author: DREW, Justice.

text:
    The STATE of Florida, and the Taxpayers, Property Owners and Citizens of The City of Key West, Florida, Including Nonresidents Owning Property or Subject to Taxation Therein, Appellants, v. The CITY OF KEY WEST, a Municipal Corporation of Florida, Appellee.
    Supreme Court of Florida.
    Oct. 25, 1957.
    Phil O’Connell, West Palm Beach, for appellants.
    M. Ignatius Lester, Key West, for ap-pellee.
   DREW, Justice.

This is an appeal from a final decree validating $150,000 public improvement certificates of the City of Key West dated July 1, 1957 issued for the purpose of providing funds for constructing a swimming pool or swimming pools, recreational facilities and a community hall. The ordinance authorizing the issuance of said public improvement certificates provides that said certificates and all interest thereon shall be paid exclusively from the proceeds received by the City of Key West from the excise or privilege tax imposed by said City upon the sale, receipt, purchase, possession, consumption, handling, distribution and use of cigarettes sold or to be sold at retail within the territorial limits of said City, said tax being authorized by and levied pursuant to the provisions of Section 210.03, Florida Statutes 1955, F.S.A., and the City ordinances adopted pursuant thereto. It is specifically provided in the ordinance authorizing the issuance of said certificates that such certificates do not constitute an -indebtedness or pledge of the general credit of said city within the meaning of any constitutional, charter or statutory provisions relating to the incurring of indebtedness.

Prior to the adoption of the ordinance authorizing the issuance of the bonds and obviously for the purpose of evidencing legislative approval of the expenditure of the funds for the purposes set forth in the ordinance, the Legislature enacted Chapter 57-1468 (H.B. 1412) the pertinent portion of which authorizes the City of Key West to expend from the amounts it receives by virtue of Chapter 210, supra, a sum of money not in excess of $175,000 “for the purpose of constructing a municipal swimming pool or swimming pools and recreational facilities and community hall.” The act further authorizes the City to issue such certificates of indebtedness not to exceed the .amount aforesaid as may be required to complete and finance said projects and to pledge not in excess of the sum of $175,000 of said funds so received under Chapter 210, Florida Statutes 1955, F.S.A., aforesaid, to pay off said certificates of indebtedness.

Appellants argue that the aforementioned 1957 act of the Legislature violates Article IX, Section 5 of the Florida Constitution, F.S.A., in that it purports to authorize the proceeds derived from a state tax to be applied to local purposes. There is no merit in this contention. For the purpose of making uniform throughout the state taxes levied upon the sale of cigarettes,' Chapter 210, supra, authorizes any incorporated city within the state to impose such tax up to the same amount and under the same conditions set forth in the act itself. While it authorizes the collection of said tax by a state agency, in those instances where the municipal corporations have elected to levy said tax under Section 210.03, the proceeds derived therefrom and the tax so levied are purely a municipal tax.

In State v. City of Coral Gables, Fla.1954, 72 So.2d 48, we approved the issuance of bonds of the City of Coral Gables which pledged the proceeds of said cigarette tax for the purpose of constructing storm sewers within said city. In State v. City of Auburndale, Fla.1956, 85 So.2d 611, we approved an issue of bonds payable from the city’s share of the proceeds of the cigarette tax for the purpose of improving the streets, building sanitary and storm sewers and to liquidate certain outstanding tax certificates to “construct a municipal building to house city offices.” In that case we reviewed the type of improvements that Chapter 210 authorized to be financed from the proceeds of the cigarette tax and held that while there was a limitation in said act upon such purposes, that a city hall falls within the classification of an essential governmental function. And again in the recent case of Welker v. State, Fla.1957, 93 So.2d 591 we reviewed these limitations and held that the construction of an off-street parking facility is within the authorized uses of the cigarette tax income under the aforesaid Chapter 210.

Obviously because of the limitations placed upon the authorized uses of the proceeds of the cigarette tax in Chapter 210, and the uncertainty that “swimming pools, recreational facilities and a community Hall” were within such authorized uses, the city procured the passage by the Legislature of the aforementioned Chapter 57-1468, Acts of 1957. This act extended the authorized uses to include the construction of the municipal improve-merits described in the ordinance authorizing the issuance of the subject certificates, determining in effect that such uses were a municipal purpose. It is suggested on this appeal that the 1957 special act aforesaid is in conflict with the general law and, therefore, invalid and ineffectual to confer the power upon the City of Key West to use such funds for the purposes mentioned in the ordinance. Numerous decisions of this Court answer this question contrary to the contention of appellants. Without deciding that these improvements may not be lawfully constructed and the proceeds of the cigarette tax pledged, under the provisions of Chapter 210, the 1957 special act clearly confers such authority upon the City and to the extent of any conflict between it and the general law, the 1957 Special Act controls. See Quigg v. State ex rel. Miller, 1941, 145 Fla. 431, 199 So. 489; City of St. Petersburg v. Carter, Fla.1949, 39 So.2d 804.

Affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Evelyn FRANKENBERRY, Appellant, v. Stella STERN, as Executrix of the Estate of Theodore L. Stern, Deceased, Appellee.
    Supreme Court of Florida.
    Oct. 23, 1957.
    Gershon S. Miller, Miami Beach, for appellant.
    Shutts, Bowen, Simmons, Prevatt & Julian, and John Cotton Howell, Miami, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from and it appearing to the Court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument ;

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

Affirmed.

TERRELL, C. J., and THOMAS, HOB-SON, ROBERTS and THORNAL, jj., concur.


author: THORNAL, Justice. PER CURIAM. PARKS, Circuit Judge

text:
    Gordon POWELL and Ruth E. Powell, his wife, Petitioners, v. Lena S. WEGER and Mrs. Bernard Berger, Respondents.
    Supreme Court of Florida, Special Division A.
    June 19, 1957.
    On Rehearing Oct. 30, 1957.

      Farish & Farish, West Palm Beach, for petitioners.
    Paty, Downey & Daves, West Palm Beach, for respondents.
   THORNAL, Justice.

By petition for writ of certiorari the petitioners Powell, who were defendants in the lower court, seek review of an order of the Chancellor referring the cause to an examiner for the talcing of testimony over the objections of petitioners.

The point to be determined is whether a Chancellor may refer an entire case to a special examiner for the taking of testimony in the face of an objection by one of the parties.

Respondents Weger and Berger instituted proceedings against the petitioners Powell for the foreclosure of a mortgage. The Powells answered and counterclaimed asserting the defense of usury. After filing their reply to the counterclaim, the respondents, Weger and Berger, filed a motion asking the Chancellor either to hear the case himself or refer the matter to an examiner for the taking of testimony. Petitioners Powell objected to the reference of the cause to an examiner contending that in view of the nature of their defense it was important that the Chancellor himself hear the witnesses in order that he might have the benefit of observing their demean- or and other reactions from the witness stand.

The Chancellor disregarded the objections of the petitioners and referred the entire case, together with six others involving similar facts, to an examiner for the taking of testimony. The Judge gave as his reason for doing so the fact that his calendar was congested and that the order of reference would result in an expeditious disposition of the case. Review of this order is now sought.

The petitioners contend that there is no authority in our rules for the appointment of an examiner and that, even if there were, one should not be appointed to hear an entire case in the face of objection of one of the parties.

The respondents contend that our rules specifically authorize the appointment of an examiner in a chancery case and that there is no restriction short of abuse of discretion that would preclude a Chancellor from making such a reference.

We must agree with the respondents that our rules do authorize the reference of a chancery case to an examiner for the taking of testimony. See 31 F.S.A. Rule 3.12, Florida Rules of Civil Procedure. An examination of our decisions, however, impels us to the conclusion that such a reference of an entire case should not he made in the face of an objection by one of the parties who elects to have the privilege of presenting his cause to the Chancellor himself.

The differences between an examiner and a special master without authority to make findings are really minor. While the special master is usually, but not necessarily, a lawyer, the special examiner is customarily a court reporter or stenographic expert commissioned likewise to administer oaths. We think there is no fundamental reason to apply to examiners different rules than we have applied to special masters.

We have held that our Constitution vests exclusive original jurisdiction of equity cases in the Circuit Courts. We have also taken note of the proposition that there is no constitutional provision affirmatively authorizing the delegation of any of the court’s powers to a master. See Section 11, Article V, Florida Constitution, F.S.A.

In Slatcoff v. Dezen, Fla.1954, 74 So.2d 59, we recognized that when the parties agree, or in the absence of objection, an entire case may be referred to a master with authority to hear testimony and submit his findings and recommendations to the Chancellor. In the cited case it was also pointed out that under our rules (Rule 3.14, Florida Rules of Civil Procedure) the Chancellor has the authority, even in the face of an objection or want of agreement, to refer particular aspects of a pending case to a special master. We specifically announced, however, that an entire case could not be so referred in the face of an objection by a litigant or absent consent. The opinion in the cited case, concurred in by the entire Court, contains a lucid and comprehensive analysis of the historical and statutory background of the system of referring matters to masters in chancery.

The function of a special examiner was recognized in Randall v. Twitchell, 98 Fla. 559, 124 So. 21, and Grimsley v. Rosenberg, 94 Fla. 673, 114 So. 553.

