in imposing liability on corporations for wrongful death is not applicable to municipal corporations. We did hold in City of St. Petersburg v. Carter, Fla.1949, 39 So.2d 804, that in view of the subject matter regulated by the statute there under consideration, a municipal corporation could not have been within the contemplation of the legislature when it gave the Railroad Commission authority over certain corporations.

On the other hand we have on several other occasions, directly or by necessary implication, considered municipal corporations as being within the contemplation of the legislature in enacting statutes with reference to “corporations”. See Parker v. City of Jacksonville, Fla.1955, 82 So.2d 131; City of Lakeland v. Amos, 106 Fla. 873, 143 So. 744. In City of Sebring v. Avant, 95 Fla. 960, 117 So. 383, we held the municipality within the contemplation of the word “person” in a statute regulating persons engaged in hazardous occupations.

We hold that a municipal corporation was within the contemplation of the legislature when it adopted Section 768.01, Florida Statutes, F.S.A.

Much that we have here written has been heretofore adequately and thoroughly presented by the able dissenting opinions of Mr. Chief Justice Terrell and Mr. Justice Hobson in City of Miami v. Bethel, Fla. 1953, 65 So.2d 34, and the dissents of the same Justices in Williams v. City of Green Cove Springs, Fla. 1953, 65 So.2d 56. Mr. Justice Roberts concurred in these dissents. Reference might properly be had to those opinions for a more thorough and lucid explanation of our justification for departure from the rule of municipal immunity.

The conclusion here announced has not been hastily formulated. The matter was thoroughly briefed and argued by counsel for the parties. At the invitation of the Court, The Florida League of Municipalities filed briefs and through counsel ably presented the matter amicus curiae. It is fitting that we herewith express our appreciation.

We add in absolute fairness to the trial judge who heard this cáse below, that, in ruling as he did, he properly relied on our precedents. We here merely recede from the prior cases in order to establish a rule which we are convinced will be productive of results more nearly consonant with the demands of justice.

The judgment appealed from is therefore reversed and the cause remanded for further proceedings consistent herewith.

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

THOMAS, J., dissents.

      . Illustrative are Price and Smith, Municipal Tort Liability: A Continuing Enigma, 6 U.Fla.L.Rev. 330 (1953) ,and articles therein mentioned, esp. noté 1; also 6 Ala.L.Rev. 119 (case note based on City of Miami v. Bethel, Fla.1953, 65 So. 2d 34); Quel, Municipal Immunity from Tort Liability, 6 Record (Ass’n of the Bar of the Gity of New York) 190; 31 Boston U.L.Rev. 386; 8 Vanderbilt L. Rev. 753; 16 La.L.Rev. 812; 29 N.Y. U.L.Rev. 1321; and see annotation, 120 A.L.R. 1376.

      . Kaufman v. City of Tallahassee, 1922, 84 Fla. 634, 94 So. 697, 30 A.L.R. 471; Maxwell v. City of Miami, 1924, 87 Fla. 107, 100 So. 147, 33 A.L.R. 682; City of Tallahassee v. Kaufman, 1924, 87 Fla. 119, 100 So. 150.

      . Brownlee v. City of Orlando, 1946, 157 Fla. 524, 26 So.2d 504.

      . Kennedy v. City of Daytona Beach, 1938, 132 Fla. 675, 182 So. 228.

      . Ballard v. City of Tampa, 1936, 124 Fla. 457, 168 So. 654.

      . City of Avon Park v. Giddens, 1946, 158 Fla. 130, 27 So.2d 825, and cases cited.

      . City of Miami v. Bethel, Fla.1953, 63 So.2d 34.

      . City of Miami v. Fuller, Fla.1951, 54 So.2d 198; Janes v. City of Tampa, 1907, 52 Fla. 292, 42 So. 729.


author: TERRELL, Chief Justice.

text:
    The STATE of Florida and the Several Property Owners, Taxpayers, Citizens and Others Having or Claiming to Have Any Right, Title or Interest in Property to be Affected by the Issuance by the Town of Tavares, Florida, of Street Improvement Certificates of Said Town, or to be Affected in Any Way Thereby, Appellants, v. TOWN OF TAVARES, Florida, Appellee.
    Supreme Court of Florida, Division A.
    June 19, 1957.
    G. G. Oldham, Leesburg, for appellants. John P. Wilkerson, Eustis, for appellee.
   TERRELL, Chief Justice.

This appeal is from a final decree validating Street Improvement Certificates of the Town of Tavares issued pursuant to Ordinance No. 1956-4. There is no dispute about the salient facts in the case or that all proceedings as to their issue and validation have been conducted as contemplated by law.

It is admitted that the Town of Tavares is authorized to issue street improvement certificates but it is contended that the certificates proposed, including the special assessments to service them, were not approved in an election by the freeholders as contemplated by Section 6, Article IX of the Constitution, F.S.A., and being so they are void and unenforcible.

For these and other reasons appellant contends that the judgment appealed from should be reversed on authority of Clover Leaf, Inc., v. City of Jacksonville, 145 Fla. 341, 199 So. 923. We do not think there is any merit to this contention. It is true that the last cited case is imbued with aspects similar to those in the case at bar but the point on which it turned was quite different. The ordinance calling for issuance of said certificates provides for the creation of a certificate fund from which they are paid and the moneys contributed to said certificate fund derive solely from special assessments. In the case at bar the face of the street improvement certificates and coupons contain the following:

“This certificate and the coupons appertaining thereto are payable solely from and secured by a lien upon and pledge of the Certificate Fund created by the ordinance authorizing this issue of Certificates. This Certificate does not constitute an indebtedness of said Town within the meaning of any constitutional, statutory or charter provision or limitation, and it is expressly agreed by the holders of this Certificate and the coupons appertaining thereto that such holders shall never have the right to require or compel the exercise of the ad valorem taxing power of said Town, or the taxation of real estate in said Town, for the payment of the principal of and interest on this Certificate, or the making of any sinking fund, reserve or other payments provided for in the ordinance authorizing this issue of Certificates.”

It is accordingly shown that the certificates and coupons could he serviced only from special assessments, no ad valorem tax could be imposed to support them, nor could the credit of the Town be drawn on to pay them. In Clover Leaf v. City of Jacksonville, supra, this was not shown to be true. We think, as held by the chancellor, that the case at bar is ruled by City of Orlando v. State, Fla., 67 So.2d 673, so the judgment appealed from is affirmed on authority of and for the reasons stated in the last cited case.

Affirmed.

THOMAS, ROBERTS and THORNAL, JJ., concur.