text:
    Clara BARTLETT, Appellant, v. James P. BENNETT and E. Paul Dietrich, Appellees.
    No. 77-1516.
    District Court of Appeal of Florida, Second District.
    July 21, 1978.
    John L. McFadyen of Lloyd & Henniger, St. Petersburg, for appellant.
    Christopher C. Ferguson and Robert F. Nunez, St. Petersburg, for appellees.
   OTT, Judge.

The appellant filed a complaint against the appellees (attorneys) in malpractice. The complaint alleged that the appellees had negligently failed to file an action for wrongful death of appellant’s husband within the period allowed by the applicable statute of limitations.

Appellees filed a Motion to Dismiss, Abate and Strike Complaint and an Answer. In the final analysis the appellees pleaded that a still pending and active wrongful death action by appellant as personal representative of her deceased husband’s estate required abatement of the malpractice action. The wrongful death action was against an entirely different party defendant and his liability insurance carrier. The trial court granted the appellees’ motion to abate and entered an order dismissing appellant’s “[cjomplaint and cause of action.”

Both parties conceded at the hearing on the motion to abate that the statute of limitations had been pleaded by the defendants in the wrongful death action; that the applicable period of limitation for a wrongful death action is 2 years; that the wrongful death action was not filed within 2 years of the date of death; that the trial judge in the wrongful death action had ruled that the 2 year limitation period did not commence to run until the appointment of a personal representative for the estate of the decedent; that this court has denied a petition for writ of certiorari to review the trial judge’s ruling on the running of the limitations period but the question is still appealable; and, that the wrongful death action was, therefore, still pending.

We hold that there was not sufficient identity of parties and cause of action in the two suits to support the order of abatement and dismissal of the cause of action for malpractice. 1 Fla.Jur. Abatement and Revival §§ 5, 6, 8 (1955). It is far from clear that the ultimate final judgment in the wrongful death action could be pleaded as a bar to the malpractice action. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (Fla.1930). This would at least be dependent upon which party the final judgment was entered against and upon what basis such final judgment was entered.

It is certainly true, however, that the outcome of the wrongful death case may have a definite bearing on the malpractice action and may even be arguably determinative, at least as to certain issues therein. Equally true is that if the personal representative had failed to institute the wrongful death action, such failure could very well have clouded her right to file or prosecute the malpractice action.

At the same time the uncertainty of the statute of limitation posture of the malpractice action fully warranted the commencement of the suit.

Under all of the circumstances we conclude that the interests of the parties, together with the orderly and economical conduct of the litigation would best be served by a stay of further proceedings herein (the malpractice action) subject to further developments in the wrongful death action.

Accordingly, we set aside the order of the trial court dismissing the cause of action of the appellant and remand for the entry of a temporary stay order consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur.

      . On March 20, 1975 appellant was advised by the appellees that the statute of limitations had run in the wrongful death action. The complaint in malpractice was filed on March 11, 1977 — within the two year statute of limitations for malpractice set out in § 95.11, Fla.Stat. (1977).


source: Caselaw Access Project

author: MELVIN, Judge.

license: Public Domain

text:
    ATLANTIC BANK OF WEST JACKSONVILLE, a corporation, Appellant, v. James WASHINGTON, d/b/a J. N. & W. Trucking Corp., Appellee.
    No. JJ-434.
    District Court of Appeal of Florida, First District.
    July 25, 1978.

      J. Kennedy Hutcheson, Jacksonville, for appellant.
    Robert C. Gobelman and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lee.
   MELVIN, Judge.

This interlocutory appeal was filed from an order granting appellee James Washington’s motion to set aside a default judgment entered against him and in favor of appellant bank.

The Atlantic Bank of Jacksonville sued James Washington and J. J. Bonilla, alleging that James Washington executed a check for the payment of $9,000 payable to the order of Bonilla, and delivered the check to him. It was further alleged that the check was endorsed by Bonilla and deposited in his account with the plaintiff bank. The bank presented the check for payment to the drawee bank and payment was refused by reason of insufficient funds. The complaint was filed November 4, 1977, and the defendant Washington having failed to serve or file an answer or motion within the time prescribed by rule, a default judgment was entered against him. The plaintiff bank did not pursue the default judgment to final judgment. The defendant Washington waited until February 21, 1978, to file his motion to set aside the default.

Washington urges that the allegations in his proffered answer to the bank’s claim and his counterclaim against Bonilla that plaintiff bank and co-defendant Bonilla had committed acts of misconduct and misrepresentation entitled him under Fla.R.Civ.P. 1.540(b) to have the default set aside. The provisions of such rule afford a basis to vacate a default judgment only when it is alleged that by reason of an adverse party’s misconduct or misrepresentation the party was induced not to timely file his answer or otherwise plead. Neither the motion nor any material in the record attempts to set forth any reason why Washington did not file his answer or otherwise plead within the time prescribed by the Rules of Civil Procedure.

A motion to set aside a default judgment is addressed to the sound discretion of the trial court. However, before such discretion may be properly exercised, the motion itself must set forth both a meritorious defense and a reason that would excuse the party’s neglect in failing to file his answer or otherwise plead within the time prescribed by applicable rule. See Allen v. Wright, 350 So.2d 111 (Fla. 1st DCA 1977).

Although the courts favor the disposition of a case based upon its merits rather than upon the application of a rule of procedure, in order for this to be accomplished the courts must have the reasonable cooperation of the parties to the litigation in complying with the orderly rules of procedure. Washington having failed in his motion to allege facts which would have excused his neglect as to timely filing his pleading, neither this court nor the trial court may presume the existence of facts which would excuse his neglect.

Therefore, based upon the record before this court, we conclude that the lower court abused its discretion in setting aside the default against Washington. The order setting aside such default is REVERSED with directions to reinstate the same.

McCORD, C. J., and MILLS, J., concur.


author: PER CURIAM.

text:
    Daniel L. MARSHALL, and Bessie M. Marshall, his wife, Appellant, v. W & L ENTERPRISES CORPORATION d/b/a Aladdin Mobile Homes, Reserve Insurance Company and Dink Walsh, Appellee.
    No. II-305.
    District Court of Appeal of Florida, First District.
    July 25, 1978.

      Rod Tennyson, of Ombres, Powell, Tennyson & St. John, West Palm Beach, for appellant.
    Benjamin W. Redding, of Barron, Red-ding, Boggs & Hughes, Panama City, for appellee.
   PER CURIAM.

The issue on this appeal is whether the trial court erred in holding that a bonded mobile home dealer’s surety was not liable for attorney’s fees incurred by appellants in recovering a judgment against the dealer for a violation of the “Little FTC Act,” Chapter 501, Part II. We think there was error and reverse.

It is undisputed that the mobile home dealer, Aladdin Mobile Homes, was found to have violated the Act in its dealings with appellants. Reserve Insurance, the surety, contended below however that it could not be liable for appellants’ attorney’s fees because Section 501.212(5) of the Act provides that the Act does not apply to “any person or activity regulated under laws administered by the department of insurance . ”, and the act of writing bonds was clearly an activity regulated by the Department of Insurance. The trial court apparently accepted this reasoning in excluding Reserve from liability for the appellants’ attorney’s fees.

Appellants’ argument proceeds as follows: (1) Section 320.77, Fla.Stat. (1975) requires mobile home dealers to be licensed and bonded; (2) The bond provisions in Section 320.77(11) protect any retail customer “who shall suffer any loss” as a result of any violation of Chapter 319 or 320; (3) Section 320.77(10) prohibits a mobile home dealer from “violation of any provision of this section or of any other law of this state having to do with dealing in mobile homes . . .”; (4) Chapter 501, Part II and the rules promulgated under it are laws of this state “having to do with dealing in mobile homes”; (5) Aladdin Mobile Homes was found to have violated Chapter 501, Part II; (6) Section 501.210(1) allows the prevailing party in any civil litigation resulting from a violation of the “Little FTC Act” to receive his reasonable attorney’s fees and costs from the nonpre-vailing party; (7) Section 501.210(4) provides that any award of attorney’s fees or costs “shall become a part of the judgment and subject to execution as the law allows”. Therefore, appellants claim, the attorney’s fees which they incurred in prosecuting the action against appellees were part of the “loss” against which they were protected by Reserve’s bond.

Reserve, citing Bankers Fire Casualty Insurance Co. v. Newman, 330 So.2d 760 (Fla. 3d D.C.A.1976) and previous cases, maintains that a surety is not obligated to pay attorney’s fees expended in prosecution of an action on the bond. It contends that even though the “Little FTC Act” grants the appellants the right to recover their attorney’s fees against the principal on the bond, it does not in any way enlarge upon the obligation of the surety under the bond.

We accept appellants’ position on the point. The obvious purpose of the “Little FTC Act” is to make consumers whole for losses caused by fraudulent consumer practices. Similarly, the purpose of the bonding and licensing requirements in Chapter 320 is protection of consumers who deal with mobile home dealers. These aims are not served if attorney’s fees are not included in the protection.

Reserve obligated itself herd to pay “any loss or damage” caused to consumers by Aladdin Mobile Homes. Unlike the losses in Bankers Fire and Casualty and other cases cited by Reserve, appellants’ losses, specifically defined by statute in Section 501.210(4) and incorporated in the bond by virtue of Section 320.77(11), included attorney’s fees. Appellants must be allowed to recover those fees from Reserve.