The position of this Court with regard to the problem at hand is consistent with the rule of the Federal courts in construing Rule 53 of the Federal Rules of Civil Procedure, 28 U.S.C.A. By the Federal rule it is expressly provided that reference to a master shall be the exception and not the rule. The Supreme Court of the United States has held that an unusually heavy docket or trial list that might produce delay in the hearing of a particular cause is not in and of itself adequate justification for referring the cause to a master. McCullough v. Cosgrave, 1940, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992.

The position which we here announce is further supported by the recognized weight of authority. 19 Am. Jur., Equity, Sec. 371, p. 255. The essence of the reason for this rule is that when a cause comes to this Court on appeal, the decree of the Chancellor is accorded a presumption of correctness. The appellate tribunal has no opportunity to view the witnesses, to observe their demeanor and conduct on the witness stand. The appearance and reaction of the witnesses, their vocal inflection and their general demeanor often substantially influence the degree of credibility accorded their testimony.

When a litigant elects to present his cause before the trial judge, he is merely asserting a privilege assured to him by the organic law. He should not be deprived of this privilege without his expressed or implied consent.

Nothing herein is to be construed as precluding the Chancellor from referring a case to a special master or examiner for the performance of a “particular service” if such is necessary to aid the Court in an expeditious disposition of the cause. We merely here hold in consonance with the rule recognized everywhere that the hearing of an entire case should not be referred to an examiner in the absence of the consent or acquiescence of the litigants.

We fully realize that in some sections of Florida, including the Circuit here involved the trial dockets are often unusually congested due to a tremendous volume of litigation. We also realize that such congestion taxes the capacity of the most devoted judges, such as admittedly are here involved. Nonetheless, we are not privileged to sacrifice the rights of a litigant in the interest of expediency.

The prayer of the petition is granted, the order appealed from is quashed and the cause is remanded for further proceedings consistent herewith.

TERRELL, C. J., THOMAS, J., and PARKS, Associate Justice, concur.

On Rehearing Granted

PER CURIAM.

A rehearing having been granted in this cause and the case having been further considered upon the record and upon the briefs and argument of attorneys for the respective parties’; it is thereupon ordered and adjudged by the Court that the Opin■ion filed June 19, 1957, be and the same is hereby adhered toi.

TERRÉLL, C. J., and THOMAS, 'HOBSON, THORNAL, DREW and O’CONNELL, JJ., concur.

PARKS, Circuit Judge, dissents.

PARKS, Circuit Judge

(dissenting).

Upon further consideration of the cause and appellants’ petition for rehearing, I have concluded that it would be error to reverse the Chancellor’s order referring the .taking of the testimony to a special examiner.

Upon careful reading of Slatcoff v. Dezen, Fla., 74 So.2d 59, on which reliance is placed to ground some phases of the opinion, I do not think that the case is a precedent for the original opinion of the Court in this case. In that case the reference to the master required him. to take the testimony and report his findings of fact and conclusions of law together with his recommendations. The order of the Judge contained no such provision in this case and merely stated:

“The docket of this Court being at this time unusually heavy, it will greatly expedite the handling of these cases by referring them to the Official Court Reporter as Special Examiner.” .

A Special Master’s duties in the absence of any authorization to make findings and recommendations are limited to the taking and reporting of the testimony of the parties litigant. 31 F.S.A. Rules of Civil Procedure, Equity Rule 3.14. Such appointment may be made for any “particular service” or, as it perhaps may be more properly .termed, “limited service”. Stewart v. Mack, Fla., 86 So.2d 143. The term “particular. service”, as it was construed in the .Stewart case, includes the taking of a part or all of the testimony in the case, as the order may authorize, but does pot include the making of findings or recommendations. This is the true intent of the rule.

A special examiner's authority and duties are, under Rule 3.12, little if any different from that of a special master unauthorized .to make findings and recommendations. That rule authorizes the Judge to appoint -an examiner to take all testimony in a case unless the order is otherwise limited.

The whole tenor and effect of the decision in the Siatcoff case is that, in the face ■of opposition of one of the parties, the special master cannot be authorized to malee findings and conclusions of law, together with recommendations. There is nothing in the case limiting the power of the Chancellor in the matter of appointing an examiner or special master to take the testimony of the parties. The case, in its history of the practice concerning masters and their appointment for the taking of testimony, beginning with territorial days, discloses that they were authorized to take any or all testimony as the Court in its order directs, and such order may have empowered the master to make findings and recommendations.

The ancient practice of authorizing the master to take the testimony of the parties, derived from the English Courts, has been followed in the circuits of the State to the present day and, to the writer’s knowledge, has been consistently followed in the circuit in which he has been one of the Judges for more than one-third of a century. The thought up to this time has never been advanced that any constitutional right was impaired or violated by such appointment on the theory that it authorized an erroneous delegation of the Court’s powers to a master, nor has the thought been advanced that the Constitution required the Chancellor to personally hear the testimony of the parties litigant. Surely the practice accepted by the Bench and Bar for more than a hundred years does not trench upon any constitutional rights of litigants.

The discretion of the Judge in making the appointment under the rules should be exercised sparingly and such orders should be the exception rather than the rule, as provided by Rule 53 of the Federal Rules of Procedure, 28 U.S.C.A. In this case the Chancellor found that the docket was congested and the reference would greatly expedite the trial of the case. The harmful results of undue delay in the possible loss of testimony, the disappearance or death of witnesses, and the financial and business conditions and needs of one or both of the litigants, often makes imperative the expeditious taking of the testimony and disposition of litigation, which may far outweigh the effect of the lost opportunity of the Judge to observe and hear the witnesses give their testimony. Moreover, if at the hearing of the cause upon the testimony taken before the examiner, the Court should find the evidence in such condition that he decides he should hear the testimony of any witness and observe his demeanor in order that it be given its true weight, he has the authority to recall the witness for personal examination before him.

To fetter the discretion of the Chancellor so that he no longer has any discretion under the rule to appoint a special master or examiner for the purpose of taking the testimony of the parties unreasonably restricta the meaning and intent of the rule. Such holding will inevitably lead to harmful delay in the disposition of the business of the Court.

In conclusion, I am reminded of the oft repeated aphorism of Gladstone, who in speaking of the delay in the disposition of cases said, “Justice delayed is justice denied”.

I think the Chancellor’s order should be approved.


text:
    John Hays LONG and Felicia Long, Individually and Comprising the Co-partnership, d/b/a Long's BSA Motorcycle Sales & Service, Appellants, v. Gean LEE, Appellee.
    Supreme Court of Florida.
    Sept. 6, 1957.
    Rehearing Denied Oct. 7, 1957.
   PER CURIAM.

Affirmed.


text:
    Marie Alice HERTZ, Appellant, v. M/Sgt. Martin HERTZ, Appellee.
    Supreme Court of Florida.
    Oct. 16, 1957.
   PER CURIAM.

Affirmed.


text:
    Servet ZEKO, Appellant, v. Gertrude GLEASON, Appellee.
    No. 57-56.
    District Court of Appeal of Florida. Third District.
    Oct. 22, 1957.
    Rehearing Denied Nov. 15, 1957.
    Melvin J. Richard, Miami Beach, for appellant.
    Robert C. Lane and Curtiss B. Hamilton, Miami, for appellee.
   PER CURIAM.

We have examined the record and briefs of counsel in this cause and heard oral argument at the bar of this court. From all these it appears that the chancellor below based his finding upon conflicting evidence, and following the rule so often enunciated that “the findings of a chancellor, based upon conflicting evidence will not be disturbed unless clearly shown to be erroneous,” and finding no reversible error in the record, we conclude that the cause should be, and it is, hereby affirmed.

Affirmed.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.


author: HORTON, Judge.

text:
    Louise Z. OSIUS, Petitioner, v. Lawrence V. HASTINGS, Respondent.
    No. 57-103.
    District Court of Appeal of Florida. Third District.
    Oct. 17, 1957.
    Rehearing Denied Nov. 15, 1957.

      Eli Breger, Miami Beach, and Harvey J. St. Jean, Miami, for petitioner.
    Hector, Faircloth & Rutledge, Miami, for respondent.
   HORTON, Judge.

This is a petition for certiorari to review a judgment rendered in favor of the respondent who was the petitioner’s attorney in the court below. The judgment was rendered collateral to the main case in which the petitioner, as plaintiff, was suing for personal injuries sustained in an automobile accident.

The petitioner employed the respondent as her attorney to prosecute her claim for personal injuries and agreed to pay him a contingency fee of 40% of any amounts recovered. The cause went to trial on January 18, 1957 and resulted in a mistrial. Some time after the mistrial, the respondent received on behalf of the petitioner an offer of settlement on her claim in the sum of $5,000. The petitioner rejected the offer. On February 14, 1957, the respondent was notified by letter from the petitioner that his services as her attorney were no longer desired. No reasons were assigned by the petitioner for discharging the respondent. The respondent filed a petition on May 13, 1957, in the same cause of action for -attorney’s fees and authorization to withdraw as petitioner’s counsel. After notice and hearing upon said petition, the lower court entered judgment for the respondent in the sum of $2,000 and authorized the respondent to withhold the books, records, files and exhibits of the petitioner in his possession until the judgment was satisfied.

