author: PER CURIAM. MAGER, Judge

text:
    Edgar H. GALVIN and Ruth E. Galvin, Appellants, v. D. B. TYLER & ASSOCIATES, INC., a Florida Corporation, Appellee.
    No. 75-704.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 1976.
    David L. Kline, of Abrams, Anton, Robbins, Resnick & Schneider, P. A., Hallan-dale, for appellants.
    Fred J. Ward, of Crouch, Ward & Af-ricano, P. A., Hallandale, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, J., and BASKIN, NATALIE, Associate Judge, concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

With all due respect to my colleagues, I must respectfully dissent because, in my view, the evidence does not as a matter of law support plaintiff’s entitlement to a brokerage commission.

As a general proposition a broker cannot recover for services unless they were rendered at the express or implied request of the employer. 5 Fla.Jur. Brokers, § 32. In the instant case there was no express request or written contract; instead the plaintiff-broker relied upon what appears to have been services rendered as a volunteer.

It is clear from the record below that the defendants-sellers’ property was not listed for sale. The prospective purchaser saw the home, knocked on the door and finding no answer contacted a broker (plaintiff) whose sign was displayed on other homes in the area. The broker brought the prospective purchaser to the defendants’ home. Defendants later sold their home to these purchasers.

It may be said that in the absence of an express or written contract a broker would be entitled to a commission where the broker is the procuring cause of the sale or transaction; and the determination of whether a broker was the procuring cause is dependent upon the facts and circumstances of the particular case. Fla.Jur., Brokers, § 45. As the cited treatise points out, a typical instance where the applicability of the so-called “procuring cause doctrine” may arise is where a broker calls a purchaser’s attention to the property and start's a negotiation but the sale is ultimately consummated by the vendor himself or through some other broker. 5 Fla.Jur., supra, sec. 45. As heretofore indicated, the broker did not call the purchaser’s attention to the subject property.

In 12 Am.Jur., Brokers, § 159, the following pertinent statements are set forth:

“In order to raise an implied contract to pay a broker for services rendered in procuring a purchaser for property, the services must have been performed under such circumstances as to give the recipient thereof some reason to think they are not gratuitous and not performed for some other person, but with the expectation of compensation from the recipient, and, furthermore, they must have been beneficial to the person sought to be made liable. The owner must say or do something tending to prove that he accepted the broker as his agent in the matter — something more than merely selling to the party whom the broker, while acting as a volunteer, brought to him. His mere consent to the rendition of unsolicited services in effecting a sale of his property is not sufficient to justify the inference that he intends to enter into contractual relations with the broker and to pay him for his services.
“ * * * * The mere introduction or seeking of an introduction to another by a broker is not legally the equivalent of employing him to sell the property, and where there is nothing more in his favor, that incident will be regarded as voluntary and insufficient to entitle him to a commission. . . .”

In my humble opinion the evidence in the record does not as a matter of law support the finding of an implied contract on the basis of the defendants’ mere acquiescence nor does the evidence as a matter of law demonstrate that the plaintiff-broker was the procuring cause of the sale or transaction. See City Builders’ Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77 (1925). Accordingly and with all due respect and admiration for the learned trial judge below, it is my opinion that the final judgment should be reversed and that judgment should be entered in favor of the defendants.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ramon RIVIERA, Appellant, v. RURAL MUTUAL INSURANCE COMPANY, a corporation, and William Martin Hagood, Appellees.
    No. 75-90.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1976.
    Rehearing Denied March 8, 1976.
    John B. Cechman, of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Patrick E. Geraghty, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   PER CURIAM.

This case at first gave us pause; but after having carefully considered the merits hereof and having meticulously reviewed the record herein, we conclude that no prejudicial error has been made clearly to appear. Accordingly, the judgment appealed from should be, and it is hereby, affirmed.

McNULTY, C. J., ad HOBSON and GRIMES, JJ., concur.


text:
    Dianne LaFLEUR and Edward LaFleur, Appellants, v. CASTLEWOOD INTERNATIONAL CORP., d/b/a Big Daddy’s Imperial Lounge, et al., Appellees.
    No. 73-808.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1976.
    Sepler & Sussman and Irma V. Hernandez, Hialeah, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on March 26, 1974 (294 So.2d 21) reversing the order of the Circuit Court for Dade County, Florida, in the above styled cause; and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed October 29, 1975 (322 So.2d 520) and mandate now lodged in this court quashed this court’s judgment and remanded the cause with directions;

Now, Therefore, It is Ordered that the mandate of this court heretofore issued in this cause on May 20, 1974 is withdrawn, the judgment of this court filed March 26, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the trial court for a new trial on the issue of punitive damages hereby sought to be reviewed is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


text:
    AB CTC, a Swedish Corporation, Appellant, v. Victoria MOREJON, Appellee.
    No. 74-422.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1976.
    Yelen & Yelen, Coral Gables, for appellant.
    High, Stack, Davis & Lazenby, Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellee.
    Before PEARSON and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on June 26, 1974 (297 So.2d 655(2)) affirming the order of the Circuit Court for Dade County, Florida, in the above styled cause; and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed July 24, 1975, 324 So.2d 625, and mandate now lodged in this court, quashed this court’s judgment and remanded the cause;

Now, Therefore, It is Ordered that the mandate of this court heretofore issued in this cause on July 12, 1974 is withdrawn, the decision of this court filed June 26, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court hereby sought to be reviewed is reversed and the cause is remanded to the trial court for further' proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.-16b, F.A.R.).


text:
    William THIEL, Appellant, v. STATE of Florida, Appellee.
    No. 75-961.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    John H. Beck, of Beck & Schofield, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with felony possession of marijuana. After a jury trial he was found guilty and sentenced to fourteen months imprisonment.

Appellant was a passenger in a car stopped as it left a construction site around 11:30 p.m. The occupants of the car were assembled at the rear of the car for identification. Sergeant Oscar Perez of the Manatee County Sheriff’s Department approached the car and detected the odor of marijuana in the car. He shined his flashlight in the car and saw a baggie of what proved to be marijuana under the dashboard on the transmission hump. On the floor was a package of cigarette papers. There were ashes in the ashtray, but these were not analyzed. No smoke and no “roaches” were in the car. Appellant was tried jointly with the driver and the owner of the car. At the close of the state’s case a directed verdict of acquittal was entered as to the owner of the car.

The state conceded in oral argument before this court that the record is unclear as to whether appellant was in the front seat of the car where the contraband was found and seized. We cannot ascertain whether appellant had the requisite knowledge of the contraband and the ability to control it or reduce it to his personal dominion that is necessary for a conviction of constructive possession. Spataro v. State, Fla.App.2nd, 1965, 179 So.2d 873. Under the specific factual situation of this case, appellant’s mere presence in the car with the marijuana was insufficient to sustain a conviction. See Taylor v. State, Fla.App.2nd, 1975, 319 So.2d 114.

Reversed and remanded with directions to the trial court to enter its order discharging appellant.

HOBSON, Acting C. J., and BOARD-MAN and GRIMES, JJ., concur.


author: McNULTY, Chief Judge.

text:
    STATE of Florida, Appellant, v. James Ernest PEAVEY, Appellee.
    No. 75-534.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1975.
    Rehearing Denied Feb. 20, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Wilbur C. Smith, III, Smith & Carta, Fort Myers, for appellee.
   McNULTY, Chief Judge.

The' State appeals from an order granting a motion to dismiss a second information which was based on circumstances, or allegedly criminal conduct, giving rise to a prior information which was dismissed. We reverse.

The operative facts begin with appellee Peavey’s home being under surveillance for suspected illegal drug activities. On the day in question Peavey left his home, entered his car and proceeded to drive off. Police officers stopped the car and a search revealed marijuana. He was placed under arrest and returned to the house where, apparently, a consent search revealed additional amounts of marijuana. The first information was filed herein charging him with possession on that date of a felony quantity of marijuana. Certain pre-trial discovery proceedings revealed that the state was relying upon the marijuana seized in the automobile as evidence of this charge. The information was subsequently dismissed by the state following an order suppressing that evidence.

Approximately four months later the state filed a second information, making out the same charge of possession of marijuana on the same date as previously, but this time based on the marijuana found in the house. Peavey filed a motion to dismiss this second information arguing double jeopardy and/or contending that the state was collaterally estopped from making out another charge of possession on the same date since, he says, the possession in the house and that in the car involved a “single transaction” of which each incident constituted a facet. Dismissal of the first therefore, he argues, precludes prosecution of the second. The court granted the motion and dismissed the charge concluding that the second information was indeed on the same charge embraced in the prior information and that the dismissal of the latter was a bar to proceeding under the former. We must differ.

