author: McBRIDE, Judge. JANVIER, Judge.

text:
    Peter DAUENHAUER v. CITY OF GRETNA.
    No. 20698.
    Court of Appeal of Louisiana. Orleans.
    Oct. 15, 1956.
    On Rehearing Feb. 18, 1957.
    Writ of Certiorari Denied May 6, 1957.
    Jacob J. Amato and J. Henry Sciambra, Gretna, for plaintiff and appellant.
    Andrew H. Thalheim, City Atty., Gretna, for defendant and appellee.
   McBRIDE, Judge.

This appeal involves the question of the legality of the revocation of the retail liquor dealer’s permit which had been issued to Peter Dauenhauer by the City of Gretna, Jefferson Parish, under which he had been operating an establishment at which he sold liquor at retail (known as the “Brown Bomber”) in the City of Gretna. The revocation of Dauenhauer’s retail liquor permit was made by the Board of Aldermen for the City of Gretna, with the approval of the Mayor, under authority of LSA-R.S. 33:4785.

A resolution was adopted by the Board of Aldermen for the City of Gretna on June 10, 1955, reciting that whereas complaints had been made to the Mayor and Board of Aldermen regarding the manner in which the saloon known as “Brown Bomber,” of which Peter Dauenhauer is the proprietor, was being operated, it was resolved that Dauenhauer be notified to appear on a day and time therein stipulated before the Mayor and Board of Aldermen at a hearing with reference to the suspension or revocation of his retail liquor license because of certain infractions of the law resulting from his operation of the establishment. The resolution set forth nine alleged infractions of the law attributed to Dauenhauer. It was further resolved that a notice be issued by the Clerk of the Board of Aldermen “providing for a hearing,” and that a copy of “this resolution be attached and made a part of said notice.”

On the same day the Clerk of the Board of Aldermen sent to Dauenhauer via registered mail a notice calling upon him to appear at the City Hall on June 28, 1955, at which time a hearing was to be held with reference to the complaints against Dauenhauer. No enumeration of the causes for suspending or revoking the permit was contained in the notice; however, a copy of the resolution adopted by the Board of Aldermen was attached to and made a part of said notice as the resolution directed. On the day and at the time of the hearing Dauenhauer appeared with his attorney before the Board of Aldermen and at the outset of the proceedings Dauen-hauer’s counsel filed several exceptions to the proceedings. The exceptions were overruled, and after hearing the testimony of a number of witnesses, the Board of Aldermen unanimously voted to revoke Dauenhauer’s license, to which action the Mayor gave his approval.

This is one of two suits filed within ten days thereafter by Peter Dauenhauer against the City of Gretna in which he complained that his retail liquor permit had been illegally and unlawfully revoked and contended that he was entitled to injunctive relief prohibiting the Board of Aldermen from executing its judgment of revocation during the pendency of the suit. He prayed that ultimately the district court declare that the action of the Board of Aldermen revoking the permit be annulled and for all general and equitable relief. A temporary restraining order was issued in accordance with the prayer of the petition, and after trial of the rule nisi a writ of preliminary injunction was issued enjoining the Board of Aldermen from proceeding further with reference to the revocation of Dauenhauer’s liquor license during the pendency of the suit.

The City of Gretna interposed certain exceptions to the suit and then made answer which in effect sets forth that Dauen-hauer’s permit had been properly and legally revoked by the governing authorities of the City of Gretna. The exceptions were overruled after argument thereon and the matter proceeded to trial, and after hearing the evidence of many witnesses, the district judge sustained the action of the Board of Aldermen of the City of Gretna and ordered the judicial revocation of Dauenhauer’s permit; the writ of preliminary injunction was recalled. The matter has reached us on the devolutive appeal taken by Dauenhauer from said judgment pursuant to LSA-R.S. 33:4788.

Counsel for the City of Gretna has re-urged his exceptions to the suit before us, but after carefully considering them, we find no merit therein and our belief is that the exceptions were properly overruled by the judge below.

LSA-R.S. 33:4788 provides that the holder of the permit who is aggrieved by a decision of the governing body of the municipality to suspend or revoke his permit may within ten days of the notification of the decision take a devolutive appeal to the district court having jurisdiction of his place of business and on such appeal a trial shall be had de novo. Said section further provides that within ten calendar days from the signing of the judgment by the district court the municipality or the holder of the permit, as the case may be, may devolutively appeal from the judgment of the district court to the court of appeal as in ordinary civil cases.

It is true that Dauenhauer’s suit is not technically labelled an appeal from the decision of the Board of Aldermen, but from a reading of his petition it clearly appears that Dauenhauer was aggrieved by the decision and that he desired to have the district court review the proceedings which were had before the Board of Aider-men and which led up to the revocation of his permit. We think the present suit to all intents and purposes can be considered an appeal as contemplated by LSA-R.S. 33 :4788, notwithstanding that Dauenhauer sought injunctive relief. The district court unquestionably had jurisdiction to try the matter de novo and to adjudicate the issues raised.

Dauenhauer complains that the revocation of his permit was illegal in several respects and consequently that the judgment of the court below sustaining the action of the City of Gretna was erroneous.

Being convinced that the Board of Aldermen of the City of Gretna did not conduct its proceedings leading up to the revocation of appellant’s liquor license in accordance with law, we disagree with our brother below and can only say that the conclusions and final action of the Board of Aldermen are null and void and of no effect. We need discuss but one of the several points raised by the appellant in his contention that the actions of the Board of Aldermen were highly illegal and deprived him of his valuable right to continue the operation of his retail liquor business. Dauenhauer’s chief complaint is that the notice to appear before the Board of Aider-men for a hearing on the charges against him was not issued in strict pursuance of the provisions of law and that, therefore, all subsequent proceedings must fall. Finding that the notice was not such as the law directed be sent out, our opinion is that the revocation of the permit has no legal foundation and it is without any effect whatsoever.

LSA-R.S. 33:4785 provides that any municipality may suspend or revoke certain permits within the corporate limits issued to retail dealers in beverages for certain causes. But by the provisions of LSA-R.S. 33:4786, before any permit is suspended or revoked, the holder thereof shall be entitled to a hearing and no permit shall be revoked unless such hearing has been held and a majority of the governing body of the municipality thereafter votes for such suspension or revocation.

LSA-R.S. 33:4787 makes provision for the type of notice to be sent to the holder of the permit. The pertinent part of said section is:

“A notice shall be served upon the holder of the permit stating the time and place of the hearing to be held by the governing body of the municipality which shall be not less than ten calendar days from the date such notice is given. The notice shall enumerate the cause or causes for suspending or revoking the permit, and shall be sent by registered mail to the holder of the permit at the address of his place of business as given in his application for the permit, or may be served on him in person by an officer or employee of the municipality.” (Italics ours.)

The notice which the Clerk of the Board of Aldermen sent to Dauenhauer to appear before the Board for the hearing did not enumerate any of the charges or complaints made against the permittee. The attaching of a copy of the resolution of the Board of Aldermen to the notice did not meet the requirement of LSA-R.S. 33:4787 that the notice itself shall enumerate the cause or causes for suspending or revoking the permit. Surely the notice prescribed by the statute is sacramental and is one of the conditions precedent to the revocation of the permit and a necessary corollary is that any revocation of a permit made by the governing body of a municipality in the absence of the notice provided by statute is illegal and can have no effect.

Our Supreme Court was concerned with the revocation of a boxing license in State ex rel. Orleans Athletic Club v. Louisiana State Boxing Commission, 163 La. 418, 112 So. 31, 32, and with reference to the provisions of the law respecting notice said:

“We do not think it will be seriously disputed that, where licenses such as the one in question here are granted by a legislative act, which provides for the method of revocation, that method must be rigidly followed. If notice and a hearing is required, a revocation without such is of no effect. * * * ”

Our brothers of the First Circuit also considered the question of notice in connection with the revocation of a retail liquor license in Wimberly v. White, La.App., 54 So.2d 869, 873, and said:

“The summons issued to Betty White did not enumerate the causes alleged for revoking the permit. That requirement is not met by simply annexing a copy of complainant’s petition to the summons, for the act specifically makes that an additional and further requirement. * * * ”

The quotations above have particular application here and it thus appears that the policy of the law is that the method of revoking a permit must be rigidly followed by those who seek to make the revocation.

In an answer to this appeal the City of Gretna prayed that the judgment of the lower court be amended so as to allow it to recover damages in the amount of the attorney’s fees incurred in connection with the wrongful issuance of the temporary restraining order and the writ of preliminary injunction. No such damages can be allowed if for no other than the simple reason that the revocation of appellant’s retail liquor permit was null and void and the City of Gretna could not have suffered any damages by reason of the issuance of the writs restraining it from proceeding further against Dauen-hauer.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered, adjudged and decreed that the revocation by the Board of Aldermen for the City of Gretna of the retail liquor permit of Peter Dauenhauer to conduct the establishment known as “Brown Bomber” at Romain and Monroe Streets in the City of Gretna, Jefferson Parish, is hereby annulled, avoided and reversed, and the Board of Aldermen for the City of Gretna is hereby enjoined and restrained from enforcing its order of revocation of said permit. The City of Gretna is cast for the stenographer’s costs for taking testimony. LSA-R.S. 13:4521.

Reversed.

On Rehearing

JANVIER, Judge.

The facts which gave rise to this controversy and the issues which are presented are set forth in our original opinion. In our decree we annulled and avoided the action of the Board of Aldermen of the City of Gretna in revoking a retail liquor permit which had been issued to Peter Dauenhauer for the conduct of an establishment know as “Brown Bomber”, and we enjoined the said Board from enforcing its order of revocation of the said permit. We gave as our reason for our action our conclusion that the Board of Aldermen had not given to Dauenhauer proper notice of the hearing which it had held on the complaints which had been made against the operation of his said establishment.

An application for rehearing lead us to believe that possibly we were in error in our holding that proper notice had not been given and we granted a rehearing and the matter is now before us on that rehearing.