Two questions have been urged by the petitioner as grounds for granting the writ and quashing the judgment of the lower court. Without detailing the questions, we feel it sufficient for disposition of this cause to state the question thusly: Whether under the circumstances the lower court departed from the essential requirements of the law in entering judgment for the respondent attorney, based upon a contingency fee contract where the contingency upon which the contract was based had not occurred. We feel the question should be answered in the affirmative.

It is admitted the respondent was employed under an express contingency fee contract by the petitioner to prosecute her claim for personal injuries. No question has been raised as to the validity of the contract. At the time of the filing of the petition for attorney’s fees and the rendition of the judgment, no recovery had been effected by the respondent for his client, the petitioner. In entering the judgment, the lower court obviously treated a rejected offer of settlement in the sum of $5,000 as a basis for awarding judgment to the respondent under his contingency fee contract. In this, we think the court was in error, first, because the respondent, though entitled to recover under his contract, could only do so upon the happening of the contingency upon which it was based, and secondly, the client had a right to accept or reject such offers as were made to settle her claim. The respondent could not proceed to claim the benefits under his contract express in nature and on the other hand recover on a quantum meruit basis which would ignore the contract. 3 Fla.Juris., Attorneys at Law, Sec. 57, has this to say with regard to express contracts:

“Where an attorney is employed under a valid express contract which stipulates the compensation he is to receive for his services, the contract is, generally speaking, conclusive as to the amount of his compensation, and this is true whether the contract spec-' ifies a definite amount, or provides that the attorney is to receive a certain proportion of the recovery in the suit for which he is employed. The court cannot interpose to increase or decrease the compensation agreed upon.”

There is no showing or charge that the attorney in this instance did not discharge the duties imposed upon him properly or that he has acted in bad faith in any respect toward his client, and consequently his claim should be respected and enforced. On the other hand, the petitioner, as client, could discharge her attorney at any time, with or without just cause. See Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538; Diem v. Diem, 136 Fla. 824, 187 So. 569; Carey v. Town of Gulfport, 140 Fla. 40, 191 So. 45; Harvey v. Rowe, 141 Fla. 287, 192 So. 878. In this instance, the lower court had within its power the ability to properly protect the claim of the respondent attorney and to enforce the same at the proper time. This was not the proper time. The contingency upon which the contract was based had not occurred and for the court to award attorney’s fees on a rejected offer would in effect be writing a new contract for the parties. The judgment of the lower court permitting the respondent to withhold the papers, exhibits, records and files of the petitioner was error. Not only did it prevent the possible happening of .the contingency upon which the parties contracted, but it tended to promote delay and hinder the court as well as the litigants in the prosecution of the cause.

The respondent has strongly urged, both in his brief and by way of argument, the applicability of the rule in Carey v. Town of Gulfport, supra, to the facts in this case. In this we cannot agree. In that case, Carey and Harrison had a contract for a fixed consideration, a definite portion of which was due and unpaid, to-wit: $450, at the time that the Town of Gulfport sought to terminate the contract of employment. As a condition to a discharge and substitution of counsel, the court ordered the payment of the compensation which had been found to be due and unpaid at the time of the termination of the contract. As can be seen, that case differs from the case at bar on the fundamental premise that the contracts were different. In the Carey case, the contract was for a fixed consideration, whereas in the case at bar, it was contingent upon a recovery..

Although not squarely in point, the case of Winn v. City of Cocoa, Fla.1954, 75 So.2d 909, is illuminating to the extent of the procedure employed in protecting the attorney’s compensation due him by a client who sought and obtained his discharge. The Winn case involved a condemnation proceedings by a municipality of certain lands owned by Carrie B. Winn and T. D. Winn, Jr. The Winns employed Robert Godbey as their attorney to represent them in the condemnation proceedings. After the case had been in progress and approximately two years after his employment, attorney Godbey was informed by his clients that he was dismissed as their attorney. This was immediately brought to the attention of the trial judge by the attorney and with a request for leave to withdraw from the case. The request was granted and at that time the trial judge made an order allowing to the attorney a lien for the reasonable value of his services and a lien upon the amount of the recovery should a recovery be had. It further appears that the case went to trial with the Winns acting as their own attorneys, and a verdict was returned by the jury for the value of the land taken by the City of Cocoa, but no award for attorney’s fees was made and apparently none was asked for by the Winns. After the return of the verdict, the court then proceeded to adjudicate the amount of the discharged attorney’s claim. The Supreme Court of Florida, in upholding proceedings in the lower court, said:

“The landowner had a perfect right to discharge the attorney but at the time of such discharge was obligated to the attorney for a reasonable fee for the services rendered up to the time of such discharge, and as the services rendered were in connection with the recovery, it was proper for the Circuit Judge to protect the attorney by impressing upon the fund a lien for the reasonable value of the services rendered. At the time of subsequent proceedings fixing the value of the attorney’s fee, the fund was in the registry of the Court and subject to its lawful control and disposition.” [75 So.2d 912.]

The petition for certiorari, therefore, is granted and the judgment of the lower court is quashed with directions to enter an order establishing a lien for the respondent upon any settlement, judgment or recovery of the petitioner to the extent of the respondent’s contract rights and subjecting to the future effect of such order the respective parties to the litigation as well as their counsel. The respondent should be permitted to withdraw and substitution of new counsel made, with authorization for respondent to turn over to new counsel for petitioner such papers, exhibits, records and files in his possession as are necessary and required by the petitioner for the proper prosecution of her claim.

Certiorari granted with directions.

CARROLL, CHAS., C. J., and PEARSON, J., concur.


text:
    Maynard Grady FOWLKES, Jr., Appellant, v. Harry SINNAMON, as Administrator of the Estate of Charles Andrew Doty, deceased, Appellee.
    No. 57-8.
    District Court of Appeal of Florida. Third District.
    Oct. 10, 1957.
    Rehearing Denied Nov. 15, 1957.

      Blackwell, Walker & Gray, Miami, for appellant.
    Marlow & Sinnamon, Miami, for ap-pellee.
   PER CURIAM.

By this appeal from a judgment entered on a verdict for plaintiff in the Circuit Court in Dade County, the defendant seeks to reverse a $4,000 punitive damage award which was included in the verdict.

The action was brought by the appellee, Harry Sinnamon, as administrator of the estate of Charles Andrew Doty, deceased, seeking compensatory damages for diminution in size of the decedent’s estate and for funeral expenses under the Wrongful Death Act, Section 768.01 and Section 768.02, Fla.Stat., F.S.A., and seeking compensatory damages for pain and suffering and medical expenses, and punitive damages, under the Survival of Action Statute, Section 45.11, Fla.Stat., F.S.A.

On Christmas Eve, 1955, shortly after dark, the appellant, Maynard Grady Fowl-kes, Jr., caused a collision in which his automobile ran into the rear of a taxi cab. Charles Andrew Doty, the driver of the cab, was killed. The evidence indicated he remained alive only a few minutes, and that he did not regain consciousness before he died.

The jury was not required to decide the question of liability. The trial judge determined that liability was established on the evidence, and his charge to the jury so informed them.

The effect of that was to direct a verdict for the plaintiff on both causes of action, and we see no reason to disturb that ruling by the trial court.

When the proofs were in, the charges given show that the court properly construed the record as furnishing a basis for compensatory damages to be awarded under the Wrongful Death Act. Punitive damages were not allowable on that cause of action, nor were they sought. Florida East Coast Ry. Co. v. McRoberts, 111 Fla.278, 149 So. 631, 94 A.L.R. 376.

On the cause of action under the Survival Statute there was no proof of pain and suffering (as the decedent did not regain consciousness before death), and no evidence was offered of losses in the nature of medical expenses. The trial judge duly-recognized that the plaintiff had not established loss or injury for which any substantial compensatory damages could be recovered under the Survival Statute, and the jury was so charged.

Thus, the case went to the jury on charges which amounted to a directed verdict in favor of the plaintiff on the issue of liability. The charges left the jury to determine the amount of compensatory damages to be awarded to the plaintiff administrator on the cause of action under the Wrongful Death Act, and permitted them to allow punitive damages on the cause of action under the Survival Statute; it being suggested to the jury that the verdict could deal separately with such allowances. The verdict which resulted was as follows:

“We, the jury, find for the plaintiff, Harry Sinnamon, as Administrator of the Estate of Charles Andrew Doty, deceased, and against the defendant, Maynard Grady Fowlkes, Jr.; and we assess the compensatory damages recoverable by the plaintiff administrator from the defendant at and in the sum of $1,400.00, and the punitive damages recoverable at and in the sum of $4,-000.00. So say we all.”

The propriety of allowing punitive damages on the evidence and the law was questioned by the defendant on motion for directed verdict and on motion for new trial.

Assuming, but not deciding, that punitive as well as compensatory damages are available under the Survival Statute, the trial court was in error in authorizing the verdict for punitive damages.

In McLain v. Pensacola Coach Corporation, 1943, 152 Fla. 876, 13 So.2d 221, the Supreme Court of Florida indicated approval of the rule that some substantial actual or compensatory damages must be shown as a predicate for allowance of punitive damages. The Court in that case did not expressly adopt the rule, and the facts of that case were such that there was no need to resort to such rule, because the verdict was against the plaintiff on liability. Obviously, a plaintiff who suffers an adverse verdict on the issue of liability has no basis to receive any damages, compensatory or punitive. However, in the McLain case the Supreme Court recited the rule in question, and since the Court had not previously had occasion to decide the point, its indicated sanction and application of the rule in that case prompts us to apply it here.