To begin with, we would agree that in all events under the facts herein Peavey could have been guilty of only one offense of possession of marijuana on the day and time in question. This is so because, within the contemplation of criminal sanctions, one is deemed at least “constructively” possessed of contraband at a given time and place if he has knowledge of its presence on or about his person or premises and has the present ability exclusively or jointly with another to maintain control over it or reduce it to his physical possession or use; and it matters not, we think, with respect to dispersible contraband of a given kind, such as here, that it may be cached or located in different places on or about his person or on or about his premises. The several such contemporaneous “possessions” constitute but one offense,

Conceivably, of course, one could possess on a part of any given day quantity X of contraband and, should he acquire quantity Y at a later time that day, possess quantity (X + Y) on the same day. If the evidence established the possession only at the latter point in time he would then be guilty of only one offense, i. e., possession of quantity. (X + Y). If, however, the state is able to establish by competent proof that he was possessed at the earlier time of quantity X, and was similarly able to establish that subsequently on that day he was possessed of quantity Y, he would be guilty of two separate offenses, triable separately, neither of which would be a bar to a prosecution on the other. In practice, however, possession charges are made out and established on evidence of the quantity known to be possessed at the time of discovery of or arrest on such offenses.

But the important thing in this case is that having made out the one charge of possession at a given time on the day in question the state had a clear right to establish it by alternative proofs; and it seems to us that it doesn’t make any difference whether it filed one information in two counts, one charging possession in the house on that day and time and the other possession in the car at the same time, or filed two informations each charging possession on that day and time at one of the respective locations. Proof of either or both instances of possession would have made out the charge.

Furthermore, the single two-count information or the two separate informations, as the case may be, may be prosecuted in the same trial. But if a verdict of guilty is returned as to each count in the first instance, or as to each information in the second, only one judgment and one sentence could be imposed there being but one offense involved.

In this sense, the case really isn’t a true “single transaction” case at all. That is to say, in true multi-facet, “single transaction” cases more than one judgment may be entered, albeit but one sentence is appropriate and that for the highest offense. In those cases the proved “single transaction,” at once, constitutes two or more offenses, not one, as here. For instance, evidence of a single sale of an illicit drug may also support a conviction of possession thereof. Similarly, a single sale of an unregistered security may also constitute “doing business” as a stockbroker without a license. In a slightly different factual framework, a single robbery accomplished by the separate felony of using a firearm in the perpetration thereof is also a multi-facet “single transaction.”

Additionally, all so-called “single transaction” cases are in turn to be distinguished from those that may well be termed “single episode” cases in which multiple, separate and severable offenses are committed; e. g., a single robbery involving several victims, a multiple homicide situation, a burglary with intent to commit larceny and the ensuing larceny, or a case in which one is found simultaneously in possession of two separate and distinct kinds of contraband. In this latter class of cases both separate judgments and separate sentences, concurrent or consecutive, are proper.

In any case, it is apparent that the “single transaction” rationale applies only to sentencing. Thus, even in those cases in which its application would be appropriate, it is only in the post-trial posture of the case that it becomes viable at all. Surely, it could not serve before trial as a bar to a prosecution under one or the other or two counts of a single information, or under one or the other of two separate in-formations, on some hybrid theory combining such rationale with collateral estoppel principles or with any other aspect of double jeopardy.

Finally, to further illustrate our conclusions as to this case, we perceive this case conceptually to be analogous to one in which the accused is charged with manslaughter in the killing of another by operating a motor vehicle while intoxicated and/or in a culpably negligent manner. There is only one homicide which is allegedly committed in one or both of two ways, either or both of which the state is entitled to establish. The charge may be made out in two counts of one information, one sounding in culpable negligence the other in intoxication, or in two separate in-formations' each predicated on one of such alternative theories. Clearly, each theory may be tried in the same trial, whether under one information or two, and a verdict may be returned on either or both. Only one judgment and one sentence would be appropriate, however, there being but one manslaughter.

With respect to double jeopardy sanctions in the foregoing illustration, it is rudimentary that should the state proceed in one trial on one theory and fail, or indeed succeed, it would be precluded from proceeding on the other theory at a subsequent trial. Again, in the present posture of the instant case this latter hypothetical situation is inapposite. The pre-trial voluntary dismissal of the first information here certainly did not constitute “jeopardy.”

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

SCHEB, J., concurs.

BOARDMAN, J., concurs in conclusion.

      . See, e. g., Amato v. State (Fla.App.3d, 1974), 296 So.2d 609; Medlin v. State (Fla.App.4th, 1973), 279 So.2d 41; Griffin v. State (Fla.App.4th, 1973), 276 So.2d 191. Also, c.f. Smith v. State (Fla.1973), 279 So.2d 27; Camp v. State (Fla.App.4th, 1974), 293 So.2d 114.

      . See Zimmerman v. State (1938), 173 Tenn. 673, 122 S.W.2d 436; Puckett v. Commonwealth (1925), 210 Ky. 768, 276 S.W. 811; Green v. State (1928), 22 Ala.App. 536, 117 So. 607. Also cf. Beaman v. State (1940), 69 Okl.Cr. 455, 104 P.2d 260; People v. Von Latta (1968), 258 Cal.App.2d 329, 65 Cal.Rptr. 651.

      . See Rules 3.150 and 3.151, RCrP.

      . See Yost v. State (Fla.App.3d, 1971), 243 So.2d 469.

      . See Easton v. State (Fla.App.2d, 1971), 250 So.2d 294.

      . See Cone v. State (Fla.1973), 285 So.2d 12.

      . See Steele v. Mayo (Fla.1954), 72 So.2d 386.

      . As to the latter case, see Jenkins v. Wainwright (Fla.1975), 322 So.2d 477.

      . Id.


author: BROOM, Justice, for the Court:

text:
    In the Matter of the ESTATE of William I. ROSAMOND, Deceased. Robert F. GATZKE v. Mrs. Lilia Pratt ROSAMOND, Executrix.
    No. 48518.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Parker, Averill & Winston, Tupelo, for appellant.
    Burgin, Gholson, Hicks & Nichols, Robert B. Prather, Columbus, for appellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   BROOM, Justice, for the Court:

Requirement that Mrs. Rosamond (Executrix, appellee) post a $1,000,000 bond was the purpose of appellant’s petition filed in the Chancery Court of Lowndes County, Mississippi. The will of William I. Rosa-mond, deceased, provided that no bond be required. Gatzke (petitioner) cites Mississippi Code Annotated section 91-7-45 (1972) and claims standing as creditor of the estate to require that the bond be posted. Appellee’s petition that the motion be dismissed was sustained and Gatzke . appealed.

The matter appealed from was not a final decree appealable under Mississippi Code Annotated section 11-51-3 (1972), but was an interlocutory order signed by the chancellor. Other issues involved were not finally adjudicated by the order appealed from, and fragmented appeals are not permissible under our jurisprudence. American Empire Life Ins. Co. v. Skil-Craft Builders, Inc., 291 So.2d 735 (Miss.1974).

Mississippi Code Annotated section 11-51-7 (1972) and cases there annotated control appeals from interlocutory orders of the chancery court or the chancellor in vacation. This case does not fall within either category listed in the statute, and under the statute an appeal from an interlocutory order or decree cannot be maintained unless the appeal is allowed “by the court or chancellor . . .’’or “by a judge of the supreme court.” The record before us does not contain any order of the court, chancellor or Judge of this Court granting the appeal. As stated in Kessinger v. Atkinson, 253 Miss. 832, 179 So.2d 265 (1965):

It is the duty of this Court to dismiss appeals on its own motion when an appeal is improvidently allowed or when an attempt is made to appeal from an interlocutory order without a proper order allowing the appeal. Slater v. Bishop, 251 Miss. 306, 169 So.2d 465 (1964); Burns v. Arrington, 251 Miss. 247, 169 So.2d 831 (1964); Rayborn v. McGill, 243 Miss. 585, 139 So.2d 356 (1962). (253 Miss. at 834, 179 So.2d at 266.)

Due to the fact that the attempted appeal was from an interlocutory order and was not allowed by a member of this Court or of any lower court, we are required to dismiss the appeal on our own motion.

Appeal dismissed ex mero motu.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON, SUGG and WALKER, JJ., concur.


author: PATTERSON, Presiding Justice:

text:
    Francis ELLIS v. STATE of Mississippi.
    No. 48883.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Johnston, Pritchard & Wright, Pasca-goula, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   PATTERSON, Presiding Justice:

Francis Ellis was convicted in the Circuit Court of Jackson County for the sale of a controlled substance and sentenced to twenty years in the state penitentiary. On appeal he contends that the trial court erred in overruling his demurrer to the indictment, in overruling his motion for a directed verdict and in overruling his motion for a new trial. We affirm.

The indictment, in part, follows :

. . . That FRANCIS ELLIS late of the County aforesaid, on the 26th day of September in the year of our Lord 1974, in the County aforesaid, did unlawfully, wilfully, knowingly and feloniously, jointly with other persons, sell a controlled substance without authority of law, towit: twelve (12) ounces of heroin for the sum of $13,000.00 to Bill Inman and Douglas Cutrer, at a time when he, the said Francis Ellis, had previously been convicted in the Circuit Court of Jackson County, Mississippi, the 19th Circuit Court District for the State of Mississippi for selling heroin, and was sentenced on February 1, 1972 to serve a term of three (3) years in cause numbers 6715, and 6716, to run concurrently against the peace and dignity of the State of Mississippi.

The demurrer averred the indictment denied him constitutional rights under the provisions of the Fifth and Fourteenth Amendments to the United States Constitution and Article 3, Section 26, of the Mississippi Constitution (1890), prohibition against double jeopardy because it informed the jury of his previous conviction on a separate charge and is again being used as a necessary and integral part of the present indictment charging another offense.

