text:
    U-DRIVE-IT CAR CO., Inc. v. Charles P. WARD and Maryland Casualty Company.
    No. 20859.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.

      Tucker & Schonekas, New Orleans, for plaintiff-appellant.
    John P. Hammond, Montgomery, Barnett, Brown & Sessions, New Orleans, for defendants-appellants.
   JANVIER, Judge.

The automobile collision from which this controversy results occurred in the intersection of Saratoga and Perdido Streets, in New Orleans, at about 3:30 o’clock on the afternoon of February 15, 1954. At that time the two streets were of about equal width and crossed at a right angle. The car of plaintiff, U-Drive-It Car Co., Inc., was being operated by Willie J. Dexter on Saratoga Street going in an uptown direction. Charles P. Ward, driving his own car, was on Perdido Street, going in the direction away from the Mississippi River. On Perdido Street, facing Ward as he approached the intersection, there was a Stop sign, as a result of which he was required to bring his car to a stop before attempting to cross Saratoga Street.

On the corner, which intervened between the two cars, was an automobile parking lot and on the lot near the corner was a small building used by the operator of the lot as an office for the collection of parking charges. This building, to some slight extent, obstructed the view of each driver.

The two cars met in the intersection and considerable damage resulted to each. Ward sustained physical injuries.

U-Drive-It Car Company brought this suit against Ward and his liability insurance carrier, Maryland Casualty Company, praying for solidary judgment against them in the sum of $358.74, admittedly the cost of repairing the U-Drive-It Car Company’s car. It alleged that the accident had resulted solely from fault on the part of Ward, charging the following acts of negligence against him: That he did not stop at the Stop sign; that he failed to yield the right of way “to traffic on a through street” and which was approaching from the right; that he failed to recognize that the U-Drive-It car “had preempted the intersection”; that he was driving his car at a speed in excess of that fixed by law, and that he failed to maintain a proper lookout for other vehicles.

Ward and the Maryland Casualty Company answered, admitting the occurrence of the accident and that the said Casualty Company was the liability insurer of Ward. Both defendants denied that Ward had been in any way at fault, and averred that the collision had been caused solely by negligence of Dexter in that he was operating the U-Drive-It car at a speed “in excess of 40 miles per hour, not maintaining a proper lookout”; that he did not have his vehicle under control, and that he entered the intersection after it had been preempted by Ward.

In the alternative that it should appear that there was any negligence on the part of Ward, contributory negligence of Dexter was specially pleaded.

Ward then assumed the position of plaintiff in reconvention, and alleged that the accident had been caused solely by the fault of Dexter as already set forth. He prayed for judgment in reconvention against U-Drive-It Car Company in the sum of $1,-347.93 of which $522.93 was admittedly the cost of repairing Ward’s car and of which the balance, $825, is claimed as compensation for Ward’s physical injuries, medical expenses, etc.

In the First City Court of New Orleans there was judgment dismissing both the main and the reconventional demands. Both Ward and U-Drive-It Car Company appealed from that judgment.

Each driver was alone in the car operated by him and no other eye-witnesses were produced. Ward says that, as he reached the Stop sign on Perdido Street, he brought his car to a stop and, looking to his right, saw the U-Drive-It car approaching on Saratoga Street; that, at that time, the U-Drive-It car “must have been 250 feet away” and that he thought he could safely cross but that when his car was “about half way over” Saratoga Street, it was hit by the other car which, after the impact, “jumped the sidewalk, missed the fireplug, and then hit another car” which was in another parking lot on that corner.

Dexter says that he approached the intersection at a speed of not more than 20 miles an hour, and that he “examined” the intersection to see if there was any traffic and that there was none, that just as he entered the intersection he “looked and seen a car coming” and that he then “hit” the brake just as the Ward car hit the left front fender of his car. He says that he was blowing his horn as he approached the intersection.

Since the U-Drive-It car was approaching from Ward’s right, Dexter would have been entitled to the right of way at the intersection if the two cars reached it at about the same time and at proper speeds. Then, too, Dexter was justified in believing that Ward would stop at the Stop sign which faced him at Perdido Street. He says that Ward did not stop at the sign, but obviously he did not know whether this was true because he said that he did not see the Ward car at all until just as it struck him.

As we view the matter, only questions of fact are involved, and we feel that, when Ward saw the U-Drive-It car, it must have been much nearer to Perdido Street than Ward thought it was, for if it was 250 feet away when he saw it and it struck his car when his car had proceeded a distance of only about 15 feet, a speed of at least 100 miles an hour would have been required to bring it to the intersection in time to strike the Ward car.

We conclude that when Ward saw the car, it was dangerously close to the intersection and that he should have been able to judge its speed sufficiently to realize that he could not cross the intersection in safety.

On the other hand, we have no doubt at all that Dexter was operating his car at a speed considerably in excess of the speed permitted by law. He admits that, after the two cars met in the intersection, his car continued across the intersection at an angle of about 45 degrees, mounted the curb, struck the fireplug (though Ward says that it did not) and crashed into another car on the parking lot on that corner.

Under these circumstances, we conclude that both drivers were at fault and that, without the negligence of either, the accident would not have occurred.

Even if the facts were exactly as stated by Ward, they may be distinguished from those which appear in Thomas v. Checker Cab Company of New Orleans, 229 La. 1079, 87 So.2d 605, confidently relied upon by counsel for Ward. There Thomas, after stopping for a Stop sign and looking to his right and being able to see a distance of only about 100 feet, did not see the taxicab which was approaching from his right. Here Ward not only could see, but did see the other car and should have realized that he could not cross.

The judgment appealed from is affirmed, Ward to pay his costs of appeal, the U-Drive-It Company to pay its cost of appeal and all other costs.

Affirmed.

REGAN, J., absent, takes no part


source: Caselaw Access Project

author: JANVIER, Judge.

license: Public Domain

text:
    Samuel L. STEELE, Sr., Individually and for the Use and Benefit of His Minor Son, Samuel L. Steele, Jr. v. STATE FARM MUTUAL INSURANCE COMPANY et al.
    No. 20823.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Granted June 10,1957.

      A. J. Marciante, New Orleans, and H. Frank Foster, III, New Orleans, for plaintiff-appellee.
    F. Carter Johnson, Jr. and Porteous & Johnson, New Orleans, for defendants-appellants.
   JANVIER, Judge.

At about 1:50 o’clock in the early morning of April 2, 1955, there was an automobile collision in the intersection of Avenue B and Fifth Street, in Marrero, which is on the west side of the Mississippi River opposite New Orleans.

The cars which were involved were both Chevrolets. The one on Avenue B was owned by the plaintiff, Samuel L. Steele, Sr., and was being driven by his son, Samuel L. Steele, Jr., who, at that time, was 16 years of age. No one was with him in the car. The other car was owned by Joseph C. Jennings and was being operated by his wife, Mrs. Vera C. Jennings, who was alone in the car and who was on a family mission. Both cars were practically demolished and young Steele sustained serious physical injuries. Mrs. Jennings was hurt also.

