text:
    Charles R. WOFFORD v. The DOW CHEMICAL CO. et al.
    No. 10831.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    William D. Grimley, Baton Rouge, for appellant.
    Boris F. Navratil, of Breazeale, Sachse & Wilson, Baton Rouge, for defendants-appel-lees.
    William C. Kaufman, III., Baton Rouge, for intervenor.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Charles R. Wofford, appeals the granting of summary judgment in favor of defendant-appellee, The Dow Chemical Company. We affirm.

In April, 1974, Jimco Instrument Service Inc., contracted to perform certain maintenance and repair services for Dow. Under the contract, Jimco was required to carry workmen’s compensation insurance on its employees.

In January, 1975, plaintiff, while employed by Jimco, was injured on the premises of Dow’s Plaquemine, Louisiana, plant. At that time plaintiff was performing work required of Jimco by the aforementioned contract, said work being in furtherance of the general business, trade and occupation of Dow. As a result of the accident, plaintiff received workmen’s compensation benefits from Jimco.

Thereafter plaintiff brought suit, ex de-licto, against Dow; its liability insurer, Fireman’s Fund Insurance Company; and several officers and supervisors of Dow, alleging that their negligence was the cause of his injuries.

Fireman’s Fund, which was also the workmen’s compensation insurer of Jimco, intervened pursuant to subpart (E), Chapter 10, Title 23 of the Louisiana Revised Statutes, seeking recovery from the other named defendants for the workmen’s compensation benefits and medical expenses it paid to plaintiff.

Dow was granted summary judgment dismissing plaintiff’s ex delicto claim on the ground that plaintiff’s exclusive remedy against it was through workmen’s compensation, LSA-R.S. 23:1032 and R.S. 23:1061. Fireman Fund’s intervention against Dow was also dismissed.

Only plaintiff Wofford has appealed.

Workmen’s compensation is a compromise. By so providing protection for his employee, the employer surrenders immunity from fault; but in return, the employee surrenders the right to sue the employer ex delicto for the full amount of his damages. See Malone, Louisiana Workmen’s Compensation Law and Practice, “The Compensation Principle,” Section 32.

Thus, by its nature, workmen’s compensation is a remedy between the employer and the employee. For that reason, the relationship of employer-employee must be closely guarded, for without it the employee cannot recover.

Past history reveals attempts by employers to effectively avoid this relationship. One such method was to hire the employee through an insolvent subcontractor. By this tactic, the insured employee was effec-. tively deprived of his rights to workmen’s compensation since he could not collect from an insolvent subcontractor and he had no employer-employee relationship with the real employer.

Section 1061 was enacted to prevent such maneuvers, and thereunder the principal employer is liable to the employee to the same extent as if he were immediately employed by him. The statute designates the employer as the “principal” and the subcontractor as the “contractor.”

The net effect of Section 1061 is that the principal becomes a “statutory” employer of the workman, that is, an employer-employee relationship is legislatively created between the workman and the principal. Accordingly, as a statutory employer, the principal receives the ex delicto immunity set forth in Section 1032. Benoit v. Hunt Tool Company, 219 La. 380, 53 So.2d 137 (1951). In Benoit, the Court stated:

“Under the Workmen’s Compensation Act and the jurisprudence of this state, the exclusive remedy of the employees of the contractor against the principal, as these two terms are used in the act, is for workmen’s compensation, and there is no remedy in tort against the principal, as the principal is not a third person under the provisions of Section 7 of the act. Sections 6, 7, and 34, Act 20 of 1914, as amended, LSA-R.S. 23:1061, 23:1101, 23:1032; Thibodaux et al. v. Sun Oil Co. et al., La.App., 40 So.2d 761, affirmed 218 La. 453, 49 So.2d 852. The effect of Section 6 is that the principal shall be considered the employer of the employees of the contractor, in contemplation of the statute, so that such employees shall have the right to demand compensation from the principal, and this is their exclusive remedy, and the principal cannot be held liable to the employees of the contractor in tort. * * *” (53 So.2d at 144)

The Benoit case remains the law today, even though its holding was vigorously opposed by amicus curiae, the Louisiana Trial Lawyers Association, in Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972). See, also, Duhon v. Texaco, Inc., 490 F.2d 91 (5th Cir. 1974); Carroll v. Kilroy, 483 F.2d 977 (5th Cir. 1973); Liles v. Riblet Products of Louisiana, Inc., 363 F.Supp. 358 (W.D.La.1973), affirmed, 509 F.2d 804 (5th Cir.1975).

In view of the foregoing, we conclude, as did the trial judge, that Dow was the statutory employer of plaintiff and under the prevailing law and jurisprudence of this state, the plaintiff’s exclusive remedy against it is in workmen’s compensation. The judgment of the trial court is, therefore, affirmed, at appellant’s cost.

AFFIRMED.

      . LSA-R.S. 23:1032, in pertinent part, provides:
      “The rights and remedies herein granted to an employee or his dependent on account of a personal injury for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations.”

      . LSA-R.S. 23:1061, in pertinent part, provides:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is . a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against; the principal, then, in the application of tins Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.”


source: Caselaw Access Project

author: MARVIN, Judge.

license: Public Domain

text:
    Rosetta MALONE et al., Plaintiffs-Appellants, v. Troy J. FIELDS et al., Defendants-Appellees.
    No. 12938.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.

      Baker, Culpepper & Brunson by Joseph A. Cusimano, Jr., Farmerville, for plaintiffs-appellants.
    Durrett, Hardin, Hunter, Dameron & Fritchie, by Emile C. Rolfs, III, Baton Rouge, Hargrove, Guyton, Ramey & Barlow by Michael R. Mangham, Shreveport, for defendants-appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs appeal from the rejection of their respective demands for personal injury, humiliation and embarrassment against a deputy sheriff, his employer, the Sheriff of Union Parish, and their liability insurer. This suit arose out of an incident between plaintiffs and a Sheriff’s deputy in front of a tavern. The deputy admittedly physically attacked the several plaintiffs but claims reasonableness in the force used and justification because plaintiffs were interfering with his investigation into a shooting at the tavern, which did not involve plaintiffs. We reverse the lower court and render judgment for the several plaintiffs.

The tavern, called “Ne-Ne’s,” is situated about 100 feet from a public road in or near Bernice, Louisiana. Deputy Fields was directed to the tavern on a Saturday afternoon to investigate a shooting. He arrived in uniform in his Sheriff’s car about the same time as the Bernice City Marshal. There were several people outside the tavern, including plaintiffs. The City Marshal estimated the number at “probably fifteen” and said they were “spread out” in smaller groups.

Plaintiffs are (1) Rosetta Malone, the mother of plaintiffs (2) Willie Ray Jones and (3) Mrs. Peggie Dunn. Mrs. Dunn is the wife of plaintiff (4) Tommy Lee Dunn. Except for Tommy Lee Dunn, each of plaintiffs had drunk one or two beers prior to the incident, but were not found to be intoxicated.

The record establishes the following circumstances: When Deputy Fields began to walk the 100 feet towards the tavern he asked Rosetta Malone where the trouble was. She told him it had happened inside the tavern and the deputy proceeded towards the tavern. Peggie Dunn was sitting on the hood or fender of a parked car some twenty feet away from the building and not in the path of the deputy towards the doorway of the tavern. Peggie Dunn said to Deputy Fields as he walked by her and got near the door of the tavern, “By the. time the cops get here we all be dead.” Fields then turned and walked to Peggie Dunn and told her to “shut up” and slapped her. She told him he could not tell her to shut up and he slapped her again. She returned the slap. At one point, Fields told her to shut up and go home. Peggie’s husband, Tommy Lee Dunn, was standing on the porch of his home next to the tavern and saw Deputy Fields slap his wife. Tommy Lee Dunn then came up to Fields and inquired why Fields was slapping his wife. Fields then began to slap Tommy Lee Dunn. About the fourth time Fields slapped him, Dunn grabbed Fields’ arm to keep him from slapping again.