The trial court ruled on this ground of the demurrer as follows:

. I will not let you introduce the prior convictions of the Defendant for selling heroin in the presence of the jury. I will allow you to introduce prior convictions of selling heroin outside the presence of the jury.
******
Under my ruling, this Court will construe that to be surplusage and we will proceed with the trial of the cause under the decision that I rendered in the case.

We are of the opinion that the first ground of the demurrer was properly overruled since Mississippi Code Annotated section 41-29-147 (1972) makes provision for enhanced punishment for a second conviction. In Lay v. State, 310 So.2d 908 (Miss.1975), it was held that an indictment authorizing enhanced punishment must include both the principal charge and a charge of the previous convictions and that both must be proved before punishment may be enhanced. The present indictment sets forth the principal charge and the previous conviction as authorized by statute and in accord with our case law. The demurrer was, in our opinion, properly overruled on the first ground.

We do not reach the constitutional issue raised by the demurrer since it was removed from the case when the court considered it surplusage.

The demurrer next asserted that the indictment charged the defendant with the sale of a controlled substance and, additionally, was worded in such fashion that it charged the defendant with the separate and distinct offense of conspiracy.

In ruling on this ground for demurrer, the following statements were made by the trial court:

. I will overrule that portion of your demurrer as to the allegations in the indictment that he along with others. I will overrule.that based upon what you dictated into the record.
Well, I am not here to try a conspiracy. Now, the Court has ruled that with others, whether they — the charge of a conspiracy is not before the Court. They said in here that he did this along with others. Now, I am trying this man today, and I want to make it perfectly clear, on selling heroin at the time and place in question as alleged in the indictment and that alone.

The court did not permit any evidence of a conspiracy or of a previous sale to be offered before the jury nor was comment thereon permitted in the presence of the jury. Neither does the record reflect that the indictment was carried to the jury room by the jurors in their consideration of the case. An examination of the indictment indicates clearly, we' think, that the appellant was charged as an active participant in the sale of a controlled substance. While it is true that a conspiracy to sell a controlled substance is a separate and distinct offense from a sale thereof, nevertheless, this indictment does not charge a conspiracy. Moore v. State, 290 So.2d 603 (Miss.1974). Moreover, the trial by the court’s statements was limited exclusively to a sale. We are of the opinion that this ground of the demurrer was also properly overruled.

The assignments of error relating to the weight and sufficiency of the evidence are without merit. The evidence is clear, overwhelming and uncontradicted that the appellant actively participated in the sale of a quantity of heroin, a controlled substance.

The defendant in his motion for a new trial alleged the court sentenced him as a second offender. The punishment of twenty years in the state penitentiary is within the confines of punishment permitted for the sale of heroin in the first instance and will not be reviewed by this Court unless outside statutory confines. Ainsworth v. State, 304 So.2d 656 (Miss.1974), and Boone v. State, 291 So.2d 182 (Miss.1974).

We have reviewed the record in detail and do not discern any error of sufficient weight to suggest that the verdict and sentence should be reversed. It is therefore affirmed.

Affirmed.

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


text:
    Fay Vernon SHARP v. STATE of Mississippi.
    No. 48916.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Thomas J. Gardner, III, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed.


text:
    Willie James NOBLE v. STATE of Mississippi.
    No. 48889.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Thomas M. McNeely, Jr., Natchez, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst.. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and IN-ZER and SMITH, JJ.
   Affirmed.


text:
    Grady M. PREVOST v. C & C COMPANY, a Joint Venture Composed of E. G. Cook & Cook Construction Co., Inc.
    No. 48562.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Stone & Graham, Thomas L. Segrest, Columbus, for appellant.
    Burgin, Gholson, Hicks & Nichols, Columbus, for appellee.
    Before PATTERSON, P. J., and IN-ZER and SMITH, JJ.
   Affirmed.


text:
    TAYLOR DEVELOPMENT CORP., a Mississippi Corp. v. BOARD OF SUPERVISORS OF JACKSON COUNTY et al.
    No. 48519.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Thomas L. Wallace, Amy Burkett, Biloxi, for appellant.
    Megehee, Brown, Williams & Corlew, Pascagoula, for appellee.
    Before GILLESPIE, C. J., PATTERSON, P. J., and BROOM, J.
   Affirmed.


text:
    In re the WILL AND ESTATE of John Liston SPEED, Deceased. S. E. STURGIS, Sr. v. Reva Speed JORDAN.
    No. 48505.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Creekmore & Beacham, Jackson, for appellant.
    Young, Young & Scanlon, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and SUGG, JJ.
   Affirmed.


author: GILLESPIE, Chief Justice : SUGG, Justice

text:
    Mannie HUGHES, Jr. and Bertha Travis v. STATE of Mississippi.
    No. 48877.
    Supreme Court of Mississippi.
    Feb. 3, 1976.

      Elliott E. Schlottman, William M. “Mac” Sigler, Hattiesburg, for appellants.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice :

Mannie Hughes and Bertha Travis were jointly indicted, tried and convicted in the Circuit Court of Forrest County of the crime of obtaining money under false pretenses, and sentenced to a term of three years in the penitentiary, fined $1,185, and placed on probation.

The issue is whether Officer Faulkner relied upon the representations by Hughes that a certain oil would cure his arthritis.

The district attorney requested Chief Deputy Joe Hopstein of the Forrest County Sheriff’s Office to investigate complaints concerning defendant Hughes, senior bishop, and Bertha Travis, secretary, respectively of the Light of the World Temple. Hopstein and another deputy, Joseph Faulkner, went to the Holiday Inn where the defendants were occupying two rooms. Deputy Faulkner went to the rooms occupied by the defendants and knocked on the door. He was admitted by defendant Travis and paid a $20 fee in order to be able to see defendant Hughes. This $20 was part of $50 given to Faulkner out of the sheriff’s petty cash fund. After being admitted to Hughes’ room, Faulkner told Hughes that he was a long distance truck driver suffering from arthritis. After a rather lengthy conversation between Faulkner and Hughes, Hughes represented that he could heal Faulkner and otherwise help him with his problems upon the payment of $375. Faulkner left the room and borrowed $350 from the manager of the motel. Faulkner then went back to Hughes’ room, paid him the money, and Hughes gave him a bottle of oil with instructions to rub down with it. Hughes also told him that it would cure his arthritis and would “undress” his truck. Faulkner then left the room and came back in a few minutes and arrested the defendants and charged them with obtaining money by false pretenses.

Examination of the oil showed that it was hydrocarbons with 76% Ethyl alcohol.

The indictment was under the general false pretense statute, Mississippi Code Annotated section 97-19-39 (1972).

The State concedes that Neece v. State, 210 So.2d 657 (Miss.1968), precludes a conviction for obtaining money by false pretenses unless there is a showing (1) that the pretenses were false, (2) that the defendant knew them to be false, and (3) that the pretenses were the moving cause by which the money was obtained. The third element, set out above, was explained and amplified in Breland v. State, 222 Miss. 792, 77 So.2d 300 (1955), where the Court said “[A] material element of this offense [obtaining money by false pretenses] is that the false representation must have been relied on by the party defrauded.” 77 So.2d at 301.

The evidence is clear that Deputy Faulkner did not rely upon the representations by Hughes that the oil would cure his arthritis. Deputy Faulkner, as well as Chief Deputy Hopstein, voluntarily paid the money to Hughes without relying upon the representations that the oil could cure Faulkner’s arthritis or “undress” his truck.

The defendants may be guilty of some crime, but not of obtaining money under false pretenses. It was error for the court to overrule the motion to discharge the defendants at the close of the case.

Reversed and defendants discharged.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ„ concur.

SUGG, Justice

(specially concurring):

I concur in the holding that defendants are not guilty of obtaining money under false pretense, but am of the opinion that the defendants should not be discharged but held under bail to await the action of the grand jury for practicing as physicians without a license under Mississippi Code Annotated section 97-23-43 (1972).


author: BROOM, Justice:

text:
    Frances Naomi DEATON, a minor, by Orbie Deaton, father and next friend v. DELTA DEMOCRAT PUBLISHING COMPANY. Doris Louise DEATON, a minor, by Orbie Deaton, father and next friend v. DELTA DEMOCRAT PUBLISHING COMPANY. Elizabeth Jane DEATON, a minor, by Orbie Deaton, father and next friend v. DELTA DEMOCRAT PUBLISHING COMPANY. Mark Wayne DEATON, a minor, by Orbie Deaton, father and next friend v. DELTA DEMOCRAT PUBLISHING COMPANY.
    No. 48481.
    Supreme Court of Mississippi.
    Feb. 3, 1976.

      Orlansky, Miller & Dean, Greenville, for appellants.
    Campbell, DeLong, Keady, Robertson & Hagwood, Greenville, for appellee.
    Before GILLESPIE, WALKER and BROOM, JTJ.
   BROOM, Justice:

Unwarranted invasion of their right of privacy was the thesis upon which appellants Deaton (four minor children by their father as next friend) sought damages from appellee, Delta Democrat Publishing Company (the Democrat), in the Circuit Court of Washington County. At trial the suits were consolidated.