As stated in our original opinion, the statute which authorizes the revocation of such a license by a municipality is LSA-R.S. 33:4785. This requires that a hearing be held, and section 4787 sets forth the type of notice which must be given to the permittee before such a hearing may be held. That section provides:

“The notice shall enumerate the cause or causes for suspending or revoking ' the permit, and shall be sent by registered mail to the holder of the permit at the address of his place of business • as given in his application for the permit, or may be served on him in person by an officer or employee of the municipality.”

In this matter the notice itself did not set forth the causes for which the revocation was sought and we held for this reason the notice was fatally defective. However, attached to the notice and made a part of it by reference was a complete listing of the several complaints which were made and which were to be investigated at the hearing.

In holding that in attaching to the notice the list of complaints instead of in setting them forth in the notice itself the municipality had not complied with the requirements of the statute, we cited with approval a decision and decree of the Court of Appeal for the First Circuit in which, in a somewhat similar situation, that Court had said:

“The summons issued to Betty White did not enumerate the causes alleged for revoking the permit. That requirement is not met by simply annexing a copy of complainant’s petition to the summons, for the act specifically makes that an additional and further requirement.” [54 So.2d 869, 873.]

We now notice a feature which we think distinguishes that case from this. The statute which was applicable there provided not only that the notice itself must contain a list of the specific charges, but that also there must be attached to the notice a copy of such complaint or complaints as had been made. Where a statute makes two such separate requirements and only one is complied with, the notice docs-not comply with the statute and is defective. The statute, LSA-R.S. 26:96, which was involved in.the cited case, provided that “the notice or summons shall enumerate the cause or causes * * * for suspending or revoking the permit,” and it also required that “when a petition has been filed opposing the issuance of the permit or asking for its suspension or revocation a copy of the petition shall accompany the notice or summons.”

Plainly then the statute required both that the causes should be enumerated in the notice and that a copy of the complaint should be attached to the notice. Here there is no such dual requirement in the applicable statute and the notice which was given not only made reference to the list of charges but it further stated that the hearing would be held “in connection with the specifications contained in the resolution herewith attached and made a part hereof, to the same extent as if the same were fully incorporated herein.”

Under these circumstances we feel that the relator had full notice of the hearing and was well aware of the charges which had been made against his establishment and which were to be investigated at the hearing.

The record shows that he was personally present at the hearing, was represented by counsel, and presented evidence which showed that he was well aware of the details of the charges which had been made against him.

We thus conclude that the notice which was given complied fully with the requirements of the applicable statute, and we therefore pass to a consideration of the question of whether the evidence submitted justifies the revocation of the permit.

The District Judge found that in two particulars there had been violations of the statutes and regulations concerning such establishments and we are in full accord with his conclusion that there were such violations. He said:

“In connection with charge Number Six, especially that part thereof which deals with having all outside doors open to view, the Court feels that the City has proved beyond any question that a person on the sidewalk or outside the place could not see into the building through that door which is the main door fronting on Romain Street, and that there is no view inside the premises from Romain Street. Accordingly, it is the Court’s opinion that this violation or charge has been proved as set forth under the provisions of Louisiana [LSA-] Revised Statutes 26:88(9) and 26:285(10).
“In connection with that portion of charge Number Nine involving the indecent exposure of person as alleged on certain dates in March and April, the Court believes that the evidence shows that there were violations of this nature on certain dates as reflected by the evidence. The appellant placed a number of witnesses on the stand, of both sexes and races, whose testimony was to the effect that the appellant ran a proper and orderly barroom. Evidence of this nature is, of course, very substantial in disproving those allegations of continuous disturbances, and the Court in disposing of this particular charge, as set forth above, has relied upon that evidence to show that there were no general and continuous disturbances by virtue of the operation of the permitee’s business. However, as to the specific instances of indecent exposure, the Court is of the opinion that this general evidence will not suffice to disprove particular acts unless the Court should not believe the testimony of the witnesses for the City of Gretna. This the Court is unwilling to do, inasmuch as the Court feels that they were respectable persons and worthy of belief as to these particular acts which occurred in their presence. It is to be further noted that of all of the acts complained of there is only one which is shown to have occurred on the premises itself, that is the exposure of a person sitting on the front steps of the establishment in plain view, the others having occurred on the sidewalk in the near vicinity. A consideration of the testimony on this point, however, leads the Court to the conclusion that there was indecent exposure of a lewd and immoral nature so as to constitute a violation under the Alcoholic Beverages Control Law.
“In conclusion the Court is of the opinion that the City of Gretna has proved violations of the Alcoholic Beverages Control Law by virtue of failure of the permit ee to keep the main outside door open to view from the sidewalk or outside, and by the permitee permitting obscenity and lewd and immoral conduct upon the premises, and that those violations are sufficient in law for the suspension or revocation of the permitee’s license. The Court feels, however, that the revocation of the license for these causes is a rather severe result, but feels that this matter of revocation or suspension is within the discretion of the City of Gretna, and accordingly, feels that it should not disturb that decision.”

Since we fully agree with the finding that in the particulars mentioned there were violations, it is unnecessary that we discuss the evidence touching upon the other charges which were made.

Attorney’s fees may not be allowed except in cases specifically provided for by law. We know of no reason to allow attorney’s fees in this case.

Our original decree is recalled and annulled, and it is now ordered, adjudged and decreed that the judgment appealed from be and it is affirmed at the cost of appellant.

Original decree recalled affirmed.

McBRIDE, JT., absent takes no part.


source: Caselaw Access Project

license: Public Domain

text:
    Peter DAUENHAUER v. CITY OF GRETNA.
    No. 20697.
    Court of Appeal of Louisiana. Orleans.
    Oct. 15, 1956.
    On Rehearing Feb. 18, 1957.
    Andrew H. Thalheim, City Attorney, Gretna, for defendant and appellant.
    Jacob J. Amato and Henry Sciambra, Gretna, for plaintiff and appellee.
   McBRIDE, Judge.

This is the other of the two suits filed in the district court by Peter Dauenhauer against the City of Gretna in which he complained that his retail liquor permit had been illegally and unlawfully revoked and prayed for an annulment thereof and for injunctive relief. After a trial of the matter on its merits, a judgment was rendered dismissing the suit. The City of Gretna took this appeal.

The attorney for the appellant complains that the judgment is erroneous in that it did not reserve to appellant the right to file a separate suit for damages sustained as a result of unlawful issuance of the temporary restraining order and the writ of preliminary injunction.

For the reasons stated in our opinion handed down this day in the matter of Dauenhauer v. City of Gretna, La.App., 93 So.2d 27, the judgment appealed from is affirmed.

Affirmed.

On Rehearing

JANVIER, Judge.

This is the second of two suits filed by Peter Dauenhauer against the City of Gret-na in his effort to prevent the City from interfering with the operation by him of his liquor establishment known as “Brown Bomber”. The other suit was decided by us today on rehearing and bears the same title as this suit but bears our docket number 20698. 93 So.2d 27. We held that the City of Gretna was justified in revoking the permit which had been granted to Dauenhauer.

In this case Dauenhauer sought an injunction to prevent the City of Gretna from interfering with the operation of his establishment. In the Twenty-Fourth Judicial District Court for the Parish of Jefferson there was judgment recalling and annulling the preliminary restraining order and refusing the permanent injunction which had been prayed for.

For the reasons given by us in Dauen-hauer v. City of Gretna, No. 20698 of our docket, the judgment appealed from is affirmed at the cost of petitioner.

Affirmed.

McBRIDE, J., absent, takes no part.


author: REGAN, Judge.

text:
    John F. BURGER v. T. SMITH & SON, Inc., et al.
    No. 20824.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Eugene D. Brierre, L. F. Claiborne, New Orleans, for plaintiff-appellant.
    James H. Drury and Felicien P. Lozes, New Orleans, for defendants-appellees.
   REGAN, Judge.

Plaintiff, John F. Burger, the owner of an Oldsmobile sedan, instituted this suit against the defendants, T. Smith & Son, Inc., and its insurer, the Employers Group Insurance Companies, endeavoring to recover the sum of $303.80 representing property damage incurred on March IS, 1955, at 3:00 P.M. when plaintiff’s vehicle, while partially parked on a railroad track, was struck by an unattached railroad car, which was set in motion by the employees of Smith.

Defendants answered and denied that Smith’s employees were guilty of any negligence and that the damage incurred by plaintiff resulted from his own fault in parking his vehicle in a prohibited area and on or too close to an active railroad track; in the alternative, defendants pleaded the contributory negligence of the plaintiff.

The facts are simple and relatively undisputed. The accident occurred on the riverside wharf located between Napoleon Avenue and Jena Street in the City of New Orleans. Plaintiff, the Port Steward for the United Fruit Company, inadvertently parked his car with the rear end thereof near to a railroad track in what is conceded to be a “no parking” area, but one which the record established was customarily used as such by those who have business to transact in the vicinity of what is designated as the Napoleon Street wharf. He left his keys in the ignition in the event it was necessary to move the car and then walked onto the wharf to attend to his company’s business.

Shortly thereafter Smith’s employees became engaged in moving a railroad car in the direction of the parked vehicle, pushing it with a small diesel engine. Four of Smith’s men were involved in this activity: Captain John Brady, in charge of the crew, who was walking ahead of the railroad car, Wilbert Wilson, the operator of the diesel engine which was pushing the railroad car, Earl and Joseph Combs, both ahead of the railroad car to ascertain that the track was clear, the first named walking very near it carrying a “four inch by four inch chock” which was to be used if necessary to stop the car and the latter stationed some fifty feet away in the “doorway” of the wharf to prevent the entrance of traffic during these maneuvers.