Jennings had secured a policy of liability insurance from State Farm Mutual Insurance Company and Steele, Sr., on his own behalf and for the use and benefit of his minor son and, alleging that the accident had been caused by negligence of Mrs. Jennings and that young Steele had been in no way at fault, brought this suit against Jennings, Mrs. Jennings, and the State Farm Mutual Insurance Company. He prayed for judgment in his own behalf in the following amounts: Medical expenses for treatment of his son’s injuries, $275; future medical expenses in connection with his son’s injuries, $500; loss of his automobile, $1,800; and on behalf of his minor son he prayed for judgment for $10,000 for pain and suffering and $10,000 for permanent disfigurement and future pain and suffering.

The defendants all denied that Mrs. Jennings had been in any way at fault and averred that the accident had been caused solely by negligence of young Steele, and in the alternative, that it should appear that Mrs. Jennings was in any way at fault, they specially pleaded contributory negligence of young Steele as a bar to recovery.

There was judgment in favor of plaintiff individually and for the use and benefit of his minor son and against all defendants, solidarily, in the sum of $6,550. In the judgment the amount awarded was not divided between the father individually and the amount awarded for the benefit of the minor. Counsel for defendants-appellants have directed our attention to this fact and also to certain obvious errors in the judgment and reasons for judgment, and they point to these errors as evidence that the Judge did not carefully analyze the evidence.

We do1 not know just what these errors indicate, but point them out as counsel for defendant so confidently rely on them as indicating that the judgment is erroneous in its entirety.

In the first place, it is shown that although the claim presented by the plaintiff is divided into two parts, one on behalf of the father himself, and one for the use and benefit of the son, the judgment, as already stated, does not declare how much of the amount awarded is to go to the father and how much to the son.

Next, counsel show that, in his reasons for judgment, the District Judge stated that “the sum of $1800 sought for said automobile is not unreasonable.” Counsel direct attention to the fact that this statement is made in spite of the fact that in the record there is a stipulation to the effect that the automobile of the plaintiff involved in this accident “represents a claim of $1304.-44.”

Counsel also point to the fact that in the reasons for judgment it is stated that “plaintiff herein should be reimbursed the sum of $250, the amount paid for medical expenses of his minor son,” although the stipulation in the record shows that it was agreed that the medical expenses totaled $225. It is also shown that in the award $500 is allowed for “future medical expenses,” whereas, but for the allegation in -the petition, there is not one word of testimony to justify this award and absolutely nothing, except possibly the nature of the injuries, to indicate that there will be any future medical expenses.

And counsel especially point to the fact that, although there was no reconventional demand, the District Judge, in the reasons for judgment, made the following statement:

“The Court does not believe that there is any merit in the reconventional demand * *

When we come to consider the record, we conclude that it is abundantly shown that young Steele was grossly at fault, and that without his fault the accident could not have occurred.

It is particularly charged that Mrs. Jennings was operating the car at too high a rate of speed and that she did not stop before entering the intersection although she was faced with a “Stop” sign. And, on behalf of defendants, it is charged that young’ Steele was grossly at fault in that he entered the intersection without looking and at an excessive rate of speed.

Since there is no claim on behalf of Mr. and Mrs. Jennings, in other words, no re-conventional demand, — even if it be conceded arguendo that Mrs. Jennings was at fault in failing to stop at the Stop sign and that her speed was somewhat excessive— there can be no recovery on behalf of plaintiff for the negligence of young Steele was a contributing cause of the accident.

The record does not definitely show that Mrs. Jennings did not stop before entering the intersection and it does not positively show that her speed was excessive. • She says that she did stop and that she entered the crossing at a reduced speed.

Young Steele says that she did not stop but he admitted that he did not see the Jennings car until it was within six feet of his car. It thus appears that he could not positively state that Mrs. Jennings had not stopped for the crossing.

It is true that in the report of the police officer appears the statement that Mrs. Jennings “failed to stop for the Stop sign,” but when the police officer was questioned, it appeared that he had no information whatever on which to base that statement as he had not questioned Mrs. Jennings on that subject and no one else had told him that she had failed to stop. In fact, this officer says that he based his statement, to some extent, on the fact that after the accident he saw a Stop sign which had been knocked down and which was lying on the ground. The record shows beyond any possible doubt that the Stop sign which he saw was not the sign which faced Mrs. Jennings but was another sign which was on a large light or telephone wire post, which was knocked down not by the Jennings car but by the Steele car after the impact.

It is possible that Mrs. Jennings may have been at fault, but again we repeat that, even if she was at fault, the contributory negligence of young Steele would bar recovery.

The Traffic Ordinance No. 10,085 of the Parish of Jefferson provides: “That it shall be unlawful for any person to operate any motor vehicle at a speed in excess of twenty (20) miles per hour on the following streets * * Among the streets listed is Avenue B on which Steele was driving his father’s car. When questioned as to his speed, Steele said: “I was going anywhere from fifteen to twenty miles an-hour.” The facts belie this statement. After the impact, the car which he was driving continued across the intersection, jumped over or plowed through a rather deep ditch, knocked down a heavy post, already referred to, crashed through a substantial wire fence, and did not come to a stop until it had entered the adjacent yard with one of the fence rails sticking five feet through its windshield.

Counsel for plaintiffs seek to persuade us that the Steele car entered the intersection at reasonable speed, and that it was then struck so violently by the Jennings car that it was given tremendous added momentum and that that is what caused it to go the additional distance and do the damage already referred to. However, it is shown that the Jennings car proceeded only a short distance after the impact and stopped in a ditch which, although not the identical ditch which the Steele car crossed, was of about the same dimensions. It thus seems impossible that the Jennings car, which itself continued only a short distance, could have struck the Steele car with sufficient force to have catapulted it a tremendous distance beyond the point at which the Jennings car stopped.

In addition to Steele’s having entered the intersection at an excessive rate of speed, we think that he was negligent in not noticing that the Jennings car had entered, or was about to enter the intersection. The record leaves no doubt at all that the intersecting corner between the two vehicles offered no obstructions to view and that either driver could easily have seen the other car had either been at all careful.

It is true that Steele, Sr., says that he went to the scene afterwards and found that when, on Avenue B as close to the intersection as four feet from it, he could not see to his right more than 15 feet. This statement is unquestionably absurd since there is other evidence that, for some distance back, a driver on Avenue B could see out Fifth Street for a distance of from 60 to 100 feet. And the photographs indicate, as already stated, that there was really no obstruction to the view at all since the house on the corner is evidently located 15 or 18 feet from the edge of the street.

On several occasions the action of automobiles after such impacts has been pointed to as indicating speed and we think that such decisions are applicable here. In DeJean v. Hattier, La.App., 65 So.2d 623, 624, appears the following:

“That the speed of the Studebaker was grossly excessive is shown not only by the testimony of all of the witnesses except Egert and plaintiff, but also by the physical fact that after the impact, the Egert car continued across the street, across the gutter, across the curb, and across the lawn for a total distance of almost one hundred feet.”

