text:
    Dalfred SPEARS, Plaintiff-Appellee, v. GLASSCOCK DRILLING, INC., et al., Defendants-Appellants.
    No. 5219.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.

      Allen, Gooch & Bourgeois by Joel E. Gooch, Lafayette, for defendants-appellants.
    Guillory, McGee & Mayeux by John G. Fontenot, Eunice, for plaintiff-appellee.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   PETERS, Judge ad hoc.

This is an appeal from a judgment awarding plaintiff the sum of $49.00 per week in Workmen’s Compensation benefits for a period of 500 weeks for total and permanent disability. This judgment also ordered the defendants to pay all reasonable and necessary medical expenses incurred by the plaintiff in connection with his injuries up to the statutory maximum. Defendants find no error in the judgment insofar as it pertains to medical expenses but contend that the trial court committed manifest error in finding that the plaintiff’s accident left him permanently disabled.

Plaintiff was injured while working for defendant Glasscock Drilling, Inc. on a drilling rig on March 28, 1973. He fell about fifteen to eighteen feet through the air and landed on his left arm. He suffered a fracture of the fifth metacarpal bone, which was comminuted, and a fracture of the distal radius, on the lower third, on the left arm. He underwent surgery on five occasions to repair the damage; the last operation took place on February 12, 1975, only a few weeks before trial. The first three operations took place within a few weeks of the date of injury. The fourth operation, on January 15, 1974, was for the purpose of removing a plate and screws that had been attached to the forearm in a previous operation. All of these operations were performed by Dr. R. E. Landreneau, Jr., a general surgeon, with the assistance of Dr. B. N. Heinen, a general practitioner. Plaintiff complained of pain, swelling, and loss of motion of the hand from the time of injury up until the time of trial. When Dr. Landreneau performed the last operation on February 12, 1975, he found that there was an intense build-up of scar tissue over the tendon sheaths in the area of the radius. He believed this scar tissue to be a result of the injury and the surgical procedures following the injury. He excised the scar tissue in the February 12 operation. He apparently felt this scar tissue caused plaintiff’s problems.

On March 18, 1974 and again on May 27, 1974, the plaintiff was examined by Dr. F. Lionel Mayer, an orthopedic surgeon. Dr. Mayer was of the opinion that plaintiff was able on that date (May 27) to return to his work.

On June 28, 1974, the plaintiff was examined by Dr. William Grady Akins, Jr., also an orthopedic surgeon. Dr. Akins was also of the opinion that the plaintiff was able to return to work.

Neither Dr. Mayer nor Dr. Akins ever performed surgery on the plaintiff. They merely examined him.

The defendants voluntarily paid benefits for total disability from the time of the accident until June 4, 1974. At that time, the defendants were advised by Dr. Mayer that plaintiff was no longer disabled and the defendants ceased paying compensation. Trial was held on this matter on March 3, 1975, and the district court rendered the judgment appealed by defendants herein.

As already shown, there is conflicting evidence in the record concerning whether the plaintiff was totally disabled between the date defendants ceased making voluntary payments and the date of plaintiff’s last surgery (February 12, 1975).

The plaintiff introduced the depositions of Drs. Heinen and Landreneau, the treating physicians. Both these doctors were of the opinion that plaintiff was totally disabled from the date of injury to the date of the last surgery. Dr. Landreneau, who performed all the operations on the plaintiff, further stated he expected the plaintiff to remain disabled for a period of eight to twelve weeks following the February 12 surgery and he expected plaintiff to be able to return to work at the end of this convalescent period.

The defendants introduced the depositions of Drs. Mayer and Akins, who did not think plaintiff was disabled when they examined him in 1974.

The trial court heard the testimony of plaintiff and that of David S. Fitzgerald, Jr., Vice-President of Glasscock Drilling. The plaintiff’s testimony concerned his job duties for the defendants and the nature of the problems he had been having with his left hand since injury.

The trial judge found plaintiff was totally disabled from date of accident until date of the last surgery. We are unable to find any manifest error in this decision. Defendants argue that the testimony of the orthopedic surgeons (Drs. Mayer and Akins) should have been given greater weight than that of the nonspecialists (Drs. Heinen and Landreneau) and on this basis the trial court should have found plaintiff was not totally disabled. The trial judge committed no manifest error in not ruling in accordance with the opinions of the specialists. The rule that the testimony of a specialist should be given greater weight than that of a nonspecialist is only a general rule and when the specialist’s testimony contradicts that of the treating physician the specialist’s testimony should be given preference only if it is credible and of such a nature as to carry the greater weight or is more convincing or is the more probable. Wild v. Continental Casualty Company (La.App., 1st Cir., 1970), 234 So.2d 783; Allen v. Early Company (La.App., 2nd Cir., 1974), 300 So.2d 518, writ refused La., 302 So.2d 623. In the present case, the testimony of the specialists is not of such a nature as to carry the greater weight. Dr. Landreneau performed all surgery on plaintiff with the assistance of Dr. Heinen so these doctors were in the best position to ascertain and know the extent of disability of plaintiff’s hand. In fact, Dr. Mayer advised Dr. Heinen, after examining the plaintiff, that he believed no further surgery was indicated. He made no mention of any possibility of scar tissue causing problems. It would certainly be illogical to accept his findings when we have the testimony of Dr. Landreneau concerning what he actually did find when he performed surgery on plaintiff on February 12, 1975.

In addition, the trial judge heard the testimony of the plaintiff concerning his disability and in view of the conflicting medical testimony the testimony of plaintiff was entitled to considerable weight. Johnson v. Cajun Enterprises (La.App., 3rd Cir., 1974), 293 So.2d 617; Huffman v. Aetna Casualty (La.App., 3rd Cir., 1963), 152 So.2d 415.

The trial court did, however, err in finding plaintiff was permanently disabled. The testimony of the two ortho-paedic surgeons was that plaintiff was able to return to work on the date of their examinations May 27, 1974 and June 28, 1974. Plaintiff’s own doctors, Heinen and Landreneau, felt that plaintiff had been disabled from the date of the injury until the date on which some scar tissue was surgically removed on February 12, 1975. Dr. Landreneau stated on February 21, 1975, however, that plaintiff should be fully recovered and able to return to work after a convalescence of from 8 to a maximum of 12 weeks. Dr. Heinen expressed no opinion as to when plaintiff might recover from the last mentioned surgery. There is no medical evidence at all, therefore, which indicates that plaintiff will be disabled after 12 weeks following the date of the above mentioned minor surgery. We conclude that the trial judge was in error in finding that the plaintiff was permanently disabled. LSA-R.S. 23:1222; Young v. Southern Casualty Insurance Company (La.App., 3rd Cir., 1966), 188 So.2d 437; Carter v. Bituminous Casualty Corporation (La.App., 3rd Cir., 1966), 186 So.2d 180.

The evidence shows plaintiff has sustained a ten to fifteen percent loss of the use of his left hand as a result of this accident and ordinarily he would be entitled to recover benefits under Section 1221(4) for that loss. However, the evidence does not show the amount of his weekly wages at the time of the accident, so we cannot determine whether they were sufficient to entitle him to any benefits under LSA-R.S. 23:1221(4) which would be in excess of those which have already been paid. Considering the award being made herein, plaintiff will have received compensation at the rate of $49.00 per week for a total of 110 weeks, amounting to $5,390.00. Since the evidence does not show that he would be entitled to recover more than that amount for the partial loss of use of his hand, we conclude that he is not entitled to an award under R.S. 23 :- 1221(4).

Specifically reserved to the plaintiff herein is his right to review this judgment in the event the duration of his disability exceeds the probable duration of 12 weeks as established by the evidence. LSA-R.S. 23:1331; Landreneau v. Liberty Mutual Insttrance Company, La., 309 So.2d 283.

For the reasons assigned the judgment appealed from is amended by awarding plaintiff compensation at the rate of $49.00 per week from date of accident, March 28, 1973, until May 7, 1975, subject to a credit for compensation payments heretofore made, and all costs of this suit. In all other respects the judgment appealed from is affirmed.

Amended and affirmed.


source: Caselaw Access Project

author: DOMENGEAUX, Judge. CULPEPPER, Judge

license: Public Domain

text:
    Alfred CHELETTE, Plaintiff and Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant and Appellant.
    No. 5200.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 12, 1976.

      Don L. Broussard, Lafayette, for defendant-appellant.
    Fusilier, Pucheu & Soileau, by J. Wendel Fusilier, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Alfred Chelette, brought this action against the defendant, Travelers Insurance Company, the workmen’s compensation insurer of his employer, The Barton Corporation, to recover benefits for total and permanent disability resulting from a work-related injury. The trial court rendered judgment in plaintiff’s favor, finding him totally and permanently disabled and entitled to commensurate benefits under the workmen’s compensation act. From this judgment the defendant-insurer has appealed.

The essential question raised by this appeal is whether the plaintiff proved by a preponderance of the evidence that the injury which totally and permanently disabled him was a result of an accident in which he was involved while in the employ of the defendant’s insured.

The facts surrounding plaintiff’s injury are virtually undisputed. Plaintiff was employed for a number of years as an industrial welder. On October 15, 1973, he was in the employ of The Barton Corporation, working on a job at a carbon black plant at Eola, Louisiana. He and a coworker attempted to lift a large iron plate weighing approximately 350 lbs. The plate slipped and struck plaintiff in the vicinity of the right knee, knocking him to the floor. Following the accident plaintiff experienced difficulty with the injured area and sought medical assistance from Dr. A. John Tassin, Jr., a general practitioner in Ville Platte, Louisiana, on October 18, 1973. Doctor Tassin diagnosed Mr. Chel-ette’s injury as “much trauma to right knee” and admitted him to the Ville Platte hospital on the day of the initial examination. Plaintiff was discharged from the hospital on October 20, 1973.

