author: CARLTON, Associate Judge.

text:
    Theodore Edward MALOTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-1581.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    Rehearing Denied Oct. 5, 1976.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   CARLTON, Associate Judge.

Appellant was charged with Larceny of a Motor Vehicle. He was found guilty as charged and he appeals Final Judgment. During the first day of trial the jury was empaneled, sworn and given their preliminary instructions. At the end of the first day and before opening statements or any evidence was presented the Court excused the jury until the following morning. When the trial was resumed the following day, the Court advised the parties that a member of the original jury would not be present due to a death of his nephew. The Court stated that this juror’s “nephew was electrocuted and that he was the only person who could make arrangements for the funeral being the closest relative and he was in a state of emotional disturbance and could not make the trial here today.” The Court then stated that the parties could either try the case before the five remaining jurors or they could select a sixth juror. Defense counsel objected to both alternatives and requested a third alternative, a mis-trial. The objection was based on the fact that the five member jury would be prejudicial to Appellant and the jeopardy attached when the jury was formed the preceding day. The Court overruled the objection and ordered the parties to select a sixth juror. The Court granted each party three peremptory challenges for the purpose of selecting a sixth juror. The opening statements commenced and evidence presented, when the sixth juror was selected, sworn and instructed. Appellant was found guilty as charged.

Appellant raised two points on appeal. We will only consider Point One.

It is Appellant’s position that he should have been granted a mis-trial and allowed to begin over, selecting an entire new jury. Appellant did not consent to the proceeding to trial and thus was denied the right to proceed with one jury. Thus the trial violated the prohibition against double jeopardy. In support of this contention, Appellant cites the cases of Bryant v. Stickley, 215 So.2d 786 (Fla.App. 2 1968) and State ex rel. Mitchell v. Walker, 294 So.2d 124 (Fla.App. 2 1974). We disagree.

A trial judge should discharge a jury only in cases of manifest urgency and absolute necessity. State v. Grayson, 90 So.2d 710 (Florida 1956). Circumstances legally sufficient to justify discharge have been held to include illness of the judge, accused, or juror requiring their absence from the Court. Reyes v. Kelly, 204 So.2d 534 (Fla.App. 2 1967); State ex rel. Hand v. Lane, 209 So.2d 873 (Fla.App. 2 1968). It is likewise true that a discharge of a jury without legally sufficient reason will be found to be the same as an acquittal of the defendant when he has not consented to the jury’s discharge under the jeopardy theory. State v. Lanier, 205 So.2d 671 (Fla.App. 2 1968).

In the present case the trial court did not discharge the jury but reopened jury selection when a juror was excused for good cause. Appellant has in no way demonstrated prejudice in the empaneling of a replacement juror after the initial jury was formed.

In Worthington v. State, 183 So.2d 728 (Fla.App. 3 1966), a First Degree Murder Case, the Appellant contended that the trial court’s discharge of two jurors for their personal convenience during the trial constituted an acquittal of the Appellant. The Appellate Court, affirmed, failing to find any error, disposed of that assertion, “Upon the authority of State ex rel. Larkins v. Lewis, Fla.1951, 54 So.2d 199.”

Appellant relies on Bryant v. Stickley, 215 So.2d 786 (Fla.App. 2 1968). In Bryant the Court discharged an entire jury because of illness of the prosecutor. In the present case the Court only excused one juror after the jury was sworn for good cause because of death in the family. A new juror was selected after giving the parties three additional challenges. The appellant has shown no prejudice.

Affirmed.

CROSS and ALDERMAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Frank RUSSO, Appellee.
    No. 75-1992.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    Rehearing Denied Oct. 1, 1976.
    Philip S. Shailer, State Atty., and Jon H. Gutmacher, Asst. State Atty., Fort Lauder-dale, for appellant.
    Fred Haddad of Sandstrom & Hodge, Fort Lauderdale, for appellee.
   PER CURIAM.

This is the third appearance of this case before this court.

In Russo v. State, 270 So.2d 428 (Fla. 4th DCA 1972), we reversed Russo’s plea-negotiated conviction of aggravated assault (upon a holding that certain fingerprint evidence and. inculpatory statements Russo made to the police should have been suppressed) and remanded the case for a new trial.

Upon remand the case came on for trial on the original charge the state had filed (on June 17, 1971) against appellant: assault with intent to commit murder. After the state offered evidence, the court granted Russo’s motion for mistrial. On the date set for the next trial Russo filed a motion to dismiss the information. The grounds of that motion and the ruling upon that motion the circuit court and this court made are set forth in the second appearance of this case, State v. Russo, 299 So.2d 40 (Fla. 4th DCA 1974):

“On May 2, 1973, appellee filed a motion to dismiss the information on the ground that the state had prejudiced him by intentionally failing to limit its voir dire to questions concerning aggravated assault, thereby causing a mistrial after the jury had been sworn a,nd jeopardy had attached. Appellee contended that the state’s conduct precluded further prosecution of the case. After taking testimony and hearing argument of counsel, the trial court entered a written order in which it found there was no evidence to prove the charge contained in the information except that evidence which this court (in Russo v. State, supra) had held to be inadmissible. The court further found ‘the Motion to Dismiss is properly directed to a fundamental error and ought to be granted.’ The court later entered an amended order which dismissed the original information and gave the state leave to file an amended information for an offense no more serious than aggravated assault.”
“The trial court apparently treated the motion to dismiss as a motion filed pursuant to Rule 3.190(c)(4), RCrP. However, the motion in question did not meet requirements of that rule. The motion was not verified and it did not specifically allege the facts upon which it was based. Moreover, the court granted the motion on grounds not stated in the motion. In addition, the actual grounds set forth in the motion are not supported by the record, since the court had previously ruled the case would go to trial on the charge as set out in the original information. Thus, the prosecutor’s references or allusions to the original information were proper. We hold that the motion to dismiss should have been denied. Cf. State v. Butterfield, Fla.App.1973, 285 So.2d 626.” 299 So.2d at 42.

This court then went on to hold that Russo could properly be tried on the charge the state originally filed against him rather than the charge to which he had pleaded nolo contendere and remanded the case for further proceedings.

On the second remand Russo’s counsel filed a motion to dismiss, sworn to by counsel, alleging in material part that the information the state had filed against the ap-pellee was predicated upon the evidence this court had ordered suppressed in the first appeal.

Five days after the motion to dismiss was filed, the state filed a motion to strike that motion on the primary ground that it failed to allege any facts which would warrant dismissal.

After a hearing, the court entered an order dismissing the information on the ground that the state could not prove a prima facie case against the appellee because the evidence upon which the information was based had been held inadmissible by this court.

We disagree with the trial court’s conclusion and reverse the order of dismissal because the motion to dismiss failed to demonstrate that the state has no lawful evidence by which it could prove a prima facie case against appellee. Thus, there was no need for the state to file a traverse to the motion to dismiss.

Reversed and remanded for further proceedings.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


author: PER CURIAM. MAGER, Chief Judge

text:
    STATE of Florida, Appellant, v. Illinois UNDERWOOD, Appellee.
    No. 76-326.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 1976.
    Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Warner S. Olds, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

CROSS and ALDERMAN, JJ., concur.

MAGER, C. J., dissents with opinion.

MAGER, Chief Judge

(dissenting):

In my opinion the trial judge’s order suppressing defendant’s confession as not having been freely and voluntarily made is not supported by the evidence in the record.

The hearing on defendant’s motion to suppress certain written and oral statements reflected testimony by the defendant of his denial of having made the inculpatory .statements in question. The hearing further reflected testimony by the interrogating police officer of the defendant having made the inculpatory statements in question after the giving of Miranda warnings to the defendant and of defendant appearing to be in good physical condition, coherent and fully aware of the circumstances.

Nevertheless, the trial court proceeded to predicate its order of suppression on the finding that defendant’s “physical and emotional condition and the medication he was receiving” rendered such statements involuntary even though the defendant’s testimony went solely to the issue of having made no statement whatsoever. The involuntariness of defendant’s statements based upon his physical and mental condition is not supported by the testimony of the defendant or the interrogating officer.

There is, therefore, an absence of substantial competent evidence to support the finding of involuntariness on the basis set forth in the trial court’s order and such finding should therefore be vacated and set aside.


author: McNULTY, Chief Judge.

text:
    RELIABLE FINANCE COMPANY, a Florida Corporation, Appellant, v. Eddie C. AXON and Gladys Thomas Axon, Appellees.
    No. 75-1832.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1976.

      Wm. Fletcher Belcher, Belcher & Fleece, St. Petersburg, for appellant.
    P. Allen Schofield, Bradenton, for appel-lees.
   McNULTY, Chief Judge.