Counsel for plaintiff before us argue that, since a Stop sign faced Mrs. Jennings, young Steele was under no obligation whatever to. look to- his right, that he was not even required to glance in that direction and they confidently rely upon the decision of the Court of Appeal for the First Circuit, in Gautreaux v. Southern Farm Bureau Casualty Company, La.App., 83 So.2d 667, 669, in which appears the following :

“In the everyday world, ordinarily prudent motorists on the main thoroughfare do not slow before each corner and attempt to peer down the side-streets, but instead concentrate most of their attention on the path ahead, relying on their legal ‘right of way’.- Legislative provisions for right of way are to facilitate the passage of traffic in this congested twentieth century world. If to accomplish this purpose, and in realization that even observing the path ahead may tax the ordinary motorists’ powers of sustained observation, the legislature has relieved the motorist on the right of way street of a duty ordinarily to slow before each intersection (and, consequently, of a duty to take his attention from the path ahead by darting glances each way down the intersecting streets), appellate courts should not supply artificial standards in an unrealistic attempt to allocate damages after an accident has occurred.”

We do not disagree with that statement, provided it not be extended to such an extent as to indicate a view that under no circumstances should a driver, under such facts as are here shown, even glance in the direction from which he would be protected by a Stop sign. It must be remembered that the speed of Steele should ha'-'e been slow (not over 20 miles an hour) that the accident happened at night, and that the lights on the Jennings car were burning, and that therefore even the slightest glance, and, in fact, instinct alone, should have indicated to young Steele that the other car was approaching the intersection.

It is not charged and no attempt was made to show that young Steele was under the influence of liquor. It does appear that he had spent a good part of that evening at a cocktail lounge, that after that, he was for sometime with friends, and while he says that he had not been drinking, he did admit that he had had “about a half of a bottle of beer, maybe a little more.”

Under all the circumstances, we are convinced that young Steele was himself grossly at fault and that this negligence on his part bars recovery by plaintiff.

The judgment appealed from is annulled, avoided and reversed and plaintiff’s suit is dismissed at his cost.

Reversed.


author: REGAN, Judge.

text:
    Peter VICARI v. Joseph L. TALAMO.
    No. 20781.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Denied June 28, 1957.

      H. M. Schroeder, New Orleans, for plaintiff appellant.
    R. I. Broussard, Gretna, for defendant appellee.
   REGAN, Judge.

The plaintiff, Peter Vicari, as the last holder and owner of four due and unpaid promissory notes, instituted this suit against the defendant, Joseph L. Tala mo, the maker and endorser thereof, endeavoring to recover the aggregate sum of $795.

Defendant answered and pleaded payment of the notes.

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

The defendant is a dealer in secondhand automobiles. He sold the vehicles, to "various purchasers bn credit and, upon perfection of the sales thereof, he .would then apply to the plaintiff for a loan to finance the unpaid balance and, as security therefor, defendant gave plaintiff a promissory note or notes as the exigency of the occasion required.

■' In the course of these transactions seven or eight notes were made payable to the order of “myself” endorsed in blank and then issued by the defendant to the plaintiff ; however, only four notes are the subject of this litigation which are respectively dated and for the-amounts hereinafter set forth :

a. Note dated August 9, 1951 $349.09
b. Note dated October 10, 1951 175.00
c. Note dated February 2, 1952 100.00
d. Note dated February 23. 1952 180.00 $795.00

At the inception of the trial hereof plaintiff’s counsel called the defendant to the witness stand under cross-examination and, in the course of interrogation, the defendant admitted that he was the maker and endorser -of the foregoing notes. The notes were then offered in evidence. Counsel then placed plaintiff on the witness stand, who testified that he was the owner and holder in due course before maturity and for value of these notes which were past due and wholly unpaid. He then rested the plaintiff’s case. .

Harold Molaison, the plaintiff’s former attorney, appeared as a witness for the defendant and testified that he collected the sum of $565 from the defendant, deducted $50 therefrom as attorney’s fees and issued his check for $515, dated January 8, 1954, made payable to the order of “cash” and gave it to the plaintiff, who accepted it in full payment of all defendant’s notes, which were then in the possession of the plaintiff. Molaison explained that his check would normally have been drawn to the order of the plaintiff, but he refused to' accept a check wherein he was the named payee. Molaison finally stated that plaintiff and defendant handled their business “very loosely” and for that reason plaintiff did not return the notes after payment thereof nor did defendant insist upon either their cancellation or return.

Defendant testified that he and the plaintiff were experiencing financial differences and that as a result thereof he received a letter from Harold Molaison, who was then plaintiffs attorney, in response to which he visited the attorney’s office and after some discussion relating to these differences he offered $565 in full payment of his indebtedness to the plaintiff. The plaintiff subsequently accepted this sum in full payment of these notes. He testified that the reason why he did not insist upon a cancellation or a return of these notes was because he was “raised” with the plaintiff and “trusted” him. He likewise asserted that the plaintiff was allergic to any check wherein he was the named payee and, therefore, whenever it was expedient the plaintiff insisted upon payment in cash.

Plaintiff, as we related hereinabove, insisted that he was the holder and owner in due course of the aforementioned notes which were past due and wholly unpaid.

Defendant, on the other hand, maintains that these notes were paid by virtue of the agreement made with plaintiff through the medium of his former attorney.

The foregoing elucidation reveals that only a question of fact was posed for the trial court’s consideration. The judge thereof resolved this question of fact in favor of the defendant as the following extract from the written reasons for his decision reveals:

“The court believes that the former attorney for the plaintiff did testify truthfully, and that the settlement made through him by the two parties was a settlement of all of the claims between them, and that, therefore, the notes herein sued upon have been paid and are no longer of valid effect.”

The question which this appeal has posed for our consideration is whether that finding is so erroneous and unsupported by the evidence as to warrant a reversal by us.

We are of the opinion that no useful purpose would be served by again indulging in a discussion of the foregoing testimony in order to re-emphasize the pertinent evidence which we believe rightfully influenced the result reached by the trial judge. He accepted the defendant’s proof of payment of the notes predicated principally on plaintiff’s former attorney’s testimony and our analysis of the record convinces us that the evidence preponderates in favor of defendant and the judgment is, therefore, correct.