For purposes of this appeal, the following allegations contained in the declarations are assumed as facts. The Democrat published a story describing the children as “retarded” and “trainable mentally retarded” in its newspaper featuring a public school special education class for mentally retarded children. Photographs and names identifying the Deaton children as members of the class were made part of the story. The Deatons’ declarations also alleged that obtaining the photographs and publishing the story were “done by intentional design” of the Democrat without regard to the rights of privacy of the children and in violation of-their “right to the pursuit of happiness.”

The Democrat demurred to the appellants’ declarations, contending that no cause of action was stated relying upon the First and Fourteenth Amendments to the United States Constitution, and also relying upon Article III, section 13 of the Constitution of the State of Mississippi. Failure of the Deatons to allege in their declarations that the publication “was made by one who had knowledge of its falsity, or with reckless disregard for the truth, or maliciously,” according to the demurrer, rendered the publication privileged under the constitutional provisions cited. From judgments sustaining the demurrer the Deatons appealed. We reverse.

Mississippi has by implication judicially recognized the common law right to privacy. Martin v. Dorton, 210 Miss. 668, 50 So.2d 391 (1951). Although the law of privacy has developed along divergent lines and amid a welter of confusing judicial pronouncements, four distinct theories of the cause of action have been generally recognized: (1) The intentional intrusion upon the solitude or seclusion of another; (2) the appropriation of another’s identity for an unpermitted use; (3) the public disclosure of private facts; and (4) holding another to the public eye in a false light. W. Prosser, Handbook of the Law on Torts § 117 at 804-14 (4th ed. 1971); Restatement of Torts, 2d, § 652A (Tentative Draft No. 21, 1975).

Mississippi Code Annotated section 11-7-35 (1972) provides that declarations shall contain a statement of facts in “ordinary and concise language and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient.” The section concludes that an objection to maintain an action shall not be based upon “the form thereof . . . . ” In our jurisprudence it is the rule that where a demurrer to a declaration raises merely a doubtful question, or where the case is such that justice may be promoted by a trial on the merits, even though the demurrer might be technically sustainable, it must be overruled. Jacobs v. Bodie, 208 Miss. 779, 45 So.2d 587 (1950); Goff v. Randall, 206 Miss. 178, 39 So.2d 881 (1949). We also adhere to the rule that facts which are reasonably or necessarily implied from facts stated must on demurrer be considered as true, and when such facts together with express averments, furnish sufficient material of substance for courts to proceed on the merits the demurrer should not be sustained. Ross v. L. & N. R. R., 178 Miss. 69, 172 So. 752 (1937). Although the declarations in question may possibly be subject to technical criticism, under our statute (§ 11-7-35) and jurisprudence, they sufficiently state a cause of action upon which the trial court should have heard proof.

This case is not controlled by Cox Broadcasting Corporation v. Cohn, 420 U. S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), in which the Supreme Court of the United States held that the state may not “impose sanctions on the accurate publication of the name of a rape victim obtained from public records” (court records open to public inspection). In the case before us the facts are opposite to Cox in that the information published was not taken from public records, but was by state law made unavailable to the public (Miss.Code Ann. § 37-15-3 (Supp.1975)). Our holding here is not in conflict with section 652 of Tentative Draft No. 13 of the Second Restatement of Torts which states that there is no liability when the defendant merely publicizes something about someone else which is already public or constitutes matters of public concern.

There is not presented here a case involving a celebrity, public official, or public figure. It is well established that factual reporting of “newsworthy persons and events is in the public interest and is protected.” Time v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Hill held that in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth, liability generally cannot be exacted against a publisher. See also, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L. R.2d 1412 (1964). However, Hill, a New York case, was based at least in part upon a state statute (limited in nature) which allowed invasion of privacy actions only under narrow circumstances. New York jurisprudence apparently does not recognize the common law right of privacy action.

The Democrat relies upon Cantrell v. Forest City Publishing Company, 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974) as authority for its assertion that the declarations were demurrable for failure to allege actual malice on the part of the Democrat or that it made its publication with knowledge of falsity of the publication or in reckless disregard for the truth. It is also noted that this is not a libel suit brought by a public official as was true in New York Times Company v. Sullivan, supra.

Cantrell has significant similarity to the instant case: (1) It is a right of privacy action; (2) no “actual malice,” as that term is used by appellee, was present or proved; and (3) the publication dealt with a subject of legitimate public interest and concern, but also with private persons who were only incidentally a part of the subject matter. The opinion in Cantrell makes it clear that the court was not holding that any kind of malice, or knowledge of falsity or reckless disregard for truth had to be proved in an invasion of privacy case:

The District Judge in the case before us, in contrast with the trial judge in Time, Inc. v. Hill, did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature article on the Cantrells had been made with knowledge of their falsity or in the reckless disregard of the truth. No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. (Cantrell v. Forest City Publishing Co., supra, at 95 S.Ct. 469) (emphasis supplied).

From Cantrell we perceive that the Supreme Court of the United States has not adopted the view that there is absolute constitutional immunity from liability for a newspaper in a case of the type here presented. We find no case (and none was cited by briefs except Hill, supra, which involved a state statute not present here) in which that Court ever said that any kind of malice, knowledge of falsity, or reckless disregard of truth is an essential element in such cases. We do not say, however, that inclusion of such in a plaintiff’s declaration would be contrary to principles of good pleading. The fact thata a public school offers instruction and as-| sistance to mentally retarded children is a| matter of legitimate public interest andH may be published under free press guaran-j tees. However, the publication of the' names and photographs of the children involved casts the issue into a different legal perspective. It is difficult to conceive that any information can be more delicate or private in nature than the fact that a child has limited mental capabilities or is in any sense mentally retarded. Simply enrolling» in a public school does not make one all “public figure” or “personage” to the ex-[ tent that such person has no right to priva-1 cy concerning his mental capabilities orj lack of such. Reasonable limitations applied to the right of a free press to expose facts of private concern to individuals do not infringe on the right of the people to be informed of matters properly in the public domain. Virgil v. Time, Inc., 527 F.2d 1122 (CA 9 1975).

We recognize that the First Amendment protections relied upon by the Democrat were properly intended to afford this nation and all its citizens the immeasurable benefits which flow from a free and unstifled press. At the same time, to hold that children, situated as were the Deatons, may be publicized, without parental consent, by names and photographs as “mentally retarded” with absolute immunity would run counter to their right to “the pursuit of happiness” as contemplated by those who founded our nation.

Our judgment is that the declarations sufficiently charged a tort, and therefore the judgments of the lower court sustaining the demurrers are reversed and the cause remanded for development of proof.

The case was considered by a conference of the Judges en banc.

Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON, SUGG and WALKER, JJ., concur.


text:
    Mike IVY v. STATE of Mississippi.
    No. 48741.
    Supreme Court of Mississippi.
    Dec. 22, 1975.
    Rehearing Denied March 2, 1976.
    Johnston, Pritchard & Wright, Pasca-goula, for appellant.
    A. F. Summer, Atty. Gen. by Vera Ma-del Speakes, Special Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed,

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concurring.


text:
    Alden WALLACE, III v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 48487.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Rehearing Denied March 2, 1976.
    Snow, Covington, Temple & Watts, Meridian, for appellant.
    Bourdeaux & Jones, Meridian, for appel-lee.
    Before INZER, SMITH and ROBERTSON, JJ.
   Affirmed.

GILLESPIE, C. J., PATTERSON, P. J., and SUGG, WALKER and BROOM, JJ., concur.


text:
    STONEWALL INSURANCE COMPANY v. John Freddie SMITH.
    No. 48428.
    Supreme Court of Mississippi.
    Feb. 10, 1976.
    Rehearing Denied March 2, 1976.
    Heidelberg, Woodliff & Franks, Timothy R. Smith, Jackson, for appellant.
    George G. Williamson, Edward A. Williamson, Mendenhall, for appellee.
    Before INZER, WALKER and BROOM, JJ.
   Affirmed.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON and SUGG, JJ., concurring.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Henry Lee NED.
    No. 56774.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Leon J. Minvielle, III, New Iberia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Henry Lee Ned was charged by bill of information with the commission of simple arson of a school building'in Jeanerette, Louisiana, with damage amounting to more than five hundred dollars, in violation of La.R.S. 14:52. After trial by jury, defendant was found guilty and sentenced to serve seven years at hard labor in the custody of the Louisiana Department of Corrections.

Defendant relies upon three specifications of error each relative to the trial judge’s admitting oral and written statements and a confession. His motion to suppress, his objection to the admission of the statements, and his new trial application were each founded upon the contention that the statements were not freely and voluntarily given, were the product of fear, intimidation, threats or promises, and were given without the requisite compliance with Miranda.

The pertinent facts are these. On November 14, 1974, the Jeanerette High School in Jeanerette, Louisiana was destroyed by fire. On the morning of February 4, 1975, while Mr. Sam Scelfo, juvenile director, and Mr. Leonard Morris, a juvenile officer of the Iberia Sheriff’s Office, Juvenile Division, were interviewing a juvenile in connection with a recent burglary, the juvenile volunteered the information that his half-brother, defendant in this case, was involved in the earlier burning of Jeanerette High School. Mr. Morris and Mr. Scelfo sent for the sheriff, who also talked with the juvenile. A woman who was the mother of both the juvenile and the 17 year old defendant, had accompanied her juvenile son to the sheriff’s office. She was in the next room and overheard the child implicate defendant. She unceremoniously left the office, picked up defendant and another juvenile (defendant’s cousin) who had also been implicated, and, at about 1:00 p.m., returned with them to the Courthouse. The officers had not been expecting defendant, were not prepared to interview him immediately, and, therefore asked him and his cousin to wait in the lobby area of the courthouse. They were not placed under guard or otherwise restrained.