Plaintiff/appellant Reliable Finance Company brings this appeal from a final judgment in favor of defendants-appellees Eddie C. Axon and Gladys Thomas Axon, husband and wife, in an action for foreclosure of a real estate mortgage. We reverse.

On May 28, 1974, Mr. and Mrs. Axon obtained a loan from appellant in the principal amount of $2,500. They executed a promissory note requiring payment of principal and interest in thirty-six (36) monthly installments of $93.08, the first payment to be made on July 5, 1974. Payment of the promissory note was secured by a real estate mortgage on the appellees’ residence and household furnishings and by a purchase money security interest in a 1970 Lincoln automobile. The automobile was being purchased for Mrs. Axon’s 23-year-old son, Johnnie, but title to the automobile was taken in appellees’ names. The first monthly installment was paid on August 30, 1974, and no further payments were made. On November 29, 1974, appellant filed this action against appellees to foreclose the real estate mortgage. A non jury trial was held after which the final judgment appealed from was entered denying foreclosure.

At trial the following documents were introduced into evidence: the promissory note; a mortgage deed on the residence of appellees; a security agreement on the aforementioned 1970 Lincoln; a federal disclosure statement setting forth the cost of insurance coverage; a statement that the borrowers desired credit life and disability insurance; an authorization for a mortgagee collateral protection policy stating that the purchase of the insurance is entirely voluntary by the borrowers; an acknowledgment that the loan is secured by real estate and household furnishings; an acknowledgment of notice that the borrowers have entered into a transaction which may result in a lien on their home and that the borrowers have the right to rescind within three days; and a closing statement setting forth the distribution of the proceeds of the loan. Appellees admitted executing all of these documents except the real estate mortgage. They also testified that, although three witnesses appear on many of the papers, including the mortgage, there was only one other person besides themselves present throughout the entire transaction, i. e., one Colley, appellant’s manager.

The evidence introduced at trial further shows that the appellant deducted from the principal amount of $2,500 the sum of $258.01 for joint credit life and credit disability insurance and $150.79 for property insurance in the form of fire insurance coverage on the household furnishings. The testimony of appellees was that nothing was said at the closing about insurance, although appellees acknowledged their signatures on the documents mentioned above requesting credit life and disability insurance and authorizing a mortgagee collateral protection policy, and on the closing statement reflecting disbursal of proceeds for the payments of the above premiums.

The trial court did not rule expressly on whether appellees, in fact, signed the real estate mortgage. But apparently proceeding arguendo that they did, he expressly found that there was but one witness to its execution. Accordingly, he concluded as a matter of law that the mortgage lien was unenforceable. We think he erred.

At common law, attestation of a mortgage was not necessary and no Florida statute now requires it. True it is, that prior to the 1972 amendment to the Florida Constitution relating to homesteads, case law required two witnesses on a mortgage against a homestead for the reason that under the prior constitutional provisions a homestead could only be mortgaged by a “duly executed” instrument; and the courts uniformly held that “duly executed” under these provisions meant that such a mortgage had to be executed with the formality of a deed as required by § 689.01 of our statutes which, going back to 1891, required the presence of two subscribing witnesses. The 1972 amendment to the Constitution, viz. Art. X, § 4(c), however, omits the “duly executed” requirement and simply provides: “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift . .” We have serious doubts, therefore, whether the cases prior thereto which require two witnesses to the “duly executed” mortgage of a homestead have continuing viability.

The question arises herein because, on appeal, appellees contend that the property was their homestead and that two witnesses were therefore required. We need not expressly determine that question here and now, however, for the reason that it appears the property was not homestead. Mrs. Axon testified that she owned the property with her brother, who resided in New York, and Mr. Axon testified that he owned no real estate whatsoever. By their own testimony, therefore, the evidence would not support a finding that the property was homestead. Under such circumstances, clearly two witnesses were not necessary for the validity of the mortgage.

We must return, now, to the question of whether the Axons did, in fact, execute the mortgage. They denied it in their pleadings and, as noted, they denied it in their testimony. While we have indicated by a footnote, supra, that a comparison of the signatures on the mortgage with the admitted signatures on all the other instruments indicates that they did sign the mortgage, it is not the province of an appellate court to so conclude as an operative fact. The trial judge, as we pointed out, did not expressly rule on the matter. Rather, he apparently assumed arguendo that they did sign it for the reason that he was ruling in their favor on other grounds, to wit: the lack of two witnesses. We have hereinabove held that he was in error with respect to those grounds. Therefore, it is crucial that the issue of whether the Axons in fact executed the mortgage be determined. The cause must be remanded for that purpose.

Since that is the present posture of the case, it appears propitious now to consider the second point raised on this appeal, that relating to whether the Axons were fully advised as to their rights under the various “truth in lending laws” relating to their options in the purchase of insurance. The trial court expressly found that they were not adequately advised of their rights in this regard, even though he found that they did sign the various documents relating thereto and, indeed, the Axons admitted so signing. We think the court erred in this regard too.

The law is clear that a party to a writing cannot deny its contents on the ground that he signed it without reading it, unless he avers facts showing circumstances which prevented his reading it or that he was induced by statements of other parties to desist from reading it. Here the only explanation made by the Axons was that appellant’s office manager pushed the papers in front of them for their signatures as fast as they would sign them. This, we think, falls far short of establishing circumstances sufficient to avoid the rule, which was well expressed by our Supreme Court in All Florida Surety Company v. Coker. Quoting with approval from 12 Am.Jur. Contracts, § 137, the court said:

“Ignorance of the contents of an instrument does not ordinarily affect the liability of one who signs it. . The courts appear to be unanimous in holding that a person who, having the capacity and an opportunity to read a contract, is not misled as to its contents and who sustains no confidential relationship to the other party cannot avoid the contract on the ground of mistake if he signs it without reading it . . . . It is the duty of every contracting party to learn and know its contents before he signs and delivers it. . . . To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts. The purpose of the rule is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible.”

Here, no less than four separate instruments relating to insurance were admittedly signed by the Axons: the federal “truth in lending” form, the two forms requesting or authorizing credit life and mortgagee protection and the closing statement showing disbursements for premiums. Moreover, no legally sufficient excuse appears for their claimed ignorance of the contents thereof. Under the above-quoted general rule, therefore, they are bound thereby.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . It appears from even a cursory comparison with the admitted signatures on all the other documents that they did sign the real estate mortgage.

      . See, e. g., Fla.Const. art. X, §§ 1 and 4 (1885), as amended in 1964.

      . See Perry v. Beckerman (Fla.1957), 97 So.2d 860, and the cases cited therein; also cf. Zimmerman v. Diedrich (Fla.1957), 97 So.2d 120.

      . See 7 Fla.Jur., Contracts, § 17, p. 77.

      . (Fla.1956), 88 So.2d 508.

      .At p. 510.


author: SMITH, Judge.

text:
    The STATE of Florida, Appellant, v. James David PEARCE and William Lee Kinner, Appellees.
    No. AA-435.
    District Court of Appeal of Florida, First District.
    Sept. 24, 1976.

      Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellant.
    A. K. Black, Lake City, for appellees.
   SUBSTITUTED OPINION ON REHEARING

SMITH, Judge.

The State appeals from an order dismissing the information against appellees Pearce and Kinner on the ground they were not given a speedy trial as required by Rule 3.191, R.Cr.P. The 180-day period prescribed by the Rule expired during the State’s interlocutory appeal, pursuant to § 924.071, F.S., from an earlier order granting appellees’ motion to suppress certain evidence. On that appeal we sustained the State’s position and remanded the case for further proceedings. State v. Pearce, et al, 318 So.2d 455 (Fla.App. 1st, 1975).

Shortly after perfecting its interlocutory appeal from the suppression order, the State filed a motion to stay the running of the speedy trial period pending the appeal. Granting the motion without a hearing, the trial court ordered an indefinite stay. Later, considering appellees’ motion for discharge following our remand, the trial court concluded that the State’s interlocutory appeal had deprived it of jurisdiction to take any action in the matter, that its stay order was a nullity and that, 180 days having long since passed, Pearce and Kinner were entitled to discharge.

Upon our initial consideration of this case, we were of the view that the State’s interlocutory appeal pursuant to § 924.071, F.S., and Rule 6.3 b, F.A.R., perfected an automatic stay of the case in the trial court and that application to the trial court for extension of the speedy trial period, Rule 3.191(d)(2)(iv), R.Cr.P., was unnecessary. We reasoned that the Supreme Court adopted § 924.071 when it promulgated Appellate Rule 6.3 b and thus made effective the statute’s provision for an automatic stay. Remanding the case for trial, our initial opinion acknowledged our disagreement with the decision of the District Court, Third District, in Mullin v. State, 307 So.2d 829 (Fla.App. 3d, 1975).