Wilson was pushing the empty railroad car so as to create space for the “spotting” of a full car. It was his intention to move the car only fifty feet. This specific area of the track was clear and unobstructed. While the car was in the process of being pushed it rolled over a slight elevation in the track which existed as the result of joining the new and old sections of the wharf together. This, it is explained by several of Smith’s employees, created an impetus which caused the railroad car to move further along the tracks than was anticipated and into the parked automobile. On the other hand, Earl Combs in relating his slightly different version of the accident testified that “when he shoved the car, it rammed the other car and it didn’t couple up and I noticed that the car kept on rolling and we tried to stop it with a four by four. * * * ” In any event, when the employees noticed that the car was rolling free and would probably strike plaintiff’s automobile, Brady jumped into the parked vehicle and made an effort to move it while Earl and Joseph Combs attempted to chock the wheels of the moving railroad car with a long piece of wood measuring 4" x 4". Despite these efforts of Smith’s employees to avert the collision and resulting damage they were unsuccessful.

It is conceded that plaintiff was negligent in parking his vehicle in an area where parking was prohibited and on or too close to the railroad track and it is likewise conceded that Smith’s employees were fully aware of both the existence and the situs of this parked car, therefore, the only question which is posed for our consideration is whether Smith’s employees possessed the last clear chance to avoid the accident?

In our opinion the record reveals that Smith’s employees did possess the last clear chance .of avoiding this accident. A brief resume of the testimony of these employees will emphasize our reason for this conclusion.

Wilson, the operator of the diesel engine vacillatingly testified that he had moved cars over these tracks on other occasions and that he was acquainted with the “incline” or slight elevation in this track. He related that he was pushing the “gondola to make room for the loading and it hit an incline in the wharf there * * * that caused the car to keep on moving. * * * The automobile was sticking out a little on the edge of the track and we thought the car would pass the automobile, but it could not. * * * The car rolled and we tried to stop it. I thought we could pass the automobile, one end was clear but the back end was not clear. It was not my intention to shove it that far, but it rolled on a little bit.”

Earl Combs, who was walking about four feet in front of the car and “watching” related that he noticed the automobile but he “did not think it was in the way” and that he did not notice this “slight incline” in the tracks until the railroad car was moving over it.

Joseph Combs testified that he had positioned himself “by the door” about fifty feet in front of the railroad car and that the automobile was located between him and the railroad car when he gave the operator the signal to “come on.”

Captain Brady testified that he was in charge of the operation and was walking “ahead of the car” and when he noticed that the car was going to strike the automobile “he jumped into the automobile” and endeavored to move it, then “jumped out” before the collision occurred.

In this instance the negligence of the plaintiff, which is conceded, had become passive and the employees of Smith possessed the last clear chance of avoiding the accident, since they were fully aware of both the existence and the location of plaintiff’s car. The whole tenor of the record implies that the damage to plaintiff’s vehicle occurred because Smith’s employees were guilty of a combination of errors — ■ initially, in their unreasonable belief that this car would safely pass the plaintiff’s vehicle without striking it and secondly, they pushed the railroad car with more force than was intended, or necessary under the circumstances, thus causing it to roll too far, but error is not inconsistent with fault. This is too well settled to need citation in support thereof. In view of the fact that Smith’s employees actually knew or should have known that plaintiff’s automobile was in a perilous position, the exercise of simple caution would have avoided the collision and the damages that resulted therefrom. The rationale upon which this decision is predicated has been expressed heretofore in innumerable cases. See Raziano v. Trauth, 1930, 15 La.App. 650, 131 So. 212; O’Rourke v. McConaughey, 1934, La.App., 157 So. 598; Thiaville v. Toups, 1946, La.App., 25 So.2d 361; Schneller v. Handy, La.App., 93 So.2d 238.

Respective counsel have agreed that the automobile incurred damages in the amount of $303.80, the amount sued for.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the plaintiff, John F. Burger, and against the defendants, T. Smith & Son, Inc., and the Employers Group Insurance Companies, in the full sum of $303.80, together with all costs.

Reversed.

      . Wilson, the operator of the diesel tractor or engine.

      . Apparently there were two railroad cars on this track, the empty and the full car, positioned one behind the other.


author: JANVIER, Judge. JANVIER, Judge. PER CURIAM.

text:
    Elmo P. FLANAGAN v. Louis WELCH and Great American Indemnity Company of New York.
    No. 20831.
    Court of Appeal of Louisiana. Orleans.
    Nov. 26, 1956.
    On Rehearing Feb. 18, 1957.
    Supplemental Opinion Feb. 19, 1957.
    Writ of Certiorari Denied May 6, 1957.

      Christovich & Kearney, A. R. Christo-vich, New Orleans, for defendants-appellants.
    Raymond H. Kierr, and Donald V. Organ, New Orleans, for plaintiff-appellee.
   JANVIER, Judge.

This is another of that already multitudinous and ever multiplying horde of workmen’s compensation suits in each of which the plaintiff-employee claims to have been permanently and totally disabled, whereas the defendant-employer and the insurer assert that the employee could return to all of the duties of his former employment if he were willing to do so and in which we, with no medical knowledge whatever are asked to reach conclusions on matters on which the medical experts are themselves unable to agree.

The defendant employer and his insurer have appealed devolutively and suspensively from a judgment in favor of the plaintiff employee for compensation based on total permanent disability and in which the employee was also awarded against both the employer and the insurer penalties and attorney’s fees as provided by LSA-R.S. 22:-6S8 where an insurer refuses arbitrarily and capriciously to make payment. The employee was also awarded $410.17 as medical expenses, which it is now conceded had already been paid and should not have been included in the judgment.

The plaintiff, Elmo P. Flanagan, was a painter. He classified himself as “a finish painter — interior decorator.” This is admittedly an occupation requiring skill and experience.

On July 6, 1951, while at work as an employee of Louis Welch, plaintiff fell from a “scaffolding board” which was somewhere between 20 and 45 feet above the ground. He sustained fractures of both bones of the lower left leg and also various contusions, bruises and sprains. He was paid compensation for total disability for 33 weeks and then, as a result of a report made by the attending physician, he was discharged as “able to return to his former occupation,” as of February 21, 1952. He did not return to work for his former employer but did undertake to do painting and did so for several months although he did no climbing on ladders and in fact was required to do only work considerably lighter in character than that which he had formerly done. On August 3, 1952, he filed this suit and in his petition did not definitely allege the extent of his disability nor its probable duration and prayed alternatively for compensation for 400 weeks based on total permanent disability, or for compensation for 300 weeks for total partial disability, or for 175 weeks for specific loss of use of the “lower extremity,” or for 100 weeks covering impairment of physical function.

To this petition defendants filed answer, admitting all of the essential allegations but averring that plaintiff had not been permanently totally disabled and that, at the time of his discharge by the attending physician as of February 21, 1952, he could have returned “to his usual work,” and they further averred that he has returned “to such work as a painter and is presently able to perform said work.” This answer was filed on November 13, 1952. No effort was made on behalf of plaintiff to bring the matter to trial until practically three years later when, on October 4, 1955, there was filed a supplemental petition in which it was alleged that there had been residuals and post-traumatic degenerative changes which included “traumatic arthritis, muscle atrophy,” with “the worsening of his complaints.” In this petition plaintiff abandoned all of the alternative portions of the prayer and prayed only for compensation based on total permanent disability, together with the penalties and attorney’s fees already referred to.

The record shows that, during the three years which followed plaintiff’s discharge by the attending physician, he engaged, with varying success, in several occupations which obviously required the use of the leg which had been injured. He worked for a year as a marine oiler for the California Company in which occupation he was required to work “on eight hour shifts” on a vessel in the Gulf of Mexico. For a short time he worked “as a rough neck” for an “oil drilling outfit”. He says that that was “kind of heavy work.” On two separate occasions for extended periods he was employed as a deck hand on a tug boat for the Coyle Lines and this work required that he jump from barge to barge and from tug to barge, that he tie them together, that he handled “ratches, ropes and cables.” He says that he had quite a bit of trouble with his leg in doing this work, but we are certain that his condition was not so bad as one of his witnesses would have us believe. This witness, a fellow deckhand, said that it was necessary for him to assist Flanagan in going to and from barges and in the performance of most of his other duties. We cannot be persuaded that he could have remained in this employment had he required such assistance from a fellow employee. There can be no doubt that the work on such a tug and on such barges required agility and ability and the operators of such a tug would not retain in that position anyone so severely handicapped as the witness to whom we have referred indicates.

The fact that plaintiff continued for so long to perform the various duties of the several occupations in which he was employed shows conclusively that, as a matter of fact he was not totally disabled. However, he was a skilled employee; he had been required to place ladders and to erect scaffoldings and to work in elevated positions, and it seems from the testimony even of defendant’s medical experts that now he can no longer work from these elevated positions, and that, should he stand for extended periods, he would probably suffer pain sufficiently severe to interfere with his continuing at work.

In view of this we conclude that although, as a matter of fact, plaintiff is not totally disabled, as a matter of law and within the contemplation of our compensation statutes, he is totally disabled. Therefore he is entitled to compensation for total permanent disability, and since it is shown that his prior earnings were sufficient to justify it, he is entitled to $30.00 per week for a period not in excess of 400 weeks, subject of course to credit for the 33 weeks already paid.

When we come to consider the question, of whether there should be assessed the-penalty which is provided by LSA-R.S-22:658, and the liability for attorney’s fees, which is also provided, where an insurer arbitrarily and capriciously fails or refuses to make payment under an insurance policy, we find ourselves in a quandary, for we feel that under the circumstances shown here there was nothing arbitrary or capricious about the failure of the insurer to continue making compensation payments. In the first place, it is evident that plaintiff himself was uncertain as to what his ultimate condition would be. We say this because, in his petition, he made it quite clear that he did not know whether his alleged disability was permanent or temporary, or whether it was total or partial, or whether in fact he had sustained anything more than the impairment of the use of his leg.

We have no doubt that, had the insurer attempted to make compensation payments for partial disability, they would have been refused for, as we have said, plaintiff himself at that time did not know just what his condition was. Furthermore, during that three-year period plaintiff was engaged! in these various occupations, all of which' seem to have required laborious effort on his part.