From some distance away, Willie Ray Jones saw Fields hit Dunn and came to where Fields and Dunn were. Willie Ray admittedly used profanity (but did not curse Fields) in asking Fields what was going on and why he was hitting people. Fields then hit or slapped Willie Ray Jones twice, the second time knocking him to the ground and dazing him.

Rosetta Malone then approached Deputy Fields demanding to know why he was slapping her “children.” Fields attempted to ignore Mrs. Malone, telling her to shut up, but she persisted in asking such questions. Fields then sprayed her in the face with Mace, a chemical irritant, and went into the tavern. There he learned that those involved in the earlier shooting had been picked up by another lawman before he arrived. After Fields came out of the tavern and started towards his car, Mrs. Malone followed him with the same persistent questions as to why he had slapped her children. Fields again sprayed Mrs. Malone with Mace when she was about 10 feet away.

Testimony concerning the incident was elicited from plaintiffs, from Deputy Fields and Marshal Wright, and from two witnesses, George Sheldon and Michael Lowe. Sheldon and Lowe corroborated plaintiffs’ versions of the incident. The record clearly shows Deputy Fields hit or slapped Mrs. Dunn and her husband before he went into the tavern. When Fields hit Tommy Lee Dunn for the fourth time, Dunn grabbed Fields’ arm to keep him from hitting him again. At that time the Marshal manipulated a shotgun to cock it and place a shell in the chamber. Wright had obtained the shotgun from his police car parked near the Sheriff’s car. When Tommy Lee Dunn heard the noise of the shotgun being manipulated he released his grip on Fields’ arm.

The record is not as clear whether it was before or after Fields went into the tavern that he struck Willie Ray Jones and sprayed Mrs. Malone the first time with Mace. Deputy Fields said he was within ten or twenty feet from the tavern door when Peggie Dunn “started running off at the mouth.” He acknowledged that she was not keeping him from going to the building but that “every time I try to . walk away from her, she’d start back running off at the mouth . . ,” Fields did not remember in what order he hit Willie Ray Jones and Tommy Lee Dunn after he hit Peggie Dunn. He did not remember how many times he hit Peggie Dunn, Tommy Lee Dunn or Willie Ray Jones.

Deputy Fields testified about his actions after he had hit these people.

“I think I stood around- there for a few minutes. They were all upset and hollering and I kept telling them to go home and they just keep standing around and then Rosetta [Malone] kept running off at the mouth.”

He said Rosetta Malone was not between him and the doorway of the tavern and that he sprayed her because “I couldn’t get her to go on and get out of my way.” He said that none of the people were blocking his way or holding him in any way.

The second spraying incident he described in these words:

“She followed me all the way back to the car [from the tavern] [“I’d say 10 feet behind me”] ... we [Fields and the Marshal] was trying to stand up there and talk about what had happened and she came up there again and I sprayed her again ... I think she kept saying the same thing over and over that something was going to be done.”

Fields acknowledged no one threatened him but that he “thought” they were because they “gathered” around him.

Marshal Wright said Peggie Dunn was sitting on a car and was not blocking Fields’ passage to the building and that her remarks about the late arrival of the police were directed at him and the other people as well as at Fields, and that Fields hit her first without her threatening him when no one else was nearby (“it was a one sided fight ... at that time I was starting back to the car”). Wright got the shotgun from his car and turned around in time to observe Willie Ray Jones on the ground.

Wright “assumed” that Fields struck the plaintiff men in “self-protection,” but said that he did not see anyone “throwing blows” beside Fields. He did say Willie Ray Jones “reached out” for Fields just before Jones went to the ground [from Fields’ blow]. Wright admitted that he and Fields could have walked past Peggie Dunn and into the tavern after Peggie Dunn’s initial remark. Deputy Fields and Marshal Wright testified that Peggie Dunn used profane language (without specifying what words) in her initial statement toward the officers. Without resolving this issue of fact, we shall assume her language did contain some curse words. Wright quoted Peggie Dunn, however, as saying “ . by the time the police or officers arrived, a person could get killed.”

In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), a city ordinance made it unlawful to curse or revile or to use obscene or opprobrious language toward a police officer while in the performance of his duties. There a mother was in a pickup truck following a police car which was taking her son to the station after his arrest. A second police car stopped the truck and the mother and the policemen from this car confronted each other. The policeman arrested her for violating the above ordinance when she “ ‘started yelling and screaming (about her son) and . . wanted to know where he was . . . (She called the policeman) “you god damn m.f. police — I am going to [the Superintendent of Police] about this.” ’ ” Material in parentheses supplied. See footnote one, at 131, 94 S.Ct. 971.

The Louisiana Supreme Court held the quoted language to be in the category of “fighting words” and therefore outside the protection of permissive free speech afforded by the First Amendment. The Supreme Court of the United States held the ordinance in question to be “constitutionally overbroad” in that it could be applied to protected speech and reversed the conviction. In reaching this result, the U.S. Supreme Court, however, did not pass on whether the quoted language was properly categorized by the Louisiana Supreme Court because it noted that it was “immaterial whether the words appellant used might be punishable under a properly limited statute or ordinance.” See at 133, 94 S.Ct. 972.

In a concurring opinion, one Justice reached the issue of the character of the quoted language in these words:

“It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’ [Gooding v. Wilson ], 408 U.S. 913, 92 S.Ct. 2499, [33 L.Ed.2d 321]. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961).” At 130, 135, 94 S.Ct. 970, 973.

Indeed the majority opinion of the U.S. Supreme Court noted in a footnote that trained police officers were held by some authorities to a “higher degree of restraint than the average citizen” in avoiding physical retaliation even to “fighting words.” See footnote two, at 132, 94 S.Ct. 972.

In his dissent to the holding of the Louisiana Supreme Court, concurred in by one other Justice, Mr. Justice Tate stated:

“The ruling in Gooding v. Wilson is decisive of this case, as the United States' Supreme Court indicated by ordering us to consider the present conviction in the light of that decision.
“The language there used by the defendant to a Georgia police officer was ‘White s— of a b-, I’ll kill you’ and ‘You s— of a b-, I’ll choke you to death’. See [at 913], 92 S.Ct. 1112. In the present case, the mother called the police officer a ‘G— d- m- f-’ police. The fact that the latter words used are shocking to the sensibilities of people of our generation does not by itself justify classifying such critical language as not protected by the constitution. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).
“Whatever our personal views are as to what sort of language should or should not be punishable, this court is bound by our state and federal constitutions to enforce constitutional protection of individuals and their speech as interpreted by authoritative decisions of the nation’s high court . .
“The police, our front line soldiers in the battle against crime, deserve the respect and support of our officials and citizens. Nevertheless, ever since this nation fought for and obtained its freedom, it has not been a crime to curse or use opprobrious language about the public officers of our democratic republic .” 263 La. 809, 269 So.2d 450, 459.

We comment upon these cases not to show our approval of unwarranted and harsh criticism of police officers in the course of their duties, but to show the observations of our highest courts with respect to the issue of freedom of speech versus fighting words toward a policeman. See annotation, 39 L.Ed.2d 925.

In the instant case, the incident occurred in the parking lot or area on and adjacent to the public street where patrons of the tavern parked motor vehicles. R.S. 14:108 sets forth the crime of resisting an officer. La.C.Cr.P. Art. 220, states that citizens shall “submit peaceably” to a lawful arrest. This Article reads:

“A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained.”

The article further provides that the person making a lawful arrest may use “reasonable force” to overcome “any resistance.” See Logan v. Swift, 327 So.2d 168 (La.App.2d Cir. 1976). If a person intentionally jostles or unnecessarily crowds a policeman the person may be arrested. If a person intentionally opposes, resists or obstructs a police officer, the person may be arrested. The policeman may then use reasonable force to effect the arrest or overcome any resistance.