Appellees’ petition for rehearing calls to our attention that our announced decision is in conflict also with the recent decision of the District Court, Fourth District, in State v. Cannon, 332 So.2d 127 (Fla.App. 4th, 1976), following Mallín. We have therefore reconsidered our position in the light of the substantial reasoning contributed by Cannon.

Noting that the speedy trial rule adopted in February 1971 permits the trial court to order an extension of the speedy trial period for “a period of reasonable and necessary delay . . . for interlocutory appeals,” Rule 3.191(d)(2)(iv) R.Cr.P., the Cannon court held that the rule superseded the automatic stay provisions of § 924.071, F.S. 1967, as adopted by Rule 6.3 b, F.A.R., in October 1968. The Cannon court buttressed its application of conventional rules of interpretation by remarking on the undesirable consequences of permitting the State to take an interlocutory appeal and automatically delay the trial “without any judicial determination that the appeal was not frivolous or had not been taken simply for the purpose of securing such a delay.” 322 So.2d at 127.

We remain of the view that Rule 6.3 b, F.A.R., preserves the automatic stay provisions of former § 924.071(2), F.S., notwithstanding that the speedy trial rule otherwise countenances extensions only on order of the trial court. The contrary interpretation proceeds from the impression that the 1971 speedy trial rule could have had no purpose, in providing for orders to extend the trial time during interlocutory appeals, except to nullify by that inconsistent measure the automatic stay previously afforded the State by former § 924.071(2). We do not conceive that the speedy trial rule must necessarily be given that effect, nor that it should be if another course is possible.

When the Supreme Court adopted the speedy trial rule in 1971, there were as now two statutes on the books authorizing appeals by the State in criminal cases: § 924.-07 and § 924.071. The context and language of § 924.071(2) indicate a legislative purpose to stay the case automatically only if the State’s interlocutory appeal is one authorized by § 924.071(1), i. e., taken from an order “dismissing a search warrant, suppressing evidence obtained by search and seizure, or suppressing a confession or admission made by a defendant.” The legislature did not provide an automatic stay during an interlocutory appeal by the State under § 924.07, from an order dismissing less than all counts of an indictment or information, an order granting a new trial or “other pretrial orders.” Sec. 924.07(1), (2), (8), F.S.

In this light, the speedy trial rule’s provision for court-ordered extensions during interlocutory appeals may be seen as having a purpose other than to repeal the automatic stay afforded by former § 924.071(2). That purpose was to permit the trial court to grant or deny an extension of the speedy trial period and a stay of the trial when the State proposed an interlocutory appeal in circumstances justified by § 924.07 but not by § 924.071(1). We therefore need not presume that criminal Rule 3.191(d)(2)(iv) was intended to excise from § 924.071, made effective by appellate Rule 6.3 b, the automatic stay which theretofore was integral.

There are practical reasons so to reconcile the provisions of § 924.071(2), F.S., and Rule 3.191(d)(2)(iv), R.Cr.P., rather than to find intractable conflict there.

First, we must recognize that ordinarily there will be no appealable order under § 924.071 until a substantial portion of the speedy trial period has run. It will therefore frequently be difficult if not impossible to render an appellate decision within the unextended period for speedy trial. See State v. Wilson, 305 So.2d 232 (Fla.App. 3d, 1974), cert. den. 314 So.2d 781 (Fla.1975). Therefore, given the State’s right to appeal the interlocutory orders described in § 924.071(1), an automatic stay of the trial and a corresponding extension of the speedy trial period is essential to the effectiveness of the appeal. Although trial judges will not groundlessly deny the State’s request for a stay and extension, we doubt that such an appeal should be made to depend on permission of the trial judge whose order is the subject of it. An order denying a stay and extension is not itself an interlocutory order which the State may appeal under appellate Rule 6.3 b; and, though appellate courts have power to issue stay writs necessary to make our jurisdiction effective, Art. V, § 4(b)(3), Florida Constitution, it is not clear that we have power thereby to extend the speedy trial period of Rule 3.191 or that, from afar, we should.

Second, trial judges should not be required to guess at what a “reasonable and necessary” time for appeal may be, as they must if they are to enter orders extending the time for trial only for such a period. If on the other hand trial judges are rotely to grant extensions for the appeal period regardless of how long that may be, the Rule does not rely on the trial judge’s balancing of the need for delay against the need for trial in a particular case and nothing is lost by relieving the judge of the mechanical chore of entering an order.

Finally, an automatic extension of the Rule 3.191 trial period does not leave the defendant without a remedy for a dilatory or frivolous appeal by the State.. If the matter presented on appeal is so insignificant, the State’s position so untenable or the appellate delay so prejudicial that the accused is deprived of his constitutionally secured right to a speedy trial, those matters may be asserted by a motion for discharge which is based directly on the Constitution rather than on rights derived from Rule 3.191. State ex rel. Gentry v. Fitzpatrick, 327 So.2d 46, 47-48 (Fla.App. 1st, 1976); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). Obviously, such matters as the substance of the State’s appeal and the unreasonableness of the appellate delay will be better judged after the appeal, when all the facts are known, than before.

The present appeal was authorized by § 924.07(1), F.S., because it was taken from a final order dismissing an information. See State v. Fulkerson, 300 So.2d 275 (Fla.App. 2d, 1973). Unlike the case in State v. Williams, 254 So.2d 548, 287 So.2d 415 (Fla.App. 2d, 1971, 1973), a trial of the charges against these appellees has been and is impossible until our mandate restores the information in the trial court. Accordingly, no order was necessary to stay the Rule’s period for trial pending this appeal. Upon remand, trial should begin within 90 days of the trial court’s receipt of our mandate. Rule 3.191(g), F.A.R.; State v. Williams, supra, 287 So.2d at 419.

Our opinion filed June 29, 1976, is withdrawn and this opinion substituted in its place. The prayer of appellees’ petition for rehearing is DENIED. . The order dismissing this prosecution is

REVERSED.

BOYER, C. J., and MILLS, J., concur.

      . Sec. 924.071(2): “An appeal by the state from a pretrial order shall stay the case against each defendant upon whose application the order was made until the appeal is determined.”

      . Rule 6.3 b: “Appeals pursuant to Section 924.071, Florida Statutes 1967, shall be taken within [30 days] ... or prior to the commencement of the trial whichever is sooner . . . ” In State v. Smith, 260 So.2d 489, 490 (Fla.1972), the Supreme Court adopted this court’s opinion that: “ ‘This Rule [6.3 b, F.A.R.] breathes life into a legislative Act which purports to permit appellate review of a pretrial order which . . . suppresses evidence obtained by search and seizure [§ 924.071, F.S.]. . .

      . In re Florida Rules of Crim. Proc., 245 So.2d 33, 36 (Fla.1971).

      . In re Florida Appellate Rules, 211 So.2d 198, 300 (Fla.1968).

      . E. g., “[T]he last expression of the Legislature will prevail in cases of conflicting statutes. . . .” Albury v. City of Jacksonville Beach, 295 So.2d 297, 300 (Fla.1974).

      . The title of the bill enacted as § 924.071 likewise indicates that the automatic stay is limited to “such appeals” as are authorized by the Act, Ch. 67-123, Fla.Laws.

      . While the interlocutory appeal features of § 924.07 were ineffective under Art. V, § 5(3), Fla.Const., because not adopted by rule of the Supreme Court, that had not been determined when the speedy trial rule was promulgated in February 1971 and was not determined until later that year in State v. Smith, 254 So.2d 402 (Fla.App. 1st, 1971), quashed on other grounds, 260 So.2d 489 (Fla.1972). The ineffectiveness of the interlocutory appeal provisions of § 924.-07 is therefore no reason to disregard the part they played in formulating the speedy trial rule.

      . The trial judge who initially underestimates the reasonable and necessary time for appeal may, when asked by the State for a second order in mid-appeal, encounter the jurisdictional puzzle Judge Drury debated in this case.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION and Pinellas County, Appellants, v. ABS, INC., et al., Appellees.
    No. 75-1340.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.

      James A. Helinger, Jr., Chief Asst. County Atty., Clearwater, for appellants.
    William E. Falck, Greene & Greene, Jacksonville, for appellees.
   McNULTY, Chief Judge.

The question before us in this condemnation action relates to severance damages for the impairment of access resulting from the construction of an overpass on U.S. Highway 19 at a point which passes in front of appellees’ commercial shopping center.

The property involved lies in the southwest corner of the intersection of State Road 60, going east and west, and U.S. Highway 19 which goes north and south. Increased traffic congestion required the construction of an overpass on U.S. Highway 19, over State Road 60. Sufficient lands were condemned by appellants to accomplish this, as a result of which direct access to U.S. Highway 19 is cut off to the users and potential users of appellees’ shopping center. Instead, access from U.S. Highway 19 can now be had only through the use of alternate routes or service roads. The net practical effect is that northbound traffic on U.S. Highway 19 must travel an additional 100 yards to reach appellees’ premises while southbound traffic is required to travel an additional 123 yards.