Doctor Tassin referred plaintiff to Dr. J. Frazier Gaar, an orthopedist in Opelou-sas, Louisiana. Doctor Gaar examined plaintiff on November 7, 1973, and again on November 14, 1973. The doctor found that plaintiff’s knee appeared to be healing properly and allowed him to return to work with the proviso that plaintiff exercise caution in so doing. Approximately one month after the occurrence of the accident plaintiff attempted to resume his work activity but was unsuccessful and immediately suffered a worsening of his knee condition.

On November 23, 1973, Mr. Chelette returned to Doctor Tassin who found the plaintiff’s knee very swollen and hot and accompanied by a fever of 104 degrees. On that day Doctor Tassin hospitalized plaintiff for the second time, until the symptoms subsided. As to the degree of severity of plaintiff’s knee condition at that time, the doctor stated in his deposition:

“His knee injury, in my opinion, was quite severe, and I think when anybody goes in the hospital with a hot, swollen knee, with a temperature of 104, they’re a sick person. I think his knee injury was quite serious. I paid all of my attention — not—well, most of my attention was paid — involving his right knee. I wouldn’t have gone through a complete examination of his low back, being involved mostly with his knee.”

On December 21, 1973, plaintiff was examined by Dr. Ray J. Beurolot, an orthopedist in Alexandria, Louisiana. Doctor Beurolot then diagnosed plaintiff’s condition as a resolving contusion of the right knee. At that time plaintiff did not complain of any other injury to Doctor Beuro-lot nor had he complained of injury to any other part of his body during the previous examinations by Doctors Tassin and Gaar. Doctor Beurolot throughly questioned plaintiff as to his condition and elicited no evidence of pain other than the difficulty in the knee area.

On February 12, 1974, plaintiff returned to Doctor Tassin for further examination of the knee and this time complained that “his back had been hurting for some time”. Doctor Tassin immediately referred Mr. Chelette back to Doctor Gaar who examined him on February 20, 1974. At that time Doctor Gaar was unable to discover any knee instability relative to plaintiff’s accidental injury. At this time plaintiff did not call Doctor Gaar’s attention to any problem with his lower back area. Plaintiff saw Doctor Gaar again on April 16, 1974, and informed him that another attempt to return to work had been unsuccessful. He told Doctor Gaar that his entire right leg had gotten worse and this time complained of episodes of low back pain. Doctor Gaar’s x-ray examination of plaintiff’s spine showed mild degenerative changes in the upper lumbar area and disclosed nothing of any greater significance to the examiner. Doctor Gaar concluded that plaintiff’s problem appeared to be “that of a peripheral nerve root irritation, most likely from a lumbar disc”. Doctor Gaar re-examined plaintiff on May 1, 1974, and found no improvement in his condition. The doctor admitted plaintiff to the hospital on that date and performed a lumbar myelogram, which he determined to be essentially negative. Plaintiff returned approximately two weeks later, on May 13, 1974, and Doctor Gaar was unable to diagnose the cause of plaintiff’s continuing complaints.

Thereafter, on August 7, 1974, plaintiff was referred to and examined by Dr. John F. Loupe, an orthopedist in Baton Rouge, Louisiana. At that time Doctor Loupe formed the impression that plaintiff could possibly be suffering from a disc herniation on his left side. The doctor was unable to satisfactorily interpret the myelo-gram which had been performed by Doctor Gaar and suggested that the plaintiff be re-myelogramed. After another examination on November 7, 1974, Doctor Loupe reassessed plaintiff’s condition to be that of a possible disc herniation in the midline area and again recommended a second myelogram and possible exploratory surgery.

Plaintiff’s final examination was conducted by Dr. Steven Goldware, a neurosurgeon in Lafayette, on December 2, 1974. Doctor Goldware reviewed Doctor Gaar’s myelogram and indicated the possibility of a herniated disc at L-4-5. Doctor Gold-ware concluded that plaintiff was disabled from doing any type of heavy work at this time and suggested that another myelo-gram should be performed. Doctor Gold-ware also concurred in the finding that surgery was a possible necessity.

Since plaintiff's knee injury was not totally and permanently disabling, the basic thrust of defendant’s argument is that since plaintiff did not report his back problems until four months after the accident, there is insufficient proof to show proper causal connexity between the accident and the disabling back injury.

However, the general medical concensus in this case was to the effect that two injuries can occur simultaneously with the more severe and immediate one tending to retard recognition of the second injury. As the more obvious injury heals, the secondary injury becomes more apparent. The trial judge took cognizance of this medical phenomenon and referred to Doctor Loupe’s deposition in his reasons for judgment as follows:

“Doctor Loupe feels that the plaintiff does have a disc involvement at the level of L4-L5. With reference to plaintiff’s failure to complain of pain in the back at the time of the thigh and knee injury, the doctor answers at page 9 of his deposition that plaintiff’s immediate pain would be where the most trauma is, and that’s on the right thigh. He would direct his attention probably initially to the right thigh injury. He analogizes this to having pain in one hand, and you strike the other hand with a hammer, you forget about the pain in the opposite hand and think about that pain where it was struck by the hammer. He says you would call that a ‘damping process’ where the area having the greatest amount of pain is going to damp out the other and ‘override’. Doctor Loupe states in his deposition that plaintiff could certainly have aggravated an old injury.”

Again in reference to this “damping process” the trial judge was aware of Doctor Goldware’s deposition and quoted from it as follows:

“ ‘It seems that there are only so many channels for pain to get through, and the worst seem to take over, and we ignore the pain that doesn’t . . . that isn’t as bad. It is conceivable that if this pain was mainly from — if he had a terrific pain in the knee then his back pain might not be as apparent .... It is conceivable that his back and leg pain might not be very bad until he got up and tried to get going again.’ ”

In addition Doctor Goldware pointed out in his deposition that the basic treatment for a herniated disc and back disease is bed rest, so therefore if plaintiff was relatively inactive during the recuperative period for the knee injury, there would probably be a lag in the recognition of the back injury. Doctor Gaar was of the opinion that plaintiff had no back injury, based primarily upon his negative findings in the myelographic examination. However, even Doctor Gaar conceded the possibility that a back injury could be somewhat concealed by a more immediate and severe injury. Doctor Beurolot, on the other hand, felt that plaintiff’s back injury should have manifested itself within a few weeks of the accident. The trial court was aware of Doctor Beurolot’s opinion and referred to it as follows:

“The deposition of Doctor Beurolot is in the record, and the court has read it and considered it. It does not substantially alter the medical facts as testified to above.”

The disability of a workmen’s compensation claimant is presumed to have resulted from the accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition. See Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App. 3rd Cir. 1975), and cases cited therein.

The evidence adduced at trial showed that the plaintiff was a highly active individual prior to his accident on October 15, 1973. In addition to his normal work activities plaintiff normally performed a number of small welding jobs at his home after work hours. After his accident he sold his larger private welding equipment and retained only a smaller rig which was used by one of his sons. Since his accident plaintiff has been unable to engage in any sort of strenuous activity and for all intents and purposes is totally and permanently disabled from doing the type of work in which he was engaged at the time thereof.

The evidence shows that Mr. Chelette was plagued by severe knee problems which required hospitalization as late as early December, 1973. In February, 1974, the plaintiff informed Doctor Tassin that he had been suffering from back difficulties for some time. Doctor Tassin, in a report to plaintiff’s attorney, which was introduced into evidence, stated:

“In the early part of February this patient began complaining of some pepn in his lower back which he states he had been having for a considerable amount of time and that this had become worst in the past few months because of the severity of the pain in his knee he had not paid very much attention to his lower back.”

We agree with the trial judge in finding it highly probable that as the knee injury subsided, the back injury became more apparent. Taken as a whole, the medical testimony indicates that a delayed manifestation of a back injury is not an abnormal reaction in a case of this type. This delay is insufficient to destroy the reasonable probability of causal connexity between plaintiff’s disabling injury and his accident on October 15, 1973.

As the Supreme Court stated in Canter v. Koehring Company, 283 So.2d 716 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation, of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

Applying the rule of Canter to the instant case, we find no manifest error in the trial judge’s finding that plaintiff’s disabling back injury was the result of the accident in which he was involved on October 15, 1973.

For the above and foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendant.

Affirmed.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(dissenting),

The plaintiff was working as a welder. He and a fellow employee were raising an iron plate when the fellow employee dropped his end of the plate causing it to strike plaintiff’s knee. About three days later, plaintiff went to Dr. John Tassin, a general practitioner in Ville Platte, complaining only of his right knee.

About three weeks after the accident, Dr. Tassin referred plaintiff to Dr. Gaar, an orthopedic surgeon, and he became the treating physician. The only complaints made by plaintiff to Dr. Gaar were in reference to the right knee. No complaints were made as to any back pains.

About two months after the accident, plaintiff was seen by another orthopedic surgeon, Dr. Ray Beurlot, Jr. of Alexandria. Again, his only complaints were to the right knee. No complaints were made of any back ailments.

Plaintiff’s first complaint of back pain was made to Dr. Tassin four months after the accident. Dr. Tassin referred Mr. Chelette back to Dr. Gaar who then examined him as to his knee. Plaintiff did not even call Dr. Gaar’s attention to any problem with his lower back area. However, plaintiff saw Dr. Gaar again approximately two months later and informed him of episodes of low back pains. The doctor admitted plaintiff to the hospital and performed a lumbar-myelogram. The myelo-gram was negative.

Ten months after the accident, plaintiff was seen by Dr. John Loupe of Baton Rouge, and by Dr. Steven Goldware of New Orleans. These doctors found minimal spasm and expressed the opinion that Mr. Chelette could “possibly” be suffering from a disc herniation on his left side. Both doctors stated no more than that it was “possible” that plaintiff’s condition in his back was related to his accident.

The district judge based his opinion on testimony by Dr. Loupe and by Dr. Gold-ware that a possible reason plaintiff didn’t complain of his back injury sooner was because the knee injury was causing him more pain. This testimony, however, is contradicted by Dr. Beurlot and Dr. Gaar, both of whom say that if the injury was sufficient to cause a ruptured disc, the plaintiff would have complained about it sooner than four months.