We do not view the language and the actions of Mrs. Peggie Dunn as constituting either the crime of resisting an officer (R.S. 14:108) or the crime of criminal mischief (R.S. 14:59). Even assuming ar-guendo, however, that her language and her actions did constitute one or the other of these offenses, Deputy Fields did not arrest her, during or after the incident. Instead of hitting her, Deputy Fields’ course, and the course the law contemplates that a police officer shall take, should have been to arrest her for either one or more offenses such as are cited from the Criminal Code. If she did not submit peaceably to the arrest, Deputy Fields would have been authorized under Art. 220, La.C.Cr.P., to use reasonable force in overcoming resistance or threatened resistance. He would have been authorized to summon or call upon as many persons as he considered necessary to aid him in making the arrest under Art. 219, La.C.Cr.P.

Art. 18 of the Criminal Code sets forth seven instances when the defense of justification can be claimed. It should be noted that the justification is a defense to the prosecution for any crime based on the conduct in question. For defenses as to civil liability, see Comment, “Tort Liability of Law Enforcement Officer: State Remedies,” 29 La.L.R. 130.

We do not find here that Deputy Fields’ conduct toward plaintiffs was justified under any provision of Art. 18 of the Criminal Code and we do not find that he was making a lawful [or for that matter, unlawful] arrest under Art. 220, La.C.Cr.P. In the absence of facts warranting application of these articles, a law enforcement officer may not physically attack a private citizen for making comments about the officer which are not in themselves threatening to the officer’s safety or to his authority as a law enforcement officer in the course of his duty. See R.S. 14:329.1, et seq., quoted infra.

The trial court concluded that Fields had two “imperative” objectives upon reaching the tavern, (1) to find out who was involved, and (2) to disperse the crowd.

The lower court concluded that the several plaintiffs acted in a manner calculated to interfere with the accomplishing of these objectives. The lower court also concluded that Peggie Dunn’s words were inflammatory and could have “ignited the emotions of what appeared to be an angry group of people . . . [and that] ... it was necessary for the deputy to show other members of the crowd that he would use the degree of force required to compel compliance with his orders.” We do not agree with these conclusions. They are also not supported by the testimony of Deputy Fields or the City Marshal. Again, assuming Mrs. Dunn’s words were of the character assigned by the lower court, she could have been arrested for inciting to riot and the officers could have given the crowd a command to disperse, the violation of which in itself is a crime,

Additionally, it should be noted that when the City Marshal.exhibited and manipulated his shotgun, the “crowd” as it were, did disperse. This action by the City Marshal indicates that a reasonable demonstration of a weapon by a law enforcement officer, as opposed to actual violence, is all that is necessary in some instances for an officer to gain the attention of a crowd of people and have his orders obeyed. We do not view this record as establishing in any way a clear and present danger to either officer, especially considering the City Marshal’s testimony as to the number of people present and the fact that they were “spread out.”

The trial court thought .Mrs. Malone’s “repeated badgering ... presented the deputy with the alternative of either stopping his investigation . to soothe the ruffled feelings ... or using reasonable force to prevent her further obstruction of the investigation.” Again, we disagree. Mrs. Malone was not threatening the deputy by her words or her actions. The verbal assault or inquiry was harassing but not threatening. If Mrs. Malone was obstructing in the manner contemplated by R.S. 14:108, Deputy Fields’ course was to arrest her. It would have been her duty to submit peaceably to the arrest and his privilege then if she did not, to use reasonable force in effecting the arrest or overcoming her resistance or threatened resistance. The law affords means to the law enforcement officer to control whatever situation he is in without his initially resorting to a physical attack upon those who are in his vicinity of operations. Plaintiffs are entitled to recover damages.

QUANTUM

None of these plaintiffs were seriously injured. Mrs. Dunn testified she was more embarrassed than hurt. With the possible exception of Mrs. Malone, none of the plaintiffs sought medical attention. Mrs. Malone saw an eye specialist (optometrist or ophthalmologist) in March after the incident in October. She testified that her eyes burned for this period of time. Whether Mrs. Malone’s treatment in March after the spraying was causally connected to the incident was a question solely for the specialist as an expert witness. The specialist did not testify. Mrs. Malone testified that the second spraying of Mace did not hit her in the eyes.

Notwithstanding the absence of physical injury, each plaintiff sustained some degree of embarrassment and humiliation because of Fields’ respective attack. Awards in these type cases range from $25.00 to more than $15,000.00. We feel a fair and just award to each plaintiff would be $150.00. Mrs. Malone should be entitled to a slightly higher award because she sustained some temporarily continuing eye irritation and we award her an additional $100.00.

For reasons assigned, judgment rejecting plaintiffs’ demands is reversed and accordingly:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in solido and against defendants, Troy J. Fields, Eugene Patterson, Sheriff of Union Parish, Louisiana, and Interstate Fire and Casualty Company, in favor of

(A) Plaintiff, Mrs. Rosetta Malone for $250.00;

(B) Plaintiff, Mrs. Peggie Dunn for $150.00;

(C) Plaintiff, Tommy Lee Dunn for $150.00; and

(D) Plaintiff, Willie Ray Jones for $150.00,

with legal interest from judicial demand.

IT IS FURTHER ORDERED that defendants pay all costs of these proceedings in the trial court and on appeal.

REVERSED AND RENDERED.

      . As we appreciate the testimony, the “something” that was going to be done did not concern any threat of violence towards Fields but concerned only Fields’ right to whip her children and her right to know why.

      . In part, it reads: “Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      “The phrase ‘obstruction of as used herein shall, in addition to its common meaning, signification and connotation mean: * * *
      “(d) Congregates with others on a public street and refuses to move on when ordered by the officer.
      “Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.”
      See also R.S. 14:59(8) (Criminal Mischief) to same effect. It is also criminal mischief to jostle against or unnecessarily crowd a person in any place. R.S. 14:59(9).

      . . . . (1) When the offender s conduct is an apparently authorized and reasonable fulfillment of any duties of public office; or
      “(2) When the offender’s conduct is a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure; or
      “(3) When for any reason the offender’s conduct is authorized by law; or
      “(4) When the offender’s conduct is reasonable discipline of minors by their parents, tutors or teachers; or
      “(5) When the crime consists of a failure to perform an affirmative duty and the failure to perform is caused by physical impossibility; or
      “(6) When any crime, except murder, is committed through the compulsion of threats by another of death or great bodily harm, and the offender reasonably believes the person making the threats is present and would immediately carry out the threats if the crime were not committed; or
      “(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.”

         ■. Our recitation of facts is essentially the same as the lower court’s recitation, except for the number of people outside the tavern. The lower court used the figure of 30-35 people and labeled this as a “crowd.” This figure came from a very rough estimate by the witness Shelton. At other times in his testimony this witness estimated a much lesser number and said he did not know how many people were there. We prefer to adopt the estimate and characterizations of the City Marshal.

      . R.S. 14:329.1: “A riot is a public disturbance involving an assemblage of three or more persons acting together or in concert which by tumultuous and violent conduct, or the imminent threat of tumultuous and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.”
      R.S. 14:329.2: “Inciting to riot is the endeavor by any person to incite or procure any other person to create or participate in a riot.”
      R.S. 14:329.3: “Any law enforcement or peace officer or public official responsible for keeping the peace may issue a command to disperse under the authority of R.S. 14:329.1-14:329.8 if he reasonably believes that riot is occurring or about to occur. The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage.”
      “Whoever wilfully fails to comply with a lawful command to disperse shall be punished in accordance with the provisions of R.S. 14:329.7.”

      . See: Daigle v. Gilmore, 116 So.2d 860 (La. App. 1st Cir. 1959) where a game warden administered a slap.