Yet, when he was discharged as able to return to work, the insurer had the report of the attending physician to the effect that, although with normal activity, the plaintiff would “have a complete return of function of this ankle,” he had “a partial permanent disability of this left ankle of approximately 10%.”

Because of this fact we feel that we are compelled by a recent decision of our Supreme Court to hold that there is liability for the penalty and for a reasonable attorney’s fee.

In Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695, 698, the Supreme Court considered just such a situation and held the insurer liable under the cited section of the Revised Statutes. In that case the Court said that there had been a “stoppage of all conpensation payments despite the unanimous medical testimony showing that the insurer was well aware at that time that plaintiff was still partially, if not totally, disabled. Obviously, the discontinuance was indefensible.”

Here we find that all the medical experts produced by defendants are of the opinion that, although plaintiff could return to his former occupation, there might be pain and he might not be able to do some of the things required by that occupation.

If the rule set forth in the Wright case is to be applied in all cases in which there is some doubt as to the ultimate extent of disability, a most complicated situation may often arise. What we mean is simply this. Let us assume that an employee sustains a broken leg as Flanagan did here, and that he is therefore totally disabled for a period of 33 weeks, as there is no doubt Flanagan was. During that 33 weeks he is paid maximum compensation of $30.00 per week, or a total of $990.00. Let us further assume that at the end of that period of 33 weeks it is found that the employee is partially disabled. He would be entitled to compensation based on the pro rata of disability and for a period of only 300 weeks. This would produce a total amount substantially less than what would have been produced had there been permanent total disability. In such situation the employee would be entitled to the option of selecting either total disability for 33 weeks or partial disability for 300 weeks, whichever would produce the greater amount. He could not demand both. Jackson v. Steel Fabricators, Inc., La.App., 90 So.2d 397; O’Connor v. American Mutual Liability Ins. Co., La.App., 87 So.2d 16.

Therefore, when such a plaintiff is discharged by the attending physician as able to return to work with partial disability, the insurer has no means of determining whether the employee desires to retain the full amount which has been paid for total disability or to claim the amount to which he would be entitled for partial disability. How then can the insurer settle with such an employee until the employee determines just what demand he will make? If he ultimately decides that he would prefer partial disability for 300 weeks it may well be that the amount which has already been paid by the insurer will be substantially more than the employee would have been entitled to for partial disability for 33 weeks. What then should be tendered to the employee?

We repeat that a most confusing situation will often result. However, we feel that we must follow the decision of the Supreme Court in the Wright case.

However, we call attention to the fact that the judgment, insofar as it holds the employer also liable for the penalty and the attorney’s fees, is incorrect. The provision for such does not appear in the compensation laws but appears in the so-called Insurance Code to which we have already referred and the provision does not require that the employer should be held liable for such penalty but only that the insurer should be so liable. This is no doubt a distinction without an important difference, but it should be noted because in any case in which there may not be an insurer, there could be no penalty assessed against the employer alone.

Since it is conceded that the medical bills, amounting to $410 have already been paid, it follows that that item must be eliminated from the judgment.

The judgment appealed from is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of Elmo P. Flanagan, and against the defendants, Louis Welch and Great American Indemnity Company of New. York, jointly and in solido, in the full sum of $30 per week up to the sum of $12,000 for a period not in excess of 400 weeks, subject to a credit of 33 weeks already paid.

It is further ordered, adjudged and decreed that there be judgment in favor of Elmo P. Flanagan and against Great American Indemnity Company of New York for a penalty of 12% on the total amount, together with attorney’s fees of $750.

It is further ordered, adjudged and decreed that the fee of Dr. Edward Hoslam be fixed at the sum of $75 and taxed as costs in this proceeding.

It is further ordered, adjudged and decreed that the said defendants, Louis Welch and Great American Indemnity Company of New York, pay legal interest on each $30 payment from the date on which each such payment becomes due and for all costs.

Amended and Affirmed.

REGAN, J., concurs.

On Rehearing

JANVIER, Judge.

When this matter was first before us we thought that the facts shown were so similar to those which the Supreme Court had considered in Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695, that we were required to follow the reasoning of that opinion which we interpreted as holding that, since the injured employee was at least partially disabled at the time he was discharged as able to return to work and all compensation payments were discontinued, the discontinuance of those payments, as stated by the Supreme Court in that case, was indefensible.” However, the real question which was presented there in connection with the claim for penalties, which are provided in certain instances by the insurance penalty statute, LSA-R.S. 22:658, was not whether, under the circumstances shown, the discontinuance of payments was arbitrary and capricious, but was whether the insurance penalty statute had any application at all to a compensation case in which an employee makes claim for penalties. The serious dispute there arose over the question of whether an employee may be considered as an “insured” within the contemplation of that statute, and the Supreme Court, with two Justices dissenting, held that that statute does .apply in compensation cases and entitles the employee as an “insured” to recover the penalties where the facts justify such recovery.

The Supreme Court,' after deciding that question, then, with practically no discussion of the important question with which we are concerned, -said that, since the employee was, to say the least, partialty disabled and was therefore entitled to coim pensation for a period extending beyond the time at which compensation payments had been stopped, the discontinuance of all compensation payments was arbitrary and capricious and, as the Court' said, “indefensible.”

There the evidence showed that the injured employee had sustained “a definite limitation (about 60%) of supination and pronation in the member (the right arm).

The weekly wage of the injured employee .prior to the injury had been $66. During the period of recovery or convalescence he had been paid maximum compensation of $30.00 a week, the total amount of- which, at the time of its discontinuance, was $1320.-00. Thus he had been paid compensation for 44 weeks. ; '

The Court of Appeal had found that if compensation had been awarded on the basis of that partial loss of the use of the right arm, he would have been entitled to $17.51 per week for a period of 300 weeks, which would have amounted to a total of $5,253, so that even on the basis for which the defendants there seem so have been contending Wright would have been entitled to the difference between $1,320, which he had received’, and $5,253.00 to which he would have been entitled for the partial loss of the use of the arm. Thus it seems that the refusal to pay further compensation was, as found by the Supreme Court, arbitrary even under the contention of the defendants.

This is not the case here, for even Dr. Battalora who, although called to the stand for defendants, was relied on by plaintiff, said that plaintiff could go back to work but that his right leg would show a loss of use amounting to about 20%. He did not state that the plaintiff had sustained .general disability of 20% but merely that there would be a 20% loss of use of that 3eg. Thus even under the evaluation of Dr. Battalora, if defendant’s contention had ■been upheld to the effect that there was not general disability but only a partial loss ■of the use of the leg, the plaintiff would have been entitled to compensation under the specific injury subdivision (4) of Sub-part B, part 2 of section 1221 of the compensation statute rather than under any one of the subdivisions (1, 2 or 3) which provide for compensation for disability.

The compensation based on the partial loss of the use of the leg would have amounted to substantially less than the amount which had already been paid to plaintiff for the total disability during the '33 weeks of recovery since the statute, LSA-R.S. 23:1223 provides:

“Where compensation has been paid under subdivisions (1), (2), or (3), of ■R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.”

This means that if an employee is injured and, during the period of recovery or convalescence, is totally disabled and then, after recovery, is found to have sustained the loss or the partial loss of the use of a member such as an arm or a leg ■or an eye, he is to receive compensation •in accordance with subdivision (4) which provides for compensation for specific loss of a member, but from the compensation to which he would thus be entitled there shall be deducted such “amount” as may have been paid to him during the period of total disability. This section of the statute makes it clear that in such case the credit which is to be allowed to the employer or to the insurer of the employer is to be on a dollar for dollar basis and not on a week for week basis. Note the word “amount” in the section of the statute above quoted. It is the total “amount” which has been paid which is to be deducted from such amount as may be due for the loss of the use of the member. We so held in O’Connor v. American Mutual Liability Ins. Co., La.App., 87 So.2d 16, 25:

“An injured workman cannot recover compensation both for specific loss, such as a partial loss of the function of any member, and for temporary total disability. LSA-R.S. 23:1223 provides that where compensation has been paid under the disability provisions the amount of such payments shall be deducted from any compensation allowed for a specific loss, * *

A calculation easily made shows that, at the time of discontinuance of payments, plaintiff had received as compensation for total disability more than he would have been entitled to even under the evaluation of Dr. Battalora and, therefore, since the defendants were contending that there was no permanent total disability but only the partial loss of the use of the leg, surely there was nothing arbitrary about the refusal of the insurer to pay compensation on the basis of total permanent disability or to make any further payments when it was advised by its attorneys that the facts justified a recovery only on the basis of partial loss of the use of the leg since at that time it had already paid more than the employee would thus have been entitled to.

The fact that it was later held that the advice of its attorneys was incorrect and that compensation should be based on total permanent disability does not make it necessary that it be held that their following of the advice of the attorneys was arbitrary and capricious.

Counsel for plaintiff contend that, even on the basis sought by the insurer, the credit for total disability to which the insurer would be entitled would not be for the amount paid, but only for the number of weeks during which maximum compensation had been paid and that since, according to counsel, the period during which compensation, on the basis of the partial loss of the use of the leg the number of weeks for which compensation would be paid, exceeded the number of weeks, 33, during which full compensation was paid, obviously there remained a number of weeks for which compensation should have been paid. This argument is based on the fact that it is now well established that, where there is disability and an employee is taken back to do work which he is unable to do but is nevertheless paid full wages as a kind of gratuity, the credit which is to be allowed when th.e amount of compensation is finally determined is not to be based on the total amount paid but is only to be for the number of weeks during which such gratuity has been paid. That is the rule in those cases, but the statute expressly and clearly establishes a different rule in situations such as are found here.

Since our original decree was incorrect, but only insofar as the penalty and attorney’s fee are concerned, it is now recalled and annulled and the judgment appealed from is amended so as to read as follows:

It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Elmo P. Flanagan, and against the defendants, Louis Welch and Great American Indemnity Company of New York, jointly and in solido, in the full sum of Thirty ($30) Dollars per week, up to the sum of Twelve Thousand ($12,000) Dollars, representing compensation for a period of 400 weeks, subject to a credit of 33 weeks already paid, at the rate of $30 per week.