Therefore, the judgment is affirmed as to the compensatory damages under the Wrongful Death Act, which the verdict fixed at $1,400, but reversed as to the allowance of punitive damages under the Survival Statute, which the verdict fixed at $4,000, and the cause is remanded with directions to amend the judgment accordingly.

Affirmed in part and reversed in part.

CARROLL, CHAS., C. J., and HORTON and PEARSON, JJ., concur.

      . “Gentlemen of the jury, the evidence in this case makes it obvious that the negligence of the defendant, Maynard Grady Fowlkes, Jr., was the proximate cause of the accident which gave rise to this litigation, and of the fatal injuries sustained by the decedent, Charles Andrew Doty, in the accident.”

      . “There is, however, no evidentiary basis for the recovery by the plaintiff administrator of any compensatory damages under such Section 4S.11. * * * Now, the plaintiff has failed to prove by a preponderance of evidence that the deceased experienced any pain or suffering, because the evidence tends to show that the deceased was unconscious from the moment of the impact, and that therefore he did not experience any pain or suffering.”


author: WIGGINTON, Judge.

text:
    James T. VOCELLE, Walter L. Lightsey, James C. Cameron, as Chairman and Members, respectively, of the Florida Industrial Commission, a State Agency, Appellants, v. TRADE WINDS DRY CLEANERS, Inc., a Florida Corporation, Severy Wholesale Cleaners, Inc., a Florida corporation, Willard W. Severy and Everett W. Severy, Appellees.
    No. A-8.
    District Court of Appeal of Florida. First District.
    Oct. 24, 1957.
    Burnis T. Coleman, Tallahassee, for appellants.
    George S. Okell, Sr., Miami, for ap-pellees.
   WIGGINTON, Judge.

This matter is before the Court on an appeal by the Florida Industrial Commission from a judgment of the Circuit Court of Leon County reversing an order of the Industrial Commission which found that the appellees were liable for the payment of certain taxes under the Florida Unemployment Compensation Law. The appellees, Willard W. Severy and Everett W. Severy, together with their respective wives, constituted a partnership which owned certain real and personal property in Dade County. The partners formed a corporation known as Trade Winds Dry Cleaners, Inc., and were the sole officers and stockholders thereof. Later the same partners formed a . second corporation known as Severy Wholesale Cleaners, Inc., and were likewise the sole officers and stockholders of that corporation. The partnership leased its real and personal property to the two corporations, one of which engaged in the retail dry cleaning business and the other in the wholesale dry cleaning business. Each corporation operated out of different portions of the same building and separately accounted to the partnership for the rental on the real and personal property used by each in the conduct of its individual business.

An examination of the books and records of the partnership and two corporations resulted in a determination by the status section of the Florida Industrial Commission that the partnership and both corporations came within the provisions of the Florida Unemployment Compensation Law as a single employer. Following a protest by the alleged employer, the Commission appointed a special deputy who held hearings, took extensive testimony and received a considerable volume of evidence regarding the operation of the employing units involved. The deputy filed with the Commission his report and recommendations in which he specifically found that the partnership and the two corporations were separate legal entities, and that they were engaged in a joint venture. Based upon his finding that the three separate entities were engaged in a joint venture, the deputy concluded as a matter of law that the employees of all three entities were covered under the Act and that the tax therein provided for should be assessed and collected against the joint venture as a single employer. For reasons which will become apparent, we think that no useful purpose would be served in further detailing the evidence adduced at the special deputy’s hearing.

Upon consideration of the record and special deputy’s report and recommendation, the Industrial Commission, without making any findings of its own but adopting those of the special deputy, passed its resolution affirming the initial determination made by its status section. From that order a petition for judicial review was taken to the Circuit Court of Leon County.

In its answer to the petition for review the Industrial Commission clearly alleged that it was not attempting to pierce the corporate veil of the two corporations involved, but based its order and decision squarely upon the facts as they appeared in the record. As heretofore stated, the Commission in its order adopted the findings and conclusions of the special deputy that the two corporations and the partnership were separate legal entities engaged, in a joint venture. The Circuit Court held that the record wholly failed to justify the latter conclusion for the reasons that there was no evidence that the three entities had', agreed to or were in fact sharing the profits or losses from the dry cleaning-business in which the two corporations-were engaged, nor was there any showing of a mutuality of interest in the success of a joint undertaking. There being no proof of these essential characteristics of a joint venture, the Circuit Court properly concluded that the Commission had misconceived the legal effect of the evidence and had applied to the evidence an incorrect principle of law. Having resolved this-question adversely to the Industrial Commission, the Circuit Court entered its judgment of reversal.

In its argument before the Circuit Court on the review of this matter the Commission sought to adopt a new legal theory involving the piercing of the corporate veil of the two corporations. Ini support of this position the Commission pointed to certain conclusions in the record as found by the special deputy indicating that the two corporations were but the alter ego of the partnership and contended that therefore the entire operation should be considered as a single employer and consequently liable for payment of unemployment compensation taxes. In its judgment the Circuit Court, accepting the Commission’s findings, commented upon this theory, but rejected it for the reason that it was wholly inconsistent with the finding of the Commission, as reflected in the report and recommendation of the special deputy which it had adopted, to the effect that the two corporations and the partnership were each separate legal entities. Assuming arguendo that it was necessary to conclude this question in order to dispose of the cause, we are of the opinion that the Circuit Court was correct in rejecting this belated contention for the reason that the Commission’s finding precluded such a result as a matter of law.

Our review of the record in light of the issue before the Circuit Court convinces us that the judgment appealed from is free of error. It is therefore the judgment of this Court that the order appealed from be and it is hereby affirmed.

STURGIS, C. J., and THOMAS, A. J., concur.

      . Kislak v. Kreedian, Fla.1957, 95 So.2d 510; Beckett v. Pierce, 157 Fla. 184, 25 So.2d 486; Albert Pack Corp. v. Fick-ling Properties, 146 Fla. 362, 200 So. 907; Le Mar v. Lechlider, 135 Fla. 703, 185 So. 833.


author: STURGIS, Chief Judge.

text:
    STATE of Florida ex rel. Fritz ARD, Petitioner, v. Emmett SHELBY, as Sheriff of Escambia County, Florida, Respondent.
    No. 152.
    District Court of Appeal of Florida. First District.
    Oct. 22, 1957.

      Herbert Lathan and Forsyth Caro, Pensacola, for petitioner.
    Richard W. Ervin, Atty. Gen., for respondent.
   STURGIS, Chief Judge.

Fritz Ard, hereinafter referred to as the probationer, filed in this court a petition for issuance of a writ of habeas corpus to test the legality of his detention by the sheriff of Escambia County. He also prayed release on bail pending disposition thereof. We issued a rule directing the sheriff to show cause why the writ should not issue.

The record discloses: On May 22, 19S0 the Court of Record of Escambia County adjudged probationer guilty of a felony. On July 24, 1950 the trial judge suspended sentence and placed petitioner on probation for a period of seven years, subject to his compliance with the conditions of the order of probation. On July 23-, 1957 — one day before termination of the probationary period — affidavit was duly made and filed before the trial judge alleging facts which, if true, constitute a violation of the order of probation and would warrant revocation of the probation and imposition of sentence. On the basis of this affidavit a warrant was issued on July 23, 1957 for the arrest of probationer. On that date a constable made the arrest outside the territory of his district. Additional affidavits were made and filed on August 7 and 8, 1957 setting forth new allegations of fact that were only remotely connected with those stated in the affidavit of July 23, the later affidavits having been designed and treated as an independent predicate for revocation of the probation. The court denied probationer’s motions to quash (1) the affidavit filed July 23, 1957, (2) the warrant issued thereon, and (3) the affidavits filed August 8, 1957, and its order found that no' warrant was issued pursuant to the latter affidavits. The-court also found that the later affidavits had reference to facts that occurred during but were not discovered until after the period of probation had expired.

Upon hearing the proofs, the court found that probationer had violated the order of probation in the particulars set forth in the affidavits, revoked the probation, and imposed sentence for the crime of which probationer stood convicted.

Petitioner insists that an affidavit of violation filed after the expiration of the probationary period is incompetent as-a basis for revocation of probation. We agree. Section 948.04 F.S., F.S.A., provides that upon termination of the period of ’probation “the probationer shall be released from probation and shall not be liable to-sentence for the crime for which probation was allowed.” It is clear that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S., F.S.A. It follows that the affidavits made and filed subsequent to July 23, 1957 should have been quashed,

Having so determined, w;e now inquire as to the timeliness and sufficiency of the affidavit filed July 23, 1957 to support the findings and orders of the trial court revoking the probation and imposing sentence.