The portion of the judgment excluding Reserve from liability for the appellants’ attorney’s fees is reversed and the case remanded for the entry of a judgment consistent with this opinion.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


text:
    Charles CIASCA, Appellant, v. CRYSTAL SPRINGS WATER COMPANY and Publix Super Markets, Inc., Appellees.
    No. 76-2317.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Roderman, Bass, Stillman & Goldenberg and Barry G. Roderman, Fort Lauderdale, for appellant.
    Papy, Duval, Poole & Usich and Robert J. Van Der Wall, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment rendered in favor of defendants in an action for personal injuries sustained by plaintiff when a large glass bottle containing non-carbonated Crystal Springs drinking water exploded while plaintiff was in the process of installing the bottle in his home water cooler.

The bottle of water was purchased from defendant-Publix Markets, Inc. Defendant-Crystal Springs Water Company had filled the bottle with its water and distributed it to the public for the purpose of selling it to Publix customers.

The record on appeal discloses that there are genuine issues of material fact which have not been eliminated by the movants for summary judgment. Therefore the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Darrell TROUT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1340.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Fla.R.Crim.P. 3.220(b)(4) (ii) (1977).


author: BARKDULL, Judge.

text:
    Howard L. VANCE, Individually and as father and next friend of Lafayette Vance, a minor, Appellants, v. Ruby Hans MILLER and State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Appellees.
    No. 77-1727.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Gladson, Knecht & Sullivan and Daniel J. Sullivan, Coral Gables, for appellants.
    Talburt, Kubicki & Bradley, Robert Dick-man, Betsey E. Hartley, Miami, for appel-lees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

Plaintiffs in the trial court appeal an amended order granting a directed verdict and final judgment in favor of the appel-lees.

There is no dispute that the appellant-plaintiff minor child, Lafayette Vance, was injured while riding in a shopping cart pulled by his sister (also a minor) along a busy stretch of 27th Avenue. What is in dispute is whether the appellants presented any evidence identifying the appellee (Miller) as the tortfeasor.

Lafayette was riding in a shopping cart being pulled by his sister, who was riding a bicycle. They were both on the sidewalk alongside N.W. 27th Avenue in Miami. The evidence is conflicting as to whether a car drove up over the curb and onto the sidewalk, striking and injuring the child, or whether Lafayette fell into the road and was struck. At any rate, Lafayette was seriously injured.

There is no dispute in the evidence that the appellee, Miller, was driving at 35 m.p.h. past the children immediately prior to the accident. She testified that she veered to the left to avoid the children and avoided the cart. When she got past the children, she heard a noise and looked into her rear view mirror where she saw the cart lying in the street and the child still in the cart. At that time there were other cars behind her. She stopped her car and backed up to offer aid if needed. Other witnesses testified, but all of them failed to identify the driver of the car or describe the car that allegedly struck the cart. The investigating officer failed to find any evidence that Miller’s vehicle contributed to the accident and made no charge against her.

At the close of the plaintiff-appellant’s case and again at the close of all the evidence, the appellees moved for a directed verdict, contending that the evidence was legally insufficient to support a verdict for the plaintiffs. The trial court reserved ruling and allowed the case to go to the jury. The jury returned with a verdict in favor of plaintiffs. The appellees filed a motion upon which the trial court entered an amended order, granting their motion for a directed verdict and entering a final judgment in their favor. The appellants now take this appeal, contending that the trial judge erred in granting the reserved motion for directed verdict. We affirm.

Appellants-plaintiffs contend that the facts adduced at trial created a jury question as to the negligence of defendant, Miller, in proximately causing the injuries sustained by Lafayette Vance.

Only five of the witnesses at trial presented testimony relevant to the issue of liability. None of the witnesses, however, testified to the essential fact that the defendant, Miller, owned or operated a motor vehicle which caused injury to the plaintiff. The plaintiffs failed to introduce evidence establishing the identity of the defendant, Miller, as the operator of any vehicle which caused injury to the plaintiffs. The plaintiffs failed to introduce evidence establishing the identity of the motor vehicle which caused plaintiff’s injury, and the plaintiffs failed to introduce evidence establishing that the defendant owned or operated any motor vehicle which caused damage to the plaintiff. Finally, the plaintiffs failed to introduce evidence establishing that the alleged negligence of the defendant, Miller, was the proximate cause of the plaintiff’s injuries. Consequently, the plaintiffs’ failure to prove elements of their cause of action in negligence required the trial court to direct the verdict in favor of the defendant. See e. g.: Morton v. Insurance Company of North America, 297 So.2d 602, 603 (Fla. 3d DCA 1974); Citizens National Bank of Orlando v. Youngblood, 296 So.2d 92, 94 (Fla. 4th DCA 1974).

The only evidence concerning the actions of defendant, Miller, was presented by her own testimony. Her testimony was not controverted. These facts establish that Mrs. Miller was in the area of the subject accident; her vehicle, however, was not involved in the accident.

The defendant was not speeding. Defendant saw the plaintiff entering a roadway and immediately turned her vehicle to the left and avoided the plaintiff by a wide distance. There were other vehicles following the Miller car, which may well have struck the plaintiff. It cannot be presumed that the defendant’s vehicle struck the plaintiff just because she was sued as a defendant. The law plainly requires that the defendant or defendant’s vehicle be properly identified on the record as the person or vehicle causing damage to the plaintiff, in order to prove a prima facie case of negligence. Lambert v. Travelers Indemnity Co., 42 So.2d 146 (Ct.App.La.1949); Star v. Brumley, 129 Okl. 134, 263 P. 1086 (1928).

This appeal appears to be a case of the first impression in Florida. The appellees present two other jurisdictions, however, that have confronted the issue of whether a directed verdict should be granted when a plaintiff failed to offer evidence identifying the tortfeasor or his vehicle as the proximate cause of the accident. Lambert v. Travelers Indemnity Co., supra; Star v. Brumley, supra. In Lambert and Brumley, none of the parties or witnesses were able to identify the defendant’s vehicle as the vehicle involved in the subject accident. Both the Lambert court and the Brumley court held that where the identity of the motor vehicle involved in an accident is in question, as in the case at bar, the evidence is insufficient to sustain a verdict.

In Brumley, the court predicated its decision and evidence presented at the trial that there were other cars in the vicinity of the accident in addition to the defendant’s vehicle. The court stated:

* * * * * *
“Where * * * the testimony leaves the matter uncertain and shows that any one of several cars driving along the highway may have caused the injury, the court should not permit the jury to guess which one caused the injury * * *”
* * * * * *

The court, in Lambert, supra, held that where the plaintiff shows “a possibility or probability” that the defendant’s vehicle was the one involved in the accident, the plaintiff has failed to meet the burden of proving his case. Id. at 151.

In the case at bar, a finding that the defendant’s negligence in operating her vehicle was the proximate cause of the plaintiff’s injuries would plainly require the stacking of inferences. While negligence may be inferred from known or established facts or circumstances, the ultimate conclusion cannot be conjectured from other inferences. Sirmons v. Pittman, 138 So.2d 765, 770 (Fla. 1st DCA 1962); McCormick Shipping Corp. v. Warner, 129 So.2d 448 (Fla. 3d DCA 1961).

Therefore, the trial court was correct in directing a verdict, and the final judgment under review is affirmed.

Affirmed.

      . The plaintiffs’ witness, a Mrs. Jones, testified that she witnessed an automobile accident involving a boy and a shopping cart at Northwest 27th Avenue and 171st Street on May 1, 1976. After Mrs. Jones saw a car strike the cart, she immediately covered her face, and the driver of her vehicle drove around the accident and left the scene, without stopping. Some two months later, she came forward as a fortuitous witness. Mrs. Jones failed, during her testimony at trial, to describe “the car” allegedly involved in the accident; she further failed to identify or describe the driver of “the car”; and she did not connect the defendant Miller to the accident at issue in any manner.


author: NATHAN, Judge.

text:
    W. G. C., INC., and Guardian Insurance Company, Appellants, v. The MAN CO., etc., et al., Appellees. The MAN CO., etc., et al., Appellants, v. W. G. C., INC., et al., Appellees.
    Nos. 77-2221, 77-2249.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.

      Daniel P. Tunick, Miami, for W. G. C. and Guardian.
    Donald F. Frost, Miami, for The Man Co.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

By these consolidated appeals, both plaintiff/counter-defendants, and defendant/counter-plaintiffs, urge reversal of an order of the trial court which dismissed with prejudice, actions arising from a real estate transaction between the parties. We find that dismissal with prejudice was too harsh a remedy and therefore, we reverse.

The record reveals that both sides failed to comply with an order of the trial court which required that pre-trial catalogues be filed at least ten days prior to trial date. However, such non-compliance is not shown to have been willful nor, more importantly, does either side claim prejudice as a result. Indeed, both sides seek reversal of the order of dismissal.

While it is within the discretion of the trial court to impose sanctions for noncompliance with court orders, the court abused its discretion in dismissing these causes with prejudice where no prejudice was asserted by either side. It was error to condemn the litigants to the loss of their right to access to the courts because of their attorneys’ non-willful' failure to comply with a court order. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978). The other point raised on appeal is deemed to be without merit and will not be discussed.

Reversed and remanded.


author: KEHOE, Judge.

text:
    Dorothy W. WOOLZY and David Woolzy, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, etc., Appellee.
    No. 77-2224.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.