At approximately 2:00 p. m., defendant was called into the juvenile office, and between 2:00 p. m. until 3:30 p. m. he was asked intermittent questions about his family, his brother and his schooling. At 3 :30 p. m., defendant was read his Miranda rights, was told what the officers wanted to interview him about, and signed a rights form. After being so advised of his rights, defendant confessed to setting the school on fire.

Mr. Morris testified that defendant, although not reluctant to state that he had committed the offense, was reluctant to discuss the details. Defendant was then taken to the Sheriff’s Office where he was again given his rights by Sheriff Wattig-ny. At this point defendant appeared nervous and was asked if he preferred to talk just to Mr. Morris, out of the presence of Mr. Scelfo and the sheriff. When defendant answered affirmatively, Mr. Morris and defendant went into a conference room adjoining the sheriff’s office, where defendant stated that he was frightened. He was told by Mr. Morris that he had nothing to be afraid of. After about five minutes, they returned to the sheriff’s office and defendant was interrogated by the, sheriff, Mr. Scelfo and Mr. Morris for approximately twenty minutes. At the conclusion of this. interrogation a black female secretary, who had not been in the interview room, was sent into the conference room alone with defendant and she took down his statement. •

Before confessions or inculpatory statements may be introduced in evidence, the State must affirmatively show that they were freely and voluntarily given and were not coerced by fear, intimidation, threats or promises. La.R.S. 15:451. See State v. Link, 301 So.2d 339 (La.1974); State v. Bray, 292 So.2d 697 (La.1974); State v. Skiffer, 253 La. 405, 218 So.2d 313 (1969). In addition, the federal Constitution as interpreted by the United States Supreme Court, requires that the State, before it may use a confession at trial, establish that a defendant was informed of his right against self-incrimination and to have an attorney present at the interrogation; that he fully understood the consequences of waiving those rights; and that he did in fact waive those rights voluntarily and without physical or mental coercion. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These so-called Miranda warnings must be given prior to interrogation “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612. They are not required where there is “general questioning of citizens in the fact-finding process,” Miranda, supra, 384 U.S. at 477, 86 S.Ct. at 1629, but only when the investigation has ceased to be exploratory in nature, i. e., when the authorities begin to focus their attention on defendant as the guilty party and seek to secure inculpatory statements from him. State v. Tarrance, 252 La. 396, 211 So.2d 304 (1968). See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971).

Although the United States Supreme Court has not spoken definitively as to when there is a custodial interrogation such that Miranda requirements must be met, other cases have identified four factors which should be considered: (1) whether there is probable cause to arrest; (2) the subjective intent of the police; (3) the objective belief of the defendant; and (4) the focus of the investigation. United States v. Carrollo, 507 F.2d 59 (5th Cir. 1975); Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972); United States v. Phelps, 443 F. 2d 246 (5th Cir. 1971). Decisions on whether or not there is a custodial interrogation must be made on a case-by-case basis. United States v. Carrollo, supra.

In the present case, it is clear that when defendant first arrived at the Juvenile Division of the sheriff’s office, custodial conditions were not present. The authorities had not requested defendant’s presence and were apparently surprised that his mother had brought him to the Courthouse. Defendant was not confined or guarded while waiting for his interview. Furthermore, the officers had only the word of defendant’s juvenile half-brother, apparently already in some difficulty himself, that defendant had something to do with the Jeanerette High School fire, a matter which was not a subject of the officers’ inquiry.

It was juvenile officer, Officer Morris, like the defendant a black man, who testified that he engaged defendant in intermittent conversation concerning defendant’s place of residence, his family and his school work, about 15 minutes of actual conversation, between 2:00 p. m. and 3 :30 p. m. He further testified in effect that when he began to suspect that there may be substance to the unsupported implicating statement earlier given by defendant’s half-brother, at about 3:30 p. m., he read defendant his Miranda rights and told defendant what the sheriff’s office wanted to interview him about. Officer Morris stated that prior to this time nothing had been said about the fire and defendant had made no inculpatory or incriminating statement.

Considering the unusual circumstances surrounding the incipience of defendant’s interrogation, the fact that defendant’s conversation was with a juvenile officer who was not investigating the school fire, the limited and nonincriminating initial conversation, and the officer’s expressed lack of real suspicion prior to 3 :30 p. m., when defendant was given his Miranda rights, we conclude that no custodial interrogation in the sense that the term is contemplated in Miranda took place prior to 3 :30 p. m. on the date in question.

Defendant also argues that his confession and inculpatory statements were inadmissible, even assuming they followed timely advice concerning his rights, because he showed “reluctance” to discuss the crime at various times during the interview. The Miranda guidelines on custodial interrogation state that “[i]f the individual indicates in any manner, at any time* prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1627. In the present case, although Mr. Morris did testify that at times defendant was reluctant to discuss the details of the crime, he stated affirmatively that defendant was never reluctant to admit that he committed the offense. When defendant was taken to the sheriff’s office, he was allowed to speak to Mr. Morris alone, out of the presence of the sheriff and Mr. Scelfo, and he willingly returned to submit to questioning.

The reluctance involved in this case was., apparently more in the nature of hesitation and nervousness than an expression that defendant preferred to remain silent. The, reluctance was manifested not by anything which defendant said but rather by pauses and silence indicating that he was thinking about what to say and how to say it. According to testimony of the state’s witnesses, which is not contradicted by defendant, defendant never said that he did not want to make a statement.

Defendant’s testimony that he was under the influence of drugs at the-time he confessed, so that he did not know what he was doing, was adequately refuted by witnesses. for the state, and there was no showing of error in the trial court’s finding in this regard.

The facts of this case amply support a conclusion that defendant was informed of his rights before or at the time the interrogation became custodial, and that defendant voluntarily confessed to arson. A factual determination by the trial court that a confession or inculpatory statement was freely and voluntarily made is given great weight and will not be disturbed upon appeal unless clearly erroneous. State v. Sims, 310 So.2d 587 (La. 1975); State v. Cosey, 261 La. 550, 260 So.2d 620 (1972).

By way of caveat, we feel compelled to state that, although under the facts of this case we. conclude that the requirements of Miranda were met, we by no means condone unwarranted delays in informing suspected persons of their constitutional rights. Custodial interrogation is an awesome experience for most people who are or may be charged with crime, and it would defeat the purpose of the Miranda warnings to allow law enforcement officials to wait until a suspect has suffered the effects of psychological coercion before informing him that he is not obliged to incriminate himself and that he has the right to the presence of counsel. Our conclusion here that defendant’s Miranda rights were not violated does not turn on the fact simply that the warnings were given prior to receipt of any inculpatory statements, but rather on the totality of circumstances surrounding the interrogation.

For the foregoing reasons, the sentence and conviction are affirmed.

      . This interrogation was tape recorded but the recording was noti admitted at trial for lack of proper foundation.


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

text:
    Dolores Weathers Breaux, wife of, and Irvin BREAUX, Sr., Plaintiffs-Appellees-Relators, v. The STATE of Louisiana et al., Defendants-Appellants-Respondents.
    No. 56707.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    William J. Guste, Jr., Atty. Gen., Robert C. Funderburk, Jr., Asst. Atty. Gen., for defendant-applicant.
    David L. Morgan, Jr., Mandeville, for plaintiff-respondent.
   TATE, Justice.

The plaintiff parents sue for the death of their son. Their boy was murdered while an inmate in the state penitentiary.

The court of appeal awarded them each ten thousand dollars general damages, together with their son’s funeral expenses. Reversing the trial court, the intermediate court held that the son’s death resulted from the state’s failure to provide adequate facilities and supervisory personnel to assure the reasonable safety of inmates. 314 So.2d 449 (La.App. 1st Cir. 1975).

We granted certiorari, La., 320 So.2d 548 (1975), because some members of the court felt that the holding in the case was in conflict with Parker v. State, 282 So.2d 483 (La. 1973).

In Parker, a majority of this court concluded, 282 So.2d 486:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur. 2d, Penal and Correctional Institutions, § 17, p. 821 (1972); 72 C.J.S. Prisons § 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).” (Italics ours.)

We find that, even under this standard enunciated by Parker, the state is here liable for its employee’s failure to use reasonable care in preventing harm after they had reasonable cause to anticipate it. It is therefore unnecessary for us here to decide whether, additionally, the broader rule adopted by the majority of the court of appeal should apply — namely, that the state may be liable as well for its negligent failure to provide a sufficient number of guards and sufficient security arrangements and equipment to assure reasonable safety to the inmates under its total custody (who are thus deprived of lawful means to protect their own safety).

The Negligence of the State’s Employees

The circumstances are détailed in the court of appeal opinion. For present purposes, it is sufficient briefly to summarize those that occurred on the morning of the decedent’s murder by some fellow inmates, Carney and Dixon.