At trial, there was no real dispute as to the value of the lands actually taken for the project. As noted, the substantial issue involved alleged severance damages associated with the question of access. Appellees contended that they had suffered approximately $1,000,000 in severance damages because of the loss of direct access to U.S. Highway 19. To the contrary, appellants’ two experts testified that there were no substantial severance damages at all to ap-pellees’ remaining property.

The jury awarded $9,060, as the value of the lands actually taken, but found no severance damages. Accordingly, nothing was awarded therefor. The trial court granted appellees’ subsequent motion for a new trial concluding that the verdict was contrary to the law and evidence in that it awarded nothing for the loss of “direct’ access to U.S. Highway 19. We think the court erred and reverse.

Section 338.04, F.S.1971, first enacted in 1955, provides that the highway authorities of the state may acquire private or public property or property rights, “including rights■ of access,” for the construction of limited access facilities and service roads. Our Supreme Court in Anhoco Corp. v. Dade County has held that this section “specifically required” compensation for destroyed rights of access under the provision of that section. But as we understand the law, the right to such compensation doesn’t depend upon whether the right of access taken was a direct route of access; rather, it appears the question is whether, where as. here some right of access is still available,' there has been a substantial diminution in access as a result- of the taking. It is rudimentary, of course, that it is for the jury to determine whether such diminution in access is nominal or substantial.

, Here, the trial judge instructed the jury in pertinent part as follows:

“You are instructed that a property owner has a right of access to the property from an existing street or highway which right may not be taken unless he is adequately compensated therefor. While you may not compensate a property owner for the mere changing of access caused by the taking and construction, nevertheless, if you find that the property owner’s access has either been eliminated or has been substantially impaired, then you must compensate the property owner for such elimination [or] substantial impairment; and in making such award you are to be guided by the evidence that has been presented in the trial of this case.
U * * *
“You are instructed that access for ingress and egress to owner’s property is a time-honored right — a right which must be protected and the loss of which should be compensated. It appears that the Department of Transportation has barred direct access to U.S. 19 in front of the property of A.B.S., Inc., and has constructed a service road which gives some access to the property of A.B.S., Inc. A.B.S., Inc., is entitled to compensation for the property taken, together with damages, if any, to its remaining property caused.” [Italics added.]

Clearly, the first-quoted paragraph is substantially correct. But the second paragraph is incorrect insofar as it may mandate compensation for the loss of “direct” access to U.S. Highway 19. In its latter portion, however, this second paragraph is amenable to the interpretation that compensation is payable for resultant damages, “if any,” to the remaining properties. This was the interpretation obviously given by the jury since they didn’t find “any.”

The trial judge thought that as a matter of law they should have, however, because, as indicated, he granted the new trial on the basis that there was, undisputedly, a taking of direct access for which he thought compensation ought be awarded. We hold he was in error not only in the granting of the new trial, loss of “direct” access not being the criterion, but also the giving of the second above-quoted paragraph of the charge. However, the error in giving the charge was most favorable to appellees, so they can’t be heard to complain about the error itself; and since the jury obviously disregarded it insofar as it did require compensation for loss of direct access, appellees can’t be heard to complain about that either, because the expert testimony amply supported the jury’s obvious finding that the severance damages, “if any,” for the impairment of access were nominal.

In view thereof, the order granting a new trial should be, and the same is hereby, reversed, and the cause is remanded for the entry of a judgment on the verdict.

HOBSON and BOARDMAN, JJ., concur.

      . (Fla.1962), 144 So.2d 793.

      . See State Department of Transportation v. Stubbs (Fla.1973), 285 So.2d 1.

      . Id.


author: PER CURIAM. McNULTY, Chief Judge

text:
    Melvin FARABEE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-1225.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 1976.
    Jack 0. Johnson, Public Defender, and Stephen 0. Rushing, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
    Clyde G. Killer, Fort Myers, as amicus curiae.
   PER CURIAM.

Affirmed.

HOBSON and GRIMES, JJ., concur.

McNULTY, C. J., dissents with opinion.

McNULTY, Chief Judge

(dissenting).

I must respectfully dissent. The sole triable issue in this rape case was the question of consent on the part of the prosecutrix. While concededly the evidence, though conflicting, prima facie supports the jury’s finding of lack of lack of consent, nevertheless the unrefuted evidence of the highly questionable virtue and character of the prosecutrix, together with the admitted circumstances of the alleged rape (i. e., committed in the presence of several cheering participants in a raucous, all night beach party), raises a question in my mind as to its conclusiveness. In the interest of justice another jury ought weigh the sufficiency of the evidence bearing on the lack of consent to determine whether it is proof beyond and to the exclusion of a reasonable doubt. While this course has wisely in the past been guardedly taken, this appears to me to be one of those cases in which it is fully justified.

      . See Lowe v. State (1944), 154 Fla. 730, 19 So.2d 106; Garner v. State (1938), 134 Fla. 252, 183 So. 739; Fuller v. State (1926), 92 Fla. 873, 110 So. 528; Nims v. State (1915), 70 Fla. 530, 70 So. 565; Johnson v. State (Fla.App.2d, 1960), 118 So.2d 806, second appeal (Fla.App.2d, 1962), 138 So.2d 386.


text:
    Jean A. SHAW, Appellant, v. Gerald B. SHAW, Appellee.
    No. 74-1080.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1976.
    Milton M. Ferrell, Miami, for appellant.
    Edward Schroll, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 10, 1975 (314 So.2d 205) affirming with modifications the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and.

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed May 12, 1976 (334 So.2d 13) and mandate now lodged in this court quashed this court’s judgment with directions to reinstate the judgment of the trial court;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 1, 1975 is withdrawn, the judgment of this court filed June 10, 1975 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith the opinion and judgment of this court and the judgment of the circuit court is reinstated. Costs allowed shall be taxed in the circuit court (Rule 3.16, subd. b, F.A. R.).


author: HOBSON, Acting Chief Judge.

text:
    Mary Sally Phillips SALVAGGIO, Appellant, v. Grover W. AUSTIN et al., Appellees.
    No. 75-695.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.

      Britt Whitaker, Tampa, for appellant.
    James B. Thompson and Richard Strickland of Fowler, White, Gillen, Boggs, Villa-real & Banker, St. Petersburg, for appellee Austin.
   HOBSON, Acting Chief Judge.

This is an appeal by the plaintiff, Mrs. Salvaggio, from a final summary judgment in favor of one of the defendants, Dr. Grover W. Austin, in a medical malpractice action.

Salvaggio filed her malpractice suit on August 22, 1974, against Austin and others alleging, inter alia, that in December, 1968, Austin performed a mammoplasty upon appellant to reduce her breasts and left a rubber-like tubing in her chest, which was not discovered by Salvaggio until September, 1973. Austin filed an answer and as an affirmative defense, alleged that the cause of action was barred by the statute of limitations. After depositions of Salvaggio and Austin had been taken, Austin moved for a summary judgment. Upon hearing, the trial judge granted Austin’s motion for summary judgment on the ground that there was no genuine issue as to any material fact that Salvaggio’s cause of action did not accrue within the time prescribed by law prior to this action being filed. The court found that Salvaggio did not fall within the “blameless ignorance doctrine” in that she was aware and had reason to know that an invasion of her legal rights had occurred within a short period of time after the surgery performed by Austin when she began to notice an ever-increasing pain deep in her left breast. The court applied the rule with respect to the commencement of the running of the statute of limitations that regardless of the underlying nature of a cause of action, the accrual of the same must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of her legal rights.

Salvaggio’s cause of action was governed by the two-year statute of limitations, § 95.11(6) F.S.1973, which provides that the cause of action in such case shall not be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

In City of Miami v. Brooks, Fla.1954, 70 So.2d 306, the Supreme Court announced the rule that the statute of limitations attaches when there has been notice of an invasion of the legal rights of the plaintiff or he has been put on notice of his right to a cause of action. See also Vilord v. Jenkins, Fla.App.2d 1969, 226 So.2d 245; Foley v. Morris, Fla.App.2d 1976, 325 So.2d 37. The Supreme Court has recently addressed this issue in Nardone v. Reynolds, Fla.1976, 333 So.2d 25, where it is said on page 32,

“. . . Previously this Court has held that the statute of limitations in a malpractice suit commences either when the plaintiff has notice of the negligent act giving rise to the cause of action or when the plaintiff has notice of the physical injury which is the consequence of the negligent act.” Brooks, supra.