The right of a trial court to suspend sentences for crimes was recognized prior to enactment of Chapter ,948, F.S., F.S.A., relating to probation. In Brill v. State, 159 Fla. 682, 32 So.2d 607, it was held that hearings on the question of revocation of suspension of sentence for violating the conditions of suspension are informal and do not take the course of regular trial, that evidence adduced at such hearings does not have the same objective as that taken at a ■criminal trial, and that its first purpose is "to satisfy the conscience of the court as to whether the conditions of suspension have been violated, and secondarily to give the accused an opportuntiy to explain away the accusation as to violation of the conditions ■of suspension. The cited case further held that while “due process of law” requires ■that a hearing be accorded the person ■charged with such violation, that requirement is met when the accused is properly brought before the court for examination, whereupon revocation of the suspension of •sentence is within the control of the court. The latitude of inquiry is such that even though evidence upon which the revocation is based would be inadmissible upon trial of the accused for a crime, it is competent for the trial court to consider it on the issue of ■compliance with the conditions under which ■suspension of sentence was granted. Section 948.06(1) simply provides for an informal hearing whereby the trial court may •determine whether the conditions of the probation order have been violated. Caston v. State, Fla., 58 So.2d 694.

The record here reflects that after bearing the testimony and reviewing the ■evidence the trial court concluded that “the defendant has violated the conditions of his probation in each and every respect ■charged in the affidavits * * *.” (Emphasis supplied.) Standing alone, the ■charges contained in the affidavit made and ■filed July 23, 1957 were ample, if true, to justify the action of the trial court as reflected by its orders. It would require a •clear showing of flagrant abuse of the discretion vested in the judges of trial courts upon such matters to entitle this court’s interference. The finding of the trial judge that “each and every” charge of violation had been established leaves the record before us in such condition that upon careful inspection no harmful error is shown to result from the circumstances reflected by the affidavits filed August 8, 1957 and the action taken thereon.

Other grounds insisted upon by petitioner as a basis for-issuance of the writ are found to be without merit. See State ex rel. Lee v. Coker, Fla., 80 So.2d 462.

Admission to bail, after conviction, is not a matter of right but rests in the sound judicial discretion of the trial court. Younghans v. State, Fla., 90 So.2d 308.

For the reasons stated the petition for writ of habeas corpus should be and it is denied.

WIGGINTON, J., and THORNAL, A. J., concur.


author: PEARSON, Judge.

text:
    Mary FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 57-104.
    District Court of Appeal of Florida. Third District.
    Oct. 15, 1957.
    Rehearing Denied Nov. 12, 1957.

      Carr & O’Quin and Marshall G. Curran, Jr., Miami, for appellant.
    Richard W. Ervin, Atty. Gen., David Tumin, Asst. Atty. Gen., and Irving Leven-son, Asst. Atty. Gen., for appellee.
   PEARSON, Judge.

The defendant Mary Freeman was tried upon an indictment for first degree murder. The jury returned a verdict of guilty of manslaughter. The errors assigned and argued go to the rulings of the trial court at to the admissibility of certain evidence. Upon a review of the rulings necessary to pass upon the grounds for reversal, no error was found which affected the substantial rights of the appellant. The judgment appealed from is affirmed.

The appellant has assigned eighteen errors but has argued in her brief and upon oral argument only five of these. They are:

“2. Tlie trial court erred in admitting into evidence, over the objection of counsel for defendant, State’s Exhibit No. 41, 5 insurance policies, for that a proper predicate for the introduction of said exhibit was not laid, in that it was not shown that the defendant had knowledge of the existence of said policies, and, under the ' facts in this case, the same were not admissible for the purpose of showing motive.
“4. The trial court erred in sustaining the objection of counsel for the prosecution to the proffered testimony of the defendant, Mary N. Freeman, concerning prior acts of cruelty and violence on the part of the deceased, for that the same tended to prove the state of mind of the defendant and the deceased at the time of the homicide.
“5. The trial court erred in limiting the testimony of the defendant concerning prior acts of cruelty and violence to events immediately prior to the fatal shooting.
“8. The trial court erred in sustaining objections to questions propounded to the witness, Charles H. Cameron, concerning what he observed the defendant’s physical condition to he on occasions prior to the fatal shooting.
“10. The trial court erred in sustaining the objection of the prosecution to the proffered testimony of the witness, Charles William Harris, concerning an act of violence on the part of the deceased toward the defendant.”

With respect to assignment “No. 2” it is only necessary to point out that the defendant was being tried for first degree murder, a crime in which motive is relevant as bearing upon premeditated design. The charge of which the defendant was found guilty by the jury does not include premeditated design; therefore, the defendant was found not guilty of premeditation and the disputed evidence did not enter into the conviction. Beard v. State, 131 Fla. 512, 180 So. 1. Even if there was error in the admission of the evidence, it was cured by the verdict of the jury which found the defendant guilty of manslaughter. Ward v. State, 75 Fla. 756, 79 So. 699; Coston v. State, 144 Fla. 676, 198 So. 467.

The remaining assignments of error must be considered against the background of the events leading up to the fatal shooting. The defendant and the deceased were married in August 1954. Both had been previously married and defendant’s three children as well as one child of the deceased lived with them. The marriage was a stormy one, punctuated by violence directed toward the wife and children by the deceased. The defendant left or prepared to leave her husband upon several occasions. Just before Christmas 1955 the decedent again struck his wife and she threatened to leave him; but again, appellant reconciled with her husband. The defendant testified she could not recall any violent act or threat of the deceased against her person from this reconciliation until the fatal shooting in February of 1956.

All of the testimony referred to in assignment Nos. 4, 5, 8 and 10 concerned incidents which occurred in the married life of the defendant and the deceased prior to the reconciliation in December of 1955. The testimony involved attempted to relate specific acts of violence by the deceased. Such facts have evidential value, only as they may have reasonably and naturally contributed to arousing genuine feelings by the defendant of imminent danger to her life or of great bodily harm to her, at the time of the fatal act, under the claim of self-defense. The general rule is that the known character of the deceased is admissible for that purpose. Proof of the character in question is properly made by evidence of the decedent’s general reputation in the community for such character and not by evidence of specific acts or general bad conduct. Garner v. State, 28 Fla. 113, 9 So. 835.

Some relaxation of this rule is apparent in more recent decisions of the Supreme Court of Florida. See Palm v. State, 135 Fla. 258, 184 So. 881. However the Court has also recognized that there must be some reasonable limitation upon this type of evidence. If this were not so, in many cases where self-defense is pleaded to the charge of homicide, the trial court might well find itself in a trial of the deceased rather than a trial of the accused. Even violent men are entitled to the protection of life. Therefore, the specific acts of violence, to be the proper subject of testimony, must have some relation to the claimed apprehension of the defendant at the time of the fatal act. The trial judge ruled that the specific acts of the defendant, as to which testimony was excluded, were too remote to be evidence of apprehension of bodily harm at the time of the homicide. This ruling is substantiated by the intervening circumstances, in which the defendant voluntarily resumed cohabitation and actually lived peacefully with the deceased from the reconciliation in December until the shooting on February 6, 1956. In the case of Barwicks v. State, Fla.1955, 82 So.2d 356, where the defendant was convicted of murder in the first degree, the Supreme Court sustained a ruling of the trial court that proffered testimony that the deceased “cut” the appellant three or four weeks prior to the homicide was too remote, inasmuch as deceased and appellant lived together after their altercation. In view of the intervening circumstances the trial judge correctly excluded the testimony as to the' specific acts of violence.

Affirmed.

CARROLL, CHAS., C. J., and HORTON, J., concur.


author: ELLIS, Judge.

text:
    Dr. Milton FEINBLUM v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS.
    No. 4449.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Racivitch, Johnson, Wegmann & Moule-doux, New Orleans, Thompson, Thompson & Sparks, Monroe, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for appellant.

      Henry Klepak, Dallas, Tex., Dodd, Hirsch & Barker, Baton Rouge, for appellee.
   ELLIS, Judge.

This is an appeal by defendant, Louisiana State Board of Optometry Examiners, from a judgment enjoining the said hoard, “its members, officers, agents, servants and employees from holding any hearing of any charges against petitioners for the purpose of considering the possible revocation or suspension of petitioners’ certificates to practice optometry, or from taking any other action which might interfere in any manner with or prevent the petitioners herein from practicing optometry in the State of Louisiana,” on the sole ground that the board is illegally constituted in that the Governor, in appointing the members of said board, did so from a list of names furnished by “Louisiana State Association of Optometry, Inc.,” and not from a “list of names presented to him by the Louisiana State Association of Optometrists,” as required by LSA-R.S. 37:1042. The trial court found as a fact that there is not in existence a Louisiana State Association of Optometrists.