      Nelson & Nelson, Hialeah, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Benjamin Reid, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEAR- . SON and KEHOE, JJ.
   KEHOE, Judge.

Appellants, third party plaintiffs below, bring this appeal from an order dated September 28, 1977, entered by the trial court dismissing with prejudice their third party complaint against appellee, third party defendant below.

Appellants brought an action for a declaratory judgment seeking an adjudication of their rights relating to appellee’s failure to renew a policy of insurance. Thereafter, appellee filed a motion to dismiss which the trial court granted with prejudice. From the trial court’s order granting appellee’s motion, appellants appeal.

Appellants contend that the trial court erred (1) by considering extraneous documents attached to appellee’s motion to dismiss, and (2) by dismissing their third party complaint with prejudice.

Our review of the record shows that the trial court did not consider any “extraneous documents” in ruling on appellee’s motion to dismiss. The trial court did consider certain documents which appellants incorporated into their third party complaint, but pursuant to Florida Rule of Civil Procedure 1.130(b), these documents were properly considered by the trial court as a part of the pleadings.

Further, appellants argue that the trial court improperly made determinations of fact in its ruling. The record shows that the trial court merely interpreted the applicable statute [Section 627.728(12), Florida Statutes (1975)] in conjunction with the facts pleaded. The trial court, in effect, ruled that, even assuming the facts alleged to be true, the statute upon which appellants sued afforded them no relief. This is the appropriate test under Florida Rule of Civil Procedure 1.140(b)(6).

Appellants sought relief below pursuant to Section 627.728(12), Florida Statutes (1975). This Section provides certain guidelines for cancellations and nonrenew-als; however, subsection (12) relates solely to cancellations. The pleadings in this case show that the policy in question was not renewed (as distinguished from being can-celled); accordingly, the trial court ruled that the facts alleged by appellants did not warrant relief under that portion of the statute, i. e., Section 627.728(12), dealing with cancellations. Such a finding went to the statutory basis for the cause of action which appellants attempted to assert. In this posture, we feel that a question of law was presented to the trial court which it properly resolved adverse to appellants. See Fla.R.Civ.P. 1.140(b)(6).

Appellants second point on appeal attacks the trial court’s dismissal of its action with prejudice. Under the circumstances of this case, we believe that the trial court should have granted appellee’s motion to dismiss, but without prejudice.

Accordingly, the order appealed is affirmed, except it is reversed to the extent that it dismissed appellants’ third party complaint with prejudice.

Affirmed in part, reversed in part.


text:
    Myron CORAK, Appellant, v. Roslyn B. CORAK, Appellee.
    No. 77-2245.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Eli Breger, North Miami Beach, for appellant.
    Snyder, Young, Stern, Barrett & Tan-nenbaum, William L. Rogers, North Miami Beach, and George E. Gelb, North Miami Beach, on the brief, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See: Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Koeppel v. Koeppel, 351 So.2d 766 (Fla. 3d DCA 1977); Sharpe v. Sharpe, 202 So.2d 822 (Fla. 2d DCA 1967).


text:
    Mary Louise MAYTAG, Appellant, v. ALFRED D. REID ASSOCIATES, etc., Appellee.
    No. 77-2264.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Earl Faircloth, Fort Lauderdale, for appellant.
    Roger A. Bridges, Coral Gables, for ap-pellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. McNayr v. Cranbrook Investments, Inc., 158 So.2d 129, 131 (Fla.1963); Turner v. Long, 225 So.2d 434 (Fla. 1st DCA 1969); Clutter Construction Co. v. Naples Builders Supply Co., 166 So.2d 813 (Fla. 3d DCA 1964); Lee County Oil Co. v. Marshall, 98 So.2d 510, 512 (Fla. 1st DCA 1957).


text:
    CITY OF HIALEAH, a Municipal Corporation, Appellant, v. CAMA CORPORATION, a Florida Corporation, Appellee.
    No. 77-2265.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.

      Ralph P. Miles, Hialeah, for appellant.
    Allen Kornblum, Hialeah, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The City of Hialeah appeals an order directing it to rezone plaintiff’s property from R-l (single family residence) to a classification no more restrictive than R-3-5 (high density multiple family dwelling).

Plaintiff, Cama Corporation, purchased real property located on the northeast corner of 50th Street and Fourth Avenue in the City of Hialeah. Cama applied to the Hialeah Planning and Zoning Board and thereafter to the City Council to rezone the property from R-l to B-l (restricted retail commercial). The application was denied and Cama filed the instant complaint seeking to require the City to rezone the property. After final hearing, the trial judge made the following findings:

“7. The character of the neighborhood where the property is located has substantially changed since the R-l zoning classification was imposed by the Defendant. The property fronts on á heavily travelled four-lane thoroughfare serving some 15,000 vehicles per day. The property directly to the West of the subject property has been zoned for high density multiple family dwelling (R-3-5) and a 34 unit apartment building has been constructed on that site. The property to the South, both on the East side and West side of East 4th Avenue, is zoned C-l (restricted commercial) and several commercial establishments are in operation on both sides of the street. Directly to the South of the subject property is a late-hour or all-night convenience store.”

and based thereon concluded that the present R-l zoning classification was confiscatory and ordered the City to rezone the property no more restrictive than R-3-5. The City appeals therefrom.

The record amply supports the judge’s conclusion that the R-l classification is confiscatory and no longer fairly debatable. See e.g. Dugan v. City of Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977).

Order affirmed.


text:
    INTERNATIONAL FUNDING CORPORATION, Appellant, v. Harold KRASNER and Pearl Krasner, his wife, Appellees.
    No. 78-273.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.

      Ritter & Ritter, Coral Gables, for appellant.
    Herbert B. Lebovitz, Hollywood, for ap-pellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, International Funding Corporation (IFC), appeals an order dismissing its amended counterclaim for tortious interference with a business relationship in an action for a mortgage foreclosure instituted by plaintiffs, Harold and Pearl Krasner.

IFC executed a $253,000 purchase money second mortgage and note in favor of Harold and Pearl Krasner, and IFC subsequently defaulted on the monthly payments. The Krasners then instituted the instant mortgage foreclosure action against IFC which filed an answer and counterclaim against the Krasners for tortious interference with its business relationships. After the entry of a final judgment of foreclosure in favor of the Krasners, IFC filed an amended counterclaim for tortious interference with a business relationship grounded upon the allegations that the Krasners had orally stated to officials of the Department of Insurance and a newspaper reporter that IFC failed to make the required payments on the note, that the note was in default and IFC was in financial difficulty. The Krasners moved to dismiss this amended counterclaim and after hearing argument of counsel, the court entered an order of dismissal. We affirm.

The elements of the tort of interference with a business relationship are (1) existence of a business relationship under which the claimant has legal rights, (2) intentional and unjustified interference with that relationship by defendant, and (3) damage to the claimant as a result of the breach of the business relationship. See Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971).

After a review of IFC’s amended counterclaim, we conclude that the allegations do not include all the elements of the tort of interference with a business relationship; in particular, the.failure to specifically aver the business relationships of IFC with which the Krasners intentionally and unjustifiably interfered.

Order of dismissal affirmed.


text:
    David Allen FRANK, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1145.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    David Allen Frank, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Sherman L’HOMMEDIEU, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1270.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Sherman L’Hommedieu, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Appellant, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


text:
    Otis Lee JONES, Appellant, v. STATE of Florida, Appellee.
    No. KK-33.
    District Court of Appeal of Florida, First District.
    July 26, 1978.
    Rehearing Denied Aug. 14, 1978.

      Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of an order modifying his probation. Fla.R.App.P. 9.140(b)(1)(C). Appellant, who had been adjudged indigent, was placed on probation for a period of two years commencing January 22, 1976, for the offense of resisting arrest with violence. On January 20, 1978, a Rule to Show Cause was issued asserting that appellant had not conducted himself in accordance with his order of probation in that he had failed to comply with Section 945.30, Florida Statutes (1975), which requires payments by a probationer toward the costs of his supervision. The Rule alleged that appellant was currently in arrears $210.00. Following a hearing on the Rule to Show Cause, the court found that appellant, again adjudged indigent, had violated his probation in a material respect by failing to comply with Section 945.30, Florida Statutes. The court ordered an extension of appellant’s probation for a period of six months and further ordered that appellant spend sixty-two days in the county jail.

Appellant asserts that the court erred in modifying his probation because there was no finding by the court that appellant had the ability to pay the costs. Appellant relies on Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); Gryca v. State, 315 So.2d 221 (Fla. 1st DCA 1975); and Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975).

We agree that these cases indicate that in order for an order of probation requiring payments of costs by a defendant to be enforceable, the court must find that the indigent defendant’s financial condition is such that payment can be made. The record before us does not reveal that this determination was made. Accordingly, it is necessary that this cause be reversed and remanded for a further hearing before the court.

At such hearing, the testimony should establish specifically the financial condition of appellant at the time the probation order was entered. Further, the financial condition of appellant at the present time should be examined. The court should make findings of facts concerning the aforementioned and should specifically determine whether appellant had the ability to pay costs during the probationary period.

Further, we note that Section 945.30, Florida Statutes (1975) provides:

“Anyone on probation . . . shall be required to contribute $10 per month toward the cost of his supervision and rehabilitation beginning 60 days from the date he is free to seek employment.”