It is further ordered, adjudged and decreed that there be judgment herein ini favor of the plaintiff, Elmo P. Flanagan,, and against the defendants, Louis Welch and Great American Indemnity Company of New York, in the full sum of Four Hundred and Ten ($410.00) Dollars for medical expenses up to this time, and reserving unto the said plaintiff all of his-rights to recover the balance of medical-expenses which may be due under the law.

It is further ordered, adjudged and decreed that the fee of Dr. Edward Haslam be fixed at the sum of Seventy-five ($75) Dollars and taxed as costs in this proceeding.

It is further ordered, adjudged and decreed that the said defendants, Louis Welch and Great American Indemnity Company of New York, pay legal interest on each payment due from the date of each payment when due, until paid.

In all other respects the judgment appealed from is affirmed, plaintiff to pay costs of appeal, defendants to pay all other costs.

Original decree recalled and annulled amended and affirmed.

Supplemental opinion

PER CURIAM.

When we considered the matter on rehearing we overlooked the fact that when-the matter was argued before us the first time there was an oral stipulation to the effect that the medical expenses amounting, to $410 had been paid. Accordingly, it is-now ordered that there be eliminated from-our decree rendered on February 18th, the paragraph reading as follows:

It is further ordered, adjudged and decreed that there be judgment herein in-favor of the plaintiff, Elmo P. Flanagan* and against the defendants, Louis Welch- and Great American Indemnity Company of New York, in the full sum of Four Hundred and Ten ($410) Dollars for medical expenses up to this time, and reserving unto the said plaintiff all of his rights to recover the balance of medical expenses which may be due under the law.


text:
    CALVERT FIRE INSURANCE COMPANY et al. v. Davis A. JONES, Sr., et al.
    No. 20949.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    George M. Brooks, New Orleans, for defendants-appellants.
    Rudolph R. Schoemann and Walter J. LeBreton, New Orleans, for plaintiffs-ap-pellees.
   REGAN, Judge.

This appeal emanates from the First City Court of New Orleans. The judgment in favor of the plaintiffs in the sum of $349.02, was signed on December 18, 1956. On December 27, 1956, the eighth day after the signing of the judgment, excluding Sundays from computation, defendants moved for and were granted both a suspen-sive and devolutive appeal, conditioned upon their furnishing bond with good and solvent surety according to law in the sum of $550. The appeal bond, however, was not filed in the court below until January 2, 1957, which was the thirteenth day, exclusive of Sundays, from the day on which the judgment was signed. The appellants also failed to file the transcript of the record in this court on or before January 6, 1957, the return date fixed in the order of appeal. On January 29, 1957, in conformity with the provisions of Article 590 of the Code of Practice, the plaintiffs-appellees filed the transcript in this Court in order that the appeal might be dismissed. It reads

“If the appellee prefers to have judgment on the appeal, he may obtain a copy of the record from the lower court, and bring it up to the appellate court, and may pray for judgment, or for the dismissal of the appeal, in the same manner as if the record has been brought up by the appellant.”

LSA-R.S. 13:1971, Act 219 of 1932, which regulates the practice before the City Courts of Louisiana, in cities of over one hundred thousand inhabitants, in cases where said courts have concurrent jurisdiction with the district courts of all suits for moneyed demands above one hundred dollars shall be governed by the general rules regulating proceedings before the district courts, provides:

“Appeals shall be allowed within ten days, exclusive of Sundays, from the signing of the judgment, on giving bond, according to law, in a sum exceeding by one-half the amount of money judgments, in case of suspen-sive appeal, and in a sum to be fixed by the judge, in case of devolutive appeal, and other than money judgments.”

This language means not only that the application for the appeal must be made within ten days, but also that the bond required by law must be filed within that delay.

In Bannister v. Chisesi & Longo, La. App., 5 So.2d 145, 147, we said :-

“It is well settled that an order of appeal has no effect unless the appeal bond required as a condition “on which the order is granted is filed within the time required by law for taking an appeal. * * *.”

See, also, Montaldo Insurance Agency, Inc., v. Bonck, 1950, 43 So.2d 555.

In W. T. Burton Company, Inc., v. Stevens & Company, Inc., 216 La. 1090, 45 So.2d 634, the Supreme Court said:

“* * * that where the appellant perfects the appeal and fails to file the transcript on or before the return day, or within the three day grace period following the return day (unless extended by order of the appellate court), he is conclusively presumed to have abandoned the appeal.”

Articles 587, 589, 590, 883 and 884, Code of Practice; Whitney Central Trust & Savings Bank v. Greenwood Planting & Manufacturing Company, Ltd., 146 La. 572, 83 So. 834; Dupierris v. Sparicia, 164 La. 290, 113 So. 851; Aaron v. Mizer, 196 La. 481, 199 So. 398, and McDermott v. Kilpatrick, 198 La. 1053, 5 So.2d 332; Merchants & Manufacturers Bank of Ellisville, Miss. v. Southern Engineering & Construction Co., 228 La. 610, 83 So.2d 645.

For the reasons assigned- it is ordered that this appeal be and the same is hereby dismissed.

Motion sustained; appeal dismissed.


author: TERRELL, Justice.

text:
    James N. LEWIS, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Division A.
    May 23, 1956.
    Rehearing Denied Feb. 11, 1957.
    Rosenhouse & Rosenhouse, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for ap-pellee.
   TERRELL, Justice.

Appellant was indicted for murder in the perpetration or attempt to perpetrate a robbery; he entered a plea of guilty and was tried by the court without a jury. He was on January 18, 1954, convicted of murder in the first degree and sentenced to life imprisonment in the state penitentiary. No appeal was prosecuted from the conviction. October 4, 1954, petition for writ of error coram nobis was filed in Circuit Court of Dade County seeking to review and set aside the final judgment of conviction, permit petitioner to enter a plea of not guilty and to try the issues presented by a jury. A demurrer to the petition and addendum by the state was sustained and the cause was dismissed. This appeal is from the final decree. A motion to dismiss the appeal was overruled.

It was suggested that the petition be treated as a motion to set aside the judgment and sentence and permit petitioner to ■enter a plea of not guilty. We.attach.no significance to this suggestion. The petition bears all the indicia of one for writ of error coram nobis, it was so named by petitioner and was treated as such by the trial court. The first paragraph of the petition was as follows and we think concludes the point:

“I, James N. Lewis, one of the defendants, humbly petition Your Honor for a writ of Coram Nobis to recall, revoke and annul that certain judgment of conviction and sentence of life imprisonment at hard labor in the Florida State Prison, entered by Your Honor in the above styled cause on the 18th day of February, 1954, and which judgment and sentence is of record in Circuit Court Minute Book 243, at Page 109, and as reasons therefor your petitioner says: * *

It is first contended that the trial court erred in sustaining the state’s demurrer to the petition which was labeled coram nobis proceedings.

The prayer of the petition sought to recall, revoke and annul the first degree murder conviction and sentence to life imprisonment and permit a plea of not guilty to be entered and proceed with jury trial, because the petition definitely alleged that the plea of guilty was induced by fear, persuasion, promises of pardon, threats, intimidation, duress and improper influence.

Under the rule petition for writ of etior coram nobis must be filed within 90 days after rendition of the judgment attacked or good cause must be shown fot not filing it within that time. In this case, the judgment assaulted was entered January 18, 1954, from which no appeal was taken. Petition for writ of error coram nobis was not filed until October 4, -1954, more than eight months after the judgment and no cause is shown for the delay. It was accordingly too late and avails petitioner nothing. Ex parte Welles, Fla., 53 So.2d 708; Pynes v. State, Fla., 66 So.2d 277. Aside from coming toó late, it' appears "that the point raised by the petition is res judicata because on January 19, 1955, appellant filed his petition for habeas corpus-in this court (State ex rel. James N. Lewis v. Nathan Mayo) wherein he alleged the sanie grounds and relied on the same matters and points of law that are relied on in the case at bar. The order of denial in the latter case would seem to conclude the present case, since habeas corpus was available to bring the matter to the attention of the court.

It further appears from a thorough examination of the record that up to January 18, 1954, the date petitioner entered his plea of guilty, resulting in a life sentence, he had not been coerced, intimidated or otherwise influenced to do so. He had the advice of counsel who had full knowledge of the facts and evidence relied on by the state to convict petitioner. It appears that petitioner’s counsel advised and perhaps urged him to plead guilty in order to escape the electric chair. This is not of the character of coercion that would relieve from the judgment of conviction. The court was aware of this. After all is said, it conclusively appears that appellant got what he bargained for — a life sentence and has no right to complain. McKown v. State, Fla., 54 So.2d 54.

The second question is whether or not the judgment against appellant is void because the trial court did not take evidence after appellant pleaded guilty for the purpose of determining the degree of homicide he was guilty of.

Section 909.11, Florida Statutes, F.S.A., is relied on to support appellant’s contention for an affirmative answer to this question. Even if testimony had been required, the necessity for it was removed by agreement of appellant and the state attorney as to the facts.

It is last contended that defendant’s conviction of murder in the first degree and sentence to life imprisonment were void because the indictment did not charge the crime of murder in the first degree.

In our view State ex rel. James N. Lewis v. Nathan Mayo, filed in this court January 19, 1955, rendered any question as to sufficiency of the indictment res adjudicata. The petition was argued and briefed in this court, the same questions were raised and will not be further considered. Moat v. Mayo, Fla., 82 So.2d 591. Even if the indictment had been defective for failure to allege the crime of robbery, such defect can be taken advantage of only by motion to quash and any error committed assigned on appeal. Such defect would not render the indictment void or subject to collateral attack. Sinclair v. State, Fla., 46 So.2d 453; In re Robinson, 73 Fla. 1068, 75 So. 604, L.R.A. 1918B, 1148; Glidden v. Mayo, 128 Fla. 237, 174 So. 410. Appellant was represented by counsel and did not move to quash.