There is no objective evidence that plaintiff has a disc injury, and it is only the testimony of Dr. Loupe and Dr. Gold-ware which even suggests such a “possible” condition. The myelogram performed by Dr. Gaar was negative. Plaintiff had a preexisting back condition which had caused him pain off and on over the years prior to this accident. This is probably what Drs. Loupe and Goldware found.

The majority bases its decision on the theory that where two injuries occur simultaneously one may cause the patient to fail to recognize the symptoms of the second. They cite Roberson v. Liberty Mutual Insurance Company, 316 So.2d 22 (La.App., 3rd Cir. 1975) and the cases therein cited which hold that “If before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition, the disability of the workmen’s compensation claimant is presumed to have resulted from the accident.” (Emphasis supplied)

I believe the present case fails to meet the test of “commencing with the accident”. In the Roberson case, plaintiff first complained of his injury at the time of the injury and sought medical assistance the following day. In all other cited cases dealing with this presumption, the time involved was either a few days or was described by the court as “immediately following” the accident. There is no case that I could find where the period of time involved was more than just a few days. None of the cases talk in terms of weeks and certainly there is no case going as far as four months. The most important of these decisions are: Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 (La.App., 3rd Cir. 1969); Cripps v. Urania Lumber Company, 213 So.2d 353 (La.App., 3rd Cir. 1968); Porter v. Augenstein Construction Company, 280 So.2d, 861 (La. App., 3rd Cir. 1973); Gates v. Ashy Construction Company, Inc., 171 So.2d 742 (La.App., 3rd Cir. 1965); Carney v. Liberty Mutual Insurance Company, 277 So.2d 175 (La.App., 3rd Cir. 1973); White v. E. A. Caldwell Contractors, Inc., 276 So.2d 762 (La.App., 3rd Cir. 1973) and Nixon v. Pittsburg Plate Glass Company, 161 So.2d 361 (La.App., 3rd Cir. 1964).

In my view, the evidence does not reasonably support a finding that whatever “minimal spasms” were found by Drs. Loupe and Goldware ten months after the accident, were causally related thereto. These two doctors said such a causal, connection is only “possible”. Drs. Beurlot and Gaar said it is not possible, where plaintiff did not complain of a back injury until four months after the accident. The finding of causal connection in this case is based on pure speculation.

I respectfully dissent.

      . The Roberson case was reargued before a five judge panel pursuant to an order of the Supreme Court in accordance with Article 5, Section 8(B) of the Constitution of 1974, 320 So.2d 201 (La.1975), and after reargument, the decision was reinstated. 321 So.2d 398 (La.App. 3rd Cir. 1976).


author: CULPEPPER, Judge.

text:
    Frank SAVOY, Plaintiff and Appellant, v. ACTION PRODUCTS COMPANY, INC., et al., Defendants and Appellees.
    No. 5196.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 19, 1976.

      Pugh, Buatt, Landry & Pugh by Jerry P. Harmon, Crowley, for plaintiff-appellant.
    Voorhies & Labbé by D. Mark Bienvenu, Lafayette, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries suffered in a restaurant when the chair in which plaintiff was sitting collapsed. The defendants are (1) the lessors-owners of the restaurant, and their insurer, (2) the lessees-operators of the restaurant, and (3) the manufacturer and retail seller of the chair. From a summary judgment dismissing plaintiff’s claim against the lessors’ insurer, plaintiff appealed.

The sole issue is whether the lessors’ insurer, Sentry Insurance Company, was properly dismissed from the suit on the motion for summary judgment. We find that it was not.

LSA-C.C.P. Article 966 provides in pertinent part that summary judgment should be granted if:

“the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (Emphasis ours)

Jurisprudence has established that summary judgment procedure should be used cautiously and not as a substitute for trial. Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir. 1974). A motion for summary judgment should be granted only if there is a clear showing that there is no material fact at issue. Mecom v. Mobil Oil Corporation, supra; McGill v. Griffith, 273 So.2d 366 (La.App. 3rd Cir. 1973). In ruling on a motion for summary judgment, the court is not to determine the merits of issues involved or whether it is likely or unlikely that plaintiff may recover. McGill v. Griffith, supra; Mecom v. Mobil Oil Corporation, supra, and cases cited therein. Where there is any doubt concerning the existence or absence of a genuine issue of material fact, the motion for summary judgment must be rejected in favor of a trial on the merits. Mecom v. Mobil Oil Corporation, supra; McGill v. Griffith, supra.

The pleadings, depositions and other documents which may be considered for the purposes of the motion for summary judgment, show that the lessees owned the chair. The lessors were not responsible for the chair’s condition. Plaintiff contends there was a defect in the floor in addition to the defect in the chair and that both defects were contributing causes of the accident. Of course, the lessors-owners of the building and their insurer are liable if a defect in the floor was a contributing cause.

Plaintiff argues that the deposition of the lessee, Mrs. Higginbotham, shows a defect in the floor caused the accident. Mrs. Higginbotham was asked:

“Q Now what was the floor made of? Was it a tile ?
“A It was a tile what was on it, but it was finished. He supposed to put me one before he died and he didn’t, and it hasn’t been changed yet.”

Plaintiff urges this court that the above testimony indicates there was a material issue of fact as to the condition of and safety of the floor in the leased premises.

We cannot agree. A reading of Mrs. Higginbotham’s entire deposition leads us to the conclusion that there is no genuine issue as to the condition of the floor. While the above quoted portion of her testimony indicates she thought the owners were going to replace the tile floor, her testimony as a whole is clear that the floor was unbroken, smooth and free of any defects.

Plaintiff also urges in brief that there is a genuine issue of fact as to whether Mrs. Higginbotham is included as a named insured under the terms of the policy. Plaintiff points to the provisions of the policy which includes under persons insured:

“Any person (other than an employee of the named insured) or organization while acting as real estate manager for the named insured . . . ” (Emphasis supplied)

Plaintiff argues that Mrs. Higginbotham was in fact a real estate manager for the owners within the terms of this provision. He states that she had operated the cafe on the premises for a number of years, was in charge of seeing that the building was kept in good repair, or at least that the lessors were informed of any disrepair, and that she performed all duties normally performed by one having the duty to manage another’s real estate.

The trial court was correct in concluding that whether Mrs. Higginbotham was a real estate manager presented no genuine issue of material fact. The definition of real estate manager is a question of law. While we are unable to locate any authority construing the term “real estate manager” in this state or in other jurisdictions, it seems clear to us that a “real estate manager” is simply one who manages real estate for another. A manager is one who “conducts, directs or supervises something”, Websters 3rd International Diet. 1372 (3rd Ed. 1966). He is a person who has the conduct or direction of a thing. People v. Boyden, 7 Ill.App.2d 87, 129 N.E.2d 37 (1955).

While a real estate manager may also be á lessee, not all lessees are real estate managers. It is true that a lessee possesses for his lessor and not for himself. LSA-C.C. Article 3441; State, through Department of Highways v. Moity, 276 So.2d 770 (La.App. 3rd Cir. 1973). It is likewise true that the lessee must act as a good administrator of his lessor’s property, LSA-C.C. Articles 2710 and 2719. And the Louisiana Civil Code provides that certain repairs must be made by the lessee, and that the lessee may call upon the lessor to make certain others. LSA-C.C. Articles 2693, 2694 and 2695. But though a person who performs these acts may be said to have the “conduct or direction of a thing”, he does not as a result of that performance become a real estate manager, for these acts are merely affirmative duties required of every lessee.

While the definition of real estate manager, as we stated earlier, is a question of law, whether in this case Mrs. Higginboth-am is included within that definition is a question of fact. We conclude that Mrs. Higginbotham was a mere lessee and not a real estate manager. All of the acts performed by her in connection with the property leased were simply acts consistent with her obligations under the law of lease. She had no relationship with Sentry’s insured other than as lessee of the property. The evidence considered by the trial court on the motion for summary judgment shows clearly that Mrs. Higginbotham was not a “real estate manager”. Thus, there was no “genuine issue of material fact” as to this question.

Finally, in brief to this court and in oral argument, plaintiff-appellant urges that Sentry Insurance Company should not have been dismissed from the suit because it is liable for medical expenses of plaintiff under the “Medical Pay” provisions of the policy. During oral argument on this appeal, attorney for defendant-appellant agreed that when Sentry receives bills for medical services rendered it will pay those bills up to the policy limits. While there may be a question as to Sentry’s liability for these expenses, the statements by defendant’s attorney may amount to a judicial confession, LSA-C.C. Article 2291; J. H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972). Therefore, this case must be remanded to determine Sentry’s liability under the medical pay provisions of its policy. Under LSA-C.C. P. Article 966, summary judgment may be granted for part of the relief sought.

For the reasons assigned, the judgment of the trial court is affirmed except as to Sentry’s liability under the medical payments provisions of its policy. This case is remanded to the district court for trial of the medical payments issue. All costs of this appeal are assessed against the plaintiff. Costs in the trial court must await a final judgment there.

Affirmed in part, reversed and remanded in part.


author: HOOD, Judge.

text:
    Glenn JENKINS, Plaintiff-Appellee, v. CITY OF ALEXANDRIA, Defendant-Appellant.
    No. 5178.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 12, 1976.

      Ford & Nugent by Howard N. Nugent, Alexandria, for defendant-appellant.
    Neblett, Führer & Broussard by Robert B. Neblett, Jr., Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Glenn Jenkins sues the City of Alexandria for damages sustained by him as a result of an automobile collision. Judgment was rendered by the trial court in favor of plaintiff, and defendant appealed. Plaintiff has answered the appeal, contending that 'the award made by the trial court is inadequate and should be increased.

The issues are whether the defendant city was negligent, and if so, whether plaintiff also was guilty of contributory negligence, barring him from recovery.