In Nardone, supra, the plaintiffs were barred not because of any knowledge of negligence on the part of the physician, but because the condition of the plaintiff child was so obvious when he was discharged from the hospital that notice of the consequences was imputed, thereby initiating the running of the statute of limitations. Similarly in the instant case, Salvaggio had no knowledge that a piece of drainage tube had been left in her breast until it was discovered in September of 1973.

However, Salvaggio stated in her deposition that she commenced having pain deep inside her chest about three months after surgery and that it continued getting progressively worse. She did not know what it was. and it finally became localized under her left breast. In August 1973, when she attempted to lift a piece of cement block, the pain became so intense that her husband took her to her family doctor who gave her something for pain and told her that if the pain continued he wanted her to have x-rays because she may have broken or torn something in there. After seeing the x-rays, her family doctor told her that something had to be removed. In September 1973 a piece of drainage tube was removed from underneath her breast.

It is clear that the cause of action was actually discovered in September 1973 with the removal of the drainage tube from Salvaggio’s body. It is also clear that the court could have found as a matter of law that Salvaggio was placed on notice of her right to a cause of action in August 1973 when the x-rays were made. Nevertheless, the record reflects, that a genuine issue of material fact existed with respect to when, prior to August 1973, Salvaggio, through the use of reasonable care, should have discovered the injury. Seaboard Air Line Railroad Company v. Ford, Fla.1955, 92 So.2d 160. See also Creviston v. General Motors Corporation, Fla.1969, 225 So.2d 331; Cowan v. Turchin, Fla.App.4th 1972, 270 So.2d 449; Schetter v. Jordan, Fla.App.4th 1974, 294 So.2d 130; Miami Beach First National Bank v. Edgerly, Fla.1960, 121 So.2d 417, 82 A.L.R.2d 923.

Particularly important for the trial court on remand is the consideration of when Mrs. Salvaggio was aware of or had notice of the physical ailment which is the alleged consequence of the negligent act. Cf. Nardone, supra; Brooks, supra; Vilord, supra; and Cristinai v. City of Sarasota, Fla.1953, 65 So.2d 878. Since the, pain experienced by Salvaggio constitutes a factual question as to whether it was sufficient notice of the consequences of the alleged negligence of Austin, summary judgment is precluded where such a genuine issue of material fact exists. Holl v. Talcott, Fla. 1966, 191 So.2d 40; Cowan v. Turchin, supra; Schetter v. Jordan, supra.

The summary final judgment is reversed and the cause is remanded to the trial court for further proceedings.

REVERSED and REMANDED.

BOARDMAN and GRIMES, JJ., concur.

      . See Foley v. Morris, Fla.App.2d 1976, 325 So.2d 37.


author: GRIMES, Judge.

text:
    Ronald MONK, Appellant, v. STATE of Florida, Appellee.
    No. 76-358.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.
    Jack 0. Johnson, Public Defender, and Paul M. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant appeals his conviction of concealing stolen property. The subject property was an airboat which was stolen from John Hendry in Punta Gorda between July 29 and 30, 1975. Mr. Hendry said he built the boat three years before for about $2,500, but said it would have retailed for $4,500.

Thereafter, Gordon Strickland bought the boat for $300 from an unidentified man in the early morning hours of July 30,1975, at a truck stop in Haines City. The appellant and Sue Crocker were with Strickland at the truck stop. Appellant loaned Strickland $40 with which to make the purchase. Ms. Crocker testified that appellant was not involved in the negotiations with the seller. She said that he did not go outside where the boat was located until the deal was made and he had given Strickland the $40. Strickland was given a bill of sale, and the following day he obtained a registration of title in his name from the tag agency.

Strickland stated that the circumstances of his purchase were not unusual, and that he had no reason to suspect that the boat was stolen property. He testified that while previously working at a truck stop, people often came to the stop to sell merchandise at all hours of the day. At the time Strickland had the boat, he was living at appellant’s house. The boat was kept in the appellant’s front yard in plain view. Approximately two weeks later, Strickland sold the boat to James Barber for $300, who that same day sold it for $300 to James Martin. Barber and Martin said that $300 was a good deal, but both denied any suspicion that the boat was stolen.

During the trial, Sergeant Hunter of the Sheriff’s Department stated that appellant had told him that the boat was owned by Strickland and himself. Strickland testified that he told Deputy Roger Phillips that both he and appellant owned the boat, because he still owed appellant $40. However, he went on to say that when he sold the boat to Barber and repaid the appellant, he no longer felt that appellant had any interest in the boat. Following the denial of appellant’s motion for a directed verdict of acquittal, the jury returned a guilty verdict.

In order to prove the crime of concealing stolen goods, the state must show possession and knowledge that the goods are stolen. Fla.Stat. § 811.16 (1973). We need not pass on whether the element of possession was sufficiently proven because we find that the state did not meet its burden of proof on the element of knowledge.

In State v. Graham, Fla.1970, 238 So.2d 618, the Florida Supreme Court explained what constitutes guilty knowledge for purposes of this crime as follows:

“Proof of mere naked possession of property recently stolen, not aided by other proof that the accused received it knowing it to have been stolen, is not sufficient to show guilty knowledge. . Proof of possession should be coupled with evidence of unusual manner of acquisition, attempts at concealment, contradictory statements, the fact that the goods were being sold at less than their value, possession of other stolen property, or other incriminating evidence and circumstances.”

At best, the only proof against appellant was naked possession of a boat acquired at a bargain price. The manner of acquisition was not proven to be necessarily unusual; there was no concealment, no contradictory statements, no possession of other stolen property and no other incriminating evidence or circumstances. There was insufficient evidence to support the verdict of guilty.

reversed!

McNULTY, C. J., and HOBSON, J., concur.


author: PATTERSON, Presiding Justice.

text:
    Ms. Madeleine Celine LEIGH v. Manard G. DEAS and Mary Mae Schwab Deas.
    No. 48593.
    Supreme Court of Mississippi.
    May 25, 1976.
    Rehearing Denied Sept. 28, 1976.
    Everett E. Cook, Gulfport, for appellant.
    J. P. Compretta, Daniel Lewis Edwards, Bay St. Louis, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   PATTERSON, Presiding Justice.

Ms. Madeleine Celine Leigh appeals from a decree (April 16, 1974) of the Chancery Court of Hancock County wherein Manard G. Deas and his wife, Mary, were held to be the owners of certain real property situated in that county. She relies upon a former decree (July 1, 1969) of the same court adjudicating her to be vested with a substantial portion of the same property for her title. The issue is whether the court correctly set aside the earlier decree and determined title by the latter.

On April 11, 1969, Madeleine Celine Leigh, appellant, and her husband filed suit to cancel clouds on their title to 5.44 acres in the southeast quarter of the southwest quarter (SE 14 of SW(4) of Section 35, Township 8 South, Range 15 West, Hancock County, Mississippi. The Appellees, Manard Deas and wife, together with Max H. Stone, Trustee for the Farmers Home Administration, and Mildred Ott were named defendants. Process was personally served on Manard Deas and wife on April 20, 1969, returnable to the May rule day, the second Monday of May.

The bill of complaint was later amended to designate the appellant the sole complainant, her husband having died, and to substitute the United States as a party defendant for the Farmers Home Administration and its trustee. The court’s amendment order directed “ . . . that copies of the original and amended bill of complaint be served on the United States as set out in the proposed amendment, and that a copy of the amended bill of complaint be served on defendant, Mildred Ott, by mailing a copy thereof to Honorable Gerald C. Gex, her attorney of record at Bay St. Louis, Mississippi.” There is no indication whether the appellees did, or did not, have copies of the bill of complaint prior to its amendment.

The amendment substituting the parties did not alter the original claim and the United States of America and Mildred Ott promptly filed their answers. On June 17, 1969, the second Tuesday of the regular June Term, a motion for a decree pro con-fesso was sustained against Manard G. Deas and Mary, his wife, and the cause was set for trial in vacation on July 1, 1969.

A final decree adjudicating the appellant to own the property described in the complaint was signed by the chancellor on July 1, 1969, after trial. Thereafter, on February 13, 1970, and March 26, 1971, writs of possession were issued directing that the appellant ■ be placed in possession of the subject property. Apparently, the first writ was not served on Manard Deas and his wife, but their testimony reveals they had notice of the second.

The first pleading of Manard and Mary Deas was filed on August 26, 1971. This was a “Motion to Quash Writ of Possession and Set Aside Decree.” On September 8, 1971, the motion was sustained and the decree of July 1, 1969, and the writs of possession were set aside. An appeal to this Court from the order of September 8, 1971, was granted Ms. Leigh. On September 17, 1971, the Deas filed their answer to the original and amended bills of complaint and also a cross-bill against the appellant. The appeal from the order setting aside the final decree of July 1, 1969, was dismissed for lack of jurisdiction by this Court since bond was not filed within thirty days as provided by Mississippi Code Annotated section 11-51-7 (1972). Leigh v. Deas, 267 So.2d 318 (Miss.1972).