The decedent.Breaux was killed as a result of his efforts to protect a young prisoner newly admitted from homosexual assault by Carney and Dixon. Breaux was a member of “The Brotherhood”, an inmate organization recognized by the prison authorities and formed for the purpose of protecting younger inmates from the homosexual attacks by hardened inmates likewise confined in the penitentiary.

The new young inmate, Moore, eighteen years of age, was released into the prison population two days before Breaux’s murder. During the two days (and nights) in the first dormitory to which assigned, two hardened criminals, Dixon and Carney, had threatened Moore with knives in an attempt to force him to become Carney’s penitentiary “wife”. Breaux’s murder directly resulted from his efforts to thwart the forceable homosexual servitude of Moore intended by these criminals.

On the morning of the murder, Moore had complained to Lieutenant Dupree and Captain Pittman that four or five of his dormitory mates had threatened him with knives and that he had escaped harm only by going on his knees. He requested to be moved from the dormitory.

Several minutes later, Carney saw Lt. Dupree and asked that the young inmate not be moved. Lt. Dupree and Captain Pittman assumed from Carney’s conversation that Moore was to be his penitentiary wife.

Based on their investigation, Lt. Dupree and Captain Pittman learned that Carney was one of those who had threatened Moore with a knife. However, they did not search Carney’s bunk or belongings to find the knife, they testified, because they feared for Moore’s life if they did so so soon after Moore had come to their office.

Within about thirty minutes of Moore’s complaint, Captain Pittman and Lt. Dupree found six inmates, including Breaux and Moore, in close conversation in the yard. The subject of the conversation was how to protect Moore from becoming homosexually subjugated by Carney and Dixon in the dormitory to which initially assigned.

The testimony indicates, variously, that Carney and Dixon were either nearby during this discussion, sometimes heated, or that they participated in it. Moore testified that Carney and Dixon objected vigorously to the suggested plan to move him out of their dormitory.

Dupree and Pittman were • not present during most of the discussion. However, they evidently got the gist of it. As Lt. Dupree frankly testified: “I asked inmate Breaux, I says well, here’s a fellow [Moore] here that’s in trouble, if I would help him to move him in your dormitory, I said, could you see he stays straight, you know, keeps out of trouble * * * ” Tr. 204. Lt. Dupree testified that he had selected Breaux, as an older and settled convict living in a quiet dormitory, in order that Moore could be kept safe from the trouble that threatened him in the other dormitory. Tr. 205.

Immediate approval was secured by telephone from higher authority for Moore’s transfer from the Carney-Dixon dormitory to the Breaux dormitory. Breaux secured permission from Benoit, a dormitory guard, to help Moore remove his effects from the Carney-Dixon dormitory. Benoit accompanied Breaux and Moore into the dormitory.

Benoit was a new guard, this being his first day on dormitory duty. (Previously, he had worked in an office or in trustee areas.) As the three proceeded down the dormitory aisle, Carney and Dixon attacked Breaux and Moore with knives. The guard Benoit immediately bolted out of the dormitory to go for help.

Guillot, a more experienced guard, at once entered the dormitory, saw the inmates fighting, and shouted to them to stop. Carney did so, while another inmate grabbed Dixon. However, as Guillot walked up to Breaux (who had fallen on to the floor), Dixon broke loose and stabbed Breaux once again before Guillot pulled him off.

Breaux was dead of multiple stab wounds. The trial court accepted the evidence as preponderating that Breaux was unarmed at the time of the assault upon him, as was Moore.

Both the trial court and a majority of the court of appeal felt that the State was not liable under the test enunciated by Parker v. State, above-quoted, because, while the penitentiary guards had reasonable cause to anticipate harm to Moore (the young inmate), no evidence proved they knew of threats to harm Breaux himself.

We agree, however, with the minority of the court of appeal that the evidence, taken as a whole, preponderated proves that Pittman and Dupree should reasonably have realized the risk of attack by Carney and Dixon if Moore was removed from the dormitory. Under this finding, the security officers should have taken reasonable safeguards (such as sending for Carney and Dixon or such as completing the move when they were not present in the dormitory), especially since they had been informed and knew that Carney and Dixon were armed.

We further agree with the dissenting opinion in the court of appeal that Be-noit’s conduct fell below the standard of care reasonably expected of security guards. He made no move, by shouting commands or otherwise, to slow or prevent the attack on Breauz, who was under his care. (Compare, for instance, the prompt action of Guillot in breaking up the fight, as well as the testimony of the other security guards as to what they would have done under similar circumstances.)

By holding that the conduct of Benoit, Dupree, and Pittman fell below the standard'of care reasonably to be expected of custodial personnel under similar circumstances, we do not mean to be critical of them personally. Similarly, an automobile driver may be held negligent for misjudgment or momentary lapse, without the least moral blame or serious professional defect being attached because of a brief episode of actionable conduct.

Further, though their conduct constitutes legal fault for which the State as their employer is responsible, the blame is not so much personal as due to the undermanned and harassed conditions in which these employees must perform their most important duties.

We note that both the trial and the intermediate courts accepted the virtually un-contradicted evidence that, due to budgetary limitations, the penitentiary does not maintain an adequate number of guards to provide reasonable security for the dormitory inmates. Although the views above expressed find no need to rest liability upon this basis (as did the majority of the court of appeal), this milieu does much to explain the inability of the present security personnel to have devised and afforded reasonable security to Breaux and Moore to avert harm that they should reasonably have anticipated when the unarmed Breaux and Moore were permitted to confront the armed Carney and Dixon.

Contributory Negligence or Assumption of the Risk by Breaux

In the alternative, the State suggests that Breaux’s activities on behalf of Moore were a contributory cause of his death barring recovery therefor. The State, in one breath claiming it is powerless to prevent homosexual attack upon young inmates, now in another breath claims that an older inmate attempting to perform this function (due to the default of the State) was con-tributorily negligent for so doing.

Contributory negligence is conduct which amounts to a breach of a duty to protect one’s self, conduct that falls below a societal standard. Prosser, Law of Torts, Section 65 (4th ed., 1971); see Sloan v. Flack, 150 So.2d 646 (La.App.3d Cir. 1963). The decedent Breaux’s conduct is clearly not of such nature. Nor can Breaux’s entering the dormitory under “protection” of a prison guard be regarded as an appreciated (subjective) assumption of a known risk such as would bar recovery. Prosser at Section 68.

Decree

We therefore affirm the judgment of the court of appeal holding the State liable.

Court of Appeal decree affirmed.

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

MARCUS, Justice

(dissenting).

The majority correctly points out that both the trial court and a majority of the court of appeal felt that' the state was not liable under the test enunciated in Parker because, while the penitentiary guards may have had reasonable cause to anticipate harm to Moore, there was no evidence to prove that they knew of threats to harm Breaux. I agree with the findings of the courts below. Furthermore, the factual finding of the trial court should not be disturbed on review by an appellate court absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). I find no such error here.

Accordingly, I respectfully dissent.

SANDERS, Chief Justice

(dissenting).

The applicable rule as stated in Parker v. State, La., 282 So.2d 483 (1973) is as follows:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm.”

Under this rule, the lower courts found no negligence on the part of the prison employees.

The trial judge stated:

“In summary, we find that the prison authorities in the instant matter did not know or have reason to anticipate on August 11, 1973, that harm would ensue to Breaux on that date.”

The Court of Appeal concurred:

“The majority finds these employees had no reason to expect that Breaux was in danger of harm because it was Moore, not Breaux, who had been threatened by Carney and Dixon. The majority are of the further view that Benoit was not negligent in failing to take any action to stop the armed attack upon Moore and Breaux before the assault began.” (Breaux v. State, La.App., 314 So.2d 449 at 457.)

The majority finds that the correctional officers were negligent in failing to anticipate the attack on Breaux and to take precautions against an 'attack. The majority also finds negligence on the part of Officer Benoit in not “shouting commands or otherwise” when the two prisoners at-' tacked Breaux with knives.

I agree with the two lower courts that the correctional officers had no reason to anticipate an attack on Breaux. Prior to the fatal encounter, he had not been threatened in any way.

At the time .of the encounter, Benoit was unarmed in compliance with prison rules. His group was suddenly attacked by two “hardened criminals” armed with knives. Benoit was confronted with a sudden emergency.

In Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), this Court stated the rule to apply in emergency situations as follows:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

See also Dane v. Canal Insurance Company, 240 La. 1038, 126 So.2d 355 (1960); Snodgrass v. Centanni, 229 La. 915, 87 So. 2d 127 (1956); Callais v. Furniture Showrooms, Inc., La.App., 213 So.2d 537 (1968); 57 Am.Jur.2d, Negligence § 90, pp. 437-438 ; 65A C.J.S. Negligence § 123, p. 77; Prosser, Law of Torts, § 33, pp. 168-169 (4th ed. 1971).

In light of the emergency, I am not prepared to say that Benoit was negligent in immediately running to the door and calling for help, especially when he knew help was nearby. Nor, in the light of the emergency, am I prepared to say that the two correctional officers were negligent in handling the tragic episode after the second officer arrived. The officers’ actions cannot be tested by a standard based upon calm reflection in the safety of judicial chambers.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice and Mr. Justice Marcus.