This statute also provides that a person may be exempted from the payment of this contribution if certain factors are found to exist, including:

“(1) The offender has diligently attempted, but been unable, to obtain employment which provides him sufficient income to make such payments.
“(6) Other extenuating circumstances, . . ..”

The record herein reveals that appellant failed to make any payments towards costs as required by Section 945.30. However, the Rule to Show Cause for this violation was not issued until a few days prior to the expiration of appellant’s two year probationary period. We believe that after a probationer has missed a few of the payments required by Section 945.30, his probation supervisor should immediately make inquiry into the matter. The probation supervisor should also advise the probationer of the procedures to be utilized to obtain an exemption as set forth in Section 945.30(l)-(6). If the probationer fails to utilize these procedures or continues to fail to make the required payments, the probation supervisor should immediately bring the matter of the alleged violation to the attention of the court through an affidavit of a violation of probation or otherwise, rather than, as here, waiting until almost two years have elapsed before alleging a violation of probation has occurred for this reason.

The order modifying appellant’s probation is reversed and the cause remanded for further proceedings consistent herewith.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


text:
    Lavonia Dewitt HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. II-85.
    District Court of Appeal of Florida, First District.
    July 26, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant pleaded guilty to burglary and was sentenced under Section 948.01(4), Florida Statutes (1975) to three years incarceration, three years suspended, to be followed by three years probation with the special condition thereof that appellant spend four months in the county jail with credit for sixty-three (63) days jail time previously served. Within the probationary period, an affidavit for violation of probation was filed. The court found that appellant had violated his probation, and consequently sentenced appellant to five years imprisonment with credit for sixty-three (63) days previously served.

Upon the revocation of probation, the court was authorized to impose any sentence which might have been originally imposed. State v. Jones, 327 So.2d 18 (Fla.1976). Accordingly, the sentence of five years imprisonment was proper. See Sections 810.02(3), 775.082(3)(d), Florida Statutes (1975). However, the court was required to credit appellant with all time previously served in jail, including that time served as a condition of probation. State v. Jones, supra; DeForest v. State, 356 So.2d 52 (Fla. 1st D.C.A. 1978). Accordingly, the judgment is affirmed and the cause is remanded for proper sentencing. Appellant need not be present for this purpose.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.


text:
    Max J. RASHKIN and Evelyn Rashkin, his wife, Appellants, v. David C. PEARCE, Appellee.
    No. 77-1198.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1978.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Wallis E. Schulle of Simpson, Brodbeck & Schulle, West Palm Beach, for appellee.
   PER CURIAM.

REVERSED on authority of Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla.4th DCA 1977).

DAUKSCH and BERANEK, JJ., and GREEN, OLIVER L., Associate Judge, concur.


author: CROSS, Judge. LETTS and MOORE, Judges,

text:
    Georgia Mae PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1749.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1978.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant, a juvenile, seeks reversal of an adjudication of guilt for the offense of escape and a sentence of confinement for three years. We reverse.

On July 24, 1974 appellant was arrested for certain felonies in Palm Beach County. At the time of her arrest, appellant was seventeen years of age. In due course, appellant was transferred from the custody of the West Palm Beach Police to the juvenile facilities known as the A. G. Holley Girls Detention Center in Lantana, Florida. The following day, July 25,1974, after hearing, the juvenile court entered an order of detention requiring appellant to be maintained under the supervision of the Division of Youth Services at the A. G. Holley Center.

Subsequently, appellant in the company of three other juveniles gained access to the main office at the Center, and thereupon proceeded to release the locking mechanism on the main door. The girls then fled the facility. At trial on the offense of escape, counsel for appellant moved for a judgment of acquittal on the grounds that appellant’s conduct did not constitute the crime of escape as charged in the information. This motion was denied. Subsequently, appellant was found guilty as charged by jury. After receiving a pre-sentence report, the court entered an adjudication of guilt to the crime of escape and sentenced appellant to three years confinement. This appeal then followed.

Recently in the case of In Interest of F. G., a child, 349 So.2d 727 (Fla. 4th DCA 1977), this court determined, in view of the express language of Section 416.06, Florida Statutes, that a juvenile escaping from a county detention home could not be found guilty of the crime of escape under Section 944.40, Florida Statutes.

Appellee points out that since the enactment of Chapter 959, Florida Statutes, such detention homes now fall directly under the authority of the Department of Health and Rehabilitative Services rather than under the auspices of the board of commissioners for the respective counties, as envisioned by Chapter 416, Florida Statutes. Therefore, appellee urges that detention homes now fall within the purview of a state penal institution as that term is set forth in Section 944.40, Florida Statutes.

Appellee is correct in that the Department of Health and Rehabilitative Services now is authorized through its Division of Youth Services to direct the operation of detention services for children in Palm Beach County. See Section 959.022(2)(d), Florida Statutes. However, we are unable to find any evidence to indicate that the legislature intended through the enactment of ch. 959 to bring such detention facilities within the purview of Section 944.40, Florida Statutes. On the contrary, from the tenor of the provisions of ch. 959, it appears that it was the intent of the legislature to maintain the characterization of juvenile detention units as homes, rather than as penal institutions. For example, detention facilities utilized for detention care defined by ch. 959 are divided into two categories, a “secure facility” and a “non-secure facility.” Each is identified as a facility “for the temporary care of children pending adjudication or court disposition.” See Sections 959.001(4), (6), (8) and (9), Florida Statutes. Appellant at the time of her leaving detention was at such a detention facility. We determine that such a juvenile detention facility where juveniles are supervised pending disposition of the matters for which they were taken into custody do not fall within the definition of penal institutions as set forth in Section 944.40, Florida Statutes.

Accordingly, the judgment is reversed with directions to discharge the appellant, Georgia Mae Prince.

Reversed and remanded, with directions.

LETTS and MOORE, Judges,

concurring specially with opinion:

We concur because all criminal statutes must be strictly construed and the wording of the applicable enactments leave us no alternative. However, the common dictionary definition of “detention” reads:

a holding in custody.

Likewise the definition of “escape” is:

a flight from confinement.

From these everyday common sense definitions we deduce that in enacting Section 944.40 the Legislature never intended to exclude those who escape from detention homes. Indeed we perceive no earthly reason why they should be so excluded. The tender years of the escapees may affect the manner of prosecution (or lack of it), the resulting adjudication and the punishment, but murder is ever murder, arson still is arson and escape remains escape. The legislature should correct this obvious failure to consider the effect that Section 416.06 would have upon Section 944.40.

      . Section 416.06, Florida Statutes, provides in relevant part:
      “A detention home shall not be deemed to be, nor treated as a penal institution, but a home.”

      . Section 944.40, Florida Statutes, provides:
      “Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree . . . .”

      . Section 959.022(4), Florida Statutes, provides:
      “Nothing in this section shall be construed to abridge the powers granted local units of government in chapters 39 and 416 and other applicable provisions of law to operate detention programs, except that on the implementation date, the counties within the region where the state has assumed detention services shall lose the statutory authority to provide such services . . . . On said implementation date the statutory authority to provide operation of detention services in that region shall be transferred to and be vested in the department.”


author: TATE, Justice. SANDERS, Chief Justice SUMMERS, Justice MARCUS, Justice

text:
    J. C. BOYER, Plaintiff-Appellant-Relator, v. Joe E. JOHNSON, Defendant-Appellee-Respondent.
    No. 61095.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Bobby L. Culpepper, Baker, Culpepper & Brunson, Jonesboro, for plaintiff-appellant-relator.
    Willie H. Barfoot, West Monroe, for defendant-appellee-respondent.
   TATE, Justice.

The primary issue concerns the liability of an employer for injury sustained by a minor who was employed in violation of child labor laws prohibiting the employment of children as drivers of commercial motor vehicles or for work in connection with power-driven machinery.

Affirming the district court, the intermediate court dismissed this suit by the parent of a 15-year-old boy for his wrongful death when he lost control of a commercial motor vehicle, which he had been employed to drive. 350 So.2d 961 (La.App. 2d Cir. 1977). We granted certiorari, 353 So.2d 1038 (La.1977), to review the court of appeal’s conclusion that the employment of the boy in violation of the statutory prohibition was neither the cause-in-fact nor actionable fault so as to impose liability upon the employer.

The Facts

The plaintiff Boyer sues for damages suffered on account of his son’s death. The boy, Johnny C. Boyer, Jr., age 15, was employed to drive a Volkswagen panel truck to various cities in Louisiana and Mississippi.

The defendant Johnson employed young Boyer after ascertaining that he had a driver’s license. He rode with the boy in the delivery truck for two days to supervise him and observe his ability to drive. In the remaining three days of employment, young Boyer drove the Volkswagen truck to deliver fireworks along Johnson’s sales route, with Johnson preceding him in another delivery vehicle.

On December 2, 1968, the fifth day of his employment, Johnny was driving the van, loaded with fireworks, to make deliveries in several places between Monroe and Jones-boro. He apparently lost control of the vehicle, which skidded along the left shoulder and into a ditch, then struck a tree, killing him. The defendant Johnson at that time had been driving the other vehicle a mile or two ahead and was waiting for Johnny at a store, and the boy was apparently trying to catch up with him.