Ms. Leigh did not answer the cross-bill and after the appeal was dismissed, declined to participate in the trial on her amended bill of complaint, the answer of the Deas, and their cross-bill. A final decree was entered on the trial’s conclusion April 16, 1974, vested title in the Deas by adverse possession to 4.97 acres of the 5.44 acres in litigation. The land descriptions of the decrees used different base lines, courses and distances. However, a comparison of the exhibits reflects the decrees of July 1, 1969, and April 16, 1974, encompass substantial portions of the same property.

The appellant asserts that the trial court erred in vacating the final decree of July 1, 1969, because the court had no authority after the expiration of the term to set it aside. She contends that the decree can only be corrected, after the term expires, by an appeal or by a bill of review and indeed, absent fraud or jurisdictional questions this appears to be the general rule. Carter v. Kimbrough, 122 Miss. 543, 84 So. 251 (1920); LeBlanc v. Ill. Cent. R. Co., 73 Miss. 463, 19 So. 211 (1896); Lane & Standley v. Wheless & Co., 46 Miss. 666 (1872); Cole v. Miller, 32 Miss. 89 (1856); and Sagory v. Bayless, 13 Sm. & M. 153 (Miss.1849). See also Griffith, Mississippi Chancery Practice, Section 621 (2d Ed. 1950).

The July 1, 1969, decree was entered in vacation pursuant to a term order setting the cause for hearing on that date. This was authorized by Mississippi Code Annotated section 9-5-91 (1972). No appeal was taken from the decree and of course the time for such has long since elapsed. A bill of review was barred by the two-year statute of limitations when the first pleading was filed on August 26, 1971. Miss.Code Ann. § 11-5-121 (1972).

The appellees contend, however, that the decree (July 1, 1969) was void as to them because (1) the decree pro confesso and the final decree were entered prior to the time their answer was due,, and (2) a copy of the amended bill of complaint was not served upon them.

The appellees were personally served with process on the original bill of complaint on April 20, 1969, returnable to the May rule day, the second Monday of May. The regular term of the Chancery Court of Hancock County began on the second Monday of June 1969. The intervention of the regular term of court is the premise for the contention that the answer was not due until the second Monday of July, the first rule day next succeeding that to which the process was returnable.

The case of Jones v. Hervey, 66 Miss. 99, 5 So. 517 (1888), is cited by the appel-lees in support of their thought that the intervention of the June term of court abated the due date of their answer until the rule day next following the term of court. It is noted, however, that the Court in Hervey, supra, was construing Section 1889, Mississippi Code of 1880, which provided that process returnable to a rule day required the defendant to answer or demur on or before “the monthly rule day next succeeding that at which such process .” is returnable. This provision remained constant in succeeding codes until it was amended by Chapter 299, Mississippi General Laws (1942). Mississippi Code Annotated section 1286 (1942) [now Section 11-5-17 (1972)] provides that “the defendant shall answer or demur on or before the second Monday of the month next succeeding that at which such process is returnable . . ..”

Application of the latest statute made the answer due on or before June 9, 1969, because it was “the second Monday of the month next succeeding” the return day of the process. The original and amended bills of complaint stated a cause of action and since no answer had been filed on or before the due date, the complainant was entitled to a decree pro confesso the following day of the term. The cause of action was then triable. Mississippi Code Annotated section 11-5-67 (1972) provides in part:

Causes triable — when.
When the summons has been made returnable to a rule day, the cause shall be triable on any day of a term, regular or special, after the due date of the answer or answers.

The July 1, 1969, decree was entered subsequent to a hearing in open court on the bill of complaint, the answers of the other defendants and the decree pro confesso taken against Manard Deas and his wife Mary. It was a final decree terminating the litigation and not subject to being set aside by a motion to quash filed more than two years later unless it can be found that the appellees were entitled to additional notice because of the substitution of parties by the amendment to the bill of complain.

Mississippi Code Annotated section 1304 (1942) in effect at the material times herein [now Section 11-5-57 (1972)] provides as follows:

The complainant may amend his bill as of course, without applying to the court, at any time before the defendant has made defense, upon complainant paying the costs of furnishing a copy of the amendment to such of the defendants as have taken out copies of the original bill, and of notice of the amendment to be served on all of the defendants. In all other cases, amendments can be made only by leave of the court, or the chancellor in vacation, and upon such terms as the court or chancellor may impose.

(Emphasis added.)

The amendment to the bill of complaint merely substituted parties to the suit and was in accord with the court’s order. As mentioned, the amendment did not alter the theory of the appellant’s claim in any manner from which the appellees could be prejudiced. Copies of the amended complaint were served upon Mildred Ott, who had taken copies and answered the original bill of complaint and the United States. There was nothing to reflect that Manard Deas and wife had taken copies of the original bill of complaint. Their testimony admits the service of process and their response to it was talking with the chancery clerk of the county who advised that one of the complainants had died and they would have to wait until further notice. In our opinion this advice, which could have been misleading was not sufficient to overcome the clear direction of the summons for the defendants “to plead, answer, demur to the bill to cancel clouds on title.”

Under these circumstances we conclude that the appellees were not entitled to notice additional to that which they had previously received and ignored. Their loss, if any, results directly from their failure to respond to the process of the court and waiting more than two years after a final decree adjudged against them before making a belated response.

The case is reversed and judgment rendered here setting aside the decree of April 16, 1974, and reinstating the final decree of July 1,1969.

REVERSED AND RENDERED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.

WALKER, J. took no part.


author: INZER, Presiding Justice, for the court. BROOM, Justice

text:
    Quinton SPRAYBERRY and MFC Services (AAL) v. Marsha Marion BLOUNT, by Agnes Munoz, mother, adult next friend and guardian.
    No. 48673.
    Supreme Court of Mississippi.
    Aug. 17, 1976.
    Rehearing Denied Oct. 5, 1976.
    Rehearing denied; Gillespie, C. J., Inzer, P. J., Smith, Robertson and Walker, JJ., concur.

      Shell, Buford, Bufkin, Calicutt & Perry, Cary E. Bufkin, William L. Colbert, Jr., Michael S. Allred, Jackson, Kenneth E. Crawford, Collins, for appellants.
    Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, Jackson, John K. Keyes, Collins, for appellee.
    Before PATTERSON, INZER and BROOM, JJ.
   INZER, Presiding Justice, for the court.

This is an appeal by MFC Services and Quinton Sprayberry from a judgment of the Circuit Court of Covington County awarding appellee Marsha Marion Blount a judgment of $500,000 as damages for personal injuries. The injuries occurred when an automobile in which appellee was a passenger struck the rear of the tractor-trailer rig owned by MFC and driven by Sprayber-ry. We reverse and render.

Appellee was severely and permanently injured and David Blount, her husband, was killed when a 1966 Ford Fairlane automobile driven by David Blount struck the left rear of the tractor-trailer rig driven by Quinton Sprayberry and owned by MFC Services. The accident occurred at about 1:30 A.M. on October 28, 1972, on U.S. Highway 49 about one mile south of the city limits of Collins.

The declaration charged several grounds of negligence, but by stipulation the case was tried on the narrow issue of whether Sprayberry was guilty of any negligence that caused or contributed to the collision. MFC and Sprayberry answered and denied that Sprayberry was guilty of any negligence that caused or contributed to the accident and affirmatively alleged that the sole, proximate cause of the accident was the negligence of David Blount.

Since the jury found for the appellee the facts will be stated in the light most favorable to the appellee, except that part of the testimony of Sprayberry who was called as an adverse witness. Appellee is bound by that part of his testimony that was not contradicted.

The record reflects that on the night in question Sprayberry departed from MFC Service Center at Collins at about 1 A.M. driving a tractor-trailer rig loaded with seven tons of masonex. His destination was Areola, Louisiana, and he was to travel on U.S. Highway 49. Prior to leaving the service center he and the mechanic checked the lights and all the lights were working properly. The rig was equipped with all lights required by statute, including taillights, stoplights, two clearance lights, one on each side of the rear of the truck, two red reflectors on the rear and two side marker lights on each side of the truck, one on the rear and one on the front of the left and right side of the vehicle. It was also equipped with the necessary headlights and two flashing lights on the rear and front. The tractor-trailer was also equipped with air brakes which automatically apply when the air pressure is lost.