Plaintiff contends that the defendant city was negligent in having failed to trim some shrubbery which partially concealed a stop sign. We have concluded that plaintiff is barred from recovery by his own contributory negligence, and for that reason it is unnecessary for us to determine whether the defendant city also was negligent.

The collision occurred during daylight hours on May 30, 1973, at the intersection of Sixth Street and St. Anne Street, in the City of Alexandria. Sixth Street is a two-lane, hard-surfaced street, which runs north and south. It is 33.33 feet wide from curb to curb, and it is a one-way street for northbound traffic only. St. Anne Street is a two-lane, hard-surfaced street, which runs east and west, and motorists may travel in either direction on that thoroughfare. St. Anne Street also is 33.33 feet wide from curb to curb.

Sixth Street is the right-of-way, or preferred, street at the point where it crosses St. Anne Street. Stop signs had been erected and at the time of the accident they were in place at the northeast and the southwest corners of the intersection, directing eastbound or westbound motorists on St. Anne Street to stop before proceeding to cross Sixth Street.

Immediately before the accident occurred, plaintiff Jenkins was driving his automobile west on St. Anne Street, the inferior thoroughfare. He did not stop at the intersection of St. Anne and Sixth Streets, but instead, he proceeded into that crossing without stopping. When his vehi-ele reached a point west of the center line of Sixth Street, the left side of his automobile was struck by a vehicle being driven north on Sixth Street by Jerry C. Mc-Clung.

McClung was driving his automobile north in his left, or the west, lane of traffic on Sixth Street when the collision occurred. He did not stop before entering the intersection, since he was on the preferred street. The front of his car struck the left side of the Jenkins automobile. The collision occurred in the northwest quadrant of the intersection.

Both of the vehicles involved in the accident were being driven at speeds of from 20 to 25 miles per hour as they approached the intersection. Although both drivers stated that they applied their brakes before the cars collided, no skid marks were left by either vehicle.

The stop sign located northeast of the intersection, designed to warn westbound motorists on St. Anne Street to stop before entering the crossing, was eight feet east of the east curb of Sixth Street. An oleander bush was located from 10 to 13 feet east of that stop sign. The stop sign and the oleander bush were located on the neutral ground, between the north curb of St. Anne Street and the concrete sidewalk which ran parallel to that street. The neutral ground at that point was two and one-half feet wide. The sidewalk was four feet eight inches wide.

Plaintiff Jenkins testified that the oleander bush obstructed his view of the stop sign as he approached the intersection, and that he did not see that sign until he was even with the oleander bush, or about 18 to 21 feet from the east curb of Sixth Street. He stated that he was unable to bring his car to a stop after he saw that sign and before the collision occurred. He concedes that he saw the McClung automobile approaching the intersection from his left, on Sixth Street, when he was “approximately 25 to 30 feet” from the intersection, and “probably 20 feet” before he reached the oleander bush. ' Since the oleander bush was from 18 to 21 feet east of the intersection and Jenkins saw the McClung automobile when he was about 20 feet east of that bush, it appears from his testimony that Jenkins actually was more than 25 or 30 feet from the intersection when he saw the McClung automobile approaching from his left. Plaintiff’s car, of course, travelled more than one-half the distance, or at least 17 feet, through the intersection before it was struck. We are convinced that Jenkins travelled at least 50 or 60 feet between the time he saw McClung approaching the intersection and the time of the collision.

Jenkins explained that he had seen no stop signs at the intersection of Fifth Street and St. Anne when he negotiated that crossing shortly before the accident occurred, and he thereupon assumed that St. Anne had been converted into a right-of-way street. When he reached the Sixth Street crossing and saw no stop sign there he concluded, erroneously, that St. Anne was a through street at that junction. He assumed that McClung was on an inferior street and would stop before proceeding into the intersection.

Plaintiff testified that he did not take his foot off the accelerator until he saw McClung approaching from his left, that he did not apply his brakes until he was within 8 or 10 feet of the McClung vehicle, and that even so he brought his car to a stop just before the vehicles collided. His explanation for failing to take his foot off the accelerator sooner was that “. .- . I had the right-of-way why should I.” He also stated that “. . .as we got to the middle of the street I — I got' about, I guess, 8 or 10 feet from me I put my brakes on and — uh—that’s where we stopped, right there,” that “I got my car stopped in the middle or maybe just a little bit more than the middle of the street,” and that “we was about 8, 6 or 8, 10 feet —When I seen we was going to make the impact I put my foot on the brake.

The law is settled that where a street has been properly designated as a right of way street, and appropriate signs showing it to be such haye been erected, the preferred status of that street will not be lost merely because a stop sign is misplaced, improperly removed, destroyed or obliterated. Fontenot v. Hudak, 153 So.2d 120 (La.App. 3 Cir. 1963); Kinchen v. Hansbrough, 231 So.2d 700 (La.App. 1 Cir. 1970); Ory v. The Travelers Insurance Company, 235 So.2d 212 (La.App. 4 Cir. 1970). Dillman v. Allstate Insurance Company, 265 So.2d 322 (La.App. 4 Cir. 1972).

In Fontenot v. Hudak, supra, a stop sign on an inferior street had been knocked down, and the defendant driver on that street thus was not certain as to whether he had the right of way. He entered the intersection without stopping, and he collided with a motorist on the preferred street. We held that the driver on the inferior street was negligent in failing to maintain a proper lookout as he approached and entered that crossing.

Substantially the same facts were presented in Kinchen, Ory and Dillman, supra, and in each such case the motorist on the inferior street was held to be negligent in having failed to stop at or to use reasonable care before entering an intersection where the stop signs had been knocked down.

Applying the above rules to the facts in the instant suit, we conclude that Sixth Street remained the favored street, and St. Anne the inferior one, at this intersection, despite the fact that the stop sign on St. Anne was partially obscured. Jenkins did not have the right to assume that St. Anne was a right-of-way street simply because he did not see a stop sign at that intersection, and he was negligent in entering that intersection without stopping or exercising due care to see that he could negotiate the ■crossing safely. We believe that if plaintiff had exercised due care he would have brought his car to a stop in time to avoid a collision. Plaintiff thus was negligent in assuming that he was on a favored street, in entering the intersection without stopping, and in failing to bring his car to a stop after he saw the McClung automobile approaching from his left and before a collision occurred.

Our conclusion is that Jenkins was negligent in having failed to exercise reasonable care as he approached and entered the intersection, and that his negligence in that respect was a proximate and contributing cause of the accident, barring him from recovery in this case.

In view of that finding, it is unnecessary for us to determine whether the City of Alexandria also was negligent.

For the reasons herein set out, the judgment appealed from is reversed and judgment is hereby rendered in favor of defendant, City of Alexandria, and against plaintiff, Glenn Jenkins, rejecting plaintiff’s demands and dismissing this suit at his cost. The costs of this appeal are assessed to plaintiff-appellee.

Reversed.


author: ENGLAND, Justice.

text:
    Fred O. DICKINSON, Jr., etc., et al., Appellants, v. CITY OF TALLAHASSEE, etc., Appellee.
    No. 46580.
    Supreme Court of Florida.
    Dec. 10, 1975.

      Larry Levy, Tallahassee, for appellants.
    Bryan W. Henry and Mark H. Rodman, of Henry, Buchanan & Rodman, P.A., Tallahassee, for appellee.
   ENGLAND, Justice.

This case is here on appeal from a decision of the Leon County Circuit Court which directly passed on the validity of a Florida statute. We have jurisdiction under Article V, § 3(b)(1) of the Florida Constitution.

At issue here is the validity of a utility tax imposed by the City of Tallahassee on the State of Florida and its agencies and departments, on Leon County, and on the Leon County School Board (collectively for convenience called “the State”). Acting under the authority seemingly conferred in Article VII, Section 9(a), Fla. Const. (1968) and Section 166.231(1), Fla.Stat. (1973), the City adopted an ordinance imposing a 10% tax on all purchases of electricity, water and gas made within city limits. The ordinance specifically exempted from the tax utility purchases of the federal government and churches, but it contained no exemption for the State.

Article VII, Section 9(a) of the 1968 Constitution provides in relevant part that municipalities “may be authorized by law to levy other [than ad valorem] taxes . except . . . taxes prohibited by this constitution.” Sections 166.231(1) and (4), Fla.Stat. (1973), provide:

“(l)(a) A municipality may levy a tax on the purchase of electricity, metered or bottled gas (natural liquefied petroleum gas or manufactured), water service, telephone service, telegraph service, and cable television service. The tax shall be only upon purchases within the municipality and shall not exceed ten (10) percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service.
(4) A municipality may exempt from taxation hereunder the purchase of the taxable items by the United States government, the State of Florida, or any other public body as defined in section 1.01, Florida Statutes, and shall exempt [purchases by] any recognized church' in this state for use exclusively for church purposes.”

Appellants brought a declaratory action challenging the constitutionality of Section 166.23L The circuit court granted final judgment for the City, specifically holding that the statute and the City’s implementing ordinance were constitutional.

The State basically argues that it is “immune” from taxation, and that any waiver of that immunity must be expressly stated in either the Constitution or a statute. The State observes that neither the constitutional nor the statutory foundation for this municipal tax expressly waives that inherent sovereign immunity. The City basically argues the converse of the State’s position. The City suggests that “inherent immunity” is irrelevant because the 1968 Constitution conferred municipal taxing authority without reserving sovereign immunity. Starting from the premise that the Constitution is a document of limitation, it argues that there is no limitation in that document which would bar municipal taxation of State property. The City concedes that the State, like any other tax object, may be “exempt” from tax under proper circumstances, but it observes that no such express exemption appears in the Constitution, in the statute, or in this implementing ordinance.

In resolving these diametrically opposed theories of intergovernmental finance, we have concluded that the State must prevail. Precedent and logic both dictate that the sovereign’s general freedom from taxation derives from an “immunity”, not from an “exemption”.