We are constrained to notice that plaintiff’s present attorney has endeavored to castigate plaintiff’s former attorney for having testified in the lower court against the interest of the plaintiff. His present counsel insists that the former attorney in doing so disclosed a privileged communication which is, in itself, a sufficient reason for disturbing the judgment. We have microscopically examined the testimony of Harold Molaison and we fail to see wherein he violated the canons of Judicial Ethics or “divulged a privileged communication.” In substance he simply stated that as plaintiff’s attorney he had collected $565 from the defendant which the plaintiff subsequently accepted in full payment of defendant’s notes. This testimony does not appear to us to be in the nature of “divulging a privileged communication.” If an attorney-at-law were not permitted to disclose who was his client and what sums of money he had received and disbursed for his account, it would certainly give rise to the perpetration of fraud and injustice and that is exactly what may have occurred herein if the lower court had intervened, and refused to permit Molaison to testify.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    Mrs. Agnes L. BABIN et al. v. LYKES BROS. STEAMSHIP CO., Inc.
    No. 20749.
    Court of Appeal of Louisiana. Orleans.
    April 15, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Denied June 28, 1957.
    Elmer D. Flanders and Nicholas Masters, New Orleans,, for plaintiffs-appellants.
    Terriberry, Young, Rault & Carroll, Andrew R. Martinez and Edward S. Bagley, New Orleans, for defendant-appellee.
   JANVIER, Judge.

This suit for damages is brought under Article 2315 of our LSA-Civil Code by the widow and minor daughter of Thomas Babin who, while performing his duties as a longshoreman in the employ of New Orleans Stevedoring Company, Inc., on board a steamship which was moored at a wharf in New Orleans, fell from the deck of the vessel into the Mississippi River and was drowned.

The defendant is Lykes Bros. Steamship Company, Inc., the owner of the vessel. It is essential that the relationship between the parties be clearly understood. The owner of the vessel was not doing the loading and unloading. The cargo space contained in the vessel had been chartered to the United States Army and the Army, through a stevedoring company employed by it, was doing the loading. All that the owner of the vessel was required to do was to furnish the vessel itself. Such a situation and the resulting obligations are well set forth in an opinion rendered by the United States Circuit Court of Appeals for the Fifth Circuit in Freeman v. A. H. Bull S.S. Co., 125 F.2d 774, 775:

“It will be noted that the vessel was under charter, and had no control over the loading and unloading or knowledge of the condition of the cargo. Freeman was not an employee of the vessel, but of Block’s Terminal, Inc., [the stevedore] which in turn was employed by Ashcraft-Wilkinson Company [the charterer]. Authorities cited on the undelegable duty of a master to furnish his servant a safe place to work have no application to this vessel. If she was herself in safe condition and her appliances good, and warning given of any hidden danger known to her, her duty was fulfilled to the charterer and his employees when they came aboard to get his cargo. * * *” (Brackets ours).

It should also be noted that, as already stated, this is a suit under Article 2315 of our LSA-Civil Code, and it is conceded that it is therefore controlled by the ordinary rules of negligence arising under that article of our Code. Any admiralty or maritime cause of action, including any .possible charge as to the unseaworthiness of the vessel, was abated by the death of Babin. Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; Graham v. A. Lusi, Limited, 5 Cir., 206 F.2d 223.

It is charged that the death of Babin resulted from negligence in that the steamship company failed in its duty to furnish to the said Babin a- safe place to work for the reason that, at the time of the accident, the chain guard rails were not in position along the starboard side of the vessel at the point at which Babin fell into the river.'

While it is also charged that there was grease on the deck of the vessel and that this made the place in which Babin was working unsafe, there is absolutely nothing in the record which supports this charge.

The defendant denied any negligence and charged in the alternative that Babin himself was contributorily negligent, and also that he fell from the deck of the vessel as a result of a risk which was associated with his work and which he had voluntarily assumed.

In the Civil District Court for the Parish of Orleans there was judgment dismissing the suit and plaintiffs have appealed.

The steamship, which was involved, was the SS Howell Lykes. On its arrival at New Orleans it had first docked at the Celeste Street wharf and had there taken on cargo, which had been loaded by longshoremen employed by a stevedoring company, which was not identified but which , was probably other than that by which Babin was employed at the time of the accident.

At the Celeste Street wharf the vessel had been docked with its starboard or ' righthand side against the wharf and cargo .had been loaded from the wharf on its starboard side into the vessel and particularly into hatch number three alongside 'which Babin was working when he later fell into the river.

As this vessel and many others are constructed, there is a high permanent guard rail which entirely surrounds the deck of the vessel except at points immediately alongside the several hatches and, at these open spaces adjacent to the hatches, there are provided removable chain guard rails which are composed of iron stanchions which fit into holes in the deck and which provide support for the chains which pass from one stanchion to another and afford protection against the possibility of anyone falling into the water through the spaces which would otherwise be unprotected. These chain guard rails are removable so that cargo may be more easily moved to and from the hatches, and it is shown that, when they are removed, the stevedoring company which is working the vessel hangs between the vessel and the wharf a net called a “save-all.”

When the ■ vessel was moored at the Celeste Street dock, the chain rail alongside the starboard side of the number three hatch had been removed so that cargo could be loaded into that hatch without the danger that the hooks and other paraphernalia used on the loading booms, which are employed by the longshoremen, might strike and pick up and swing the chain rail and create additional hazards to those working the ship.

When the loading at the Celeste Street wharf was completed, the vessel was moved to the dock at the Port of Embarkation of the United States Army and at that dock was again moored with its starboard side against the wharf. Since the movement from the Celeste Street wharf to the wharf of the Port of Embarkation required only a very short time, the chain rail alongside the number three hatch which had been removed at the Celeste Street wharf was not replaced but in its place the crew of the vessel strung a temporary rope barrier across the opening in the rail. After the vessel was moored at the Port of Embarkation, loading was commenced into the number three hatch and, though counsel for plaintiffs vehemently assert that the record shows that no loading was commenced from the wharf to the hatch and that the only loading which took place was from a barge on the other side into that hatch, the record overwhelmingly shows that not only were preparations made to load from the wharf on the starboard side into that hatch but that considerable cargo was actually loaded from the wharf on that side.

The hatch covers or “pontoons” as they are called had been removed from the number three hatch and placed alongside that hatch between it and the starboard side of the vessel and on top of these pontoons had been placed the heavy tarpaulin which covers the pontoons when they are on the hatches. Babin and another employee of the stevedoring company were instructed to move the tarpaulin from its position on top of those pontoons and, while doing so, Babin, in some unexplained way, fell into the river and was drowned.

There is no contradiction of the evidence offered by defendants to the effect that the temporary rope rail which had been strung across the opening by the crew of the vessel had been removed by members of the stevedoring company and not by the crew, and counsel for defendant point to this fact as indicating that even had the chain rail been replaced by the crew when the vessel left the Celeste Street wharf, it would have been removed by the longshoremen when they were preparing to load cargo from the wharf into the number three hatch of the vessel. And the record abundantly shows that when it becomes advisable to remove these chain rails, the removal is effected by longshoremen and not by the crew of the vessel. It is overwhelmingly shown that the purpose of removing these chain rails while cargo is being loaded or unloaded is twofold; first, it is conceded that these rails, when in position, create an added hazard because of the fact that the lifting booms on the vessel are equipped with various kinds of devices such as tongs or other equipment and that if the rails are left in place this equipment sometimes catches the rails and swings them into the air creating a hazard to those working on the vessel or on the dock.