      . Since the plaintiffs did not apply for review, the dismissal against Benoit, Dupree and Pittman individually is final; a decree cannot be amended to the benefit of parties who failed to apply for writs. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Nevertheless, as Jordan indicates, this court may affirm the decree on grounds of decision rejected by the intermediate court, despite the failure to apply for writs. The theory-of-the-case doctrine does not apply in appellate review in Louisiana, and the appellate court has authority to render any judgment proper on the record before it. La.O. Civ.P. art. 2164.


author: SANDERS, Chief Justice. DIXON, Justice SUMMERS, Justice

text:
    Alfred GONZALES et ux., Mary Gonzales v. WINN-DIXIE LOUISIANA, INC. and Continental Insurance Companies, Inc.
    No. 56132.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Dissenting Opinion Feb. 20, 1976.

      Darken M. Jacobs, New Orleans, for plaintiff s-applicants.
    Robert E. Peyton, W. K. Christovich, Christovich & Kearney, New Orleans, for defendants-respondents.
    Chris J. Roy, Chairman of Amicus Curiae Committee, Louisiana Trial Lawyers Assn., Alexandria, C. T. Williams, Jr., Dillon & Williams, New Orleans, Rene A. Curry, Jr., Drury, Lozes & Curry, New Orleans, Paul B. Deal, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for amicus curiae.
   SANDERS, Chief Justice.

The plaintiffs, Mr. and Mrs. Alfred Gonzales, brought suit against Winn-Dixie Louisiana, Inc., the operator of a self-service grocery store, and its liability insurer for damages sustained as a result of a fall by Mrs. Gonzales while shopping in the store. The trial court rendered judgment in favor of the store patron and her husband. Winn-Dixie and its insurer appealed, and the Court of Appeal reversed. La.App., 309 So.2d 697 (1975). On plaintiffs’ application, we granted certiorari to review the judgment of the Court of Appeal. La., 310 So.2d 849 (1975).

About noon on November 2, 1968, while pushing a grocery cart in the aisle of the self-service grocery store, Mrs. Gonzales slipped and fell on a spill of olive oil about two feet in diameter. A broken bottle of olive oil was lying near the spill; the shelf where olive oil was displayed was about three feet away. Mrs. Gonzales did not cause the bottle of olive oil to fall; nor did she have any olive oil in her cart. She was pushing her cart in the middle of the aisle, looking at the merchandise on display. After her fall, she reported the incident to a store employee.

Only one witness, the afternoon store manager, testified concerning the removal of foreign substances from the floor. He testified that he arrived at the store for work about 1 o’clock p. m., shortly after Mrs. Gonzales reported her fall. The cleanup procedures established by the management were as follows: The employees cleaned up the store each evening at closing time; the manager on duty made an inspection each morning at opening, normally between 8:00 and 8:30 a. m.; the afternoon manager made an inspection when he came on duty between 12:00 and 1:00 p. m. A third inspection was made at 5 :00 p. m. The employees were generally instructed to watch for broken items and to remove them from the floor. The store also employed a “cleanup man.”

Although the afternoon store manager was scheduled under these procedures to make an inspection between 12:00 and 1:00 p. m., he had not begun his inspection at the time of the fall. The morning inspection was the only regular inspection scheduled prior to plaintiff’s fall. There is no evidence that the inspection was actually conducted.

The plaintiff was unable to offer adequate evidence to show how the bottle of olive oil fell or how long the olive oil had been on the floor. Although there was some testimony that the oil was greenish in color, no one testified as to the significance of the color.

Plaintiffs contend that it is only necessary that they prove that Mrs. Gonzales slipped and fell through no fault of her own on a foreign substance on the floor and that the store owner must then exculpate itself from negligence. Defendants'contend that plaintiff has the burden of proving either actual knowledge that the olive oil was on the floor or that the oil was on the floor for a period of time sufficient to charge the defendant with constructive knowledge of the existence of the hazard. Defendants contend that, in the absence of such proof, the reasonableness of their cleanup procedures is not an issue.

The action is based on Article 2315 of the Louisiana Civil Code. It provides in pertinent part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

Under this article, the elements of a cause of action are fault, causation, and damage. Eschete v. City of New Orleans, 258 La. 134, 245 So.2d 383 (1971). The term fault includes but is not restricted to negligence. LSA^C.C. Art. 2316. Negligence is the prime issue in the present case.

The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v. Winn-Dixie of Louisiana, Inc., La.App., 284 So.2d 80 (1973); Fontanille v. Winn-Dixie Louisiana, Inc., La.App. 260 So.2d 71 (1972), cert. denied, 261 La. 1064, 262 So.2d 44 (1972); Prosser, Law of Torts, § 61, pp. 392-393 (4th ed. 1971). The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. As we recently noted, the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise. The system increases the risk of harm from objects dropped 'on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. See Kavlich v. Kramer, supra; Prosser, Law of Torts, § 56 p. 349 (4th ed. 1971).

In the instant case, plaintiffs established that there was a spill of olive oil about two feet in diameter in the aisle where Mrs. Gonzales was shopping; that the oil came from a broken bottle near the olive oil shelf; that she did not see the oil spill; that she stepped into the olive oil; and that it caused her to slip, fall, and be injured.

Upon proof of such facts, we recently held in Kavlich v. Kramer, supra, that the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner. When it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable. Implicit in the decision is a recognition that, in the self-service system, customers are prone to drop objects on the floor and that a customer who slips and falls on such an object is usually in no position to establish how long it has been on the floor.

The Court of Appeal decided this- case before our decision in Kavlich. However, both the majority and dissenting opinions in the Court of Appeal referred to the onerous evidentiary burden placed upon the injured customer and to the desirability of a reconsideration of the applicable principles.

In placing the duty of going forward with the evidence on the store owner, Kav-lich announced no rule that the store owner insures a customer’s safety. Under Article 2315 of the Louisiana Civil Code, fault is basic to recovery. If the evidence brought forward establishes that the store owner is free from fault, there can be no liability.

Neither do we hold the doctrine of res ipsa loquitur necessarily applicable to a slip-and-fall injury in a self-service grocery store. Res ipsa loquitur is a rule of circumstantial evidence. It normally comes into play only at the conclusion of the trial. The rule applies in any negligence action when the circumstances suggest the defendant’s negligence as the most plausible explanation for the injury. See Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); King v. King, 253 La. 270, 217 So.2d 395 (1968); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941).

In the present case, the defendants’ evidence was minimal. The defendants offered no evidence to show that an employee did not drop the oil. Because he was not on duty at the time of the fall, the afternoon manager testified only as to general managerial procedures. He was unable to testify that the morning inspection had actually been conducted. His own inspection, as we have noted, had not yet been made at the time of the plaintiff’s fall. Neither the morning manager nor other employees were called to establish the protective measures actually taken during the morning. In our opinion, the store owner has failed to exculpate itself from negligence.

We recognize, of course, that in order to serve as a basis for liability, the defendant’s conduct must be causally related to plaintiff’s injury. Proof of causation in civil cases, however, requires only a preponderance of the evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971).

In the present case, the oil spill was quite large; the broken bottle was nearby. On the record, we can reasonably infer that if adequate inspections had been made, the employees would have discovered the spill and removed the oil. In our opinion, the fall would not have occurred if the oil had been removed. Thus, causation is adequately established. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Although defendants pleaded contributory negligence, we find no basis for sustaining the plea. At the time of the fall, the plaintiff was pushing a grocery cart, which obstructed her view of the floor. The record clearly shows that she did not see the oil spill until after she fell.

The trial judge rendered a judgment in favor of Mrs. Gonzales for $2,500.00 as general damages and in favor of her husband for $386.48 as medical expenses. No issue as to quantum was raised either in the Court of Appeal or in this Court. On the medical testimony, the award appears to be within the discretion accorded to the trial judge. LSA-C.C. Art. 1934(3); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

For the reasons assigned, the judgment of the Court of Appeal is reversed and the judgment of the district court is reinstated and made the judgment of this Court. All costs are assessed against defendants.

SUMMERS, J., dissents and will assign reasons.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I concur, being of the opinion that it is not unreasonable to require a self-service grocery to take whatever measures that are necessary to keep its aisles clear of such slippery substances as olive oil, and that failure to do so is fault.

SUMMERS, Justice

(dissenting).

The facts on the store’s clean-up and inspection procedures as contained in the record and as summarized in the opinion of the Court of Appeal convince me that the defendant has adequately discharged the duty of reasonable care imposed upon it by law to protect its customers.

The facts:

“The only evidence of cleanup procedures is the testimony of the store manager Mr. Federico, who testified that he had come on duty that day at approximately 1:00 p.m., shortly after Mrs. Bedford got the report of the accident; that cleanup procedures at the store included a complete sweeping and mopping from one end of the store to the other each evening before closing; that on each morning whichever manager opens the store conducts an inspection to be sure that there are no hazards on the floor; that this inspection, normally made between 8:00 and 8:30 a.m., is followed by a second such inspection normally made after a shift change in managers between 12:00 and 1:00 p.m., and a third such inspection at approximately 5:00 p.m.; that at the time of plaintiff’s accident at about noon the manager had not yet made his inspection so that the only regular inspection prior to the accident was to have been between 8:00 and 8:30 a. m.; . that he is constantly on the floor looking for hazards; that all of the employees are instructed to' keep their eyes open for broken items with further instructions to clean up anything that may be on the floor; and that there is one fulltime man designated to clean up during the day.” (emphasis added).