Highway 49 is a four-lane highway with two lanes for southbound traffic and two lanes for northbound traffic, with a median strip dividing the north and south lanes. When Sprayberry reached a point about a mile south of the city limits of Collins he heard a noise which indicated to him that the air line had broken and that the brakes would automatically take over and stop his vehicle. He was travelling at that time about fifty miles per hour. He glanced *in his side view mirror and did not see any traffic behind him. There was no traffic in front of him. Sprayberry testified that he immediately pulled out the flasher light button under the steering wheel and braced himself in order to control his vehicle. He never applied his brakes or put his foot on the brake pedal to activate the brake lights. He testified that he travelled about 75 to 100 feet before he felt the drag of the brakes and after travelling 75 to 80 feet further, with his rig slowing down and when he was in the process of steering the rig over on the shoulder of the highway, the left rear of the trailer was struck by an automobile. He said a split second before the collision he saw the lights of the car that struck his vehicle. The force of the collision was such that it knocked the left rear tandem wheels of the truck together, and his vehicle only travelled about three feet before it stopped. Sprayberry immediately got out of his truck and found that the car had struck his vehicle. It was over in the left or east lane for southbound traffic. He saw a young man under the steering wheel and a young lady lying on the front seat of the car. He learned later that the driver of the car was David Blount and that the lady was his wife, Marsha Blount, appellee.

Sprayberry also testified that when his vehicle came to a stop the right front wheel of the tractor was two or three feet off the pavement and that the right rear wheel of the trailer was also off the pavement.

An engineer testified for the appellee and he said that each of the two southbound lanes for traffic were twelve feet wide. He measured the shoulder of the highway on the west side and found it to be five feet in width. He also testified that the dip in the highway, that Sprayberry testified he had passed through just prior to the time his brakes failed was such that a car in that dip at that time could not see the lights of the truck until he came out of the dip. He measured from the point on the highway it was indicated that the collision occurred and his measurements showed that the rear of the trailer was still on the pavement at the time of the collision. On cross examination he stated that from the point where the driver could see the lights of the truck to the point of collision was 655 feet. He said that north of the dip, the highway was straight for some distance before it curved.

Lott, a city policeman for the City of Collins, testified that he arrived at the scene after the accident. He said the lights of the truck were still on, but he did not see any flashing lights on the rear of the truck. He said that the rear wheels of the tractor were still on the pavement. He did not investigate the accident and confined his activities to flagging traffic until the highway could be cleared.

The testimony shows that the car struck the trailer about 28V2 inches from the left edge of the vehicle knocking out the light on the left rear of the trailer.

The record reflects that David Blount and his wife, appellee, were on their way to their home in Hattiesburg from Jackson where they had been to a concert. David was driving a 1966 Fairlane Ford that had been furnished him by his father-in-law. It was also shown that some two days before the accident, his father-in-law, Mr. Munoz, had done some work on the car, tested it, and found it would not exceed sixty miles per hour. The pictures taken of the car after the accident revealed that it was almost completely demolished. There was no indication that Blount ever applied his brakes prior to striking the rear of the trailer.

The foregoing is the only testimony offered by appellee to establish liability other than some pictures taken at the scene after the accident. These pictures reveal that only the left rear wheels of the trailer locked sufficiently to lay down skid marks. They also reveal that the tractor-trailer was well over in the righthand lane of traffic when the brakes took hold, and that the skid marks were fairly straight until they gradually turned to the right just before reaching the point where the collision occurred.

At the conclusion of plaintiff’s case, appellants made a motion for peremptory instruction which was overruled. The motion was renewed at the conclusion of all the testimony and was again overruled. After the jury verdict, appellants made a motion for a judgment n. o. v. and a motion for a new trial which were overruled.

On appeal, among other things, appellants contend that the trial court was in error in failing to instruct the jury to find for them. We are of the opinion that the trial court should have granted a directed verdict for the appellants and having failed to do that the court should have sustained appellants’ motion for a judgment n. o. v.

As we view the evidence, there is no doubt that there was a failure in the air line controlling the brakes of the trailer and the rear wheels of the tractor. It is also undisputed that the car driven by David Blount struck the left rear of the trailer when Sprayberry was in the process of driving the tractor-trailer onto the shoulder of the road and at a time when his vehicle was still moving at about five miles per hour. It is also undisputed that the tractor-trailer was equipped with all the lights required by statute, including the two reflectors on the rear of the vehicle. It is also undisputed that at the time of the collision the entire left lane of southbound traffic was clear and unobstructed, and in addition thereto, at least a part of the right lane was available for passing space. It is certain that the driver of the Blotint vehicle could have seen the lights of the. truck for some distance before going into the dip .and for at least 75-80 feet. after coming out of the dip before the collision. Under the facts of this case, Sprayberry did not violate any statute governing the rules of the road. Section 63-3-903(1), Mississippi Code 1972 Annotated relative to stopping, parking or leaving a vehicle standing upon the paved portion of the highway does not apply in this case for the reason that the tractor-trailer was not stopped, it was still moving and was in the process of moving over onto the shoulder of the highway. As we view the statute, it does not require that a motorist drive his vehicle off the pavement while slowing down but only required him to do so before coming to a stop.

Appellee argues that even though appellants did not violate any statute, it nevertheless was a jury question as to whether Sprayberry used reasonable care in moving his vehicle off the pavement as far as reasonable under the circumstances. In other words, it is argued that knowing that he was going to have to stop, it was a jury question as to whether Sprayberry should have driven his vehicle over onto the shoulder of the highway at an earlier time. We do not think that Sprayberry was charged with a duty under the circumstances of this case to immediately drive his loaded vehicle off onto the shoulder of the road. It takes no testimony for one to know that it was impractical to do so. However, appellee argues that at some point earlier, Sprayber-ry should have driven his vehicle over onto the shoulder, and if he had done so, the accident would not have occurred. It is true that had he moved his vehicle over onto the shoulder sooner, the car driven by David Blount might not have struck the rear of the truck. However, this is not the test. The test is whether under the circumstances then facing Sprayberry, he used reasonable care. Even a driver of a vehicle slowing down to voluntarily stop is not required to drive his vehicle onto the shoulder until it is safe for him to make such move. Especially is this true on a four-lane highway where there is a twelve foot lane available for traffic approaching from the rear to safely pass. In Fant v. Commercial Carriers, 210 Miss. 474, 49 So.2d 887 (1951), we held that a truck driver was not guilty of negligence in stopping his loaded vehicle on the paved portion of the highway when his engine failed, although the proof showed that there was a shoulder about six feet in width which he could have driven his vehicle onto, but did not because the shoulder was wet.

Appellee also argues that it was a jury question as to whether Sprayberry was guilty of negligence in failing to activate his stop light by stepping on the brake pedal. The only effect that this would have had would be to make the stop light brighter. This contention disregards the fact that there were other lights on the rear of the vehicle and the fact that the driver was experiencing an emergency involving an occurrence he had never experienced before. It also disregards the fact that the slowing process was gradual over a distance of about 500 feet before the car struck the rear of the tractor-trailer.

Furthermore, under the facts and circumstances of this case, we are of the opinion that Sprayberry was not required to anticipate that some act or injury would probably result from the manner in which he was bringing his vehicle to a stop. It is well settled that actionable fault on the part of a defendant must be predicated on action or non-action prompted by knowledge, actual or implied, of facts, which make the result of his conduct not only the probable result, but also a result which he should in view of the facts, have reason to anticipate. Williams v. Lumpkin, 169 Miss. 146, 152 So. 842 (1934).

The evidence is undisputed that the tractor-trailer was slowing down in the west lane for southbound traffic. The other lane was open with more than ample room for any other vehicle travelling south to pass without any difficulty. The tractor-trailer was properly lighted and there was no reason for him to anticipate that a following vehicle would not take advantage of the open lane to pass. We do not have in this case circumstances of heavy traffic or a nearby vehicle to impose the high duty of due care on slowing or stopping by a motorist. Consequently, our decisions imposing common law duties on slowing or stopping a vehicle are not applicable in this case, because it involves an involuntary slowing under emergency conditions and under the circumstances which the foreseeability of any probable injury resulting from the slowing and eventually stopping was remote. It would be unreasonable to require a driver under these circumstances to anticipate the likelihood of a vehicle approaching from the rear and crashing into the rear of his vehicle.

The evidence in this case reflects that David Blount was guilty of negligence and the facts are such that we are of the opinion that his negligence was the sole proximate cause of the injuries to his wife. It is undisputed that David Blount had a clear view of the lighted tractor-trailer for some distance before he went into the dip and for 75-80 feet after he came out of the dip before the collision. No one knows why he failed to see the vehicle in front of him or failed to drive his vehicle into the other lane of traffic. It can only be concluded that he failed to keep a proper lookout and did not see what he should have seen or did not have his vehicle under such control so as to turn it left in time to avoid striking the tractor-trailer.