The State’s immunity from taxation is so well established in Florida’s jurisprudence that little elaboration is needed here. In Park-N-Shop, Inc. v. Sparkman, 99 So.2d 571, 573-74 (Fla.1958), we said that

“property of the state and of a county . . . is immune from taxation, and we say this despite the references to such property in [statutes] as being exempt.”

In Alford v. State, 107 So.2d 27, 29 (Fla.1958), we explained and reiterated that view.

“Although our statutes specifically exempt such State owned lands, such exemption is not dependent upon statutory or constitutional provisions but rests upon broad grounds of fundamentals in government. . . . [W]ithin constitutional limits, the Legislature may provide for the taxation of lands or other property of the State . . .. The question arises, however, whether the subject act actually does so provide.”

In Orlando Utilities Comm’n v. Milligan, 229 So.2d 262, 264 (4th DCA Fla.1969), certiorari denied, 237 So.2d 539 (Fla.1970), a municipality’s taxing power was distinguished from the state’s and the immunity doctrine was restated with some clarity:

“[A city’s freedom from taxation] is an ‘exemption’ only, not an ‘immunity’ from taxation. Exemption presupposes the existence of a power to tax whereas immunity connotes the absence of that power. The state and its political subdivisions, like á county, are immune from taxation since there is no power to tax them.”

The doctrine of sovereign tax immunity is also well-established in the jurisprudence of other jurisdictions having a similar constitutional scheme of government.

The crux of this case, as it was in Alford, is whether the State has waived its immunity from city taxation in either the 1968 Constitution or the applicable tax statutes. We think not. . As regards the Constitution, we cannot accept the City’s contention that Article VII, Section 9(a) was meant to authorize taxation of the sovereign without any express reference to that fact. The express purpose of that provision was to grant municipalities the constitutional authority necessary to raise revenues through taxation. We have not been directed to any discussion in either the development of the 1968 Constitution or the debates surrounding its adoption which indicate that this grant of tax power was, by implication, also intended to be a release of the sovereign’s immunity from tax. We are unwilling to supply to that implication now.

Turning to the alleged statutory basis for state taxation by municipalities, we note that the “grant” clause in Section 166.231 does not expressly direct such taxation. The City suggests, however, that the authorization can be read from the “exemption” clause of Section 166.231. We reject the suggestion that an express grant of tax authority can be expanded through the terminology of an exception.

The question of “immunity” is more than merely a facial exercise in constitutional and statutory construction. There are compelling policy reasons for the doctrine in terms of fiscal management and constitutional harmonization. If we were to adopt the City’s suggestion that the State is only exempt from taxation, the present Florida Constitution would enable the cities to tax the State and its counties without their being able to tax the cities. The City sees no harm in this, saying that the Legislature can at any time, by statute, change that result. That solution, however, does not answer the more significant question of initial legislative awareness. It does not explain why the Legislature would authorize state taxation by the municipalities without some advance indication as to which municipalities would choose to tax the State and to what extent. The State would have no way to anticipate revenue needs or appropriate funds sufficient to meet those variant tax burdens. Thus, it is inconsistent with sound governmental principles to suggest that a state which cannot finance itself on a deficit basis would indirectly authorize an indeterminate amount of revenue to be taken from all of its citizens for the benefit of some of its municipal governments. A more logical approach to intergovernmental finance would require, as the State contends, a clear and direct expression of the State’s intention to subject itself to selective, local tax burdens.

We conclude that the State of Florida, and the other appellants here, are immune from the 10% utility tax levied by the City of Tallahassee, since neither the authorizing constitutional provision nor the implementing statute constitute a waiver of that immunity. The decision of the circuit court is reversed.

ADKINS, C. J., BOYD, OVERTON and SUNDBERG, JJ., and MOORE, Circuit Judge, concur.

      . Section 166.231 appears in the “Municipal Finance and Taxation” Part of the Municipal Home Rule Powers Act (chapter 166, Fla.Stat. (1973)), adopted by the 1973 Legislature. Chapter 73-129, Laws of Florida.

      . Section 1, Ordinance No. 74-0-1426 (7/9/74), amending section 31-4 of City Code. The “levy” provision of the ordinance purports to tax only electricity, gas and water, although the exemption and effective date provisions also include telephone and telegraph services. Apparently cable television service was also included in the controversy, as part of a temporary restraining order entered to prevent the City from disconnecting State services pending final adjudication on the merits. Obviously the City cannot tax more than the City Commission expressly directed, and any attempt to tax telephone, telegraph or cable television service under this ordinance would be invalid.

      .Section 2, id., amending section 31-7 of the City Code.

      . The City concedes that, unlike the State itself, municipalities lack the power to impose any tax without express authorization in the Constitution and, under their present constitutional authorization, in a statute.

      . Footnotes in the original are omitted.

      . Each of these Florida cases arose under a predecessor Florida Constitution. Nonetheless, they are controlling here since the principle of immunity is not constitutionally dependent.

        .E. g., Kern-Limerick Inc. v. Scurlock, 347 U.S. 110, 74 S.Ct. 403, 98 L.Ed. 546 (1954); Newton v. Atlanta, 189 Ga. 441, 6 S.E.2d 61 (1939); Tempe v. Arizona Board of Regents, 11 Ariz.App. 24, 461 P.2d 503 (1970); Hellerstein, State and Local Taxation 649-94 (3d Ed.1969).

      .If the City were correct in its contention, we would have serious reservations as to whether this portion of Chapter 73-129, Laws of Florida, was validly enacted. Cities did not tax the State under prior law (Opin.Fla. Atty.Gen. 061-54 (4/4/61)), and there is a presumption against a new tax being enacted without express reference in the title. State ex rel. Szabo Food Svc., Inc. v. Dickinson, 286 So.2d 529 (Fla.1974). The title of this act gave no indication that the State was relinquishing its immunity from tax for the first time. Consequently, Article III, Section 6 of the Florida Constitution would suggest that this failure to describe the reach of the Act in its title is a fatal flaw. Cf., State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930). We do not reach this question, however, in light of our conclusion that the inherency doctrine provides the State and its political subdivisions with immunity from tax.

      . Article VII, Section 3(a) of the Florida Constitution exempts city property from taxation. Nothing in the Constitution creates an express exemption for the State.

      . Under self-imposed legislative rules then in effect, the Act proposing such a tax would have been required to carry a note explaining this fiscal impact. None accompanied C.S. for H.B. 1020, the bill which became Chapter 73-129, Laws of Florida.

      . Art. VII, § 1(d), Fla.Const. (1968).


text:
    Noah Greene PARISH, Jr., and Roger Dean Chevrolet, Inc., etc., Petitioners, v. Eugene ARMSTRONG et al., Respondents.
    No. 46675.
    Supreme Court of Florida.
    Oct. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari dismissed. 302 So.2d 767.

ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Paula Earline CARROLL, Petitioner, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF RETARDATION, Respondent.
    No. 46820.
    Supreme Court of Florida.
    Oct. 27, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari dismissed.

ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    BORO WOOD PRODUCTS COMPANY, Appellant, v. Stanley OAKOWSKY et al., Appellees.
    No. 47784.
    Supreme Court of Florida.
    Oct. 29, 1975.
    Rehearing Denied Jan. 28, 1976.
   Case dismissed. 314 So.2d 269.

ADKINS, C. J., and„OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Frances Owen WARRINER, a/k/a Frances O. Warriner, Petitioner, v. Marilyn FERNANDEZ, etc., et al., Respondents.
    No. 47330.
    Supreme Court of Florida.
    Oct. 30, 1975.
    Rehearing- Denied Jan. 28, 1976.
   Certiorari denied. 310 So.2d 375.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    NATIONAL PULPWOOD CORPORATION and Certified Pulpwood Dealers Association Self-Insurers’ Fund, Petitioners, v. Arthur LEAKS and Industrial Relations Commission, Respondents.
    No. 47232.
    Supreme Court of Florida.
    Nov. 7, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, OVERTON, SUNDBERG and HATCH-ETT, JJ., concur.

BOYD and ENGLAND, JJ., dissent.


text:
    Donald L. LIBBY, Administrator of the Estate of James Edward Libby, a minor, Deceased, Petitioner, v. WEST COAST ROCK COMPANY, INC., etc., et al., Respondents.
    No. 47230.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari denied. 308 So.2d 602.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida ex rel. Wanda Patricia BLAKE, Relator, v. Wayne M. CARLISLE, etc., Respondent.
    No. 48045.
    Supreme Court of Florida.
    Nov. 25, 1975.
    Rehearing Denied Jan. 23, 1976.
   Cause dismissed.

ADKINS, C. J, and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    STATE of Florida ex rel. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, et al., Petitioners, v. The Honorable Dan SATIN, as Circuit Judge of the Eleventh Judicial Circuit of the State of Florida, Respondent.
    No. 47949.
    Supreme Court of Florida.
    Nov. 25, 1975.
    Rehearing Denied Jan. 27, 1976.
   IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA TO: THE HONORABLE DAN SATIN, AS CIRCUIT JUDGE OF THE ELEVENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, GREETINGS:

Whereas, the Supreme Court of the State of Florida has directed that the Rule Absolute in Prohibition issue, this is, therefore, to command you, the Honorable Dan Satin, as Circuit Judge of the Eleventh Judicial Circuit of the State of Florida, to restrain from proceeding further in the case of Miller, et al. vs. Florida Power and Light Company, etc., and William Bevis, et al., case no. 74-31562.

WITNESS the Honorable James C. Adkins, Chief Justice of the Supreme Court of Florida and the Seal of said Court at Tallahassee, the Capitol, on this November 25, 1975.


text:
    Dennis CRENSHAW, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48268.
    Supreme Court of Florida.
    Dec. 1, 1975.
   Petition denied.


text:
    JACKSONVILLE ELECTRIC AUTHORITY, Petitioner, v. VEN-FUEL, INC., Respondent.
    No. 47454.
    Supreme Court of Florida.
    Dec. 2, 1975.
   Certiorari dismissed.


text:
    Eugene C. BRYANT, II, Petitioner, v. STATE of Florida, Respondent.
    No. 48021.
    Supreme Court of Florida.
    Dec. 1, 1975.
   The Court has considered the petition for writ of habeas corpus and the return of the respondent to the writ that was issued and is now of the opinion that petitioner, according to the record now before us, is not entitled to his liberty, so the writ of habeas corpus is discharged and petitioner is remanded to custody.