Basis of Liability

The bases for delictual liability alleged by the plaintiff father are the defendant Johnson’s fault in hiring his son in violation of several child labor laws:

La. R.S. 23:161(10), prohibiting the employment of a minor under eighteen years of age as driver of a motor vehicle used for commercial purposes; La. R.S. 23:163, prohibiting the employment of a minor under sixteen to work in connection with power-driven machinery; La. R.S. 23:161(4), prohibiting the employment of a minor under eighteen to transport explosives; and La. R.S. 23:166, 211.1, prohibiting the employment of a minor between the ages of fourteen and sixteen during school hours without a work certificate evidencing participation in an approved vocational program.

The plaintiff, who is granted a right of action for his son’s wrongful death by Civil Code article 2315, may recover if he can prove that defendant had a duty to observe a certain standard of care toward the boy; that defendant breached his duty by falling below that standard; that the defendant’s breach of duty was a cause-in-fact of the boy’s death; and that the harm which actually occurred—the fatal highway accident—was the sort of harm that the defendant’s legal duty was designed to prevent. Dixie Drive It Yourself System New Orleans, Inc. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

Statutory Intent to Protect Against Risk and Harm Encountered

In enacting the child labor statutes, the legislature imposed on employers certain duties, in order to protect children from their own youth and inexperience and from other risks of employment.

It is not disputed that Johnson had a legal duty not to hire Johnny C. Boyer, Jr., to deliver fireworks in a commercial vehicle. Nor is there any doubt that defendant’s violations of the law, or at least some of them, were causes-in-fact of the fatal accident: Johnny happened to be on the road on this particular day because he had been employed to drive this particular truck to carry fireworks to Jonesboro. That he might have died in some other way, even in some other traffic accident or carrying some other cargo, is irrelevant to the determination of causation of his death as it in fact occurred. Of the four statutory duties violated by the defendant, only the requirement that Johnny not be hired during school hours without a work permit may not have been a necessary antecedent to the accident.

A mere finding of causation in fact, however, does not establish defendant’s liability. Plaintiff can prevail only if the risk of the harm that actually occurred fell within the scope of the duty breached. See Dixie and Laird, cited above.

The court of appeal held correctly that the violations of the fireworks and work permit statutes do not create civil liability for Johnny’s death. The court treated both issues in terms of causation, stating that the work-permit violations “are too remote from the proper sphere of causation,” and that transportation of fireworks “has no direct or indirect relation to the cause of the accident.” 350 So.2d at 963. It would have been enough, however, to conclude that neither statute was intended to guard against the risk of this traffic accident: The work permit provisions are to protect the academic and vocational needs of school-age children, and the fireworks transportation law is to protect them from explosions. This resolution of the duty/risk analysis renders moot the resolution of nice questions of causation. See Laird v. Travelers Indemnity Co., cited above, 267 So.2d at 720.

The court of appeal erred, however, in concluding that defendant's hiring of Johnny to drive the panel truck, in violation of the laws against employing minors to drive commercial vehicles and to operate power-driven machinery, did not impose civil liability for Johnny’s resulting death. The court seemed to acknowledge that “if the deceased had not been driving the van, he would not have been killed” (350 So.2d at 964), but stated that “causation must be more direct and not so remote.” Id.

Despite the adoption by this court of the duty/risk approach to resolution of negligence questions in the 1962 case of Dixie Drive It Yourself System v. American Beverage Company, cited above, one distinguished commentator has noted that intermediate courts “continue to employ causation language to refer to issues other than cause-in-fact, occasionally to the complete detriment of clarity of analysis and correctness of outcome.” Robertson, Reason Versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1, 17-19 (1973).

It is the substance, of course, and not the form in which an analysis is cast, which produces a sound result. It does no harm, for instance, to say that an act is the “legal cause” of a harm if the act falls below a standard of conduct designed to prevent the harm. Yet in this case the excursus into “direct,” “indirect,” and “remote” causation may have diverted the court of appeal from the fundamental inquiry: Did defendant break laws designed to prevent this type of risk and harm?

In finding “that the defendant was void of any actionable substandard conduct,” the court of appeal pointed out that the trial court found Johnny himself negligent in causing the accident; that Johnny had a driver’s license; and that Johnson rode with Johnny for the first two days to observe and supervise his driving.

These observations cannot erase the fact that defendant’s substandard conduct was a cause-in-fact of the accident. They do, however, have their place in the analysis of whether the risk was within the ambit of defendant’s duty: If it could be shown that the standard of care was imposed on defendant only to protect non-negligent children, or those without driver’s licenses, or who drove unobserved and unsupervised, then defendant would prevail. The statutes violated by defendant, however, contained no such express or implied limitations.

What was the purpose of the laws prohibiting Johnson from hiring Johnny to drive a commercial vehicle, or any power-driven machinery? To protect Johnny from accidents which might befall him while operating such machinery, as is most clearly held in the early jurisprudence interpreting and applying these enactments.

Justice Provosty, writing for this court on rehearing in Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916), well before the advent of the duty/risk analysis, seemed to anticipate such an approach when he held an employer who violated a child labor statute liable for injuries sustained by his young employee, without a showing of any further negligence on the employer’s part: “The violation of the child labor law, was, however, negligence on the part of the defendant [employer] . This law is positive in its prohibition of the employment of children; it is absolute in its terms; allows of no exceptions or excuses. . The duty imposed by said statute upon the defendant not to employ a child in a dangerous occupation is thus imposed for the protection of the child . . . .” Id. at 67, 69, 72 So. at 811.

The court of appeal in this case noted the Alexander decision, but relied instead on Jones v. Insurance Company of North America, 303 So.2d 902 (La.App. 1st Cir. 1974), in which a minor was injured while operating a tractor. His employer had hired him in violation of La.R.S. 23:163, the power-driven machinery statute involved in this case.

The Jones court relied solely on Flores v. Steeg Printing & Publishing Co., 142 La. 1068, 78 So. 119 (1918), to derive a set of rules governing minors injured in the course of employment. The first of these rules was that “[p]ersons who employ children in work in or about dangerous machinery, especially where such employment is proscribed by law, must anticipate that children will exercise only such judgment and discretion as will ordinarily be exercised by children of like age under similar circumstances. . . . ” but that the employer may avoid liability by “instructing and informing the child about and against the dangers incident to the employment . . .” 303 So.2d at 909 (emphasis added).

The Jones court erred in inferring such a rule from this court’s decision in Flores. The rule seems accurate enough where there is no statute, or perhaps to supplement an employer’s statutory duty; but “instructing and informing” is no substitute for compliance with the law.

In Flores this court found that the only statute violated by the employer was a statute requiring a work-permit before employment of a minor of fifteen years and older. The statute also prohibited any employment whatsoever of children under fourteen years of age.

The court stated that the enactment had as its object “to guard against the employment of a child under fourteen. It may be presumed that the Legislature felt that children over fourteen were capable of taking care of themselves in ordinary occupations . . . .” 142 La. at 1073, 78 So. at 121.

The statutory duty breached was not intended to protect against the risk of harm to (the death of) the 15-year-old decedent in that case in an industrial accident. Therefore, it was left for the court to examine whether defendant had discharged his non-statutory duty to exercise due care in instructing and warning the decedent.

The Flores case does not stand for the proposition that a court will substitute its own idea of the proper standard of care for a standard set by the legislature. In Flores, for example, the court’s analysis would have imposed liability upon the employer if the injured minor had been fourteen years of age and thus employed in violation of a statute prohibiting such employment and designed to protect fourteen year olds from the risk of harm through industrial injury. To the extent Jones conveys a contrary impression, it is overruled.

“Negligence Per Se

In holding the defendant civilly liable for his breach of a duty created by a criminal statute, we do not intend to revive the doctrine of “negligence per se.” A violation of a criminal statute does not automatically create liability in a particular civil case, because the statute may have been designed to protect someone other than the plaintiff, or to protect the plaintiff from some evil other than the injury for which recovery is sought. Laird v. Travelers Insurance Company, cited above; Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30 (La.1973).

In this sense, criminal statutes can be said to be mere guidelines for the court. Similarly, a criminal law designed to protect one person from one harm may be thus used by the court as a starting-point toward fashioning an analogical standard of conduct of due care to protect other persons subjected to generically similar risks.

Yet, where a criminal statute imposes a duty designed to protect a particular person from a particular type of injury, one who has so injured such a person by a breach of the prescribed duty cannot evade civil liability by persuading the court to disregard the clear legislative prohibition as if it were a mere discretionary “guideline.”

A Minor’s Contributory Negligence

Another of the rules stated in Jones to be derived from Flores was that “[i]n the absence of a statutory provision expressly or impliedly depriving an employer of the right to plead contributory negligence or assumption of the risk against a minor seeking damages for injuries sustained in the course of the employment, an employer may assert such defenses . . . .” 303 So.2d at 909. Since in the Jones case the court found the employer not to be negligent, it did not reach the question of contributory negligence.

The rule, as stated, may be accurate where the risk of harm encountered by the minor is not the risk of harm the statute was designed to prevent. Nevertheless, where the purpose of a statute is to protect the minor against the risk of his own negligence (as here, where the statute absolutely prohibits the employment of a minor below a certain age in work connected with power-driven machinery or in driving a commercial vehicle), the general rule is that the minor’s contributory negligence or assumption of risk will not defeat recovery for his injury or death, the very risk and harm the statute was designed to prevent. Restatement of Torts, 2d, Section 483, Comments e and f (1965); Prosser on Torts 425-26, 528 (1971); Note, 20 La.L.Rev. 796 (1960).