On the date of September 25, 1952, each of the plaintiffs were sent by the Secretary of the Louisiana State Board of Optometry Examiners, acting under authority from the board, the following notice:

“I have been instructed by the Louisiana State Board of Optometry Examiners to advise you that certain charges have been filed against you with said board. These charges are:
“(1) That you have, are now having, and have had professional connection with White Brothers Jewelry Store at 732 Canal Street in the City of New Orleans, Louisiana. That since you are licensed as an optometrist by the Louisiana State Board of Optometry Examiners and since White Brothers Jewelry Store is not licensed and can not be licensed to engage in the practice of optometry in Louisiana, you are permitting your name and license to be used by White Jewelry Store to permit it to illegally engage in the practice of optometry in violation of Section 1061, Title 37, Chapter 12 of the revised Statutes of Louisiana for the year 1950.
“(2) That you have loaned yourself and are lending yourself and your name to White Brothers Jewelry Store to permit it to engage unlawfully and illegally in the practice of optometry in the State of Louisiana, all in violation of Section 1061, Title 37, Chapter 12 of the Revised Statutes of Louisiana for the year 1950.
“The Louisiana State Board of Optometry Examiners has fixed the 13th day of October, 1952 at the hour of 2:00 P.M. at the Roosevelt Hotel in the City of New Orleans, the room number to be found on the bulletin board in the lobby of said hotel, to hear evidence on the charges above referred to. This hearing will be open to the public and will be opened to the public as provided by Section 1062, Title 37, Chapter 12 of the Revised Statutes of Louisiana for the year 1950.
“You are hereby notified and summoned to be present at said hearing. You will be afforded every opportunity to produce testimony in your favor and in refutation of the charges above referred to and you will be fully authorized, through yourself or any attorney of your selection to cross-examine any witness appearing against you.
“You are entitled and the board will accord you that right to be represented by an attorney of your own selection.
“At the conclusion of the hearing the board will, either at that time or such other time as it shall fix, determine whether the charges preferred against you have been proven, and if so, whether your license, which authorizes you to practice optometry in Louisiana, should be revoked entirely or should he suspended, or if any action at all should be taken against you, all as provided for in Section 1061, Title 37, Chapter 12 of the Revised Statutes of Louisiana for the year 1950.
“In Testimony whereof I witness my signature on this the 25th day of September, 1952.”

(The letters addressed to the other plaintiffs are similar to the letter herein quoted.)

On the day fixed for the hearing, or on a day prior thereto, which was October 13, 1952, two of the plaintiffs obtained restraining orders issued by Judge Lindsay of the 19th Judicial District Court and two of them obtained temporary restraining orders issued by Judge Hamlin, one of the judges of the Civil District Court for the Parish of Orleans,' restraining and prohibiting the Board from conducting the hearing as set forth in the above notice.

In obedience to the injunctive process, the hearings fixed for October 13, 1952, were not held and there has been no hearing by the Board since that day.

To the plaintiffs’ petitions the defendant board filed a plea to the jurisdiction of the court and plea of pre-maturity, both of which were based upon the proposition that a litigant was not entitled to judicial relief for a supposed or threatened injury until the administrative remedies have been exhausted. The defendant board also filed an exception of no cause or right of action based upon the proposition that the members composing the State Board were occupying a de jure office and were either de jure or de facto officers, and, therefore, the Nineteenth Judicial District Court was without jurisdiction in a collateral manner in this type of proceeding to inquire into the legality of the appointment of said members, or their titles to said offices and in an indirect manner attempt to remove the members from their respective offices and to deprive them of the right to perform the duties required of them.

The defendant board also filed a plea of-estoppel on the ground that these plaintiffs had obtained a license and renewal thereof from the defendant board and are, therefore, estopped from attacking the board on the ground that it was illegally constituted.

On June 5, 1953 the Lower Court overruled the pleas filed by the board and ordered the production of evidence restricted solely to the factual issues of whether the original unincorporated association named in the Optometry Statute was still in existence at the time the present Board members were appointed. That portion of the Lower Court’s ruling stated:

“ * * * If, as a fact, the Louisiana State Association of Optometrists (as named in LSA-R.S. 37:1042) no longer exists, then there is no provision made for the appointment of a legal board by the governor * * * I see no authority under the act for the governor to appoint the members of the Louisiana State Association (Board) of Optometry Examiners from a list submitted to him by Louisiana State Association of Optometry, Incorporated, a private corporation, and if, as a fact, there no longer exists the Louisiana State Association of Optometrists, then, in my opinion, the Board is illegally constituted and plaintiff would be entitled to an injunction restraining the defendant from holding a hearing in regard to his qualifications to practice optometry.
“Therefore, for these reasons, judgment is rendered and will be signed overruling the various exceptions and pleas hereinabove referred to and ordering the production of evidence restricted to the question of whether or not there is in existence the Louisiana State Association of Optometrists.”

The defendant board applied to the Supreme Court for remedial writs to review this order which was denied on November 6, 1953, and thereafter the Lower Court heard evidence in accordance with its ruling, supra, and concluded from the evidence that the Louisiana State Association of Optometrists ceased in the year 1937 when the individual members of the association formed a non-trading corporation known as Louisiana State Association of Optometry, Inc., and therefore reasons that under LSA-R.S. 37:1042 the Governor is required to appoint the members of the Buard of the Louisiana State Board of Optometry Examiners from a list of five men to be presented to him by “Louisiana State Association of Optometrists” and the Governor having appointed the Board from the list submitted by the Louisiana State Association of Optometry, Inc., for the reason that defendant board was illegally constituted and the plaintiffs were entitled to an injunction restraining the defendant board from holding the hearing in regard to the qualifications of plaintiffs to practice optometry, and judgment was rendered in accordance therewith and signed on the 30th day of November, 1954.

Separate suits were filed by Dr. Milton Feinblum, Dr. Andrew A. Macaluso, Frederick Elliott, O. D., and Joseph LoCicero, Jr., against the defendant board, however, they were consolidated for the purpose of trial, and will be so considered on this appeal. Appeals were taken to the Supreme Court but were transferred to this court.

The first question to be decided by this court is whether the defendant board is illegally constituted as found by the Lower Court and, therefore, deprived of the right to act in accordance with LSA-R.S. 37 :- 1042 and particularly LSA-R.S. 37:1062.

LSA-R.S. 37:1042 states:

“Each member of the board (Louisiana State Board of Optometry Examiners) shall be appointed by the governor from a list of five names presented to them by the Louisiana State Association of Optometrists.”

There is no question but that a list of names was submitted to the governor by the Louisiana State Association of Optometry, Inc., after 1937 and the defendant board was appointed from a list submitted, by the incorporated association of optometrists. The answer of the defendant board to plaintiff’s contention and the holding of the trial court that they are illegally constituted and incapacitated to act by virtue of the fact that they were appointed by the governor from a list presented by the Louisiana State Association of Optometry, Inc., rather than by the Louisiana State Association of Optometrists is that they were appointed by the Governor to a de jure office and they are, therefore, de facto officers. It is also contended that they are de jure officers in that the Louisiana State Association of Optometry, Inc., is the Louisiana State Association of Optometrists within the intendment of the Legislature. However, we will consider the defendant board’s contention that they are de facto officers and their right to act cannot be collaterally attacked in this proceeding but can only be attacked in a direct proceeding.

We find in 67 C.J.S. Officers § 135 p. 438, the following with regard to de facto officers:

“An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. Generally a person will be held to be a de facto officer when, and only when, he is in possession, and is exercising the duties, of an office, as discussed infra § 137, his incumbency is illegal in some respect, he has at least a fair color of right or title to the office, as discussed infra § 138, or has acted as an officer for such a length of time, and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action, as discussed infra § 142 and, in some, although not all, jurisdictions, only when the office has a de jure existence, as discussed infra § 136. All of the essential elements of the status must be present for one to be considered a de facto officer.
“Office holding de facto is a fiction ■of law designed to serve a useful purpose, but the fiction does not abolish the law. While a de facto officer has been held not to be an officer, although his acts may have legal effect, he has also been held to be a legal officer until ousted, and to be submitted to as such until displaced by a regular direct proceeding for that purpose. The party asserting that one, not an officer de jure, is an officer de facto has the burden of going forward with evidence thereof, if not, indeed, the true burden of proof.”

See also:

“A person in possession of and actually performing the duties of an administrative office under color of right or title is an officer de facto, and his acts as such are valid as far as the public or third persons are concerned,” 73 C.J.S. Public Administrative Bodies and Procedure § 25, p. 318.

It is also well settled that the right of a de facto officer to exercise the functions of an office cannot be attacked collaterally, but that a direct proceeding to try title to the office is necessary. State v. Sadler & Campbell, 51 La.Ann. 1397, 26 So. 390; State v. Schuermann, 146 La. 110, 116, 83 So. 426; State v. Moreau, 153 La. 671, 96 So. 527; State ex rel. Wilkinson v. Hingle, 124 La. 655, 50 So. 616; State v. Williams, 35 La.Ann. 742; State ex rel. Williams v. Portsdorf, 33 La.Ann. 1411.

See also: State ex rel. Saint v. Toups, La.App., 95 So.2d 55.

In Williams v. Police Jury, 160 La. 325, 107 So. 126, taxpayers had sought to enjoin a bond issue on the ground, inter alia, that two of the police jurors, whose vote was necessary to the majority vote apportioning the bonds did not possess the legal qualifications and were not legally qualified to serve as police jurors. The Supreme Court, accepting the allegations as true for purposes of the holding, stated that nevertheless “it is clear they are de facto officers, and that their acts are valid in so far as they concern the public or the rights of third persons” and that “it is also well settled that the right of a de facto officer to exercise the functions of an office cannot be attacked collaterally, but that a direct proceeding to try title to the office is necessary,” 107 So. 128, citing many authorities.