      . See: Taylor v. City of Baton Rouge, 233 So.2d 325 (La.App. 1st Cir. 1970) where a policeman administered a much more sustained beating with severe injuries.
      See also: Jacobs v. City of New Orleans, 484 F.2d 24 (5th Cir. 1973) where $500.00 was awarded because of injuries administered at the hand of a policeman. Medical expenses there were $173.00.


author: SARTAIN, Judge.

text:
    Mrs. Frank CLARK v. I. H. RUBENSTEIN, INC.
    No. 10248.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      J. D. De Blieux, Baton Rouge, for appellant.
    Charles W. Franklin, Baton Rouge, for appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This is an action for damages for humiliation and embarrassment growing out of an incident wherein plaintiff alleges she was wrongfully accused of shoplifting. She was denied judgment in the trial court and we affirmed. (314 So.2d 849, 1975). The Supreme Court reversed and remanded for the purpose of assessing damages. La. 326 So.2d 497 (1976).

For convenience, we quote the facts and reasons for judgment as set forth in the Supreme Court’s opinion: 326 So.2d 497, 498, 499:

“As Mrs. Frank Clark was leaving the store on August 4, 1973, with several parcels she had bought, the alarm went off. It is not disputed that the store was crowded and a number of other shoppers heard the electronic buzzer and witnessed the events which followed. Upon hearing the alarm, one of Rubenstein’s male employees followed Mrs. Clark from the store and asked her to return. She complied with this request and also allowed him and another male employee to search her shopping parcels in view of other shoppers inside the store. Thereupon, it was discovered that a sales clerk had failed to remove a tag from an item of merchandise paid for by Mrs. Clark. She was allowed to leave with apologies from the manager, and none of the store’s personnel accused her of any wrongdoing or acted discourteously. Nevertheless, Mrs. Clark testified that the experience was embarrassing and that she was so upset by it that she took medication to calm herself when she got home.
******
“Under the facts as found by both courts below Mrs. Clark was certainly subjected to a detention. When the alarm was given, and she was asked to return for a search of her goods in the presence of other shoppers, there were only two courses of action available to her. She could have attempted to leave the scene, thus tending to confirm the suspicions of the store’s employees and by-standers that she had stolen something, and subjecting herself to more severe embarrassment and possible restraint by force. Instead, she chose the more sensible course and mitigated her humiliation by submitting to a public inspection of her packages. Under the circumstances, her freedom of choice and action were certainly restricted and a restraint was effectively placed upon her liberty.
“Our conclusions are in accordance with principles established by Louisiana jurisprudence and that of other states. Detention grounded on substantial action by the customer showing an intent to steal has been upheld as lawful. Coates v. Schwegmann Bros., 152 So.2d 865 (La. App. 4th Cir. 1963); Simmons v. J. C. Penny, 186 So.2d 358 (La.App. 1st Cir. 1966). But merchants who detained shoppers on the basis of mere suspicion, and without reasonable cause, have been subjected to liability. Wilde v. Schwegmann Bros. Giant Supermarkets, 160 So.2d 839 (La.App. 4th Cir. 1964); Bacharach v. F. W. Woolworth Co., 160 So.2d 854 (La.App. 4th Cir. 1964). See Hargrove, Louisiana Merchant Detention Statute, 25 La.L.Rev. 956 (1965).
“Courts in other jurisdictions have held that restraint of personal liberty by fear of a personal difficulty amounts to a false imprisonment, and that detention of a shopper by a merchant is privileged only where the facts would cause a prudent and cautious man to reasonably believe that the customer is guilty of shoplifting. E. g., Coblyn v. Kennedy’s, Inc., 359 Mass. 319, 268 N.E.2d 860 (1971); Annotation, Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 ALR 3rd 998.
“We conclude that Mrs. Clark, the plaintiff, was detained and searched by employees of the defendant, I. H. Ruben-stein, Inc., and that due to facts of which the defendant was or should have been aware, the defendant did not have reasonable cause to believe that she had committed theft of goods held for sale by it. Mrs. Clark is entitled to compensation for the embarrassment and humiliation caused her by the incident. * * * ”

Appellant seeks an award of $950.00 and cites numerous cases in support thereof, including Sanders v. W. T. Grant, 55 So.2d 89 (1st La.App., 1951), $500.00; Wilde v. Schwegmann Bros. Giant Supermarkets, 160 So.2d 839 (4th La.App., 1964), $1500.00; Chretien v. Woolworth, 160 So.2d 854 (4th La.App., 1964), $500.00; Stewart v. J. C.. Penney, 267 So.2d 925 (1st La.App., 1972), $500.00; and Higgins v. McGee’s Discount, 316 So.2d 472 (1st La.App., 1975), $500.00. Appellant then argues that inasmuch as “she did not make one single contribution to the facts which” led to her embarrassment and humiliation, the amounts awarded in the cited authorities should be adjusted in her case and the award prayed for herein should be granted.

On the other hand, defendant cites practically the same authorities for the proposition that the facts in each are more aggravated then those in the instant matter and that the award herein should be substantially lower.

With respect to awards in matters such as this, the court considers the nature, extent, reasonability, and circumstances surrounding the inquiry or questioning of the person detained. Durand v. United Dollar Store of Hammond, Inc., 242 So.2d 635 (1st La.App., 1970) and Higgins v. McGee’s Discount Store, Inc., supra.

Considering the factors involved during Mrs. Clark’s detention, we feel that the sum of $500.00 is the appropriate amount. She was courteously treated throughout the period of detention. The entire matter lasted no longer than five minutes during which time there were no accusations, physical restraints, or demeaning language.

Accordingly, for the above reasons, the judgment appealed is reversed and judgment is rendered herein in favor of the plaintiff and against the defendant in the amount of $500.00, together with legal interest thereon from the date of judicial demand, until paid, and for all costs of this suit.

REVERSED AND RENDERED.


author: PONDER, Judge.

text:
    Sylvia King PRIVETTE, wife of W. Richard Privette, Jr. v. W. Richard PRIVETTE, Jr.
    No. 10792.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.

      Maurice J. Le Gardeur, Jr., Covington, for appellant.
    Guy L. Deano, Jr., Covington, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff-appellant, Sylvia King Privette filed a rule for alimony pendente lite and child support against defendant-appellee, W. Richard Privette, Jr., seeking a monthly award of $1,250. After trial on the rule, the trial judge awarded Mrs. Privette $50 per week alimony and $50 per week child support for each of two minor children. Mrs. Privette has timely appealed, arguing that the amount awarded by the court below is insufficient to maintain her and the two minor children in accordance with their former standard of living. We affirm.

Plaintiff-appellant contends:

1. The trial judge erred when he failed to consider the husband’s entire financial picture, including all of his resources, as well as his separate property, in setting the amount of alimony pendente lite.

2. The trial judge erroneously considered the defendant-appellee’s deductions for depreciation listed in his income tax returns in arriving at a basis upon which to compute alimony pendente lite.

Mr. Privette is the sole owner of Privette Oil Company. In spite of gross sales in 1972, 1973, and 1974, of $454,000, $535,681 and $672,693, respectively, the company has lost money the last four or five years. It presently has no cash reserve for depreciation and is on a cash basis with at least some of its suppliers. Mr. Privette has had to sell some of his separate property and borrow money from his mother to keep the company afloat. All of his income is derived from the company.

Mr. Privette testified that he takes only $1,000 per month out of the business to pay off a bank note, and about $100 per week for his personal use. He admitted, however, that “when things come up” he takes more out. He stated that when he lived with his wife the most he ever took out to support his family was $800 per month, excluding medical expenses.

Mr. Privette owns a substantial amount of land in St. Tammany Parish. He is the sole owner of four improved and three unimproved lots. In addition, he owns in indi-visión with his mother ninety acres of land known as the Privette Airport, two and a half acres on the Bogue Falaya River, and three improved and two unimproved parcels of land.

Mr. Privette testified that all rental from the above property goes directly to his mother, as he owes her $80,000. He stated that the airport property is still burdened with a $50,000 mortgage.