It is so ordered.


text:
    Aurora RUIZ, Petitioner, v. ROYALTY DESIGNS OF FLORIDA, INC., et al., Respondents.
    No. 48118.
    Supreme Court of Florida.
    Dec. 2, 1975.
   Certiorari dismissed.


text:
    VEN-FUEL, INC., Petitioner, v. JACKSONVILLE ELECTRIC AUTHORITY et al., Respondents.
    No. 48056.
    Supreme Court of Florida.
    Dec. 2, 1975.
   Certiorari dismissed,


text:
    Walter Stephen BUCKELS, Petitioner, v. STATE of Florida, Respondent.
    No. 47371.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 310 So.2d 748.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    CAMACHO ENTERPRISE, INC., etc., Petitioner, v. BETTER CONSTRUCTION, INC., etc., Respondent.
    No. 47459.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 311 So.2d 766.

ADKINS, C. J., and ' ROBERTS, OVERTON and HATCHETT, JJ., concur.

BOYD, J., dissents.


text:
    James M. GRANT, Petitioner, v. STATE of Florida, Respondent.
    No. 47543.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 312 So.2d 252.

ADKINS, C. J., and ROBERTS, OVERTON and HATCHETT, JJ., concur.

BOYD, J., dissents.


text:
    MIAMI HOLDING CORP., etc., Petitioner, v. Frank J. MATTHEWS et ux., et al., Respondents.
    No. 47422.
    Supreme Court of Florida.
    Dec. 3, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari denied. 311 So.2d802.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    George RANALLI, Petitioner, v. STATE of Florida, Respondent.
    No. 47359.
    Supreme Court of Florida.
    Dec. 3, 1975.
    Rehearing Denied Jan. 28, 1976.
   Certiorari denied. 312 So.2d 269.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    Susan J. ROSS and Bernard Ross, etc., Petitioners, v. LIBERTY MUTUAL INSURANCE CO., etc., and Marks Brothers Co., etc., Respondents.
    No. 47374.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 312 So.2d 263.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Charles SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 47411.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 310 So.2d 441.

ADKINS, C. J., and ROBERTS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    STIMSON ASSOCIATES, INC., Petitioner, v. SANFORD INDUSTRIES, INC., Respondent.
    No. 47377.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari denied. 310 So.2d 789.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    STATE of Florida, CAREER SERVICE COMMISSION, Petitioner, v. STATE of Florida, DEPARTMENT OF POLLUTION CONTROL, Respondent.
    No. 48389.
    Supreme Court of Florida.
    Dec. 3, 1975.
   Certiorari dismissed-.


text:
    CITY OF SUNRISE, Florida, etc., Petitioner, v. WEST BROWARD UTILITIES, INC., etc., et al., Respondents.
    No. 47498.
    Supreme Court of Florida.
    Dec. 4, 1975.
   Certiorari denied. 311 So.2d 17S.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Hazel Liegerot QUINONES, Petitioner, v. The ESTATE of Charles P. LIEGEROT, Deceased, et al., Respondents.
    No. 47427.
    Supreme Court of Florida.
    Dec. 4, 1975.
   Certiorari denied. 311 So.2d.428.

BOYD, Acting C. J., and OVERTON, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Francis A. NEILAN, Petitioner, v. HOWBAR OF FLORIDA, INC., et al., Respondents.
    No. 46550.
    Supreme Court of Florida.
    Dec. 5, 1975.
   Certiorari denied.

ADKINS, C. J., and BOYD, OVER-TON, SUNDBERG and HATCHETT, JJ., concur.


text:
    Lynn Belch Landis READER, Petitioner, v. PIXIE’S BEAUTY SALON et al., Respondents.
    No. 47387.
    Supreme Court of Florida.
    Dec. 5, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Buretta D. SKEEN, Petitioner, v. The GREAT ATLANTIC AND PACIFIC TEA CO. and the Florida Industrial Relations Commission, Respondents.
    No. 47331.
    Supreme Court of Florida.
    Dec. 5, 1975.
   Certiorari denied.

ROBERTS, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents.


text:
    Louis Fritz NATHEY, Petitioner, v. STATE of Florida, Respondent.
    No. 48338.
    Supreme Court of Florida.
    Dec. 8, 1975.
   Petition dismissed.


author: PER CURIAM.

text:
    Carolyn Patricia Blanco SHEEHY, Appellant, v. Ronald John SHEEHY, Appellee.
    No. 75-652.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
    Robert C. Gibbons and Philip R. Lazzara of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellant.
    Richard H. Mclnnis, Tampa, for appel-lee.
   PER CURIAM.

Appellant-mother, having been awarded permanent child custody by a final judgment of dissolution of marriage, appeals from a modification of that judgment which awards certain visitation rights to the paternal grandparents. We reverse.

An order granting visitation rights to a non-parent of a child whose custody has been awarded to a fit parent is unjustified and unenforceable. In view whereof, the order appealed from is, in this regard, reversed. In all other respects it is affirmed.

McNULTY, C. J., and BOARDMAN and GRIMES, JJ., concur.

      . See Parker v. Gates (1925), 89 Fla. 76, 103 So. 126; Rodriguez v. Rodriguez (Fla.App. 3rd, 1974), 295 So.2d 328; Lee v. Kepler (Fla.App.3rd, 1967), 197 So.2d 570.


text:
    Frank KEREKES et al., Appellants, v. Jorge CLAVIJO et al., Appellees.
    No. 75-848.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.

      Shorenstein & Lewis, Miami Beach, for appellants.
    Lopez & Harris, Andrew W. Horn, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by the appellants-plaintiffs from an order releasing Twenty-five Thousand ($25,000) Dollars forthwith from the Registry of the Court to intervenor, Insurance Services.

Appellants urge reversal on the grounds that the trial court erred in entering the order releasing the funds prior to the expiration of the time granted by the court for taking of a principal witness' deposition and for failing to give them prior notice of the entry of the order.

The record shows that the deposition of Joseph Morano was not transcribed and filed as directed by the trial court’s order of April 9, 1975, until May 15. The order complained of was entered on April 29, approximately two weeks before compliance with the order of April 9.

The court erred in entering the order appealed at a time prior to the completion of the deposition and before it was filed before the court as ordered. The court also erred in ordering the funds released forthwith without notice to appellants.

For the reasons stated the order appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: PER CURIAM. MAGER, Judge

text:
    James Michael LESTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1540.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 2, 1976.

      Richard L. Jorandby, Public Defender, and Craig Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DOWNEY, JJ., concur.

MAGER, J., dissents.

MAGER, Judge

(dissenting) :

Based upon the recent decision of the Supreme Court of Florida in Bennett v. State, Fla.1975, 316 So.2d 41, citing with approval Jones v. State, 200 So.2d 574 (Fla.App. 3rd, 1967), reversible error occurred in this case when the state introduced testimony that the accused, while in custody, remained silent in the face' of' an accusation of guilt of the crime for which he was arrested and charged. Accordingly, the judgment should be reversed and the cause remanded for a new trial.


author: McCORD, Judge.

text:
    Donald Quincy DEAN, Appellant, v. STATE of Florida, Appellee.
    No. V-165.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1975.

      Frank T. Cannon, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

This is an appeal from judgment and sentence of appellant for first degree murder.

The state’s theory (which was evidently believed by the jury) was that appellant hired one Wayne Rowell to kill Stephen Owen Glover, the deceased. Rowell testified for the state after pleading guilty to second degree murder with an agreed 15 year sentence. The state’s evidence showed that the deceased was killed at his trailer home on September 24, 1973, between 11:30 and 12 p. m. by a shotgun blast. At the scene at the time of the homicide were the deceased, his wife, Geraldine, their infant child, and Geraldine’s brother, Jimmy Johnson. Mrs. Geraldine Glover testified that she met appellant in 1970; that subsequently she had a love affair with him, while married to the decedent, and had been involved with appellant in the sale of drugs and stolen goods; that she broke off the affair because of appellant’s threats; that appellant had threatened to kill her, her husband and her son because she knew too much about appellant’s illegal activities; that appellant had said he would be “sitting in church” when they were killed; that the tires on her car had previously been slashed; that drugs had been planted in her car; and that appellant had previously attempted to have her declared incompetent. She further testified that on the night of the shooting she arrived at 9 p. m. to find her husband angry because appellant had called and threatened to kill him. She and her husband and small son were sleeping in the same bed in the back bedroom of the trailer when the shooting occurred. She testified that during the night she was awakened by shots and looked out the window and saw a Pontiac automobile with a black top and maroon bottom; that she noticed her husband was hit and called the police. She further testified that she did not know Wayne Rowell. Her testimony as to the events on the night of the shooting were corroborated by the testimony of her brother, who was sleeping in another bedroom in the trailer. The evidence showed that the cause of death was a single shotgun or gunshot wound in the head of the decedent. A Y%-inch ball bearing was removed from his brain.