In Smith v. Little Rock Civil Service Commission, 214 Ark. 765, 218 S.W.2d 366, an attack was made on a ruling of the defendant civil service commission, inter alia, on the ground that the members thereof were disqualified from being appointed to or serving thereon. According to the plaintiffs’ petition none of the defendant civil service commission were statutorily entitled to serve or act as commissioners (allegedly because they were dual office holders as members of a companion civil service commission, in violation of a statutory prohibition against civil service commissioners holding any other office.) The Supreme Court of Arkansas nevertheless sustained a demurrer to this ground of attack, holding that nevertheless the commissioners as de facto officers were competent to act and their status could not be collaterally attacked in proceedings involving the validity of their official act.

Garnier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611, is readily distinguished, as holding invalid the vote of a complete stranger sitting with the commission without even the color of title, claiming an ex officio position which was not created by law, unlike the board members in the present and Smith cases, sitting by color of legal appointments on a de jure board.

Applying the principles enunciated in the above cited cases to the facts in the present case, the board members are occupying a de jure office created by constitutional law, viz., LSA-R.S. 37:1041 et seq., under an appointment by the Governor in accordance with the power granted to him under LSA-R.S. 37:1042. Wilson v. Lee, 196 La. 271, 199 So. 117. In State ex rel. Floyd v. Hodges, 165 La. 552, 556, 115 So. 747, 749, the Supreme Court said:

“If one in possession of office, under color of title, could not be required, during his incumbency, to discharge the duties of the office, the public might suffer until his title to it could be ascertained in a proper proceeding. The acts of an officer de facto are valid as to third persons and the public. Williams v. Police Jury, 160 La. 325, 107 So. 126; State v. Moreau, 153 La. 671, 96 So. 527. Our conclusion is, as stated, that the exception is not well founded.”

Also see State v. Moreau, 153 La. 671, 96 So. 527.

Therefore, under the above law we are forced to hold that our brother below was in error in holding that the defendant board had no right to act in these cases as it was illegally constituted. To raise that question it would be necessary for the plaintiffs to file a direct proceeding questioning the title or right of the members of the defendant to occupy the office to which they were appointed by the Governor.

We are therefore of the opinion, that under any interpretation the present members of the Louisiana State Board of Optometry Examiners would be de facto officers.

Counsel for the defendant board filed a plea of prematurity as well as one of jurisdiction both of which were based upon the legal proposition that a litigant is not entitled to judicial relief for a supposed or threatened injury until the administrative remedies have been exhausted. The administrative remedies of the plaintiff in this case have not been exhausted. Counsel for the defendant board cites O’Meara v. Union Oil Co. of California, 212 La. 745, 33 So.2d 506; Porter v. O’Neal, 205 La. 445, 17 So.2d 622; State v. Guidry, 142 La. 422, 76 So. 843; Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638.

Counsel for plaintiffs do not deny the general rule but contend that a litigant is not required to exhaust administrative remedies in three instances:

1. When pursuing his administrative remedies will cause irreparable injury;

2. When administrative remedies are inadequate;

3. When the agency’s action is unconstitutional, beyond its jurisdiction or clearly illegal.

In his brief he argues as a basis for the first exception that plaintiffs would have suffered irreparable injury if they had been forced to a hearing, the result of which was a foregone conclusion. We cannot affirm or accept the fact that a hearing would have been a foregone conclusion. It is further stated that “appellees’’ only relief from an arbitrary or improper Board action would have been a devolutive appeal. LSA-R.S. 37:1041 et seq.; LSA-R.S. 13:4431 et seq.” The law specifically provides in LSA-R.S. 37:1062 for a hearing and also stated that “any person aggrieved by the decision of the board shall, have the right to appeal to the courts of the state.” In other words, should these-plaintiffs receive adverse decisions from, the State Board they are specifically given an appeal to the Courts of the State, and pending a final determination by the courts, their status would not be changed. LSA-R.S. 13:4431 is not controlling in this case- and would not change or affect plaintiffs’’ right to appeal to the courts. Further, we-find under LSA-R.S. 37:1064 that the only way the State Board can prevent a person from practicing optometry, even though in violation of the law, is by a motion in any court of competent jurisdiction for a rule and injunction should the person be found by the court to be practicing in violation of the law. Plaintiffs would not suffer an irreparable injury by pursuing the administrative remedies provided by law, and therefore the administrative remedies are not inadequate.

In urging further that plaintiff is entitled to judicial relief despite the availability of further administrative remedies, able counsel further urges that any action to be taken by the defendant Board is clearly illegal and unconstitutional as the unconstitutional delegation of legislative authority to a private corporation or body. Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160, Schechter Poultry Corp. v. U. S., 295 U.S. 495, 55 S.Ct 837, 79 L.Ed. 1570, Dr. G. H. Tichenor Antiseptic Co. v. Schwegmann Brothers Giant Super Markets, 231 La. 51, 90 So.2d 343, City of Alexandria v. Alexandria Fire Fighters, 220 La. 754, 57 So.2d 673. The basis for this argument is that the regulation of optometry is allegedly intrusted to the private corporation, the Louisiana State Association of Optometry, Inc. It is sufficient to remark that the regulation of optometry is not entrusted by the legislature to this corporation, but to the public board made defendant herein.

Plaintiffs-appellces, as shown by their brief, further base this contention upon the proposition that the “charges of the Board were based upon the a priori assumption that practice by an optometrist in a ‘commercial’ location or as a corporate employee is illegal. The very fact that these charges were made indicated that the Board proposed to act illegally.” The charge made against the plaintiffs, supra, is based specifically upon LSA-R.S. 37 1061(6) and (14). In other words, as we understand counsel’s argument they say that the charges of the Board are in reality based upon an assumption that an optometrist cannot follow his practice in a commercial location or as a corporate employee. The charge against plaintiffs does not contain a statement of illegal practice caused by carrying it on in a commercial location or as a corporate employee. If on the hearing it is revealed that plaintiffs were only guilty of a breach of the code of ethics or some rule or regulation of the optometry association and not guilty of the specific violation of the law as contained in LSA-R.S. 37:1061(6) and (14), no court would allow an adverse decision of the board to stand. If they are only guilty of violating the so-called code of ethics or some rule or regulation of the Association, were they members, possibly the association could expel them but the Louisiana State Board of Optometry Examiners could not legally revoke their license. If the charges lev-elled against these plaintiffs were clearly outside or beyond those contained in LSA-R.S. 37:1061, on the face of the formal charges, then the injunctive relief would be in order. This is not true in the present case and since the charges were specifically based upon the alleged violation of LSA-R.S. 37:1061(6) and (14), the hearing cannot be enjoined. The case of Myers v. Bethlehem Shipbuilding Corporation, supra, is particularly relevant on this point: “Lawsuits also often prove to have been groundless; but no way has been discovered of relieving a defendant of the necessity of a trial to establish the facts.” [303 U.S. 41, 58 S.Ct. 464.] While counsel for the board also filed a plea of estoppel we see no necessity in considering it in view of the above rulings.

For the above and foregoing reasons, the judgment of the District Court herein enjoining defendant Board from hearing charges against plaintiff or holding hearings to consider the possible revocation or suspension of plaintiff’s license, is reversed; and judgment is rendered in favor of defendant Board dismissing plaintiff’s suit and sustaining defendant’s plea ot prematurity and exception of no cause of action.

Reversed and rendered; suit dismissed.


text:
    Dr. Andrew A. MACALUSO v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS.
    No. 4450.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Racivitch, Johnson, Wegmann & Moule-doux, New Orleans, Thompson, Thompson & Sparks, Monroe, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for appellant.
    Henry Klepalc, Dallas, Tex., . Dodd, Hirsch & Barker, Baton Rouge, for appel-lee.
   ELLIS, Judge.

For the reasons assigned in the companion suit of Feinblum v. Louisiana State Board of Optometry Examiners, 97 So.2d 657, the judgment of the District Court herein enjoining defendant Board from hearing charges against plaintiff or holding hearings to consider the possible revocation or suspension of plaintiff’s license, is reversed; and judgment is rendered in favor of defendant Board dismissing plaintiff’s suit and sustaining defendant’s plea of prematurity and exception of no cause of action.

Reversed and rendered; suit dismissed.


text:
    Frederick ELLIOTT, O. D. v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS.
    No. 4451.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.
    Racivitch, Johnson, Wegmann & Moule-doux, New Orleans, Thompson, Thompson & Sparks, Monroe, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for appellant.
    Normann & Normann, New Orleans, for appellee.
   ELLIS, Judge.

For the reasons assigned in the companion suit of Feinblum v. Louisiana State Board of Optometry Examiners, 97 So.2d 657, the judgment of the District Court herein enjoining defendant Board from hearing charges against plaintiff or holding hearings to consider the possible revocation or suspension of plaintiff’s license, is reversed; and judgment is rendered in favor of defendant Board dismissing plaintiff’s suit and sustaining defendant’s plea of prematurity and exception of no cause of action.

Reversed and rendered; suit dismissed.


text:
    Joseph LO CICERO, Jr. v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS.
    No. 4452.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.
    Racivitch, Johnson, Wegmann & Moule-■doux, New Orleans, Thompson, Thompson & Sparks, Monroe, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for appellant.
    Wisdom, Stone, Pigman & Benjamin, New Orleans, for appellee.
   ELLIS, Judge.