I do not subscribe to the rule adopted in Kavlich v. Kramer, 315 So.2d 282 (La. 1975) and restated in the case at bar. Until these decisions, Louisiana law was well-settled that a plaintiff in such a slip and fall accident bore the burden of proving that the negligence of the defendant was the proximate cause of the injury complained of.

By this decision and Kavlich v. Kramer this Court takes another departure from the fundamental principles of tort liability by holding a proprietor of a store liable for accidental injury to a customer without proof of negligence based upon some act of commission or omission.

If it be conceded that plaintiff was injured by a slip and fall on the olive oil, there is no proof that her accident was caused by the fault of defendant or any of its employees. We do not know how long the olive oil was on the floor before plaintiff slipped and fell, nor: do we know how it got there. It may have been dropped by plaintiff or another customer almost immediately prior to the slip and fall. It is also possible that it may have remained there several hours, long enough to create presumptive notice of its presence so that the failure to remove it was negligence on the part of the store owner for which this plaintiff should recover. But there is no proof of any of these facts. The mere presence of the olive oil on the floor, without more, should not be enough to cast upon the defendant the burden of showing how it got there, so long as it exercised reasonable care to keep the premises in a safe condition.

While stating that a store owner is not the insurer of the safety of its customers, the Court announces a rule which does just that. Without proof of any fault on its part, the store must respond in damages. This decision heralds another departure from the traditional coricept of tort liability in Louisiana in derogation of the principle embodied in Article 2315 of the Civil Code.

I would affirm the decree of the Court of Appeal.

      . Different principles apply when an injury is caused by a vice or defect in the building itself, as distinguished from a foreign substance on the floor. ,See LSA-C.O. Arts. 2322, 2695.


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

text:
    Lloyd L. COOLEY, Plaintiff-Appellant-Relator, v. J. W. SLOCUM d/b/a J. W. Slocum Construction Company, et al., Defendants-Appellees-Respondents.
    No. 56599.
    Supreme Court of Louisiana.
    Jan. 19, 1976.
    Dissenting Opinion of Summers, J., Feb. 26, 1976.
    Rehearing Denied Feb. 20, 1976.
    Chris J. Roy, Gravel, Roy & Burnes, Alexandria, for plaintiff-appellant-relator.
    David A. Hughes, Gist, Methvin & Trimble, Alexandria, for defendants-appel-lees-respondents.
   TATE, Justice.

We granted certiorari, 318 So.2d 45 (La.1975), to review the dismissal of the plaintiff Cooley’s claim in tort against the defendant Guinn and his liability insurer. The issue is whether a partner may be individually liable to an employee of the partnership injured as a consequence of the partner’s negligence at work.

The partnership was the injured claimant’s employer. His exclusive remedy against the partnership, his employer, for his work-injuries was for workmen’s compensation benefits. La.R.S. 23 :1032. However, an employee injured at work is entitled to recover in tort from those third persons whose negligence caused or contributed to the injury. La.R.S. 23:1101-1103.

By this tort suit, the employee Cooley prays for recovery for his personal injuries at work from the defendant partner, Guinn. Cooley contends that his injuries were caused by the personal negligence of Guinn while he was working with the plaintiff Cooley. The plaintiff employee thus sues the defendant partner as a negligent third person, with a legal personality separate and distinct from the partnership itself.

The court of appeal affirmed the trial court’s summary judgment dismissing the employee’s tort suit against the partner. 313 So.2d 606 (La.App. 3d Cir. 1975). It did so in reliance upon three intermediate decisions to the same effect: Leger v. Townsend, 257 So.2d 761 (La.App. 3 Cir. 1972), certiorari denied 261 La. 464, 259 So.2d 914 (1972); Cockerham v. Consolidated Underwriters, 262 So.2d 119 (La. App. 2 Cir. 1972), certiorari denied 262 La. 315, 263 So.2d 49 (1972); and Bersuder v. New Orleans Public Service, Inc., 273 So. 2d 46 (La.App. 4 Cir. 1973).

These decisions essentially held that, even though under our civil law a partnership is a separate entity from its members, partners cannot as a general rule be sued for partnership debts during its existence. Kline v. Dawson, 230 La. 901, 89 So.2d 385 (1956); cf. also Brinson v. Monroe Automobile & Supply Co., 180 La. 1064, 158 So. 558, 96 A.L.R. 1206 (1934). Cockerham inferentially suggested that the secondary liability of the partners individually for the partnership’s torts could not be the basis of a tort suit against a partner, when the partnership itself is exempt from liability for the tort (i.e., because of the exclusiveness of compensation remedy).

These decisions have received uniform scholarly criticism. Dean Milton Harrison, Work of the Appellate Courts — Partnership, 34 La.L.Rev. 265 (1974); Note, 34 La.L.Rev. 654 (1974). As these analyses point out, under settled civilian theory the partnership is an entity separate and apart from the partners who compose it, a civil person independent of the legal personalities of its partners. Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515 (1956).

Thus, as the commentaries point out, a partner is a different legal person than the partnership itself. Therefore, for the purposes of La.R.S. 23:1101-1103 of the compensation act, a partner is a third person who is liable to an employee for injuries at work caused by the partner’s personal negligence, just as is any other third person.

Insofar as not factually distinguishable, the error in the reasoning of the intermediate Leger, Cockerham, and Bersuder decisions, cited above, is that they failed to recognize that a partner’s personal liability for his own fault is an obligation owed by him individually independent of any liability of the partnership itself arising out of the incident.

A partner is thus individually liable to an employee of the partnership injured by the partner’s personal fault, just as is one employee of a corporate individually liable for injuries caused by his personal negligence to a co-employee. Canter v. Koehring Company, 283 So.2d 716 (La.1973). In both instances, the individual liability of the negligent actor is independent of the liability of the partnership or corporate employer in workman’s compensation for injuries so caused. (Of course, the employer may be entitled to be indemnified for compensation payments from the proceeds available for the tort recovery. La. R.S. 23:1103.)

Our decision in Trappey v. Lumbermen’s Mutual Casualty Co., 229 La. 632, 86 So.2d 515 (1956) held that a partner injured in the course of his employment with his partnership has a cause of action in workmen’s compensation against it. We thus recognized that the legal personality of a partnership is separate and distinct from the legal personalities of the partners who comprise it — that the partnership and each of the partners are separate persons.

Our decision today holds that a partner is a third person insofar as the employment relationship between the partnership and its injured employee. It is consistent with Trappey. Insofar as inconsistent with Trappey and our decision herein, we overrule the cited intermediate decisions in Leger, Cockerham, and Bersuder, as well as Obiol v. Industrial Outdoor Displays, 288 So.2d 425 (La.App. 4th Cir. 1974) which followed them.

For the reasons assigned, therefore, we reverse the summary judgments of the district and intermediate court which dismissed the plaintiff Cooley’s suit against the defendant Guinn and (insofar as this claim) his insurer; and we remand this case to the district court for further proceedings consistent with the views herein expressed. The defendants-respondents are cast with all costs attributable to appellate review of this dismissal; all other costs to await final termination of these proceedings.

Reversed and remanded.

SANDERS, C. J., dissents.

SUMMERS, J., dissents and assigns reasons.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting)..

An employee’s remedy on account of a personal injury for which he is entitled to compensation shall be exclusive of all other rights and remedies of such employee. La.R.S. 23:1032. However, when the injury for which compensation is payable creates in some person (third person) other than the employer a legal liability to pay damages in respect thereto, the injured employee may claim compensation from his employer as well as damages against such third person for the injury. La.R.S. 23:1101.

In my opinion, a partner is not a third person as contemplated in the above statute. A partnership is a contract between two or more persons for mutual participation in the profits which may accrue from property, credit, skill or industry furnished in determined proportions by the parties. La. Civil Code art. 2801. Partners are bound in solido or for their virile share of the debts of the partnership depending on the type of partnership (commercial or ordinary). La.Civil Code arts. 2872 and 2873. This obligation would include any claim for compensation benefits owed to the employee under the act. While a partnership may be a separate legal entity from the partners who compose it, I do not consider a partner in the same category as a third person other than the employer as set forth in the statute. In my view, the majority opinion, extending delictual liability for industrial accidents to individual partners of a partnership, represents a strained interpretation of the above statute that is contrary to the spirit of the compensation law. Accordingly, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice MARCUS.


text:
    STATE of Louisiana v. Phil J. LEMELLE.
    No. 57488.
    Supreme Court of Louisiana.
    Feb. 11, 1976.
   In re: Phil J. Lemelle applying for supervisory writs.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction considering the applicant faces four armed robbery charges.

TATE, J., concurs, being of the opinion that our denial may be without prejudice to reurge the motion if the applicant moves for a preliminary examination or a speedy trial and is denied them.

CALOGERO, J., dissents. Petitioner is entitled to a bail reduction.