The defendant in this case, who violated laws which sought precisely to protect Johnny from his own youth, inexperience, and relative lack of judgment, cannot be heard to assert that these very defects in Johnny’s character caused the accident. His death, while driving a loaded delivery truck on a long-distance journey, apparently from his own inability to handle the vehicle, was one of the evils the legislature was trying to avoid by forbidding Johnson to hire the boy.

Our decision today is not inconsistent with the prior jurisprudence of this court. In Darsam v. Kohlmann, 123 La. 164, 48 So. 781 (1909), the most nearly contrary decision, we applied the law of contributory negligence only after finding the employer’s violation of the child labor laws not to be the “proximate cause” of his employee’s injuries. The Darsam court drew a distinction between employees who were injured “in the actual discharge of the duties for which they were employed in violation of prohibitory statutes, and hence sustained their injuries by reason of such employment” (without reference to any contributory negligence), and those whose negligence was in performing acts outside the scope of their employment (where contributory negligence might bar recovery). 123 La. at 172, 48 So. at 784.

In the Alexander case, cited above, Justice Provosty noted that Darsam had not dealt with the question whether an employer violating a child labor law may plead his employee’s contributory negligence which occurred in the scope of his assigned duties, and said the question was “an open one in our jurisprudence.” 140 La. at 68, 72 So. at 811. And in the Flores case, cited above, this court recognized that where a law absolutely prohibits the employment of certain minors in certain occupations, “[t]he reason for the prohibition is presumed to be that . . . [they] are incapable of taking care of themselves, and it might be illogical to hold them responsible for their negligence in the event of an accident.” 142 La. at 1073, 78 So.2d at 121.

Other Defense Contentions

Johnny’s possession of a valid driver’s license does not excuse defendant’s breach of duty. That Johnny could have died in some other automobile accident is, as we have shown, irrelevant to causation in fact; and it is relevant to the duty/risk analysis only insofar as it might illuminate legislative intent in prohibiting the boy’s employment to drive a commercial vehicle.

The legislature might have decided to permit a fifteen-year-old to drive a private car for private purposes, but not to be employed to drive a commercial vehicle, for any number of sensible reasons. A professional driver might be required to drive longer distances, for greater periods of time, in larger and more unwieldy vehicles, under conditions dictated by the terms of his employment rather than by his own desires or capabilities.

In this case, Johnny was driving a Volkswagen panel truck on a state highway, some fifty miles from home, and had apparently driven several hundred miles in the five days he worked for Johnson. Even if the facts were not so strong, however, we would be forced to conclude that the legislature is free to set one standard for parents and for the state, another for-employers, provided, at least, there is (as here) a rational basis for the difference.

Likewise, the defendant’s own supervision of Johnny, and his determination that the boy was a competent driver, are irrelevant in the face of the statutory prohibition against the boy’s employment.

In the absence of a law prohibiting the youth’s employment to drive under any circumstances, it would be proper for the court to look to such actions as evidence of the employer’s due care. But where the legislature has indicated that no amount of supervision, instruction, and observation is sufficient to avoid the prohibition, we will not substitute our own opinions — or allow the defendant to substitute his own estimates of the child’s competence and maturity — for those of the legislature.

This is particularly true where the purpose of the legislative rule is to protect children. The legislature may prefer to err on the safe side. Here the legislature, proceeding from generalized facts about fifteen-year-old boys, assessed Johnny’s qualifications as a professional truck driver more accurately than Mr. Johnson did in his two days of observation; and tragically so.

Finally, the defendant argues that while his statutory duty may have been for the protection of the child, it was not for the protection of the child’s father. The defendant cites the Alexander case, cited above, for this proposition.

Alexander, however, rejected only a mother’s claim for her own expenses and mental anguish, where her son did not die from his injuries, and where she had consented to his illegal employment (unlike the present father).

The wrongful death provisions of Civil Code article 2315 give parents a right to claim damages for the death of their children. Where a statute is designed to protect a child from the risk of a certain injury, it should be read with article 2315 to protect his parents from the risk that their child will die from the same injury.

Decree

The judgments of the district court and the court of appeal in favor of defendant Joe E. Johnson and against plaintiff J. C. Boyer are reversed. The case is remanded to the Court of Appeal, Second Circuit, in order that it may fix the damages to which plaintiff is entitled and render judgment for such sums against the defendant. All costs are taxed against the defendant.

REVERSED AND REMANDED.

SANDERS, C. J., dissents and assigns reasons.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

SANDERS, Chief Justice

(dissenting).

In this scholarly opinion, the majority imposes liability upon the employer for the death of a young motor vehicle operator. Although I agree with the legal approach used to resolve the issues, I disagree with the result.

The plaintiff, Boyer, is the father of a young boy killed in a motor vehicle accident. Plaintiff and the mother were divorced, and both had remarried. The mother had custody of the son.

In November, 1968, the boy’s stepfather, with the mother’s approval, arranged for his employment by the defendant, Joe E. Johnson, who had a small toy and novelty business in the City of Monroe and needed temporary help during the Christmas season. At the time of his employment, young Boyer was almost sixteen years of age. He had a driver’s license, which he exhibited to Johnson, and Johnson was informed that the boy had a work permit issued in connection with previous employment. The boy was no longer attending school.

The first two days he worked, young Boyer drove a new Volkswagen van used in the business. He was accompanied on those occasions by his employer who observed and supervised his driving. On these trips, Johnson cautioned him to drive carefully. Johnson was satisfied that he was a good and careful driver. The next two days young Boyer drove the van, either preceding or following his employer’s vehicle.

On the morning of December 2, 1968, the fifth day of his employment, young Boyer was following Johnson on a trip from Monroe to Jonesboro. Near Jonesboro, young Boyer lost control of the van, crossed over to the opposite side of the highway, ran along the shoulder of the road, plunged off of the highway through a ditch and crashed into a tree. No other vehicles were involved; there were no eyewitnesses to the accident. No mechanical defects in the vehicle were proved. As a result of the collision young Boyer was fatally injured.

Since his death, the boy’s mother has been receiving workmen’s compensation benefits from his employer. In this suit, the father seeks damages, based on a violation of the child labor laws.

The majority identifies four such statutes: LSA-R.S. 23:161(10), prohibiting the employment of a minor under eighteen years of age as a driver of a motor vehicle used for commercial purposes; LSA-R.S. 23:163, prohibiting the employment of a minor under sixteen to work in connection with power-driven machinery; LSA-R.S. 23:161(4), prohibiting the employment of a minor under eighteen to transport explosives; LSA-R.S. 23:166 and 23:211.1, prohibiting the employment of a minor between the ages of fourteen and sixteen without a work certificate evidencing participation in an approved vocational program.

Two of these statutes can be quickly eliminated as a basis of liability. LSA-R.S. 23:166 and 23:211.1, prohibiting employment during school hours without a proper work certificate were obviously designed to prevent interference with a child’s education and not to promote safety. Picou v. J. B. Luke’s Sons, 204 La. 881, 16 So.2d 466 (1943); 6 La.L.Rev. 209.

LSA-R.S. 23:161(4), prohibiting the employment of a minor to transport explosives, was obviously designed to restrict employment creating a risk of explosion. Since no explosion occurred here, it has no relevance to the instant case.

LSA-R.S. 23:163, prohibiting the employment of a minor “In, about, or in connection with power-driven machinery” is of doubtful relevance.

The remaining statute, LSA-R.S. 23:161(10), prohibits the employment of any minor under the age of eighteen as a driver of a motor vehicle used for commercial purposes. This statute raises the serious issue in the case.

There can be no doubt that the conduct of defendant in employing the minor to drive the delivery truck was a factual cause of his death. The “but for” test is appropriate here. But for his employment he would not have been injured. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), and the authorities cited.

The existence of factual causation, however, does not of itself produce liability. Before liability can be imposed, it must appear that the statutory duty of LSA-R.S. 23:161(10) is one that the Court should adopt as a basis of civil liability in favor of a parent.

The statute, itself, does not provide for civil liability. Criminal penalties are provided. See LSA-R.S. 23:231. In LSA-R.S. 23:152, the statute deals specifically with enforcement. It provides:

“The commissioner of labor or his authorized representatives shall visit and inspect at all reasonable times, and as often as possible, all places where minors are employed; they shall have access to the age and employment certificates kept on file by the employer as well as to all other records which may aid in the enforcement of this Part. The commissioner shall institute judicial proceedings to enforce the provisions of this Part, and the district attorney shall prosecute.”

By restricting action to the commissioner and the district attorney, this language can be reasonably construed to exclude civil liability. If so, this provision alone is a bar to recovery in this case. See Restatement of Torts 2d, § 287. Assuming, however, that the language was not intended to exclude civil liability, the Court is not compelled to accept the statute as a standard of conduct for civil liability in favor of the parents. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Restatement of Torts 2d, § 286, Comment d.

In Pierre v. Allstate Insurance Company, supra, this Court stated:

“Criminal statutes are not, in and of themselves, definitive of civil liability. They are, however, guidelines to which a court may resort to establish the proper standard of care for assigning civil liability. Criminal statutes do not set forth the civil rule; it is the court which by analogy must determine whether the statutes can define the rule to be applied in civil cases.”

In considering the discretionary use of the statute here, the key question is whether or not it was enacted to protect parents, as a class, from the loss of their children by accidental injury. I think not.