For the reasons assigned in the companion suit of Feinblum v. Lousiana State Board of Optometry Examiners, 97 So.2d 657, the judgment of the District Court herein enjoining defendant board from hearing charges against plaintiff or holding hearings to consider the possible revocation or suspension of plaintiff’s license, is reversed; and judgment is rendered in favor of defendant Board dismissing plaintiffs suit and sustaining defendant’s plea of prematurity and exception of no cause of action.

Reversed and rendered; suit dismissed.


author: LOTTINGER, Judge.

text:
    Bernice C. EDWARDS v. William M. WALKER et al.
    No. 4442.
    Court of Appeal of Louisiana. First Circuit.
    Oct 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.

      Taylor, Porter, Brooks, Fuller & Phillips, Robt. Vandaworker, Baton Rouge, for appellants.
    Thos. S. Gill, H. Alva Brumfield, Percy & Macmurdo, Baton Rouge, for appellee.
   LOTTINGER, Judge.

By mutual consent of the parties, three damage suits were consolidated for trial with the understanding that the evidence would be applicable to all suits and that separate judgments would be rendered. The three separate petitioners are Bernice C. Edwards, Essie Mae O’Neal and Arnett D. James, Jr. The defendants in all suits are William M. Walker and his insurer, Travelers Indemnity Co.

The present suit was instituted against the said defendants by Bernice C. Edwards. She seeks damages in the sum of $51,304.50 for personal injuries sustained in the accident between a car driven and owned by defendant, William M. Walker, and one operated by Jake Davis. The lower court rendered judgment in favor of petitioner, Bernice C. Edwards, in the sum of $7,851.-50. Judgments were also rendered for the petitioners in the other suits. The defendants have appealed in all three suits.

The record shows that .the accident occurred on Louisiana Highway 168 in the village of Brusly, Louisiana, on November 6, 1954. Shortly prior to the accident, all of the petitioners were guest passengers in the automobile operated by defendant Walker. They were proceeding north on said highway at a speed of some 60 miles per hour or more. A car operated by Jake Davis was proceeding south on said highway at a speed of some 25 miles per hour. Upon reaching the driveway to the Red Hat Saloon, situated on the east side of the highway, Davis suddenly executed a left-hand turn when he was only some 30 feet from the Walker car, and the two vehicles were involved in a head-on collision. The point of impact was on the east, or Walker’s, lane of traffic. The accident resulted in the death of Davis, as well as the injuries claimed by petitioners.

The petitioners claim that Walker was contributorily negligent in two respects: first, in his excessive speed, and second, in his failure to keep a proper lookout and particularly to notice the negligent and erratic driving of Davis shortly prior to the collision

The evidence shows that the Davis vehicle was followed by a car in which Mr. and Mrs. Simoneaux were riding. They were proceeding home from a football game and had passed several vehicles before reaching the Davis car.. Upon approaching the Davis car, it (Davis) pulled some six inches across the center line of the highway in what was apparently an attempt to make a left-hand turn. The Simoneauxs testified that it appeared that the driver was looking for a road on the left side of the highway. Mrs. Simoneaux cautioned her husband not to attempt to pass the car because it appeared the driver was “sick or something.” After the erratic movement on the part of the Davis car, it proceeded in its own, or proper, lane of traffic for a distance of about mile before the sudden left turn which resulted in the fatal accident.

The record shows that defendant Walker had been driving at a speed of at least 60 miles per hour, and had been warned by one of his passengers to slow down. Shortly prior to the impact a car had come out from the driveway in front of the Red Hat Saloon and had entered the highway and proceeded north. Walker had been observing this car, and did not observe the Davis car until it was only 30 feet from him and turning left.

The accident occurred at about 11:30 p.m. on a clear night. The highway on both sides of the scene was straight for some distance, and, according to the police report, the accident occurred in open country.

A strong argument is made by both sides as to the speed of the Walker vehicle. The record discloses that Brusly is an incorporated village of less than 15,000 population. Defendants contend that the ordinance of the village of Brusly which decreased the speed limit to 35 miles per hour is ineffective according to the provisions of LSA-R.S. 32:229. The evidence shows that the speed limit was not posted, the only sign referring to speed was one which read “Stop-Brusly Corp. Limits.” Defendant further contends that the 25 mile per hour speed limit which is applicable to unincorporated village (LSA-R.S. 32:223) would not apply because Brusly is incorporated. However, LSA-R.S. 32:227 provides:

“In addition to the specific speed limitations of this Chapter, no person shall operate any vehicle upon the highways of this state at other than a reasonable and proper speed under the circumstances, or at a speed endangering the persons or property of others * *»

Under the circumstances of this case, we are of the opinion that the speed of Walker was excessive.

However, it does not appear that the speed of Walker was a proximate cause of the accident. We do not believe that there is one bit of evidence in the record which shows that Walker knew, or should have known, of the prior erratic movement of Davis, or which would indicate that he would suddenly make a left-hand turn in the face of the approaching Walker vehicle.

The record discloses, as is shown by the testimony of the Simoneauxs, that about Y müe prior to the impact, the Davis car crossed the center line of the highway for a distance of about six inches. At this time, considering the relative speed of the two vehicles, the Walker car was at least M mile from the Davis car. The record shows that Walker was traveling at about double the speed of Davis, or maybe more. Therefore, it is safe to assume that Walker was Yz mile from the point of impact or about Y mile from Davis at the time of the erratic movement of Davis. Certainly at nighttime a movement of six inches across the center line would not be noticed by a person approaching at a distance of about y. mile away.

The record further reflects that after the so-called erratic movement by Davis, his car returned to its right, or proper lane of traffic, and remained there until the left turn which resulted in the accident. Although we do not believe that Walker could have seen the erratic movement of Davis, conceding that he could, or did see it, we believe that he had the right to assume that Davis would return to his proper lane and remain there, which he did. It was not until the vehicles were only a short distance from each other that Davis turned left directly in the path of the Walker vehicle.

In Grasser v. Cunningham, La.App., 200 So. 658, 660, we held the speed of petitioner not to be a contributing factor to the accident. In that case, the defendant made a left-hand turn into a gravel road in the face of petitioner’s oncoming car. The defendant claimed contributory negligencé on the part of petitioner as petitioner was trav-elling at an excessive rate of speed. The Court said:

"Grasser was going from 40 to 50 miles per hour. This is in excess of the speed limit of 25 miles per hour fixed by Rule 4, Section 3 of Act No. 286 of 1938, Dart’s Gen.Stat. § 5207, for driving motor vehicles through an unincorporated village, such as Areola. However, it is obvious that this speed was not a contributing cause of the accident, as the Grasser car could as well have been struck in the manner it was while going 25 miles per hour just the same as it was going 40 to 50 miles per hour. To say that the Grasser car would not have reached the point of impact as soon as it did had it been going only 25 miles per hour may be true, but to say that the accident would not have occurred had the Grasser car been going only 25 miles per hour is pure speculation.
“The fact that an automobile was going at a greater rate of speed than allowed by law at the time of a collision will not bar a recovery for injuries sustained in the collision if such excessive speed was not a proximate cause of the accident. 4 Blash-field Cyclopedia of Automobile Law and Practice, Perm.Ed., § 2611, p. 399.”

The same holding was applied by the Courts in Michelli v. Rheem Mfg. Company, La.App., 34 So.2d 264 and Cone v. Smith, La.App., 76 So.2d 46.

The record clearly shows that the sole and proximate cause of the accident was the sudden left turn of Davis. Prior to his turn, there was no motion on his part which would indicate to Walker that he intended to make such-a turn. The so-called erratic movement of the Davis car was too remote from the scene of the accident as to place Walker on his guard. The turn by Davis when he was only about 30 feet in front of Walker created a sudden emergency. We do not see how Walker could have avoided the collision.

For the reasons assigned the-judgment of the lower court will be reversed, and there will be judgment in favor of defendants, dismissing petitioner’s demand. All costs will be paid by petitioner.

Judgment reversed.


text:
    Essie Mae O’NEAL v. William M. WALKER et al.
    No. 4443.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.
    Taylor, Porter, Brooks, Fuller & Phillips,. Robt Vandaworker, Baton Rouge, for appellants.
    Thos S. Gill, H. Alva Brumfield, Percy & Macmurdo, Baton Rouge, for appellee.
   LOTTINGER, Judge.

For the reasons fully set forth in the companion suit, Edwards v. Walker, La.App., 97 So.2d 665, the District Court’s-judgment is reversed and there is judgment in favor of defendants, dismissing petitioner’s demand. All costs are to be paid by petitioner.

Judgment reversed.


text:
    Arnett D. JAMES, Jr. v. William M. WALKER et al.
    No. 4444.
    Court of Appeal of Louisiana. First Circuit.
    Oct. 4, 1957.
    Rehearing Denied Nov. 19, 1957.
    Writ of Certiorari Denied Jan. 9, 1958.
    Taylor, Porter, Brooks, Fuller & Phillips, Robt Vandaworker, Baton Rouge, for appellants.
    Thos S. -Gill, Alva Brumfield, Percy & Macmurdo, Baton Rouge, for appellee.
   LOTTINGER, Judge.

For the reasons fully set forth in the companion suit, Edwards v. Walker, La.App., 97 So.2d 665, the District Court’s judgment is reversed and there is judgment in favor of defendants, dismissing petitioner’s demand. All costs are to be paid by petitioner. '

Judgment reversed.