Mr. Privette testified that in the last four years his standard of living has greatly declined. He has not purchased any new. clothes in a couple of years, and he now drives only one used car, whereas in the past he had several new ones. No new cars have been bought for the company in the last three years.

Mrs. Privette denied that her husband spent only $800 per month maintaining the household. She itemized the monthly expenses for herself and the two minor children as totalling twelve hundred fifty-one dollars per month.

Civil Code Article 148 provides that:

“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

An award of alimony pendente lite and child support must be sufficient to maintain the wife and children in the manner they were accustomed to prior to the separation, in accordance with the husband’s means. Also, the husband’s “means” includes not only his income, but also his resources. King v. King, 255 So.2d 225 (La.App. 1st Cir. 1971). In fact, the court can award alimony and child support in excess of the husband’s income if the circumstances so require. King, supra.

Plaintiff-appellant’s assignments of error, however, are not supported by the record. If the trial judge had considered only Mr. Privette’s income, as plaintiff-appellant contends, the alimony award would have been considerably less than that granted. Also, the record does not indicate in any manner whatsoever, that the trial judge considered Mr. Privette’s income tax depreciation as a factor.

Instead, we find the award ample, and fully within the broad discretion granted the trial judge in such matters. Stansbury v. Stansbury, 258 So.2d 170 (La.App. 1st Cir. 1972).

AFFIRMED.


author: ELLIS, Judge

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE COMPANY, LTD. (two cases).
    Nos. 10743 and 10744.
    Court of Appeal of Louisiana, First Circuit.
    July 6, 1976.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge

(dissenting from the refusal to grant a rehearing).

. The court below recognized the authority of the Department of Highways to take a servitude for construction and maintenance of a public highway, but found that the use to be made thereof by the State and the public had to be limited to highway purposes. The Department appealed, contending that the trial court erred in holding that the access canal expropriated was “not a part of the State highway system”, “not a general public way” and “not available for use by the general public”.

In our original opinion, we held that, in a proceeding under the quick taking statute, R.S. 48:441 et seq., we could only consider if the taking was for a public purpose, and were without authority to express any limitation as to the extent of the use of the servitude. We held that if the use of the servitude made by the State transcends the limits placed thereon by the law, the matter could only be litigated in a separate proceeding.

However, the issues decided by the trial judge were raised by the pleadings filed below, and were litigated by the parties without objection. I see no reason why we should not now rule on these issues, which, for the following reasons, I believe were correctly resolved by the trial judge.

Article 6 Sec. 19.1 of the Constitution of 1921 provides:

“The Legislature shall have authority to authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits prior to judgment therein provided that provision be made for deposit before such taking with a court officer for the amount of appraisals of the property so taken and damages to which the owner thereof may be entitled, if any, which appraisals may be made in such manner as may be provided by law either before or after institution of suit, and need not be by judicially appointed appraisers.”

R.S. 48:447 provides:

“Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public use may file a motion to dismiss the suit within ten days from the date the notice was served on him. He shall certify thereon that a copy thereof has been served personally or by mail or either the plaintiff or his attorney of record in the suit. This motion shall be tried contradictorily with the plaintiff.
“Failure to file the motion within the time provided or to serve a copy thereof on the plaintiff constitutes a waiver of all defenses to the suit except claims for compensation.”
The “Order of Expropriation” provides: * * * * * *
“AND IT IS HEREBY FURTHER ORDERED that a permanent servitude of right of way on, over and across the tract or parcel of land described hereinafter is expropriated and taken for highway purposes as of the time of such deposit, according to law. . . .”

The Department of Highways is limited in its power to expropriate. It may take, under Art. 6 Section 19.1 for highway purposes. This is the only public use for which it has the power to take. R.S. 48:441 et seq. The order of expropriation which the Department obtained granted to the Department a “permanent servitude of right of way . . . expropriated and taken for highway purposes.” So long as the Department limits its taking to uses for highway purposes, its taking is within the authority granted to it by the Constitution and statutes. See State v. Bradford, 242 La. 1095, 141 So.2d 378, 386 (1962).

The question is whether the actual use the Department has sought goes beyond the use for which it may expropriate and so is not within its authority to take. “An administrative board or agency only has the power and authority expressly granted by the constitution or statutes,” and the Department of Highways, “. . . being only an administrative agency of the State, (can) not on its own authority enlarge the powers delegated to it by the Legislature.” Realty Mart, Inc. v. Louisiana Board of Tax Appeals, Collector of Revenue, 336 So.2d 52 (La.App. 1st Cir. 1976).

The court below found that so long as the Department confines itself to use for highway purposes, i. e., a permanent servitude for construction and maintenance, the taking is one for which it has authority. There was also recognition of the limited nature and purpose of a servitude. Civil Code, Arts. 658, 722, 753, 771, 772, 778, 780. Wilson v. Scurlock Oil Co., 126 So.2d 429 (La. App. 2d Cir. 1960). The court found that any attempted use beyond the exercise of rights of servitude for construction and maintenance is not within a use for highway purposes and so is not a valid public use for which the Department may expropriate. The court ordered the Department’s use to be confined within Constitutional and statutory limits, as a taking for any other use would be invalid.

The judgment appealed from did not go into the question of necessity for the taking or attempt to change the extent of the taking. See State v. Macaluso, 235 La. 1019, 106 So.2d 455 (1958); State v. Guidry, 240 La. 516, 124 So.2d 531 (1960). It upheld the validity of the taking of the permanent servitude of right of way for highway purposes and defined what is meant by “highway purposes” in this set of circumstances.

The Department’s attempt to use or permit use of the servitude of right of way (which is all it sought under its own order of expropriation) for other than construction and maintenance is not a public use for which this agency of the State may validly acquire any rights and the court below properly defined the permissible limits of the rights of the Department.

I therefore dissent.


author: LANDRY, Judge.

text:
    Theresa Ann Fedele CHAPMAN v. John Faust CHAPMAN.
    No. 10769.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Robert W. Tillery, Ponchatoula, for appellant.
    John D. Kopfler, Hammond, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment awarding plaintiff (Appellee) alimony in the agreed sum of $450.00 monthly, plus other agreed emoluments, for the support of Appellee and three minor children of the marriage between the parties, said alimony decree being rendered incident to Appellee’s action against Appellant for a judicial separation on the ground of abandonment. We affirm.

Appellant responded to Appellee’s petition by a general denial. By consent of the parties the matter was heard instanter. Appellant, though not present at the hearing, was represented by counsel who attended the hearing and who stipulated and consented to the matter being heard in the nature of a confirmation by default.

It is conceded, both in the scant transcript and in Appellant’s brief, that Appellant agreed and consented to pay Appellee the sum of $450.00 monthly for the support of Appellee and Tamara Lynn Chapman, 15, Randy Lee Chapman, 12, and Jay Christian Chapman, 4, issue of the marriage between these parties. It is also conceded that Appellant agreed to pay a certain automobile note in the sum of $91.39 monthly commencing October 1,1975, until the note was discharged in full, and to pay hospital insurance coverage on the children.

The only testimony relative to the alimony issue consists of that given by Appellee who testified without contradiction, that Appellant was employed at a gross salary of $1,300.00 monthly, with a take home pay of approximately $1,075.00 per month. She further attested a mutually agreeable settlement of community between the parties and Appellant’s agreement to pay precisely the alimony awarded by the trial court.

Appellant contends that the alimony award exceeds Appellee’s needs and requests the court to remand this matter to permit the trial court to fully consider the issues of Appellee’s needs and Appellant’s income. Appellant’s position is best described by the concluding sentence of his brief which reads as follows:

“The Appellant should not be placed in a position to pay an excessive amount of alimony and child support while no change in circumstances has occurred, simply because of a consent decree which he now feels is unjustified and for which he has filed this appeal.”

Appellant makes the basic contentions that the alimony award exceeds plaintiff’s needs and results in the taking of an inordinate portion of his income.