There is nothing in the content or history of the statute to suggest that such protection was contemplated. The early decision of this Court in Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916) dealt with this question. There the Court held:

“The duty imposed by said statute upon the defendant not to employ a child in a dangerous occupation is thus imposed for the protection of the child and in his interest and that of society in general, not in the interest of the parent of the child. The defendant owed no duty therefore to the mother of the child, and has been guilty of no fault toward her which could serve as a basis on her part for a claim of damages.”

See also Bagesse v. Thistlewaite Lumber Co. Limited, 12 La.App. 453, 125 So. 322 (1929).

The language of the Court in Alexander v. Standard Oil Company of Louisiana, supra, is imprecise. The thrust of the holding, however, is that the statute should not be used as a basis of civil liability in favor of parents. Parents do not constitute a class of persons protected by the statute. In effect, this preclusion applies to all damages for which the parents may sue, even the pain and suffering of the deceased child. See Bagesse v. Thistlewaite Lumber Co. Limited, supra.

I have been unable to find any decision in Louisiana allowing parents to recover for the death of a child based on a child labor law violation since the Alexander decision. I agree with the holding that the child labor statute is not a proper basis for civil liability to the parents.

It can be argued, of course, that it is inconsistent to allow a living child to recover for injuries, as the Court did in Alexander, and not allow the parents to recover for accidental death. The question of liability to a living child, however, is not before us at this time. I express no opinion as to this question.

In conclusion, I note that, though the Court speaks in terms of negligence, the effect of the holding is to impose strict liability. The employer is liable solely because of the statutory violation. Good faith, lack of knowledge, and due care are immaterial. Contributory negligence is not a defense. This harsh result should be reached only if there is an overriding objective, such as the enforcement of the statute. I find no higher objective to justify the result.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

Plaintiff J. C. Boyer instituted this suit claiming damages for the wrongful death of his minor son J. C. Boyer, Jr. Plaintiff and the boy’s mother had been divorced and both remarried. The mother had custody of the young boy at the time of his death.

In late November 1968 the boy’s stepfather, with the mother’s knowledge and acquiescence, arranged for his employment by the defendant Joe E. Johnson, who had a small toy and novelty business in the city of Monroe and needed temporary help during the Christmas season. At the time of his employment young Boyer was almost sixteen years old. He had a driver’s license, which he exhibited to Johnson, and Johnson was told that the boy had a work permit which had been issued to him in connection with previous employment. The boy was no longer attending school, having been told that he could learn more by working.

The first two days he worked young Boyer drove a new Volkswagen van used in the business. He was accompanied on those occasions by his employer who observed and supervised his driving. On these trips he was admonished to drive carefully. Johnson was satisfied that he was a good and careful driver. The next two days young Boyer drove the van and either followed or preceded Johnson, who drove another vehicle.

On the morning of December 2, 1968, the fifth day of his employment, young Boyer was following Johnson on a trip from Monroe to Jonesboro. At a point 6.9 miles from the city of Jonesboro young Boyer lost control of the van, crossed over to the opposite side of the highway, ran along the shoulder of the road for 55 feet, plunged off of the highway through a ditch and crashed into a tree. No other vehicles were involved and there were no eyewitnesses to the accident. There were no indications of road or obvious mechanical defects. As a result of the collision young Boyer was fatally injured. One hour later he was pronounced dead upon arrival at the Jackson Parish Hospital.

Since his death, the boy’s mother has been receiving workmen’s compensation benefits from his employer. This tort suit by the father resulted in a judgment in favor of the defendant, dismissing plaintiff’s suit at his cost. On appeal to the Second Circuit, the judgment was affirmed. 350 So.2d 961. Certiorari was granted on plaintiff’s application. 353 So.2d 1038.

In this Court plaintiff relies upon Sections 161(10) and 163 of Title 23 of the Revised Statutes. As it read at the time of this accident Section 161(10) provided in pertinent part that “No minor under the age of eighteen years . . . shall be employed, permitted or suffered to work . [a]s driver or helper of any motor vehicle used for commercial or industrial purposes '. . . .” Section 163 pertinently provided at that time that “No minor under the age of sixteen years shall be employed, permitted or suffered to work . [i]n, about, or in connection with power-driven machinery . . . .” Pines and imprisonments are prescribed for violations of these statutes.

It is the plaintiff’s contention that when a minor suffers an injury in the course of his employment when he has been employed in direct contravention of these statutory prohibitions, the employer is liable for the damages resulting from injury to the minor.

This Court decided in 1909 that the violation by an employer of the provisions of a statute regulating the employment of minors is negligence per se, and actionable, if injuries are sustained by the minor in consequence thereof.

Employing a child in violation of such statutes was recognized to be evidence of negligence in case the child is injured in the course of his employment, because enactment of such a statute indicates a legislative decision that children are unfit to be so employed by reason of their immaturity and indiscretion. It is the detriment to the child that such a statute aims to avoid. It does not purport to impose civil liability upon the employer. These enactments are promulgated in the interest of the child and society in general, not in the interest of the parent of the child.

In so deciding, the Court recognized that statutes regulating the employment of minors were not to be so construed as to abrogate the ordinary rules relating to contributory negligence. Contributory negligence was held to be available as a defense, notwithstanding the statute, unless the statute is so worded as to leave no doubt that such a defense is to be excluded. The rationale of this pronouncement is that an employer’s breach of a duty imposed by statute does not relieve the minor of the obligation to exercise due care. Darsam v. Kohlmann, 123 La. 164, 48 So. 781 (1909). See also Flores v. Steeg Printing & Publishing Co., 142 La. 1068, 78 So. 119 (1918); Jones v. Insurance Company of North America, 303 So.2d 902 (La.App.1974).

To these propositions was added still another factor to be considered in determining the employer’s liability. In Alexander v. Standard Oil Co. of Louisiana, 140 La. 54, 72 So. 806 (1916), the Court approved the doctrine that injury to the child in these cases is actionable only when it has been the natural, probable, or proximate consequence of the employment. Alexander also stands for the proposition that a mother who consents to the employment of a minor child contrary to law, is also at fault and cannot recover damages due to her because of the child’s injury in the course of his employment. Her disregard of the statutory prohibition against employing minors is the basis of her fault. As custodian of the child, her consent would affect any claim she might assert. The effect of her consent upon the father’s claim is real. She, as custodian, was vested with the right to grant permission for the son to work. When the father lost custody his right to control his son’s activity was abrogated and transferred to the custodian. He was thereafter bound by the consent the custodian gave to the son’s employment. This result not only follows from the law, but it is a result dictated by justice. According to the mother, the plaintiff’s father never visited the child, and by his own admission the father made no contribution to the son’s maintenance and support.

Significantly, the statute under consideration does not contain a single expression permitting the inference that the legislature intended to make the employer an insurer of the child against accidents caused by his own negligence.

Legislation in this State permits a child to obtain a driver’s license and drive on the streets and highways of this State at the age of fifteen. A course of instruction and a knowledge of fundamental safety precautions and driving skills are required. La. Rev.Stat. 32:408. From this it may be inferred that children over fifteen were deemed capable of taking care of themselves while driving under ordinary circumstances. A further extension of this logic would hold them responsible for the exercise of due care, failing in which they would be charged with contributory negligence.

On the basis of the foregoing principles the judgment of the District Court and Court of Appeal should be affirmed.

Other than the negligence imputed to him by employing the minor, the employer Johnson was guilty of no fault. He ascertained that the minor had a driver’s license and employed him with the consent of the child’s mother, the boy’s custodian, having been told that a work permit had been issued to the boy. When he began work, the boy was personally supervised by Johnson who observed his ability to drive, at the same time cautioning him to drive carefully. Johnson considered him to be a “good driver”. Thereafter young Boyer drove only in the company of Johnson, either following or preceding him to and from their destination. A new Volkswagen van, free of defects, was furnished to young Boyer to operate. It had been driven only 500 miles. On the day of the trip to Jones-boro, Johnson was preceding young Boyer and was unaware of the accident until the Volkswagen failed to reach Jonesboro time-

!y-

A highway patrolman appeared at the scene immediately after the fatal accident and conducted an investigation. His report was introduced in evidence by stipulation of both parties. The investigating officer was of the opinion “that this accident occurred because the operator lost control of his vehicle.” He was further of the opinion that “[r]oad defects did not contribute to this accident.” Physical facts referred to in the report fully substantiate this conclusion. As already noted there was no evidence of mechanical defects in the new van. Thus it is evident from the circumstances and reasonable inferences that young Boyer was inattentive and careless in the operation of the van. His failure to exercise due care was contributory negligence which bars recovery for his injury and death. Nothing in this record indicates that Johnson’s employment of young Boyer was the proximate cause of the accident.

I would uphold the District Court and the Court of Appeal.

MARCUS, Justice

(dissenting).

Under the facts of this case, I do not consider that the violation of the criminal statute pertinent to this case imposes civil liability on defendant in favor of a parent of the deceased boy for his wrongful death. Accordingly, I respectfully dissent.