Rowell testified that he had known appellant approximately one year; that appellant told him that Geraldine had kept records for him concerning drug transactions; that previous to the homicide appellant had cancelled a debt of Rowell’s because he had cut Geraldine’s tires at appellant’s request; that he had also previously planted a paper sack in her car at appellant’s request and two weeks prior to the homicide he had harassed Geraldine by firing a shotgun loaded with birdshot at her trailer at appellant’s request. He further testified that on the afternoon of the homicide, he got off work at approximately 4 p. m. and stopped and picked up a six pack of beer and started drinking; that he went home and then left and joined up with a couple of his buddies and they went to a bar where they drank until approximately 9 or 9:30 and then left and went to a friend’s house and had a few more beers and then about 10:00 he borrowed a black 1962 Pontiac automobile from one of his friends and went home. He testified that upon arrival his wife told him that appellant had been over and wanted to see him before 12:00 so he went over to a Miss North’s house where appellant was staying; that he pulled up in the yard and appellant came out with an unplugged shotgun that was fully loaded with five shots; that appellant gave him a $50 check and told him to go shoot the back out of the trailer that he had shot previously; that he told him there wasn’t anybody home and to “unload” the gun in the back of the trailer and not to come back or bring the shotgun back to him. He testified that he went back home and gave his wife the check and then got in the car and drove out past the trailer; that he turned around to make sure there wasn’t anybody at home; that no lights were on and he didn’t see a car; that he stopped in front of the driveway and fired five times into the back of the trailer; that he then drove off and went to Dale’s Lounge, where he had a beer; that he did not know either Mr. or Mrs. Glover and had never met them; that later appellant instructed him to say that Geraldine had a contract out on her husband’s life and that she would pay $25,000.

Mary Francis Rowell, wife of Wayne Rowell, testified to the arrival of appellant at their home the night of the shooting and the comings and goings of her husband.

Mary Ellen Fehr testified that she had known appellant for approximately a year and a half and had purchased a pound of pot from him; that Geraldine was present during the transaction and took her check for the pot; that following the initial sale, she bought drugs frequently from appellant; that at appellant’s request she wrote a letter to Stephen Glover. and enclosed nude pictures of Geraldine which were supplied by appellant. When asked why she did this, Miss Fehr said appellant told her he had Mafia connections and would help get her and Bill Williams into the Mafia; that appellant told her that Geraldine was a “narc” agent and “if he were to wake up one morning and find them dead, there would be $500 deposited into somebody’s account where, it was due”; that mention of killing Geraldine was again made to Miss Fehr by appellant; that appellant wanted to know if she had found someone to make a bomb. William L. Williams, Jr., corroborated testimony of Miss Fehr and stated that appellant talked to him about blowing up a trailer and a scheme that was concocted to bomb the trailer. He also testified about making an affidavit at the request of appellant as to Geraldine’s mental state and her desire to have her husband killed.

Donald Raymond Church, an acquaintance of appellant, testified to an incident when he and some friends were at appellant’s house. He testified that- appellant “mentioned that he wanted this girl, Geraldine Glover, killed and wanted to know if any of us would do it for him and we talked about it and then he got in the car with us and we rode over to where Mrs. Glover lived and he showed us the house and everything.” Church further testified: “He said that if she was killed or done away with that.he would pay Bill Williams $500 and let him give it to whoever you know, done the job.”

Appellant testified that he had nothing to do with the death of the victim; that he was being framed because he had provided information to the police that led to the arrest of friends of some of the witnesses. He testified that during his affair with Geraldine she had told him that she had Stephen well insured and indicated that there was $25,000 insurance on Stephen which she would split with him if he would kill her husband; that he knew where Stephen went hunting and she suggested that he go out there and kill him. He testified that the $50 he paid Rowell was for fixing his air compressor; that Rowell had come over to where he was staying the night of the shooting and wanted to collect for fixing it; that he paid him and told him his brother would pick up the compressor later. (Rowell had testified that Dean had loaned him the air compressor to use and not to repair; that he had been using it and had not repaired it.) Appellant testified that he had been having an affair with Rowell’s wife; that when Rowell saw him the night of the shooting Rowell had been drinking and accused him of going with his wife; that Rowell told him he didn’t want him to go over to his house anymore. Appellant testified that the shotgun which was admitted into evidence as the murder weapon was one that he had swapped to Rowell on a television set; that he knew nothing about the tires on Geraldine’s car being cut; knew nothing about the drugs that were found in Geraldine’s car; did not know why Glover was killed and had no part with anyone in the killing.

Rowell, on cross examination, admitted having given previous sworn statements which were inconsistent and in conflict with his testimony; that in the statements he had said he had done the shooting as a result of barroom talk; that he had heard there was a bounty out on Mr. Glover; that he implicated Dean because, by testifying against appellant, he would be given “immunity or probation or something of that nature” and would receive $1,000 from the police department, $10,000 from the family, and $12,000 from the insurance policy for killing Glover and implicating appellant. The foregoing was contained in a statement Rowell gave to appellant’s present attorney, Frank T. Cannon, and his testimony at the trial was to the effect that he thought at the time that Mr. Cannon was being furnished by appellant to represent him (Rowell). He testified that he later discovered that he had been “double-crossed” — that he had not been furnished an attorney. He testified that the previous statements were untrue and in attempting to demonstrate that they were untrue, he testified that he had been given three lie detector tests. His testimony regarding the lie detector tests is as follows (upon questioning by the assistant state attorney) :

“Q Mr. Rowell, you made a statement in the sworn statement and you made statements in here today. Which day were you telling the truth ?
A I beg your pardon ?
Q When were you telling the truth, when you testified in court today or those statements that you made ?
A Today. Everything I have told today can be verified by the three lie detector tests I took.”

Defense counsel then moved for a mistrial because of the witness’s testimony that the truth of his testimony from the witness stand could be verified by the three lie detector tests he took. The assistant state attorney moved to strike the statement and requested that the court give the jury a cautionary instruction regarding his reference to the lie detector tests. Motion for mistrial was denied but the trial court gave a cautionary instruction in which it reviewed the testimony given by the witness regarding the lie detector tests, reminded the jurors of their oaths and instructed them to disregard the comments of the witness regarding the lie detector tests. The court further instructed them that there was no competent evidence before the jury that he had even taken a lie detector test and that any reference made to lie detectors was totally inadmissible and should not be considered in any manner in arriving at any phase of their verdict; that “the reason lie detectors are not admissible is because they are so unreliable and unfruitful.”

The failure of the trial judge to grant appellant’s motion for a mistrial is one of appellant’s primary grounds upon which he seeks reversal on this appeal. Evidence relating to a lie detector test is inadmissible in the courts of this state. Kaminski v. State, Fla., 63 So.2d 339 (1952); Johnson v. State, Fla.App. (2d), 166 So.2d 798 (1964); State v. Brown, Fla.App. (2d), 177 So.2d 532 (1965); Anderson v. State, Fla., 241 So.2d 390 (1970); State v. Curtis, Fla.App. (3d), 281 So.2d 514 (1973), and Sullivan v. State, Fla., 303 So.2d 632 (1974). In several instances a mere reference to a lie detector test without any reference to the result thereof, although inadmissible, has been held not to constitute reversible error where a cautionary instruction is given by the Court. In Johnson v. State, supra, the District Court of Appeal, Second District, said:

“On the basis of an analysis of the cases hereinbefore discussed we conclude that while neither the results of a lie detector examination nor testimony which indirectly or inferentiallj' apprises a jury of the results of a lie detector examination is admissible into evidence, the mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. The determination should not, of course, encourage attempts to introduce evidence concerning lie detectors. As is clear from the cited cases, such evidence is liable to be prejudicial and should be admitted only when clearly relevant and unmistakably nonprejudicial.”

In Kaminski v. State, supra, the original case in Florida as to the admissibility of lie detector tests, the Supreme Court said:

“We find, without a single exception, that every court of last resort that has been called upon to decide the question has ruled that results obtained from the so-called lie detector test are not admissible as evidence.”
“It was not fair to place the defendants in the entrapped position that required them at their peril either to pursue the inquiry as to the nature of the results of the test or to be damned by the adverse impressions which naturally would be expected to flow from their failure to do so.”

In the recent case, Sullivan v. State, supra, the Supreme Court reiterated that the results of lie detector tests are not admissible in evidence. In some ways that case is similar to the case sub judice, but it differs in a very material respect. There, an accomplice testifying for the state, upon being questioned by the defense, admitted that his sentence would depend on how his testimony turned out. On redirect examination, the state asked the defendant, “When you said that your sentence is going to be determined by your testimony and would you explain to the jury what you meant?” to which the witness answered: “That I would have to have taken a polygraph test and passed it.” Defense counsel moved for a mistrial which was denied. The trial judge offered to instruct the jury to disregard the reference to the polygraph test but defense counsel declined the offer. The Supreme Court in affirming the conviction stated:

“We also note that the witness never referred to the actual results of the polygraph test in any manner, and that the only mention of a polygraph test was the one answer discussed above. It all becomes too tenuous to support harmful error that would likely have produced a different result if not present.”

In the case sub judice, the witness testified to the result of the three lie detector tests. In Sullivan the Supreme Court pointed out that the witness had not testified that he had taken a lie detector test. In distinguishing Sullivan from its previous opinion in Kaminski, the Supreme Court said: •

“In Kaminski, the witness clearly informed the jury that he had taken a polygraph test, defense counsel carefully attempted to cure the error at the trial court level, and the State’s case depended entirely upon the testimony of the witness, whose credibility had been seriously shaken both by cross-examination and by the testimony of other State witnesses. None of these factors is present in the instant cause, McLaughlin’s testimony never having been seriously shaken, a large body of other evidence of appellant’s guilt having been introduced, and, most importantly McLaughlin never clearly stating that he had already taken the polygraph test. Indeed, the one ambiguous answer noted above is the sole reference to the polygraph.”

The case sub judice is analagous to Ka-minski rather than to Sullivan. Here, as in Kaminski, the witness clearly indicated to the jury that he had taken and passed not one but three polygraph tests which supported his testimony. While there was other evidence tending to show appellant’s guilt, this was a key witness for the state. He was the only witness who directly connected appellant to the homicide. His credibility had been seriously shaken on cross-examination by his own previous sworn statement and by appellant’s testimony. It was extremely important that the jury weigh the believability of his testimony in the light of admissible rather than inadmissible evidence. While the cautionary instruction of the trial court was thorough, it could not offset the damaging and prejudicial effect of the witness’s testimony that the version he was then testifying to was true because it was supported by three lie detector tests which had been given to him. It was unfortunate that he had not been instructed by the State prior to testifying that he must make no comment regarding his having taken lie detector tests, or, if he was so instructed, it was regrettable that the seriousness of a failure by him to follow such instruction was not impressed upon him. This having been a lengthy trial, the occurrence is particularly unfortunate, but a defendant is entitled to a fair trial in which he is not convicted upon inadmissible, prejudicial testimony. We cannot say the error was harmless. The motion of defendant for a mistrial should have been granted.