In our view the indictment was ample to support the conviction of murder in the first degree. Even if deficient in material respects, it can not be assaulted in coram nobis proceedings. It is also patent that failure to move to quash and assign error on appeal, if motion denied, waived defects in the indictment.

We conclude that no reversible error is shown so the judgment appealed from must be, and is hereby, affirmed.

Affirmed.

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


author: CROSBY, Associate Justice. PER CURIAM.

text:
    CITY OF LAKE WORTH, Florida, a municipal corporation of the State of Florida, Appellant, v. FIRST NATIONAL BANK IN PALM BEACH, as Administrator of the Estate of Truman A. Lifsey, Jr., deceased, Jeannette A. Lifsey, Verne LaForge, William J. Stimson, and Central Surety and Insurance Corporation, a corporation organized and existing under the laws of the State of Missouri, Appellees.
    Supreme Court of Florida, Special Division A.
    Feb. 6, 1957.
    Motion for Interest on Money Decree and Rehearing Denied March 13, 1957.

      Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, for City of Lake Worth.
    Sidney J. Catts, Jr., West Palm Beach, for Malcolm C. Baker.
    Warwick, Paul & Warwick, West Palm Beach, for William J. Stimson.
    Earnest, Lewis, Smith & Jones, West Palm Beach, for Central Surety & Insurance Corp.
   CROSBY, Associate Justice.

This appeal grows out of litigation in which the City of Lake Worth sought to recover city funds that were allocated for the purchase of bonds previously issued by the city. The funds were delivered to the seller but the bonds were never delivered to the city. The factual situation is presented as succinctly in the final decree as the somewhat involved circumstances permit:

“Plaintiff, City of Lake Worth, Florida (hereinafter called ‘City’), duly issued over three million dollars of its Series C Refunding Bonds under a resolution of the City Commission dated January 6, 1944, as amended by resolution dated July 20, 1944. That resolution, as amended, placed a duty upon City to establish a ‘special reserve or sinking fund’ for the protection of the owners of said Series C Refunding Bonds. That sinking fund was duly established and 'a bank account was opened for this fund at the First National Bank in Lake Worth, and tax moneys were deposited therein at various times.

“Purchase of Series C Bonds as investments for these sinking fund moneys was authorized by City through its City Commission in the following amounts and on the following dates:

“July 26, 1951, 100 bonds (each $1000 par value)
“August 13, 1951, 200 bonds
“June 16, 1952, 150 bonds
“November 6, 1952, 75 bonds.
“The first resolution passed on July 26, 1951, delegated the responsibility of properly making these purchases to defendants, Baker, Stimson and Ewing in these words:
“ ‘Section 2. That the Mayor, City Treasurer and City Clerk are authorized and directed to sign and attest such papers and vouchers and do all things necessary to properly and legally effectuate the investment of such moneys.’
“The first 100 bonds were duly purchased for this trust or sinking fund, and the following procedure was followed in making this purchase: Defendant Edwin C. Ewing who occupied the official position of City Clerk and Auditor (hereinafter called ‘Ewing’), negotiated the terms of purchase with Truman A. Lifsey, Jr., (thereafter called ‘Lifsey’), a licensed municipal bond dealer doing business as the Truman A. Lifsey Company. After making the agreement to purchase, Ewing prepared a voucher and check which was presented to defendant, Malcolm C. Baker who occupied the official positon of Mayor (hereinafter called ‘Baker’) for his signature. The check was then taken to defendant, William J. Stimson, who occupied the official position of City Treasurer and Tax Collector (hereinafter called ‘Stimson’), who thereupon affixed his signature. This check was then delivered by Ewing to Lifsey or his agents in exchange for the bonds purchased thereby. These bonds were then delivered to Ewing and later delivered by him to Stimson, who placed them in the City Vault.
“Thereafter, however, secret agreements were entered into between Ewing, Baker and Lifsey, whereby Ewing and Baker agreed that Ewing would deliver future sinking fund checks to Lifsey without the necessity of Lifsey delivering the bonds purchased thereby until a much later date. The purpose for this delayed delivery was ostensibly to permit Lifsey to effect an income tax saving. Stimson signed sinking fund checks whenever they were presented to him for his signature. He did not know the bonds were not being delivered to Ewing.
“In accordance with these understandings, Ewing thereafter delivered twenty sinking fund checks to Lifsey, advancing to him $247,889.49 of these trust or sinking fund moneys during the period November 27, 1951, through March 10, 1953, for which the City still has received no bonds nor anything else of value.
“In order to conceal these various payments of sinking fund moneys to Lifsey, Ewing prepared and submitted to the City Commission five incomplete quarterly audit reports which show no shortages. Ewing also kept the City’s bond records in such a way that they failed to show these shortages. Ewing took a worthless assignment to him of certain moneys which Lifsey claimed he had placed in a safe deposit box in a Tallahassee Bank. This box contained no money.
“After Lifsey’s death, Ewing did demand and receive from Lifsey’s bookkeeper a statement showing the shortages, but these shortages of bonds where not revealed to the City Manager or City Attorney or the City Commission, either by Ewing or Baker until eleven days after the death of Lifsey, when it became evident that Lifsey did not have either the City’s money or its bonds.
“Upon each occasion, Lifsey or his agents did deliver a ‘confirmation’ for each of the said sinking checks received under the agreement. These ‘confirmations’ stated that the bonds called for by the checks had been sold by Lifsey to the City. Lifsey, however, did not have these bonds to sell, nor did he ever acquire them. Lifsey so used the money received as to indicate that he never had any intention either to buy the bonds or to deliver them to the City. These sales were therefore merely fraudulent and fictitious sales of securities made in violation of the public policy of this State as established by the Uniform Sale of Securities Act. Plaintiff, therefore, has an equitable right to rescind these fictitious sales and to have the equitable remedies of a constructive trust imposed upon the property into which it has traced its trust moneys.
“(Here the decree lists various assets of the estate and assets held by Lifsey’s widow, into which trust moneys of the City were traced. None of those matters is involved in this appeal.)
“Defendant, Central Surety and Insurance Corporation during the period involved, was the surety on the official bond of Stimson, in the amount of $15,000.00, conditioned upon the faithful performance by him of all the duties of his office of Tax ■Collector and Treasurer.
“Defendant, Stimson, did not contribute to the loss of plaintiff. He had no knowledge, actual or constructive of the operations of Ewing and Lifsey, as did Baker. Under the circumstances, no decree should be entered against him or his surety.
“Defendant, Central Surety and Insurance Corporation, was also, during the period involved, the surety on the ‘Public Employees Honesty Blanket Position Bond’, whereby it agreed ‘to indemnify City of Lake Worth * * * through any fraudulent or dishonest act or acts committed by one or more of such employees, acting .alone or in collusion with others * * *.’ Defendant Ewing failed to properly perform the following duties imposed upon him by the City Charter:
“(1) to properly administer the affairs of the City coming under his control (Sec. 17(1).
“(2) to furnish the City Manager such reports, data and information necessary to fully inform him as to the financial affairs of the City (See. 17(1) (f).
“(3) to prescribe and require the use of a complete system of keeping accounts * * * by all officers (Sec. 17(1) (h).
“(4) to establish and maintain a system of accounting and records which would show in detail all transactions affecting the acquisition, custody and disposition of everything of value in which the City has an interest * * * and which would at all times show the financial condition, the amount of bonds issued, and the warrants, orders and other evidences of indebtedness outstanding (Sec. 17(1) (i).
“(5) to properly audit reports and accounts by all officers receiving or disbursing funds of the City (Sec. 17(1) (j).
“Whereupon, in consideration thereof,
“It is Ordered, Adjudged and Decreed that:
“(1) The Court has jurisdiction of this cause and the parties thereto.
“(2) The equities of this cause are with the plaintiff and it is entitled to relief against each of the defendants, except William J. Stimson, as to whom the Amended Complaint is dismissed. All motions to dismiss, filed herein, be and the same are hereby denied.
“(3) The fraudulent, fictitious or pretended sales of $247,889.49 worth of bonds of Truman A. Lifsey, Jr. to plaintiff be, and the same are hereby, voided or rescinded, as elected by plaintiff.
“(4) Defendant, Verne LaForge, is hereby held to have no right title or interest in the stock of Dawn Club beverages purchased by Lifsey with plaintiff’s moneys, and now in the possession of defendant, First National Bank in Palm Beach as Administrator of the Estate of Truman A. Lifsey, Jr.
“(5) Defendant, First National Bank in Palm Beach, as Administrator of the Estate of Truman A. Lifsey, Jr., is hereby held and declared to be the constructive trustee for the use and benefit of plaintiff, of $16,359.21 in cash and the stock of Dawn Club beverages which were purchased with plaintiff’s moneys, and said defendant is hereby directed to turn this property over to plaintiff as the beneficial owner thereof. The amount, if any, of the costs of administration of the Estate that should be deducted therefrom, should first be determined by the County Judge’s Court.
“(6) Defendant, Jeannette A. Lifsey, is hereby held to be the constructive trustee for the use and benefit of plaintiff, in the real property, located at 246 Merrain Road, Palm Beach, Florida, and legally described as follows:
“Lot 33, Bello Lido, according to the plat recorded in Plat Book 11, page 37, in the office of the clerk of the circuit court in and for Palm Beach County, Florida.
“Defendant, Jeannette A. Lifsey, is hereby directed and ordered within thirty days from date to deed, convey and transfer this property to plaintiff, subject to any lien in her favor as a result of a further accounting in this case, and subject to the purchase money mortgage now encumbering said property, or this Decree shall operate as such a conveyance.
“(7) Defendant, Central Surety and Insurance Corporation, surety on the Public Employees Honesty Blanket Position Bond, is hereby held to be liable and indebted to plaintiff in the amount of $2,500.00, and for the purpose of enforcing this award, the plaintiff may have execution as at law.
“(8) The First National Bank in Palm Beach as Administrator of the Estate of Truman A. Lifsey, Jr., deceased, and the defendants, Edwin C. Ewing and Malcolm C. Baker, are each liable to the plaintiff for the amount of the sinking fund moneys diverted from its lawful use and illegally paid to Truman A. Lifsey, Jr., which have not been accounted for, in the amount of $206,947.13, together with costs of this action.
“(9) It is ordered that plaintiff do have and recover $206,947.13 from The First National Bank in Palm Beach, as Administrator of the Estate of Truman A. Lifsey, Jr., deceased, Edwin C. Ewing and Malcolm C. Baker, and for which let execution issue against said defendants. As to the administrator, it is Ordered that it pay said amount out of the Estate of the deceased, if such amount is available in the Estate.
“The evidence now before the court is not sufficient to permit the entry of a decree which will determine all equities as between the plaintiff and Jeannette A. Lifsey. Therefore, the court directs that a further hearing be held, if desired by the parties, as to an accounting on the part of Jeannette A. Lifsey, concerning fqnds received by her from the bank account of Truman A. Lifsey, Jr., less the funds paid over by her to his estate, and as to payments on the mortgage, rental value, improvements, insurance premiums, taxes and other expenditures that should properly be considered by the court in connection with the home on Lot 33 Bello Lido.
“This court retains jurisdiction for the purpose of effectuating the further accounting as indicated in this decree, on the part of Jeannette A. Lifsey; for the purpose of modifying this Decree as to the amounts due as equity may require; and for the purpose of enforcing this decree.”