After a careful examination of the evidence in this case we are convinced that appellants were entitled to a directed verdict in their favor. The Merchants Co. v. Way, 235 So.2d 278 (Miss.1970); and Gartman v. Bush Construction Co., Inc., 227 So.2d 846 (Miss.1969).

While this is another one of these sad cases where our sympathy goes out to people who have lost their loved ones or have been severely injured in highway accidents, however, this Court must analyze the facts in each case objectively and apply the law impartially in order that all citizens may be guaranteed equal justice. We are convinced that the acts of the driver of the tractor-trailer did not cause or contribute to and were not a proximate cause of the injuries to the appellee. Therefore, we must reverse the judgment of the trial court and enter judgment here in favor of the appellants. This case was heard before a conference of the judges en banc.

REVERSED AND RENDERED.

GILLESPIE, C. J., and SMITH, ROBERTSON and WALKER, JJ., concur.

BROOM, J. and PATTERSON, P. J., and LEE, J., dissent.

SUGG, J., took no part.

BROOM, Justice

(dissenting):

Contrary to the majority in this case, my studied opinion is that the jury was appropriately and correctly permitted to decide the issues of this rear-end collision case on conflicting evidence. Accordingly, I must dissent.

Largely for the reason that he was struck from the rear, Sprayberry is exonerated from liability. My view is that this case is not just another rear-end collision because at issue is the application of the often misunderstood sudden emergency doctrine to circumstances involving a very heavy and sophisticated mechanized unit driven on a heavily traveled four-lane highway. The plaintiff, Marsha Blount (a guest passenger of her husband who was killed in the accident) was absolutely free of any contributory negligence, and the effect of the majority decision is to deny her any compensation for her catastrophic injuries although there was evidence upon which the jury could find and did find that Sprayberry’s negligence either caused or contributed to the collision. A salient feature of the case is the plaintiff’s theory that Sprayberry (faced with malfunction of his brake system) did not exercise reasonable care to remove his disabled unit as far to the right as was reasonable before the vehicles were in collision. Regardless of whether Mississippi Code Annotated § 68-3-903(1) (1972), which requires a driver if stopped or parked to remove the vehicle “as far to the right as reasonably practical,” applies to Sprayberry here, he was at least under a common-law duty “not to endanger the safety of other persons using [the highway].” Filgo v. Crider, 251 Miss. 234, 168 So.2d 805 (1964); 60A C.J.S. Motor Vehicles § 247 (1969).

In 3 Blashfield, Automobile Law and Practice § 116.4 (3d Ed. 1965), it is stated:

The questions of negligence in parking or stopping cars on the street or highway, and whether or not such acts proximately cause the damages complained of are usually questions of fact for the jury to determine ... on conflicting evidence or where different inferences may be drawn, the position of a vehicle when struck by an automobile, with respect to the edge of the pavement and the ditch beside the road, and the driver’s negligence in not having turned farther to the right on the shoulder or berm of the road, may be questions for the determination of the jury. .

The majority relies on Fant v. Commercial Carriers, 210 Miss. 474, 49 So.2d 887 (1951), which upheld a peremptory instruction for the defendant truck driver and his employer, but that case differs from the present case in several respects. In Fant, the truck driver to pull off to the right would have had to risk placing his rig upon “a wet shoulder.” No such risk confronted Spray-berry here. In Fant, two automobiles “drew up behind” the tractor-tráiler unit and apparently followed it for a short time before the collision. Apparently in Fant the truck driver had no intention of stopping as Sprayberry did.

Regardless of its distinguishable facts, Fant deals with a sudden emergency situation. Applying its. rationale as to the sudden emergency feature, we must decide if (as announced in Fant) “it would be unjust to characterize his [Sprayberry’s] course as negligent or to permit it to be so found.” Phillips v. Delta Motor Lines, Inc., 235 Miss. 1, 108 So.2d 409 (1959), held that a sudden emergency did not impose on a driver a duty to exercise such care “as a reasonably prudent and capable driver would have used under the unusual circumstances . . .” In Phillips, we said:

Whether Foster was negligent in failing to exercise such care, after his air brakes gave way, as a reasonably prudent and capable driver would have used under the unusual circumstances to avoid an accident, was a question for the jury to decide under proper instructions of the court., Moore v. Taggart, 233 Miss. 389, 102 So.2d 333 (1958). (Emphasis added.) (235 Miss, at 13, 108 So.2d at 414.)

Virgil Gillespie in The Sudden Emergency Doctrine, 36 Mississippi Law Journal 392, 407 (1965), states that “the reaction of the actor after the emergency arose” is the heart of the doctrine. He correctly concludes that the evaluation of the actor’s conduct after the emergency arose is “peculiarly one for the jury.” In this case by Instruction No. 39, appellants themselves recognized and put before the jury the sudden emergency doetrine, and thereby the jury was permitted to evaluate Sprayber-ry’s action or inaction in the light of the exigencies confronting him just before the accident occurred. While the issue is very close, it was not unjust to permit the jury to find as it did that Sprayberry was negligent in the way he reacted or failed to react. The jury had before it evidence that when deposed before trial, Sprayberry testified he was traveling five miles per hour when the collision occurred, while at trial he gave his speed at five or ten miles per hour. In his deposition, he stated that he traveled 350 to 400 feet from the time he heard air escape until the brakes set, but at trial he reduced the distance to “75 to 100 feet.” Confronted with such impeachment of the testimony of Sprayberry, the jury weighed his testimony that he turned on his flasher lights against the testimony of Lott who said that when he arrived at the scene he saw that the rear lights were on the trailer, but that the flasher lights were not.

It is to be noted that just after malfunction of his air brake line, Sprayberry looked in his rear view mirror but did not see the Blount car approaching. It is arguable that he should have seen it. Viewed differently, one may say otherwise because the car may have been in the highway’s dip, but Spray-berry had knowledge of the dip, having traveled the road many times. In this situation he elected (according to his. testimony) to turn on the flasher lights and not to use the foot controlled brake to reduce his speed and activate his stop light. Summarized, his testimony shows that in reality after turning on his flasher lights he did nothing but “wait for anything that might happen.” It is also to be noted that (according to him) when he had traveled over four hundred feet after the emergency arose, he had steered his front tractor wheels “around three feet” onto the shoulder of the highway and the back trailer wheels “a foot and a half to two feet” (disputed by Lott) onto the highway shoulder. Pictures in the record clearly show that it may have been possible and practical for Sprayberry to have guided the unit more nearly off the highway had he applied the brakes and turned to the right earlier than he did.

It was suggested that one driving down a highway, such as Sprayberry, should not be held to assume or anticipate he would be rear-ended by another vehicle. Equally plausible is the suggestion that a driver (especially of a large unit with sophisticated equipment) should assume that his equipment will sometimes malfunction, creating a perilous situation (as happened here) to which he must appropriately react. Should he have seen the Blount vehicle in his rear view mirror? Did he reasonably perform his duty considered in the context of whatever opportunity he had to put his foot on the brake activating his rear stop lights and signaling his intent to stop, as well as slowing down before automatic braking began? Could he and should he have removed the unit more nearly off the highway before the collision, giving due attention to the topography, width, and condition of the highway and its shoulders, along with the size and condition of the unit? These crucial issues on liability were properly submitted to the jury for resolution. The jury verdict against appellants was adequately supported by the evidence.

Logic compels me to differ from the majority opinion that states it was immaterial whether or not Sprayberry should have activated his stop light by pressing the brake •pedal. The thesis of the majority in this respect seems to be that there were already “other lights on the rear of the vehicle.” One would glean from the majority that activation of the brake lights did not reflect on the question of Sprayberry’s negligence even though the opinion admits that use of the brake pedal would have made “the stop light brighter.” Intensification of the brightness of the stop light is one important reason to press the brake pedal — such brightness puts one following the lead vehicle on notice that not only is the leading vehicle some distance ahead, but such vehicle is about to stop. In night driving, when distances from vehicle to vehicle are so difficult to judge, use of such stop lights becomes more appropriate and legally significant. Upon the facts of this case, failure to activate the stop lights is a relevant factor for the jury to consider in deciding the question of negligence.

As I perceive this case, the majority attaches no legal import to the testimony of Policeman Lott who said that shortly after the unfortunate collision he arrived at the scene and found that the rear wheels (of appellants’ unit) were still on the pavement after the collision occurred. The jury had the prerogative of believing or disbelieving Lott, and obviously chose to believe him. It chose to reject the testimony of Sprayberry, whose testimony at the trial differed from his prior statements made when deposed.

Though this is a very close case on the evidence and on the law, I simply cannot agree that it should not have gone to the jury or that the jury’s verdict was not supported by sufficient evidence. Affirmance should be adjudged.

PATTERSON, P. J., and LEE, J., join in this dissent.