Appellant alleges several additional points as error in the trial below. He contends that when the jury returned to the courtroom during their deliberations and requested to be reinstructed on first, second and third degree murder and when the trial court so instructed them and added the manslaughter instruction, it erred in not also reinstructing the jury on justifiable and excusable homicide. Contained in the manslaughter instruction is the statement that it is “the killing of a human being by the act, procurement or culpable negligence of another in cases where such killing shall not be justifiable or excusable homicide or murder.” We do not consider that such reinstruction on justifiable and excusable homicide was necessary in this instance. The jury had not asked for additional instructions on manslaughter. The judge, with the agreement of counsel for both parties and without any objection from appellant as to the content of such instruction, gratuitously gave the manslaughter instruction to them. In addition, the judge in his previous instructions had fully defined justifiable and excusable ,homicide. In the absence of a request from the jury or from the parties for a repeat of such definitions, it was not error not to give them. In any event, however, even if such had been technical error, it was cured by the jury’s verdict. It is illogical to say that because the judge did not redefine justifiable and excusable homicide as not constituting ,the crime of manslaughter, such would vitiate a verdict of first degree murder. Such could have had no bearing upon the jury having reached a verdict of first degree murder.

Appellant also contends that the trial court erred in a ruling made in the course of the trial that he would not allow evidence of witness Rowell’s previous statement to go in evidence. The court freely permitted examination of Rowell on the statement and since Rowell admitted the previous inconsistent statement, it did not become necessary or permissible for the statement itself to be put in evidence as an exhibit.

We have considered the other points raised by appellant and find them to be without merit.

Reversed for a new trial.

BOYER, C. J., and RAWLS, J., concur.


author: BOYER, Chief Judge.

text:
    Brenda Seiple MUMMAW, Appellant, v. Richard Alan MUMMAW, Appellee.
    No. X-227.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    James L. Powers, Powers, Folsom, Adams & Smith, Jacksonville, for appellant.'
    William H. Maness, Jacksonville, for ap-pellee.
   ON MOTION FOR ATTORNEY’S FEES

BOYER, Chief Judge.

Appellee, the husband in the divorce proceeding below, has moved this' Court to award him reasonable attorney’s fees pursuant to Rule 3.16(e), F.A.R., incident to the successful prosecution of his appeal. In support of his motion, appellee claims that the financial circumstances of the parties reveals the wife’s ability to pay such fees and his own inability to pay same. In fact, our reading of the record supports that contention.

Were the roles reversed in this appeal and were it the husband who was in the better financial condition, we would have no qualms in awarding attorney’s fees to the wife. Should the result be any different merely because it is the husband who is the prevailing litigant on appeal? As this Court has previously noted in reference to the new “no-fault” dissolution of marriage law, “The 1971 enactment places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution.” Bateman v. Bateman, Fla.App. 1st, 1974, 301 So.2d 472 at 473. This equality includes equality of liability obligation and responsibility. We, therefore, conclude that under the circumstances of this case, the husband’s motion for attorney’s fees should be granted.

Inasmuch as the trial court is in a better position than are we to take testimony and evidence as may be necessary in fixing an appropriate fee, the case is remanded to the trial court to fix an amount of attorney’s fees to be awarded incident to this appeal. In passing, we note that one factor which the trial court should take into consideration when fixing the amount of the award is that the appeal taken in the case sub judice was so devoid of merit as to require no opinion from this Court other than a per curiam affirmance. See Mummaw v. Mummaw, Fla.App., 319 So.2d 201, Opinion filed September 5, 1975.

Motion granted and remanded for proceedings consistent herewith.

MILLS and McCORD, JJ., concur.


text:
    TRIO TOWING SERVICE, INC., a Florida Corporation, and B. L. McCoglin, Appellants, v. Robert E. MURRELL, Appellee.
    No. 75-476.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Jan. 13, 1976.

      Horton, Perse & Ginsberg, Miami, for appellants.
    Kneale & Starkweather, Miami, for ap-pellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

This matter has been before this court previously. See: Murrell v. Trio Towing Service, Inc., Fla.App.1974, 294 So.2d 331, for the background and results of this decision, wherein we reversed the trial judge for directing a verdict for the defendants.

We candidly admit that after finding error in the directed verdict for the defendants in the earlier proceeding we made a mistake in directing the trial judge to direct a verdict for the plaintiff for both compensatory and punitive damages. This is so because we denied the defendants their day in court in that they never had an opportunity to present any defenses. Necessarily, for the proper determination of their motion for directed verdict, the defendants at the time of the first trial had to admit without contest all the evidence introduced and reasonable inferences therefrom in fav- or of the plaintiff, and this formed the basis of the factual statement set forth in the earlier opinion. However, after we determined that the trial court erred in directing a.verdict for the defendants, we should have returned the matter to the trial court for further proceedings in accordance with the rules of civil procedure and ordinary due process. See : Ryan's Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483; Pelle v. Diners Club, Fla.App.1974, 287 So.2d 737; Carmichael v. Shelley Tractor & Equipment Company, Fla.App.1974, 300 So.2d 298; Rule 1.480(a), R.C.P.

Therefore, the final judgment here under review be and the same is hereby reversed, and the matter is returned to the trial court for a new trial on all the issues as made by the pleadings.

Reversed and remanded with directions.


text:
    FLORIDA BOCA RATON HOUSING ASSOCIATION, INC., Appellant, v. Jackie T. MALONE et al., Appellees.
    No. 74-1621.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.

      C. Shelby Dale of Dale & Stevens, Fort Lauderdale, for appellant.
    Rosemary Barkett and Malcolm Anderson of Farish & Farish, West Palm Beach, for appellee Malone.
   PER CURIAM.

This litigation arises out of supplementary proceedings on a judgment rendered on a promissory note wherein the judgment creditor attempts to levy on a stock certificate owned by the judgment debtor. Before the judgment, but in apparent anticipation of judgment, the judgment debtor allowed the stock certificate to be delivered to its parent corporation in California.

On the judgment creditor’s motion to produce the stock and the judgment debt- or’s refusal or inability to so produce, the court entered its order deeming the stock certificate to be lost and unaccounted for and for the issuer of the stock to reissue a new certificate and place it in the hands of the sheriff. This is an appeal from said order.

The ultimate question is whether the court had authority to order the issuer to issue a new certificate in place of the original certificate which was outside the jurisdiction of the court.

The authorities cited by the judgment creditor in support of this procedure are Fla.Stat. §§ 678.405; 678.317; 678.320 and 678.401 (1973) of the Uniform Commercial Code and Hodes v. Hodes, 176 Or. 102, 155 P.2d 564 (1945). The court has also considered Fla.Stat. §§ 56.29; 608.39 and 608.-42 (1973).

Upon consideration of the briefs, oral argument and the record on appeal we are of the opinion that the above-mentioned authorities were misapplied to the facts of this case. While there is ample evidence to support the court’s declaration that the securities were wrongfully taken outside the jurisdiction of the court in an attempt to circumvent the rights of the judgment creditor, there is no legal or decisional basis for the court to order the reissue of a new stock certificate.

Accordingly the order appealed from is reversed and the cause remanded with instructions that an order be entered directing the cancellation of the newly issued stock certificate.

Reversed and remanded.

WALDEN, C. J., MAGER, J., and GRID-LEY, WILLIAM C., Associate Judge, concur.


text:
    Bobby CANTY, Appellant, v. ATLAS AUTO STORAGE, INC., d. b. a. Palm Beach Auto Storage, Appellee.
    No. 75-411.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Stephen J. Press, Fla. Rural Legal Services, Delray Beach, for appellant.
    John Witt, West Palm Beach, for appel-lee.
   PER CURIAM.

Upon, examination of the pleadings and record in this cause and upon review of the applicable authorities, we are of the opinion that the allegations contained in plaintiff’s amended complaint were sufficient to state a cause of action. Fontainebleau Hotel Corp. v. Walters, Fla.1971, 246 So.2d 563.

Accordingly, the order of dismissal with prejudice is vacated and set aside and the cause remanded to the trial court with respectful directions to entertain the filing of plaintiff’s second amended complaint and for further proceedings not inconsistent herewith. See Town of Micanopy v. Connell, Fla.App. 1st, 1974, 304 So.2d 478.

MAGER and DOWNEY, JJ., and TED-DER, GEORGE W., Jr., Associate Judge, concur.


text:
    Peter B. ATWOOD, Appellant, v. FLORIDA EQUITY AND MORTGAGE INVESTORS et al., Appellees.
    No. 75-544.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Peter B. Atwood of Atwood & Richmond, Fort Lauderdale, for appellant.
    David Kerben, Orlando, for appellees.
   PER CURIAM.

Venue was proper in Broward County as the cause of action, i. e., default in payment, accrued there, the place of payment being the residence of the plaintiff-payee, Broward County. Saf-T-Clean, Inc. v. Martin-Marietta Corporation, 197 So.2d 8 (Fla.1967). Defendants were not entitled to a transfer of the action to Orange County under Fla.Stat. § 47.122 (1973) since that was the county of their residence and plaintiff did not consent. Fla.Stat. § 47.163 (1973); Mann v. Goodyear Tire and Rubber Company, 300 So.2d 666 (Fla.1974). The order appealed by which venue of this cause was transferred from Broward County to Orange County is reversed.

Reversed and remanded.

WALDEN, C. J., and CROSS and OWEN, JJ., concur.