The limitation contained in La.Civ.Code Art. 160, restricting alimony to one third of a husband’s income, has no application to an award of alimony pendente lite pursuant to La.Civ.Code Art. 148. Hurry v. Hurry, 138 La. 391, 70 So. 337.

An award of alimony pendente lite pursuant to La.Civ.Code Art. 148 is largely within the discretion of the trial court. Bernard v. Bernard, La.App., 300 So.2d 499.

Because an award of alimony pendente lite is discretionary with the trial court, such an award should not be set aside unless an abuse of discretion is clearly shown. Lockwood v. Lockwood, La.App., 175 So.2d 313.

A party seeking change in a prior judgment for alimony pendente lite bears the burden of proving circumstances justifying the change. In such cases the judgment is presumed to be correct until the necessity for change is shown. Keneson v. Madeley, La.App., 185 So.2d 868.

We know of no reason why spouses may not consent to an alimony award which will become binding upon approval by and incorporation into a trial court judgment, especially where the rights of minors concerned appear amply protected. We are likewise unaware of any reason why a judgment for alimony, based on a voluntary agreement of the parties, should be set aside on appeal merely because the party liable for alimony decides, after judgment, that the agreed amount is excessive.

We hold that where an alimony award is thusly fixed, and no abuse of the trial court’s discretion appears of record, which we find herein, the judgment is binding on the parties and may not be changed save upon a showing of change in circumstances, the same as in the case of an alimony award rendered after full trial of the issues involved. Keneson v. Madeley, above.

The judgment is affirmed at Appellant’s cost.

Affirmed.


author: OVERTON, Chief Justice.

text:
    Evelio U. VALDEZ, Jr., Petitioner, v. Raymond Thomas FESLER et al., Respondents.
    No. 46,275.
    Supreme Court of Florida.
    July 14, 1976.
    J. Thomas Wright of Herce, Martinez & Associate, Tampa, for petitioner.
    Benjámin H. Hill, III and Joseph W. Clark of Shackleford, Farrior, Stallings & Evans, Tampa, for respondents.
   OVERTON, Chief Justice.

This is a petition for writ of certiorari to review a decision of the Second District Court of Appeal reported at 298 So.2d 512 (Fla.App. 2nd, 1974). In that decision, the Second District held that mere discussion of the doctrine of comparative negligence with the trial court during pretrial conference and citation to the same on motion for new trial, without more, was insufficient under Hoffman v. Jones, 280 So.2d 431 (Fla.1973), to allow the plaintiff to have the cause retried upon comparative negligence. The first trial was prior to this Court’s decision in Hoffman but subsequent to the Hoffman decision rendered by the Fourth District.

The instant District Court decision did conflict with Minton v. CNA Insurance, 293 So.2d 742 (Fla.App. 3rd, 1974), at the time it was rendered.

Our recent decision in CNA Insurance v. Minton, 334 So.2d 257 (Fla.1976), operates to harmonize this area of the law and eliminate conflict. We there held that raising the issue of comparative negligence for the first time in assignments of error did not meet the rule of Hoffman that applicability of the doctrine is predicated on its proper and appropriate invocation before or during trial.

The trial court in the instant cause specifically instructed the parties in pretrial conference that it would not follow the Fourth District’s opinion in Hoffman and that either of them should, if they desired to preserve the issue for appeal, “formally request the application of comparative negligence and formally object to the Court’s ruling.” No such request or objection was made. The District Court’s decision is in conformity with CNA Insurance v. Minton, supra. Accordingly, conflict is dispelled and the writ therefore must be discharged.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., and FERRIS, Circuit Court Judge, concur.

ROBERTS, J., concurs in judgment.

      . Jones v. Hoffman, 272 So.2d 529 (Fla.App. 4th, 1973).


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. James CARHARTT, Appellee.
    No. 48633.
    Supreme Court of Florida.
    July 14, 1976.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellant.
    Allen L. Jacobi of Jacobi & Seidler, Coconut Grove, and Phillip A. Hubbart, Public Defender, for appellee.
   PER CURIAM.

Appellant received a citation on March 30, 1975, for violating Section 316.028(3), Florida Statutes. In an order dated October 9, 1975, the trial court granted a motion to dismiss on the ground that this statute was unconstitutionally vague and arbitrary and constituted a denial of due process of law.

On March 17, 1976, this Court filed its opinion in the case of Roberts v. State, 329 So.2d 296. The Court upheld the constitutionality of Section 316.028(3), Florida Statutes, against a challenge identical to the argument advanced by the appellee in the instant case, holding, inter alia, that the statute is a reasonable exercise by the Legislature of the police power of this State.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent herewith.

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

       “It is unlawful and punishable as provided in subsection (4) for any person with a blood alcohol level of 0.10 percent, or above, to drive or be in actual physical control of any vehicle within this state.”


author: ROBERTS, Justice.

text:
    STATE of Florida et al., Appellants, v. ALACHUA COUNTY, a Political Subdivision of the State of Florida, Appellee.
    No. 49217.
    Supreme Court of Florida.
    July 15, 1976.

      Eugene T. Whitworth, State Atty., and William E. Whitley, Asst. State Atty., for appellants.
    Norm La Coe, County Atty., and Daniel U. Livermore, Jr. of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellee.
   ROBERTS, Justice.

This cause is before us on direct appeal from a final judgment of the Circuit Court in and for Alachua County validating Special Obligation Bonds in the sum of not exceeding $2,801,884.80 and Public Improvement Bonds in the sum of not exceeding $1,773,220.80. We have jurisdiction pursuant to Article V, Section 3(b)(2), Florida Constitution, and Section 75.08, Florida Statutes.

Appellee, Alachua County, filed a complaint requesting the Circuit Court in and for Alachua County to validate Special Obligation Bonds not exceeding $3,000,000.00 and Public Improvement Revenue Bonds not exceeding $1,900,000.-00. In the complaint, appellee alleged that authority was conferred upon it by the laws of this State, particularly Chapter 69-805, Laws of Florida, Special Acts, Section 125.01, Florida Statutes, and a home rule ordinance enacted December 16, 1975, to issue revenue obligations to finance the acquisition, construction, equipping and furnishing of County Capital Projects. The Special Obligation Resolution (Ordinance No. 77) provides that the Special Obligation Bonds shall be payable from and secured by a prior lien upon and a pledge of the County’s Guaranteed Entitlement to Revenue Sharing Trust Funds as defined in and as payable to the County under Chapter 218, Part II, Florida Statutes, and in addition by a pledge of the County’s non-ad valorem funds as defined in the Special Obligation Resolution. Said Resolution expressly provides that no ad valorem taxes shall be required to be levied for the payment of principal or interest on the Special Obligation Bonds and that neither the Special Obligation Bonds nor coupons shall constitute general obligation or indebtedness of Alachua County. The Public Improvement Resolution, Ordinance No. 78, provides that the Public Improvement Bonds shall be payable from and secured by a prior lien upon and pledge of a portion of the race track funds accruing annually to the County pursuant to Chapters 550 and 551, Florida Statutes, and in addition by a pledge of the County’s non-ad valorem funds as defined in the Resolution and provides that the Public Improvement Bonds shall not constitute general obligations or indebtedness of the County within meaning of constitutional or statutory limitations. The County Capital Projects contemplated include:

(1) Construction of Agricultural Center and Fairgrounds
(2) Construction of Road Department Complex
(3) Construction of Animal Shelter Building
(4) Development of Lake Kanapaha Recreational Area
(5) Construction of Tag Agency Building
(6) Additional Cost of Adult Detention Center
(7) Special Assessment Road Paving Projects
(8) Construction of Fairgrounds Exhibition Complex
(9) Improvements at Westside Boys’ Club
******
(16) Advance to Landfill and Refuse Collection Departments
(17) Construction of Newberry High School Athletic Field
(18) Development of Newnans Lake Park East

The various items comprising the project proposed to be financed were commenced by the County before the adoption of the Bond Resolutions (Animal Shelter — 1973-74 fiscal year, other enumerated items— 1974-75 fiscal year).