      . The defendant Johnson was the president, manager, and sole-salaried employee of a small family corporation, Johnson’s Toy & Novelty Co., Johnny’s nominal employer. Johnson personally hired and supervised Johnny and knew that he was a 15-year-old minor.
      Neither pleadings nor briefs raise any issue that the corporation’s liability for workmen’s compensation excludes not only its tort liability, La. R.S. 23:1101, but also the tort liability of its president-manager for his personal fault.
      Prior to Act 147 of 1976, an officer or agent of the employer corporation could be held liable in tort for his own personal fault, notwithstanding the employer’s immunity. La. R.S. 23:1101 (prior to 1976 amendment); Canter v. Koehring Co., 283 So.2d 716 (La.1973). Johnson is being sued for his own personal fault in disregarding the child labor statutes, not for imputed or vicarious negligence; whatever his relationship to the employer corporation, he is a distinct person and may be sued as such for his own fault, which occurred prior to the effective date of Act 147 of 1976.

      . Although the precise point before us is a matter of first impression in this court, the overwhelming majority of courts in other states which have ruled on the question have rejected the employer’s plea of contributory negligence, since to do otherwise would undermine the purpose of the child labor laws. See, e. g., Boyles v. Hamilton, 235 Cal.App.2d 492, 45 Cal.Rptr. 399 (1965); Dusha v. Virginia & Rainy Lake Co., 145 Minn. 171, 176 N.W. 482 (1920); Vincent v. Riggi & Sons, Inc., 30 N.Y.2d 406, 334 N.Y.S.2d 380, 285 N.E.2d 689 (1972); Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 A. 642 (1907); Schilly v. Baker, 184 Tenn. 654, 202 S.W.2d 348 (1947); Smith v. Uffelman, 509 S.W.2d 229 (Tenn.App.1974); Pitzer v. M. D. Tomkies & Sons, 136 W.Va. 268, 67 S.E.2d 437 (1951). See also Terry Dairy Co. v. Nalley, 146 Ark. 448, 225 S.W. 887 (1920) (dictum); Frazey v. Hoar, 208 Kan. 519, 492 P.2d 1316 (1972) (dictum).

      . If an accident was not caused by the minor’s negligence, but entirely by the independent act of a third party, a defendant would presumably disclaim liability on the ground that the harm which occurred was not one the child labor statute was designed to prevent, since drivers of any age are equally vulnerable to such external forces. Whatever the merits of such an argument, the issue is not before us under the present facts.

      . The minor was employed to work at a safe place on moss gin premises, separated by a partition from moving machinery. In violation of instructions and of his employment duties, he went beyond the partition and was injured. We might disagree with the Darsam court that the additional risk was not within the statutory protection; however, as noted in the text above, the decision does not disagree with the principle that the employer would be liable if the minor was injured by the risk prohibited by the statute, as here.

      . But see Jones v. Insurance Company of North America, La.App., 303 So.2d 902 (1974) cert. denied Feb. 7, 1975.


text:
    Elton Ray WHITE, Individually, etc., et al. v. Ernest M. LEGENDRE, Individually, etc., et al.
    No. 62515.
    Supreme Court of Louisiana.
    July 3, 1968.
   In re: Bobbye E. Holland and State Farm Fire and Casualty Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 652.

Writ denied.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Ray T. WOODALL, Jr.
    No. 62466.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Ray T. Woodall, Jr., applying writ of certiorari, prohibition and mandamus. Orleans Parish.

Writ granted in part; denied in part. Relator granted permission to machine copies of public records.

SUMMERS, J.,

dissents from this grant. The trial judge’s letter of March 9, 1978 declared that applicant’s pro se motions would not be considered as long as he was represented by counsel.


text:
    STATE of Louisiana v. Patrick R. FOGARTY.
    No. 62481.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Patrick R. Fogarty, applying for writ of mandamus. Orleans Parish.

Writ granted in part, denied in part. Brief submitted on behalf of applicant is herewith being furnished applicant; in other respects the application is denied.


text:
    Clifton STAPLETON v. TRAVELERS INSURANCE COMPANY.
    No. 62517.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Travelers Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of LaSalle. 359 So.2d 1051.

Writ denied.


text:
    James B. SLATER, Jr. v. VICTORIA FONTENOT SLATER.
    No. 62520.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Victoria Fontenot Slater, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides.

Writ denied.

DIXON, J., would grant the writ.


text:
    James B. LOFTON v. S. H. CADE et al.
    No. 62523.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Michael R. Mitchell and Herman Wood Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 359 So.2d 1074.

Writ denied.


text:
    Gail M. BAPTISTE, Diane Shields, Annie Brown, Individually and on Behalf of the Estate of her Minor Child, Amerales Brown, and Julia Green v. Daniel WASHINGTON and New Orleans Public Service, Inc.
    No. 62530.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: New Orleans Public Service, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans (9052-9055). 359 So.2d 1122.

Writ denied.


text:
    Lloyd ROMERO et al. v. Clyde STEPHENS et al.
    No. 62534.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Lloyd Romero and Glenn Cudd, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 359 So.2d 1061.

Writ denied.

DIXON and CALOGERO, JJ., would grant the writ.


text:
    Gerard HANLON v. SLINE INDUSTRIAL PAINTERS, INC., and Liberty Mutual Insurance Company, and PPG Industries, Inc.
    No. 62535.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: PPG Industries, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 358 So.2d 700.

Writ denied. We cannot say the result is incorrect, without necessarily subscribing to the reasons.


text:
    Clifford DAIGREPONT v. James W. WELCH, Jr., et al.
    No. 62537.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Clifford Daigrepont applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 358 So.2d 1302.

Writ denied.


text:
    Aaron Lester SARPY v. Theresa Locicero SARPY.
    No. 62544.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Aaron Lester Sarpy applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 359 So.2d 750.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Mrs. Levy HANKS v. DRS. RANSON, SWAN AND BURCH, LTD., et al.
    No. 62494.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Mrs. Levy Hanks applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 359 So.2d 1089.

Writ denied.

DIXON, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Succession of Mrs. Augusta Leland, wife of George Evans BURGESS.
    No. 62420.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: George E. Burgess, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 323 So.2d 914.

Writ denied.


text:
    Leo ANDING et ux. v. SOUTHWESTERN INSURANCE COMPANY et al.
    No. 62239.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Leo Anding and Ora Mae Anding applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vernon. 358 So.2d 690.

Writ denied.


text:
    Stanley J. SMITH v. DELTA EXPRESS, INC.
    No. 62529.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Stanley J. Smith, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 359 So.2d 1066.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Darlene ROBERTSON.
    No. 61751.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Darlene Robertson applying for writs of review. Ouachita Parish.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable John R. Joyce Judge of the Fourth Judicial District, Court for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 17th day of July, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.

Argument is especially requested- as to Assignments 11 and 12 (Criminal mischief).


text:
    Mary Ellen Sheehan PEREZ v. Chalin O. PEREZ.
    No. 62511.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Chalin O. Perez applying for remedial writ of review and stay order. Parish of Orleans. 359 So.2d 1136.

Denied.

SUMMERS, J., would grant the writ.


text:
    Henry Newton WRIGHT, Jr. v. LIBERTY MUTUAL INSURANCE COMPANY.
    No. 62513.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Henry Newton Wright, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 357 So.2d 1213.

Writ denied.


text:
    STATE of Louisiana v. John Norman KENT.
    No. 62093.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: John Norman Kent, applying for writs of review, prohibition and/or mandamus. Parish of East Baton Rouge.

Writ granted. The ruling on the motion to suppress is reversed. The case is remanded for further proceedings in the light of In re Dino, La., 359 So.2d 586.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.


text:
    STATE of Louisiana v. Barney SMITH.
    No. 62506.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs. Parish of East Baton Rouge.

Writ granted. The ruling of the trial judge is reversed, the motion to suppress is overruled, and the case is remanded to the district court for further proceedings.

SUMMERS, DIXON and CALOGERO, JJ., would grant, schedule the case for a hearing and render an opinion.


text:
    STATE of Louisiana v. Margie L. MEEKS.
    No. 62548.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Margie L. Meeks, applying for remedial writs of certiorari, prohibition, mandamus and a stay order. Parish of Vernon.

Granted. The case is remanded to the trial court to permit relator to refute the content of those portions of the presentence investigation as recited by the trial judge at the time of sentencing. The sentence heretofore imposed is set aside and defendant is to be resentenced in the light of the hearing on remand.


text:
    STATE of Louisiana v. Gerald PARKER.
    No. 62561.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Gerald Parker applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ granted. It is ordered that relator be furnished with a transcript of any of the proceedings in this matter with leave to file additional assignments of error with the trial court for review by this Court.


author: TATE, J.,

text:
    Bertha J. McPHERSON et al. v. CATAHOULA PARISH POLICE JURY.
    No. 62518.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Bertha J. McPherson, Marjorie White Book, A. V. Parker, Jack T. White, W. E. “J. R.” White and Herman R. White, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Catahoula. 358 So.2d 685.

Writ denied.

SANDERS, C. J., and SUMMERS and TATE, JJ., would grant the writ.

TATE, J.,

dissents. Hornsby v. Department of Highways, 241 La. 989, 132 So.2d 871 (1961), was incorrectly decided and should be overruled. See Hebert v. T. L. James, 224 La. 498, 70 So.2d 102 (1954). See also Louisiana Constitution of 1974, Article 1, Section 4.


text:
    STATE of Louisiana in the interest of Leander JONES.
    No. 62048.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Leander Jones applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 357 So.2d 636.

Writ granted. Judgment of Court of Appeal is reversed and case is remanded to Court of Appeal for reconsideration in light of State v. Dino, La., 359 So.2d 586.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.