There is almost no denial of the fact that these guard rails are always removed when the stage of the water in which the ship is lying in such that the top of the guard rails are above the wharf alongside which the ship is lying, but there is some evidence to the effect that when these rails are below the height of the wharf, it is not necessary to remove them. We think the evidence preponderates to the effect that it is advisable to remove them in all cases but there is no doubt at all that it substantially preponderates to the effect that it is always advisable to remove them when the rails, if left in place, would extend above the height of the wharf.

In spite of the vehement contention of counsel for plaintiff that this rail, had it been in place, would not have extended above the wharf, we think the record justifies a conclusion to the contrary.

One of the photographs taken after the accident and after considerable cargo had been loaded into the vessel at the Port of Embarkation shows at least one of the stanchions extended a few inches above the wharf and the ship’s records, identified and explained by two officers of the vessel, show that, as a result of cargo loading, the vessel had sunk about eleven inches between the time it was moored at the wharf of the Port of Embarkation and time at which the accident occurred. This would indicate that when the vessel arrived at that wharf the rail, had it been in place, would have extended above the wharf some 10 or 12 inches. From this fact it seems clear that even had that rail been in place, it would have been removed by the longshoremen in preparation for loading cargo from the dock on the starboard side of the vessel.

That the rails should have been removed even if the top of the rail was slightly below the dock is made evident by other testimony to the effect that passing vessels often cause a swell with a result that a vessel moored to the wharf sometimes rises and falls as much as twelve to eighteen inches.

We think it unnecessary to set forth in detail the testimony of the witnesses which, we think, shows conclusively that it is dangerous to leave such a rail in position during loading operations. This evidence substantially predominates.

Furthermore, it is shown by one of the witnesses produced by plaintiff that the net, called the “save-all”, had been strung on that side of the vessel between the ship and the wharf and there is uncontradicted evidence to the effect that when such a “save-all” is strung, the rail must be removed as the “save-all” is so heavy that the rail -has not sufficient strength to support it.

Our conclusion on this question is that there was no negligence on the part of the ship or the members of its crew in not replacing the chain rail when the vessel left the Celeste Street wharf and that there was no negligence on their part in permitting the preparations to be made by the longshoremen for loading cargo from the wharf on the starboard side of the ship into the hatch without requiring that the chain rail be replaced.

It is contended that such a ship is unsea-worthy when the chain rails are not in position and there can be no doubt that if a ship of that kind was permitted to put to sea without the chain rails in position it would be held to be unseaworthy, but we cannot say that such a ship is unseaworthy just because the rails are removed while the vessel is moored alongside such a wharf as that which is at the Port of Embarkation and elsewhere at the Port of New Orleans.

In the contention that the failure to have such a guard rail in place renders the vessel unseaworthy, counsel for plaintiff rely heavily on a decision of the United States District Court for the Eastern District of New York, in Lester v. United States, 127 F.Supp. 413, in which the Court held a vessel to be unseaworthy since no rail was provided. One distinction between that case and this lies in the fact that here, although a rail was provided, the stevedoring company did not choose to make use of it, and furthermore, the Lester case was reversed by the United States Court of Appeals for the Second Circuit. See 234 F.2d 625, 628. In its opinion, reversing that decision, the Court said:

“ * * * In Hanrahan v. Pacific Transport Co., 2 Cir., 1919, 262 F. 951, certiorari denied 252 U.S. 579, 40 S.Ct. 345, 64 L.Ed. 726, we held that a ship which was in port and fast to a pier was not unseaworthy as to a crewman who had fallen overboard from an upper deck because it lacked hand rails: ‘Seaworthiness is a relative term; a vessel may have that quality in port, and yet be wholly unfit for rough water, McLanahan v. Universal Insurance Co., 1 Pet. 170, 7 L.Ed. 98; and to say that this ship was unseaworthy because she had no handrail up, while lying alongside a wharf discharging cargo, is merely untrue.’ 262 F. at page 952. See, also, Newport News Shipbuilding & Dry Dock Co. v. Watson, 4 Cir., 1927, 19 F.2d 832; Brick v. Long Island R. Co., 1927, 245 N.Y. 222, 157 N.E. 93. We think these precedents are authoritative under the circumstances presented here. * * * ”

It is true that a writ of certiorari is presently pending in the Lester case.

In view of the fact that we find no negligence whatever on the part of the owner of the steamship, it is not necessary that we discuss the question of whether there was contributory negligence or whether the death of Babin resulted from a risk assumed by him.

The reasons given for judgment by the District Judge are concise but so completely comprehensive that we deem it advisable to repeat them here even though we have ourselves set forth practically all of the reasons given by the District Judge:

“Plaintiffs, Agnes L. Babin, the widow of Thomas L. Babin, and Sandra Babin, the minor daughter, through her tutrix, bring this suit for damages arising out of the death of Thomas L. Ba-bin, the deceased husband and father of the respective plaintiffs. Babin met his death on September 4, 1953, when he fell from the deck of the SS Howell Lykes, into the Mississippi River while this ship was moored alongside the dock at the U. S. Army Port of Embarkation at New Orleans. Death was by drowning.
“The evidence shows that Thomas L. Babin was employed as a stevedore by the New Orleans Stevedoring Company, Inc., an independent contractor employed by the space charterer, the United States Army.
“The SS Howell Lykes had been shifted from the Celeste Street Wharf of the Dock Board, to the U. S. Army Port of Embarkation, at about 6:30 p. m. on September 2. On September 3, stevedoring gangs of the New Orleans Stevedoring Company, Inc., had conducted loading operations at the No. 3 hatch of the vessel. On September 4 the vessel was not worked until 6:00 P.M. because of rain. She was loading cargo from her port side at the Port of Embarkation wharf.
“The deceased went aboard on 6: P.M. on September 3 to resume loading operations. The pontoons, or hatch covers, had been removed. The deceased and Arnold Hingle, a fellow employee of the New Orleans Stevedoring Company, were directed to roll a tarpaulin off the pontoons. The deceased, Babin, was walking along the outboard side of the pontoons in order to perform this task with Hingle, and when this task was finished he took a few steps backward and sideward and fell over the side of the ship, into the river, and drowned.
“This action is brought under Article 2315 of the [LSA] Civil Code, alleging negligence on the part of the owners of the vessel, Lykes Bros. Steamship Company, Inc. It is governed by the ordinary rules of negligence prevailing under the Civil Code of Louisiana.
“The defendant in his answer denies any negligence on the part of the ship owner, and sets up the defenses of contributory negligence and assumption of risk.
- “The record shows that the SS Howell Lykes was equipped with ordinary removable chain railings, and the evidence in the record shows that it is the custom, throughout the world, in the loading and unloading of cargo vessels to remove the chain railings, whether the deck of the vessel be below or above the dock. According to the testimony of the witnesses this is done because the railing itself creates a hazard during loading and unloading operations.
“The record shows that the deceased knew the railing was down because he and Hingle, the fellow employee, attached the save-all net, which is a rope net attached to the deck of the ship and to the dock, at a point where the cargo slings pass back and forth between the ship and the dock, for the purpose of saving cargo which may drop out of the slings, to prevent it from dropping into the water.
“The testimony shows that it is necessary to remove the chain railings in order to attach a save-all net. The record shows further that the stevedores themselves removed the chain railing, and that the ship’s officers, when she left the Celeste Street Wharf, provided a rope railing in its place and stead, which was in turn removed by the stevedores when the ship reached the Port of Embarkation.
“Considering the employment of the deceased, in the opinion of this court the absence of the chain railing at the time of the' accident did not constitute negligence on -the part of the ship owner in its duty to the deceased
“As previously stated, Babin, the deceased, was employed by the New Orleans Stevedoring Company which was engaged by the United States Army over which the ship owner had no control, and it was the employees of the stevedoring company who removed .the chain railing in order to perform the tasks of loading and unloading, and the deceased knew that the railing was down..
“Considering the employment of the defendant, it is the opinion of this court that there was no breách of duty, or negligence, on the parfi'of the defendant hhr'ein. '
“Accordingly, there will be judgment dismissing plaintiffs’ suit at their cost.”