Thereafter a supplemental final decree was entered, reducing the sum found due the city to $204,447.13 and denying Baker’s petition for rehearing but not otherwise affecting matters involved in this appeal.

For clarity, we will in this opinion adopt the nomenclature used by the chancellor in referring to the parties to the suit.

From the final decree as amended the City appeals, contending that dismissal of the complaint as to defendant Stimson (and defendant Central Surety and Insurance Corporation as to its liability upon Stimson’s bond) was error.

Defendant Baker also appeals, contending that the chancellor erred in (1) post-. poning ruling on Baker’s motion to dismiss until final hearing and in denying the motion; (2) denying Baker’s motion to inspect a report made by a detective agency employed by the city; (3) finding credible evidence to sustain entry of a money decree against Baker; and (4) finding that the city was required to establish a reserve fund, was authorized to purchase its bonds, and that it elected to rescind its contract with Lifsey.

We find no substance in defendant Baker’s contention that it was error to defer ruling on his motion to dismiss until final hearing. The time for determination of such a motion under our present rules of practice should, and does, rest in the sound discretion of the trial court. 30 F.S.A. Rule 1.11, Florida Rules of Civil Procedure (formerly Equity Rule 33), after enumerating defenses that may be raised by motion, provides in subdivision (d) :

“The defenses 1 to 7, subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment or decree mentioned in subdivision (c) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.”

For similar interpretation of the federal rules see Montgomery Ward & Co. v. Schumacher, D.C.Cal.1944, 3 F.R.D. 368; Sbicca-Del Mac, Inc., v. Milius Shoe Co., D.C.Mass.1940, 36 F.Supp. 623. While it is possible that an abuse of the discretion lodged in the trial court might be shown in a particular case, no such showing is made here. This case, with its complexities of fact and law, well illustrates the necessity for lodging such discretion in the trial court.

We likewise find no merit in defendant Baker’s contention that the trial court erred in denying his motion to dismiss. Defendant’s argument is predicated upon the view that the complaint sought merely a money decree against Baker and that as to him the city had an adequate remedy at law. It is true that the complaint does not allege property in the hands of the defendant Baker into which the city’s funds flowed. The complaint does, however, aver that this defendant was an officer of the city, that he acted corruptly and in abuse of his official position, and that he participated in a conspiracy to defraud the city of these funds. It is a proper head of equity jurisdiction to require an accounting from persons standing in such a fiduciary position. See Royal Indemnity Co. v. Knott, 1931, 101 Fla. 1495, 136 So. 474; and, as to the fiduciary character of the-defendant’s position, Ewing v. State, Fla. 1955, 81 So.2d 185; City of Winter Haven v. Summerlin, 1934, 114 Fla. 727, 154 So. 863, 865. It is equally well established that a court of equity, having acquired jurisdiction on substantial equitable ground, will give complete relief. Hightower v. Thurmond, Fla.1952, 55 So.2d 564; Donnelly v. Mann, Fla.1954, 68 So.2d 584; cf. Ramsey v. Lovett, Fla.1956, 89 So.2d 669. The chancellor correctly ruled that the complaint alleged facts calling for an accounting and that equity, having assumed jurisdiction for the purpose of accounting, would render complete relief by awarding a money decree against Baker if the proof sustained the complaint.

As to defendant Baker’s complaint that it was error to deny his motion to inspect a report made by a detective agency in the employ of the City, we find the lower court’s ruling so clearly within the “work-product” rule laid down in Seaboard Air Line Railway Co. v. Timmons, Fla.1952, 61 So.2d 426, and cases therein cited, as to require little comment. We do not regard the fact that the plaintiff is a municipality as alone requiring an exception to the rule,, and no other unusual circumstance is shown.

We have examined carefully the transcript of testimony relating to the defendant Baker, and we find there substantial, competent evidence to support that portion of the final decree charging, him with responsibility for the missing city funds. While it is true, as the defendant points out in his brief, the testimony directly linking this defendant with the fraudulent transactions came from persons who were themselves implicated and should therefore be considered with caution, see 15 C.J.S., Conspiracy, § 31, p. 1050, we cannot assume that the chancellor, who heard •the evidence and observed the witnesses, failed to comply with this requirement in •evaluating the testimony. Under these circumstances we are not authorized to substitute our judgment, predicated only upon the transcript of testimony, for that of the trial court, Loew v. Friedman, Fla.1955, 80 So.2d 672; Haas v. Crisp Realty Co., Fla. 1953, 65 So.2d 765.

The fourth question raised by defendant Baker we think it unnecessary to decide. So far as this defendant is concerned, the determinative question before the lower court was whether he had in fact participated in a scheme whereby the City’s funds were improperly and fraudulently dissipated. The. authority or lack of authority on the part of the City to establish a special reserve or sinking fund and to purchase its own bonds with monies in that fund was material to show the means whereby the fraud was perpetrated. If no such authority existed, the conduct of the defendant was no less blameworthy. We would approve a strange standard of public morality, indeed, were we to hold that a municipal officer is relieved of responsibility for misapplication of public funds that chance to ■come within his control by reason of the invalidity or misinterpretation of a statute or •ordinance. See City of Auburndale v. Nunn, 1936, 125 Fla. 55, 169 So. 558.

As to defendant Baker’s argument that the trial court erred in finding that the City had elected to rescind the contract to repurchase its bonds, we regard the timely commencement of suit in this situation as sufficient evidence of an election on ■the part of the City to rescind. .See generally 17 C.J.S., Contracts, § 435; p. 918. In- this connection the defendant questions the authority of the City’s attorney to make such an elecion for the City. If by this he intends to question the authority of the City’s counsel to institute this suit, it is sufficient to say that the record does not show that this question was raised before the trial court, and it is accordingly not available to the defendant on appeal.

We are confronted with a more difficult question in the plaintiff City’s appeal from that portion of the final decree absolving City Treasurer Stimson and the surety on his official bond from responsibility in the misappropriation of City funds. The chancellor ■ found and the evidence sustains his finding that defendant' Stimson was not a party to the agreement that the City’s funds be paid over to Lifsey without.requiring a contemporaneous delivery of bonds by Lif-sey. We are left, therefore, with the question whether Stimson properly performed the duties of city treasurer and, if he did not, whether such failure caused or contributed to the loss suffered by the City. The relevant provisions of the city charter require the treasurer:

“(a) To be custodian of all moneys of the city and to keep and preserve same in such manner and in such place or places as shall be determined by the City Commission.
“(b) To receive and collect all moneys due the city, including taxes, utility receipts, licenses, fines forfeitures, permit, special assessments, and income from all other sources, and keep an accurate account thereof.
“(c) To pay out moneys of the city only upon warrants signed by the city clerk and countersigned by the mayor * * *
“(d) To prepare report of receipts and disbursements at the end of the month, and submit same to the city clerk, together with all warrants, bonds, interest coupons, and other evidences of indebtedness of the city which may have been redeemed and can-celled by him during the month, ■ taking the receipt of the city clerk therefor.
“(e) To submit to the city manager for submission to the city commission at the first regular meeting in each month a report of the financial condition of the city which report shall be submitted through the city clerk and bear the certificate of the clerk as to its correctness.
“(f) To keep separate account of each fund and appropriation and of the debits and credits pertaining thereto.
“(g) To prepare receipts in duplicate for all moneys paid into the city treasury, delivering the original receipt to the person paying the money and turning the duplicate over to the city clerk at the time of his monthly settlement with that officer.
He * * * * *
“(j) To invest or deposit in banks when qualified as city depositories, as saving accounts or otherwise, any and all moneys belonging to the city as sinking funds; the investment or deposit to be made in such manner as in the judgment of the city commission the best interest of the city will be served * * (Emphasis supplied.)

In his final decree the chancellor found that the first resolution by the city commission passed July 26, 1951, directing the purchase of these refunding bonds delegated the responsibility of properly making the purchases to Baker, Stimson, and Ewing. In due course this first group of bonds was purchased and delivered to Stimson, who placed them in the city vault.