The judgment appealed from is affirmed at the cost of appellants.

Affirmed.


text:
    WARD BAKING COMPANY, Inc. v. CITY OF NEW ORLEANS.
    No. 20575.
    Court of Appeal of Louisiana. Orleans.
    March 11, 1957.
    Rehearing Denied May 13, 1957.
    Writ of Certiorari Denied June 28, 1957.

      H. B. Curtis and A. J. Liska, New Orleans, for defendant-appellant.
    M. J. Duran and J. S. Guillot, New Orleans, for plaintiff-appellee.
   REGAN, Judge.

The plaintiff, Ward Baking Company, Inc., the owner of a 1947 GMC truck, operated by its employee, Donald C. Stortz, instituted this’ suit against defendant, The City of New Orleans, endeavoring to recover the sum of $1,800, representing property damage incurred by it as a result of an accident on March 26,1953, at about 11 :- 00 a. m. when the front wheels of its truck struck a “deep hole” in the inbound roadway of Canal Boulevard, breaking the steering mechanism and causing Stortz to lose control thereof resulting in the vehicle striking a tree then turning over which completely demolished it.

Defendant answered and denied that it was guilty of any negligence in the premises ; asserting that if a defect existed it did not render the roadway unsafe for persons using it with proper care and, in the final analysis, that it had neither actual nor constructive notice thereof; in the alternative, defendant pleaded the contributory negligence of the operator of plaintiff’s vehicle.

From a judgment in favor of the plaintiff in the sum of $1,135, the defendant has prosecuted this appeal. Plaintiff has answered the appeal requesting that the amount of the judgment be increased to $1,-800.

Canal Boulevard is a wide thoroughfare having a thirty foot inbound and outbound roadway separated by a neutral ground and extends from City Park Avenue to the lakefront. The accident occurred near the center lane of the inbound roadway in front of the property designated by the municipal No. 5936 Canal Boulevard.

The record reflects that Stortz, a driver-salesman for the plaintiff, had been assigned a new route four days prior to the accident, part of which encompassed that section of the City wherein Canal Boulevard is located. In order to acquaint him with this route another driver-salesman, likewise employed by the plaintiff and familiar therewith, drove him to each of the establishments where Stortz would be required to deliver bread.

On March 26, 1953, plaintiff individually-assumed the responsibility of this new route for the first time and, as he was driving the vehicle approximately twenty-five miles per hour, in the left lane of the inbound roadway, or towards City Park Avenue, he heard the horn of an overtaking automobile blow, which caused him to move into the center lane thereof in order to afford a passageway for that vehicle; almost simultaneously the wheels of his vehicle struck a “deep hole” in the street breaking the steering mechanism, in consequence of which Stortz lost control thereof and the vehicle struck a tree, turned over and was completely demolished.

Plaintiff contends that the defendant was negligent in permitting this dangerous hazard to exist in the roadway of Canal Boulevard and that the accident which resulted therefrom could or should have been foreseen by the defendant

Defendant, on the other hand, admitted through counsel in oral argument before this court that it had actual knowledge of the condition of the roadway running parallel to the 5900 block of Canal Boulevard; that is, it explains the half of the roadway nearest the neutral ground was in excellent condition, but that the other half thereof was rough and conceded to be in need of repair, however, the defendant insists that this portion of the street did not constitute such a hazard which would compel the City to respond in damages to the plaintiff for the property loss incurred by its vehicle.

Since the defendant has admitted and the record substantiates this concession that it had actual notice of the need for repair of half of this roadway, the •only questions posed for our consideration .are ones of fact and they are whether the •defect in that portion of the roadway constituted actionable negligence on the part ■of the defendant and, if so, whether the •driver of plaintiff’s vehicle was guilty of .contributory negligence.

It is difficult from an analysis of the testimony to create an exact mental picture of the hole or depression which existed in the roadway on the day of the accident, since each witness who testified thereto not only experienced considerable trouble in describing the hole, but, to some extent, employed the use of their hands in connection therewith, however, a careful evaluation of the evidence adduced herein, considered from the defendant’s most favorable aspect, reveals that one half of the im-bound roadway of the 5900 block of Canal Boulevard was badly in need of repair and that a general disintegration of the asphalt together with a hazardous hole did exist in the roadway in front of the residence designated by the municipal No. 5936, which was approximately two feet in width by two feet in length and six inches deep. The record reveals that several other accidents had occurred at this identical location prior to this accident and that the City had received actual notice of the existence of this hazard by virtue of these other accidents. In fact, the occupant of the residence in No. 5936 Canal Boulevard testified that on several occasions the wheels of other automotive vehicles had struck this hole causing the hubcaps thereon to fall off and roll into her yard.

The law imposes upon municipal corporations the obligation of guarding against hazards that can or should be anticipated or foreseen in the exercise of reasonable prudence and care and when an accident occurs by virtue of a hole or defect existing in a much traveled roadway and from which danger was reasonably to be anticipated and which, according to common experience was likely to occur, it is charged with negligence.

In determining what constitutes a dangerous hazard there is no fixed rule; the facts and environmental characteristics of each case must be considered and treated individually. Judicially we are tending more and more towards an appreciation of the truth that, in the last analysis, there are few rules; there are principally standards and degrees for the reason that no one is so gifted with foresight that he or she could anticipate every possible human event and prescribe the proper rule for each. The test applied , however, requires an answer to the question of whether the roadway was maintained in a reasonably safe condition for persons exercising ordinary care. In our opinion the roadway was not maintained in a reasonably safe condition as is evidenced by the other accidents emanating from this hazard.

There is not one iota of evidence contained in this record which would indicate that the operator of plaintiff’s vehicle was guilty of contributory negligence. He was not familiar with the hazards of this roadway and, at the time that he drove the plaintiff’s truck into the defective portion thereof, he was only responding to the accepted rules of the road in moving at a speed of twenty to twenty-five miles per hour from the left to the center lane and thus permitting the passage of a vehicle which had manifested a desire to overtake him. This roadway was obviously not maintained in a reasonably safe condition for the benefit 'of the operator of a motor vehicle who was exercising ordinary care and prudence.

It is our opinion after a careful evaluation of the evidence contained in the record with respect to quantum that the award made by the trial judge of $1,135 predicated on the Red Book, National Used Car Market Reports, was correct.

We fully realize that, as we said in Engolia v. Houston Fire & Casualty Insurance Co., La.App., 65 So.2d 814, 817:

“ * * * price manuals are nothing more than guides to those who deal in automobiles, and could not possibly quote with any exactitude the valuation of a particular automobile, because, as every one knows, some cars may be in better condition, mechanically and otherwise, than others of the same age.”

However, we are not convinced from the evidence that the vehicle in question had any greater or lesser value than the average value of similar vehicles of that kind and age.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.

      . Stortz was driven over this route for three days.

      . See White v. City of Alexandria, 1949, 216 La. 308, 43 So.2d 618.


author: THORNAL, Justice.

text:
    Richard J. HARTNETT, Appellant, v. Ernest S. FOWLER and Helen W. Fowler, his wife, Appellees.
    Supreme Court of Florida, Division A.
    April 24, 1957.
    Joseph E. Johnston, Jr., Brooksville, and Trinkle & Moody, Plant City, for appellant.
    W. M. Larkin of Larkin & Larkin, Dade City, for appellees.
   THORNAL, Justice.

Appellant Hartnett who was plaintiff below seeks reversal of a judgment for the defendants-appellees based on a directed verdict in a case tried by the judge without a jury.

The determining point is the correctness of the order of the trial judge directing a verdict at the close of the plaintiff’s case.

Appellant Hartnett, a real estate broker, sued Mr. and Mrs. Fowler for a commission. By Count 2 of his complaint, Hartnett alleged that the appellees-Fowler engaged him as a broker to find a purchaser for a parcel of land. Pie alleges that he produced a purchaser ready, willing and able to buy on the terms stipulated by the appellees. It is further alleged that the appellees refused to sell, despite their alleged agreement. It is then concluded that they were obligated to the appellant for the agreed commission.

The appellees admitted that they listed their property for sale with the appellant but contended by their answer that the terms of the listing were widely at variance with the terms agreed upon by the proposed purchaser produced by appellant.

Upon trial the parties waived a jury. The trial judge heard the testimony offered by appellant and thereupon granted the motion of the appellees for a directed verdict. Final judgment followed this order. Reversal of the judgment is now sought.

The appellant contends that by the evidence offered, he established a prima facie case sufficient to preclude the directing of the verdict.

The appellees, of course, contend that at the trial the appellant failed to establish the existence of the alleged listing contract.

We have held that the power to direct a verdict should be exercised with a degree of caution. Davis v. Equitable Life Assur. Soc. of United States, 149 Fla. 678, 6 So.2d 842.

It is also well settled that a party who moves for a directed verdict admits for the purpose of testing the motion the facts in evidence and in addition admits every reasonable and proper conclusion based thereon which is favorable to the adverse party. Dempsey-Vanderbilt Hotel v. Huisman, 153 Fla. 800, 15 So.2d 903.

It is appropriate to direct a verdict for the defendant only when the evidence considered in its entirety and the reasonable inferences to be drawn therefrom fail to prove the plaintiff’s case under the issues made by the pleadings. Golden v. Morris, Fla.1951, 55 So.2d 714.

We do not overlook the proposition that this cause was heard by the trial judge without a jury. We have, however, held that'where a law action is tried by the judge without a jury a motion for a directed verdict is made and governed by the same rules and principles as in the cases where the cause is being heard by a jury. E. E. Alley Co. v. Ball, 102 Fla. 1034, 136 So. 704.

An examination of the record before us indicates that the witnesses who testified for the appellant in substantial measure corroborated the allegations of his complaint insofar as the appellee Ernest S. Fowler is concerned. While admittedly there were some minor inconsistencies in their testimony, the fact remains that they did testify that Mr. Fowler listed the property and specified the terms and that appellant’s salesman produced a purchaser ready, able and willing to purchase the property on the terms of the alleged listing by the ap-pellee Ernest S. Fowler. However, as to appellee Helen W. Fowler the record is completely devoid of any evidence as to the terms of the listing allegedly agreed upon by her. While the evidence as to Mr. Fowler’s agreement on the terms of the listing certainly is not the strongest that we have read in similar cases, it appears to us that it was at least sufficient to establish a prima facie case which would necessitate the denial of the motion for a directed verdict as to him. As the record now stands we are not confronted with a decision of a trial judge on conflicting evidence for the obvious reason that the appellees never offered any testimony.

Our holding herein is not to be construed as a premature decision on the conclusion which the judge might reach after hearing the defendants’ witnesses and evaluating the evidence with due regard to the credibility which he might extend to the various witnesses whose testimony might be in conflict. We here pass only on the immediate situation presented by the present record.

The order directing the verdict in favor of appellee Helen W. Fowler is affirmed. As to the appellee Ernest S. Fowler, the judgment is reversed and the cause remanded for further proceedings consistent herewith.

Affirmed in part and reversed in part.

TERRELL, C. J., and THOMAS and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, on the relation of Solomon RAVIN, Appellant, v. F. Allan CANOVA, S. E. Simmons, A. William Morrison, W. H. Blackwell and Dewey H. Johnson, as the Florida Board of Pharmacy, Appellees.
    Supreme Court of Florida, Special Division B.
    April 24, 1957.
    Richard W. Ervin, Atty. Gen., and George .E. Owen, Asst. Atty. Gen., for appellant.
    Robert H. Givens, Jr., Miami, for appel-lees.
   PER CURIAM.

This cause came on to be heard on the motion of appellees to affirm the judgment appealed from pursuant to 31 F.S.A.Rule 38 of the rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

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

Affirmed.

TERRELL, C. J„ HOBSON and DREW, JJ., and JONES, Associate Justice, concur.


author: ROBERTS, Justice.

text:
    STATE of Florida ex rel. Harry SITAMORE, Appellant, v. Thomas J. KELLY, Sheriff of Dade County, Florida, Appellee.
    Supreme Court of Florida, Special Division A.
    April 24, 1957.

      Vivion B. Rutherford and Norman Crouch, Miami, for appellant.
    Richard W. Ervin, Atty. Gen., and Moie J. L. Tendrich, Asst. Atty. Gen., for appel-lee.
   ROBERTS, Justice.

This is an appeal in a habeas corpus proceeding filed in the lower court by the appellant attacking the lawfulness of his detention under a one-year sentence imposed by the Criminal Court of Record of Dade County on March 10, 1954. The lower court held that he had served only 156 days of such sentence and declined to enter an order directing his release from custody.