Other resolutions passed August 13, 1951, June 16, 1952, and November 6, 1952, directed the puchase of additional bonds but did not specify the officers responsible for such investments. It was from funds made available pursuant to these resolutions that the sinking fund moneys were paid over to Lifsey without requiring that 'bonds be delivered by him. The evidence shows that some twenty sinking fund checks were delivered by Ewing to Lifsey during the period November 27, 1951, through March 10, 1953. On three occasions a lesser number of bonds than called for by the checks were delivered to Ewing and turned over to Stimson; on the other occasions no bonds at all were delivered to Ewing or by him turned over to Stimson for safekeeping in the city vault. In order to cover the shortages, Ewing falsified five quarterly audit reports to show as “on hand” all bonds for which payments had been made. In addition, during this period the evidence showed that no two occasions Ewing received from Lifsey and delivered to Stimson sufficient money to cover the interest due on the undelivered bonds. Stimson admitted receiving money that had been given to Ewing by Lifsey and crediting it to the interest and sinking fund.

Even though he was not specifically charged with the duty of acting as custodian of the bonds purchased by the city, Stimson did act as custodian of the bonds actually received by the city. This circumstance alone may not be sufficient to charge him with knowledge of what was going on. We are unable, however, to see how, if he had properly discharged the duties imposed upon him by the city charter, Stimson could have failed to know that the city’s funds were being improperly diverted. For example, his monthly reports to the city commissioners showing the financial condition of the city would, if properly done, necessarily have revealed the disbursement of moneys for the purchase of bonds, the periodic disbursement of interest payments by the city in behalf of the bondholders, the bonds on hand, and in some manner reflected the interest credit accruing to the city for bonds it had purchased. The obligation “to keep separate account of each fund and appropriation and of the debits and credits pertaining thereto” required Stimson to keep an accurate, detailed record of the debits and credits applicable to the sinking fund provided for the refunding bonds; and, in keeping such a record, he would be bound to know when interest payments were due to be paid by the city and, as well, when there was due the sinking fund a credit for interest on bonds supposedly purchased by the city. Moreover, it is clear that interest was received from Lifsey, ostensibly on missing bonds, and that Stimson knew the source of these interest payments. This fact should have warned Stimson that all was not as it should be. In addition, the city. treasurer was expressly charged by the charter with the duty to invest or deposit all sinking fund moneys of the city. Under these circumstances, Stimson could not have discharged properly and fully the duties imposed upon him by the charter without thereby being advised of the existing conditions. Having such knowledge, it would have been his duty to report it to the city manager and commissioners; and if this had been done, the loss of the City’s funds could have been avoided. We find that Stimson failed to perform fully the duties of his office and that his failure caused loss to the City. His position in respect to these funds was fiduciary in character, see Ewing v. State and City of Winter Haven v. Summerlin, supra, and generally 62 C.J.S., Municipal Corporations, § 546, p. 1016; and he must therefore be held accountable for the loss.

The condition of Stimson’s official bond as city treasurer, upon which defendant Central Surety and Insurance Corporation was surety, was that he “well and faithfully perform all of the duties of said office.” His failure to perform and the resulting loss to the City renders the surety liable upon the bond. Where, as in this case, a court of equity has acquired jurisdiction to compel an accounting from a fiduciary, the liability of the surety on the fiduciary’s bond may be enforced in the same suit. Royal Indemnity Co. v. Knott, 1931, 101 Fla. 1495, 136 So. 474; Grant v. Amiker, 1935, 120 Fla. 356, 162 So. 712.

It follows that the decree of the chancellor must be reversed in part and affirmed in part, with directions to enter a decree in favor of the. plaintiff City of Lake Worth, Florida, against the defendant William J. Stimson in the sum of $204,447.-13 and against the defendant Central Surety and Insurance Corporation in the sum of $15,000. As to all other questions raised on appeal the decree is affirmed.

Affirmed in part, reversed in part and remanded with directions.

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

Order on Motion for Interest on Money Decree

PER CURIAM.

The motion for interest on money decree filed by appellant the City of Lake Worth is hereby denied, but without prejudice to a determination by the chancellor of the matter of allowance of interest and the fixing of the date from which the interest should run.

It is so ordered.

TERRELL, C. J., HOBSON and BUFORD, JJ., and CROSBY, Associate Justice, concur.

      . Though the resolutions subsequent to the first one did not designate the officers responsible for the investment of these particular sinking fund moneys, it may be presumed that responsibility remained unchanged in the absence of a contrary showing. See Bludworth v. Bray, 59 Fla. 437, 52 So. 957. It is evident from the record that the officers named in the first resolution regarded their responsibility as unchanged, since the same general course of conduct was followed in each of the transactions. Even in the absence of any such provision in the resolutions the city charter (subparagraph (j) supra) imposed upon the city treasurer the duty to invest or deposit all sinking fund moneys.


author: DREW, Justice.

text:
    Petronelia DEWAR and John Dewar, her husband, Appellants, v. CITY OF MIAMI, Florida, a municipal corporation, Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, Appellees.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    Kelner & Lewis, Miami Beach, for appellants.
    J. W. Watson, Jr. and Robert M. Haver-field, Miami, for City of Miami; Blackwell, Walker & Gray, Miami, for Ayares Finance Corp., Reliable Motor Co., Inc. and Universal Finance Co. Inc., appellees.
   DREW, Justice.

A determination of the existence or nonexistence of contributory negligence in a. summary judgment situation provides the focal point for this opinion.

Petronelia Dewar brought a complaint, charging the adjacent property owners and. the city with negligence in regard to the creation of cracks in a sidewalk, and failure to repair such defects. Mrs. Dewar alleged that she fell while she was walking upon. the defective sidewalk. The defendants charged Mrs. Dewar with contributory negligence, which would bar her claim. The trial judge entered summ.ary judgment for the defendants from which Mrs. Dewar appeals:

“This cause came on to be heard, after due notice, upon the defendants’, Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, Motion for Summary Judgment, upon the pleadings, the deposition of Petronelia Dewar, and the affidavit of A. Schloss-berg; and after counsel.for the plaintiffs waived notice required by .the rules-for the filing of motions for summary judgment, the Court allowed the defendant, City of Miami, Florida, to-join in the motion for summary judgment filed in behalf of the defendants, Ayares Finance Corporation, Reliable Motor Company, Inc., and Universal Finance Company, Incorporated, and after argument of counsel and the Court being otherwise duly and fully advised in the premises, it is thereupon
“Considered, ordered and adjudged, as follows:
“1. The Defendants’ Motion for Summary Judgment be and the same hereby is granted upon the ground that it affirmatively appears that the Plaintiff, Petronelia Dewar, was guilty as a matter of law of contributory negligence.” (Amended order)

Mrs. Dewar’s testimony on deposition is the only evidence which we find necessary to support the conclusion of the trial judge. Her testimony concerning her own action when she was faced with the defective sidewalk situation is not controverted. In the discovery deposition of Mrs. Dewar, which was before the trial court and considered in the disposition of the motion for summary judgment, she testified that some ■distance before she reached the point in the sidewalk where she was injured she saw that the sidewalk was cracked and 'broken. She testified that she didn’t know exactly how far she was from it but that •she did see that “the whole area is pretty •cracked up.” She further testified:

“Q. It was clear at this time? A. Oh, yes.
“Q. Was there anything that would obstruct your view of the sidewalk as you walked along at this time? A. No, nothing.
“Q. At the time you-had the accident were you looking where you were walking? A. Oh, yes. I always do.
“Q. And did you notice these imperfections in the sidewalk that you testified to? A. Well, there were a lot of cracks in the sidewalk. The entire area is cracked but I didn’t see anything that was other than cracks.
“Q. You did notice the cracks? A. Oh, yes. The entire area is cracked.
“Q. Have you been over this area before? A. No, sir.”

In Chambers v. Southern Wholesale, Inc., Fla., 92 So.2d 188, 190, we said, speaking through Crosby, Associate Justice,

“In the present case the plaintiff’s testimony affirmatively shows that she did not exercise that degree of care for her own safety which the law requires. The puddle of water was plainly visible. She knew as well as the defendants the extent to which water may render a concrete sidewalk slippery. She could easily have avoided stepping upon the wet spot. Upon this evidence, and in the absence of circumstances that would justify her failure to apprehend and avoid the danger, she is barred by her contributory negligence from recovering damages against the defendants.”

The record here fails to show any circumstances that would justify Mrs. Dewar’s failure to apprehend and avoid the danger. On the contrary, her testimony clearly shows that after seeing the condition of the sidewalk some distance away, she continued on her way and stepped into the crack which resulted in her injury. Under such circumstances she is guilty of contributory negligence as a matter of law. Becksted v. Riverside Bank of Miami, Fla. 1956, 85 So.2d 130; Earley v. Morrison Cafeteria Co., Fla.1952, 61 So.2d 477 (summary judgment cases) ; See also Bowles v. Elkes Pontiac Company, Fla.1952, 63 So.2d 769; Pettigrew v. Nite-Cap, Inc., Fla.1953, 63 So.2d 492; Breau v. Whitmore, Fla.1952, 59 So.2d 748; and Brant v. Van Zandt, Fla.1955, 77 So.2d 858.

The foregoing cases are distinguishable from those such as City of Palatka v. Woods, Fla.1955, 78 So.2d 562, 563, where the evidence established that the injured party was not aware of the dangerous condition of the sidewalk prior to the time of injury. In City of Palatka v. Woods, supra, we said, in disposing of the question of contributory negligence:

“The evidence clearly shows that the plaintiff below was not aware of the dangerous condition of the sidewalk ■ prior to the time of injury. Therefore, the question of whether the failure to observe the condition constituted contributory negligence was one for the jury. The case would have fallen under the other rule had the witness testified or had the evidence otherwise established that the plaintiff knew of the defective condition of the sidewalk prior to the time she proceeded forward in the dark ” (Emphasis added.)

In the instant case, as shown above, the plaintiff was walking on the sidewalk in the daylight and testified that she saw and knew that the sidewalk was defective sometime prior to walking into the defective area. When she continued on her way with full knowledge of said defects she became guilty of contributory negligence as a matter of law.

Affirmed.

TERRELL,. C. J., and HOBSON, ROBERTS, THORNAL and O’CON-NELL, TJ., concur.