The only history of appellant’s imprisonment necessary to be related here is as follows: On January 24, 1955, while serving the one-year term in question, the appellant was transferred to the custody of the Sheriff of Palm Beach County to await trial on a charge of obtaining money under false pretenses then pending against him in the Criminal Court of Record of that county. He was held in the Palm Beach County jail from January 24, 1955, to July 20, 1955, at which time he was released on bail. The sole issue here is whether the time spent in the Palm Beach County jail, while awaiting trial, should be credited to the 1954 one-year sentence. We have concluded that the trial judge erred in refusing to give the appellant credit for that time.

In State ex rel. Libtz v. Coleman, 1941, 149 Fla. 28, 5 So.2d 60, 61, this court held that a “convict has a right to pay his debt to society by one continuous period of imprisonment.” There, it was not denied that the convict was released from jail without her request or consent, and the court held that her sentence had been executed at the expiration of the term during her release from imprisonment. The court distinguished the cases of Terrell v. Wiggins, 55 Fla. 596, 46 So. 727, and State v. Horne, 52 Fla. 125, 42 So. 388, 7 L.R.A.,N.S., 719, on factual grounds because it appeared that [i]n each of those cases the convict had agreed or acquiesced in the interruption of the sentence.”

It must therefore be held, under the authority of State ex rel. Libtz v. Coleman, supra, 5 So.2d 60, that since appellant’s service of his sentence was interrupted without his acquiescence or consent, he must be credited with the time spent in the Palm Beach County jail awaiting trial.

It appears, however, that appellant was tried and convicted of the Palm Beach County charge on May 10, 1956. Accordingly, the appellant should be transferred to the custody of the Sheriff of Palm Beach County for a determination by the judge of the Criminal Court of Record of that county of the question of whether appellant should be detained under its judgment and sentence, and it is so ordered.

Reversed with directions.

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


text:
    Lucy LINDBLAD, Appellant, v. Paul L. LINDBLAD, Appellee.
    Supreme Court of Florida, Special Division B.
    April 24, 1957.
    William J. Pruitt, Miami, for appellant.
    Botts & Greene and Fred Botts, Miami, for appellee..
   PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A.Rule 38 of the rules of this court and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument ;

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

Affirmed.

TERRELL, C. J., HOBSON and DREW, JJ., and JONES, Associate Justice, concur.


author: LUCKIE, Associate Justice.

text:
    K. R. SHIPBAUGH, Appellant, v. CITY OF SARASOTA, a municipal corporation of Florida, et al., Appellees.
    Supreme Court of Florida, Special Division B.
    April 24, 1957.
    Burket & Burket, Sarasota, for appellant.
    Dexter & Conlee, Sarasota, for appellees.
   LUCKIE, Associate Justice.

This is an appeal from a final decree in a declaratory judgment action by plaintiff below who claims that under the terms of a City of Sarasota ordinance he is entitled to a whiskey license at a place of business whose main entrance is less than 500 feet from the parsonage of the Bethlehem Baptist Church.

Ordinance No. 729 of the City of Sarasota reads in pertinent part as follows:

“No certificate of occupancy shall be issued to any applicant for consumption or sale of liquor as defined under the Laws of Florida, Section ■ 561.01 [F.S.A.], on the premises or off the premises, in zones 1, 2, 3 and 4, as described in the preceding section, if the place of business of the applicant is situated less than 500 feet from an established school or church. In the instance of an established school or church such 500 feet distance shall be measured and computed by following the shortest route of ordinary . pedestrian travel along the public ■ thoroughfare from the main entrance of said place of business to the nearest point of the school or church grounds in use as part of the school or church facilities.” (Emphasis supplied.)

The nearest part of the lot on which the Bethlehem Baptist Church is located is 532.31 feet from the main entrance of appellant’s place of business. But, immediately adjacent to the church and nearer to appellant’s place of business, is the parsonage of the church. The main entrance of appellant’s place of business is located 465.56 feet from the nearest point of the lot on which the parsonage is located and is apparently some 490 feet from the parsonage itself. The lower court held that the parsonage and the lot upon which it stands is a church facility within the meaning of the ordinance and, as the main entrance to appellant’s place of business was within 500 feet of the parsonage and the lot upon which it is situated, appellant was not entitled to a whiskey license at the particular place of business.

The sole question here is whether the parsonage or the lot upon which it is located is a church facility. The facts are undisputed: . the parsonage is owned by the church and is about four feet from the church, but is not physically connected with the church. The parsonage is used two nights each week for meetings by two church organizations. (Other similar meetings are held in other homes.) At these meetings there is Bible discussion, song service and prayer. These are the only religious meetings held in the parsonage, although various members of the congregation call at the parsonage almost daily to speak to the pastor concerning their spiritual needs and problems. The pastor has his study in the church and, apparently, all the administrative and book work of the church is done in the church proper. It is uncontroverted that the parsonage is used primarily as a place of residence for the pastor and his family.

Judged by these facts, is this particular parsonage a church facility ás contemplated by the ordinance ? We think not. We have held that the primary purpose of such an ordinance is. to remove the atmosphere of an establishment where whiskey is sold and consumed a reasonable distance from a church because the milieu of such a place is considered inimical to the best interests and welfare of those who attend church or Sunday School. State ex rel. Yung Sing v. Permenter, Fla., 59 So.2d 773. The same reasoning, however, doesn’t necessarily apply to the home of the pastor. It is not a sacred building nor do all members of the church have a common right to use the parsonage. The primary purpose of a parsonage is secular, not religious; it is not designed or intended as a place of worship. Actually, except for the goodness of its occupant, it is no different from any other home. The fact that the parsonage is sometimes used for meetings by a missionary circle and by a young matrons group does not distinguish it from thousands of other homes similarly used throughout Florida. Though not entirely applicable, it is worth noting that taxation statutes exempting property devoted to religious purposes are generally construed as not including parsonages. 84 C.J.S. Taxation § 291, p. 595. In Florida parsonages are exempt from taxation by being specifically designated in the statute, F.S. § 192.06, F.S.A., and not because they are places of worship.

We readily concede that we should indulge all possible presumptions in favor of the church and the parsonage and not dealers in whiskey. But it would seem that a “church facility” means a thing devoted primarily to religious or church purposes and not something used primarily for residential purposes. Despite the fact that some informal meetings are held in the parsonage, the proof indicates it was a family residence and nothing more. None of the church services are conducted in the parsonage, and no Sunday School or other religious classes are held there. The pastor’s private residence is no more a church facility than the writer’s home is a court facility.

It need not be decided here, but there is substantial basis in law to conclude that the words “in use as a part of the church facilities” mean exclusive use: that the word “use” is unqualified. But, certainly if the word does not mean exclusive use, it at very least means primary use. A church facility implies a place for public worship or public religious meetings, certainly “public” insofar as the particular congregation is concerned. The public, or the congregation, has no more right to enter the private home of the pastor than they have to enter the residence of any other member of the congregation.

Although we regret the necessity for so doing, we must conclude that the court below should be reversed.

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