An Order to Show Cause was issued directed to the State of Florida, through the State Attorney for the Eighth Judicial Circuit of said State, the several property owners, taxpayers and citizens of Alachua County, Florida, including non-residents owning property or subject to taxation therein, and all others having or claiming any right, title or interest in property to be affected by the issuance by Alachua County, Florida, of special obligation revenue bonds hereinafter more particularly described, or to be affected in any way thereby. Answer was filed by the State Attorney challenging the issuance. After hearing, the trial court entered a lengthy, detailed, and well-reasoned judgment validating the bonds.

The trial court determined that the State Attorney’s contention that portions of the project described are not in furtherance of a proper county purpose to be without merit, and concluded that appellee pursuant to Chapter 69-805, Laws of Florida, is authorized to acquire, construct, equip, and furnish the county capital projects specified.

Relative to the points raised on appeal to this Court, the trial court found, inter alia:

“[5] In order to commence the projects in a timely fashion, the County has advanced funds available from its general fund, temporarily pending sale of the long-term bonds herein sought to be validated. In order to obtain such funds, the County has issued tax anticipation notes in prior years. Although the tax anticipation notes have been repaid, the advances for the project remain in the form of internal borrowing from temporarily idle money in its general fund, which will be repaid from the proceeds of the Public Improvement Bonds and the Special Obligation Bonds.
“[6] Stemming from the fact that the projects were commenced prior to validation or issuance of the bonds, the State Attorney has raised the objection to the validation that the projects were commenced before the adoption of Ordinances No. 77 and 78 of the Plaintiff which constitute enabling ordinances and additional authority for issuance of the bonds.”

Relying on this Court’s decision in State v. Escambia County, 52 So.2d 125 (Fla.1951), which is on all fours with the situation sub judice, the trial court explained :

“In the case pending before this Court, the uncontroverted evidence shows that Alachua County proceeded under its Special Act and other existing authority to go forward with certain capital projects, intending to issue revenue bonds to refund advances made for site acquisitions and construction and other costs. The facts appear to be on all four’s with the Escambia County case. Ala-chua County’s authority, at the time the projects were authorized and commenced, was contained in ch. 69-805, Laws of Florida, Special Acts of 1969. Section 1 of that Act authorized the Board of County Commissioners ‘to acquire, construct, furnish and equip county capital projects.’ Section 2 authorized the Board to issue revenue bonds from time to time. Section 3 authorized repayment of the bonds from project revenues or from revenues of the County derived from sources other than ad valo-rem taxes. The uncontroverted evidence presented to the Court shows that the Board of County Commissioners approved the projects proposed for inclusion in this bond issue with the stipulation and expectation that the cost of those projects would be paid from the proceeds of revenue bonds issued pursuant to ch. 69-805 and other authority. With this understanding, the Board proceeded to commence the projects, or some of them, including the planning and, in some instances, construction. This is the same activity which was challenged in the Escambia County case. In this case, the State Attorney in his Answer raises the objection that the authority to issue revenue bonds is prospective only and that the Board of County Commissioners could not.lawfully advance funds toward construction of bond projects, pending validation and issuance of revenue bonds, and then secure repayment to itself for such fund advancements. It is the Court’s opinion that this issue was decided in the Es-cambia County case and that Alachua County had authority under ch. 69-805 to authorize the projects and commit itself to issue bonds repayable from revenue sources other than ad valorem taxes. The County’s adoption in December 1975 of two bond ordinances reinforced the County’s authority to pledge specific non-ad valorem tax sources of revenue, specifically general state revenue sharing funds and race track funds.”

The trial court determined State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla.1961), reinforced this view. As further explanation of its view as applied to this particular factual situation, the trial judge stated:

“The County does not contend and the Court does not rule that the County could build and pay for a project, and then at some subsequent time decide to borrow money against it (mortgage it) by issuing bonds. In this case, no expenditures were made until the decision had been reached to build these capital projects as revenue bond projects. Only then were advances made in the interests of timesaving and savings in interest costs. The Court notes that testimony was produced that had the revenue bonds been validated and sold at an earlier time, the interest costs which the County would have had to pay would have been higher and that it was to the benefit of the County and its taxpayers to postpone issuance of the bonds until the market for sale of municipal and county bonds recovered from the uncertainties of 1975. The Board of County Commissioners exercised sound business judgment in postponing issuance of the bonds in favor of a more settled market time.”

As to the application of Article VII, Section 12, Florida Constitution, requiring a referendum before the pledging of ad valorem revenues, the trial court accurately explained that the plan of financing does not directly or indirectly pledge ad valorem taxes of the county but rather “. . . The resolutions authorizing the Public Improvement Bonds and Special Obligation Bonds clearly disclaim any pledge of ad valorem taxation for payment of the bonds, and therefore issuance of the bonds is also consistent with said constitutional provision.” In further explication of this point and in refutation of the State’s contention, the trial judge stated:

“In the case of Town of Medley v. State, 162 So.2d 257 (Fla.1964), the Florida Supreme Court synthesized a number of prior holdings which concerned the indirect pledging of ad valo-rem tax revenues. In that case, the Town of Medley issued revenue bonds pledging revenues along with proceeds from cigarette and other taxes for repayment. The Court, per Justice O’Connell, admitted that the effect of the pledge of non-ad valorem tax revenues for bond repayments would probably bring about an increase in ad valo-rem taxes, but nevertheless approved validation, stating:
“ ‘In any instance in which a municipality has been using funds from special non-ad valorem sources of revenue to meet its operating costs and then- diverts those funds by pledging them to payment of a specific indebtedness as done here, the result will probably be that ad valorem taxes will have to be increased to make up the deficiency in funds available for operating expenses.
“ ‘Nevertheless, this result does not make the revenue bonds or certificates subject to the provisions of Section 6, Article IX, of our State Constitution, F.S.A. A contrary holding would mean that any pledging of non-ad valorem revenues previously used for the general operating expenses of a municipality would require approval by vote of the freeholders and such was never the purpose of the cited constitutional provisions.’ ” (Id. at 258)

Every detail as to the validity of the bond issuance was cogently evaluated by the trial judge. We agree with his conclusion and judgment that all requirements of the constitution and the laws of this State pertaining to the enabling act and proceedings have been followed.

Having examined the record and briefs in the cause, heard oral argument, and considered the matter carefully and it appearing that the able trial judge was eminently correct in validating the bond issuances and that his judgment is free from reversible error, the final judgment is hereby

AFFIRMED.

OVERTON, C. ]., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . During the hearing, plaintiff moved, without objection from the State Attorney, to strike items numbered 10 to 15 inclusive from the description of the project. The trial court granted this motion.


text:
    THE FLORIDA BAR. In re STANDARD JURY INSTRUCTIONS (CIVIL CASES).
    No. 48491-A.
    Supreme Court of Florida.
    May 13, 1976.
   Upon consideration of the Supplemental Report of the Committee on Standard Jury Instructions, Civil Cases, the attached recommended revisions are approved by the Court. The Committee and The Florida Bar are hereby authorized to publish and distribute such revisions.

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


author: PER CURIAM. HOBSON, Judge

text:
    FOOD FAIR STORES, INC., d/b/a Pantry Pride Stores, Inc., Appellant, v. Marjorie M. KINCAID, Appellee. Marjorie M. KINCAID, Appellant, v. FOOD FAIR STORES, INC., d/b/a Pantry Pride Stores, Inc., Appellee.
    Nos. 75-340 and 74-1256.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1976.
    Rehearing Denied Oct. 13, 1976.

      Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant Food Fair Stores.
    Richard A. Gilbert, Fowler, White, Gillen, Boggs, Villareal & Banker, and Michael L. Kinney, Tampa, for appellee/cross-appel-lant Kincaid.
   PER CURIAM.

Appellant, Food Fair Stores, Inc., appealed a $17,500 judgment in favor of Mrs. Kincaid entered in a false arrest and malicious prosecution suit. Mrs. Kincaid filed a separate notice of appeal contending that the trial court erred in not submitting the question of punitive damages to the jury. These two appeals have been consolidated.

The facts surrounding the incident were conflicting in some respects. Mrs. Kincaid testified that a little before noon on October 14, 1971, she went to a Pantry Pride Food Store on Gandy Boulevard in Tampa, Florida, to buy some groceries. She had shopped at the store many times in the past. While shopping she selected three packets of flower seeds and placed them in her cart. Because of their size, the packets of flower seeds slid out onto the floor and she placed the flower seed packets in her breast pocket. She claimed that the seed packages were colorful and that they were visibly protruding above her breast pocket. After having selected all of her groceries she went to the check-out counter and paid $15.67 for the groceries in her basket. She claimed that she was never sure whether or not she paid for the seeds and that if she did not pay for them, this was merely accidental.

Mrs. Kincaid was stopped at the door by an unidentified woman and asked to step into the manager’s office. Once inside the office, she said she asked the employees for their names and they refused to give them. Finally, the woman grabbed the seeds out of her pocket and told her that she had not paid for them. Mrs. Kincaid then testified that a “big, black-headed man” yelled at her and told her to sign a joint confession and release. She told the man that she was feeling ill. He shoved a wastepaper basket up to her and told her that he would have to call a police ambulance. Although Mrs. Kincaid was arrested, she testified that she was never informed of her rights. She said that the store employees at first refused to allow her to contact her husband, hoping to force her to sign the confession. It was about a half an hour until the police arrived and another ten or fifteen minutes until she was taken away for an unpleasant trip to the police station in the back of the police car.

The plaintiff’s husband testified that when he arrived at the store his wife looked ill and upset. Subsequently, Mrs. Kincaid suffered from severe depression and other psychiatric problems which required the treatment of a psychiatrist.

The woman who stopped Mrs. Kincaid was a security officer for the store. She testified that she had been watching Mrs. Kincaid for some time. She said that Mrs. Kincaid “stopped and looked around” before she put the seeds in her pocket. The store employees said the packet of seeds did not appear above the level of her shirt pocket. Reference to the cash register tape reflects that Mrs. Kincaid had not, in fact, paid for the seeds.

Fla.Stat. § 811.022 (1971), now Fla.Stat. § 901.34 (1975) provides:

“811.022 Shoplifting; penalties; prima facie evidence of concealment; detention and arrest; exemption from false arrest—
(1) A peace officer, or a merchant, or a merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person and that he can recover them by taking the person into custody, may, for the purpose of attempting to effect such recovery, take the person into custody and detain him in a reasonable manner for a reasonable length of time. Such taking into custody and detention by a peace officer, merchant, or merchant’s employee shall not render such police officer, merchant, or merchant’s employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.
***** *
(3) A merchant or a merchant’s employee who causes such arrest as provided for in subsection (1) hereof of a person for larceny of goods held for sale shall not be criminally or civilly liable for false arrest or false imprisonment where the merchant or merchant’s employee has probable cause for believing that the person arrested committed larceny of goods held for sale.”

Even when the evidence is viewed ..most favorably to Mrs. Kincaid, the action of the store employees did not exceed the scope of the protection afforded by the statute. The fact that Mrs. Kincaid was not ultimately found to be guilty does not dictate a contrary conclusion. Rothstein v. Jackson’s of Coral Gables, Inc., Fla.App. 1961, 133 So.2d 331. Under the circumstances the employees of Food Fair had probable cause to believe a larceny had been committed and had a right to take her into custody. They were entitled to detain her in a reasonable manner for a reasonable length of time. Mrs. Kincaid was not embarrassed by being accused in public but was politely asked to accompany the store’s woman security agent to a private office. There was no suggestion of physical mistreatment. The police were called within about five minutes after Mrs. Kincaid was detained, and the store cannot be penalized for peaceably holding her for the period of time necessary for the police to arrive. The mental anguish suffered by Mrs. Kincaid is something which necessarily follows from a detention of this sort. Therefore, the court should have directed a verdict on the count for false arrest.

On the other hand, the statute does not offer protection against malicious prosecution, so the law otherwise applicable to this cause of action applies. Of the several elements necessary to prove malicious prosecution, the store only disputed the claim of lack of probable cause. As contrasted to the count on false arrest, there were additional facts bearing on the question of whether Food Fair should have caused Mrs. Kincaid to be prosecuted. She gave a plausible explanation for having placed the seeds in her shirt pocket, and according to her the packets were clearly visible. When accosted by the store’s security agent, she indicated some confusion over whether she had paid for the seeds but immediately stated that if she had not, she had certainly intended to do so. The cost of the seeds was a small fraction of her bill, and she had ample money to pay for them. There was no investigation of Mrs. Kin-caid’s reputation. As we stated in Liabos v. Harman, Fla.App.2d 1968, 215 So.2d 487, 488:

. . [I]n order for probable cause to exist the countenance of the situation must be such that a prudent man would set in motion the forces of a criminal proceeding. And where it would appear to a ‘cautious man’ that further investigation is justified before instituting that proceeding, then liability may attach for the failure to do so.”

Thus, on the issue of malicious prosecution, there were enough facts in dispute which if resolved favorably to Mrs. Kincaid would support a determination of lack of probable cause. Cf. Oosterhoudt v. Montgomery Ward & Company, Inc., Fla.App.1st, 1975, 816 So.2d 582.

This necessarily leads us to a discussion of whether the determination of probable cause is a function of the jury or the court. The general law on this subject is set forth in § 673 of the Restatement of Torts dealing with wrongful prosecution which reads as follows:

“§ 673. Function of Court and Jury.
(1) In an action brought under the rules stated in § 653, the court determines whether
******
(c) the defendant had probable cause for initiating the proceedings; ******
(2) In an action brought under the rules stated in § 653, subject to the control of the court, the jury determines
(a) under what circumstances the proceedings were initiated in so far as may be necessary to enable the court to determine whether the defendant had probable cause for initiating them;
* * * »

Comment d. under Subsection (l)(c) states:

“d. The respective functions of court and jury in actions brought under the rule stated in § 653 differ in one important particular from their respective functions in other actions of tort in which, as in actions for negligence, the liability of the defendant depends upon the unreasonable character of his conduct. In passing upon this question someone must determine what the defendant did or failed to do and the circumstances under which his act or omission occurred; and someone, either court or jury, must determine whether, in the light of these circumstances, his conduct measured up to the standard of a reasonable man. In actions for negligence and other tort actions in which the liability of a defendant depends upon the unreasonable character of his conduct, both of these matters are determined by the jury subject to the limitations stated in Volume ' II, § 285, Comments b, c, and d.
“In actions brought under the rules stated in § 653, however, upon the issues of favorable termination and probable cause, the jury has only the function of finding the circumstances under which the defendant, acted. The court determines whether, under those circumstances, the termination was sufficiently favorable to the accused, and whether the defendant had or had not probable cause. Where there is no conflict in the testimony as to what the circumstances were, the court has no need for a finding of the jury. The jury is not called upon to act unless there is a conflict in the testimony which presents an issue of fact for its determination.
“The respective functions of the court and jury in determining the issue of probable cause can be exercised by them in one of two ways. The better but less usual method is to require the jury to find a special verdict setting forth the circumstances under which they find that the proceedings were initiated. Upon these findings the court then determines whether the defendant had probable cause. The usual method is for the court to charge the jury under what combination or combinations of circumstances, which may be found under the evidence, the defendant did or did not have probable cause for initiating the proceedings.”

A comprehensive annotation at 87 A.L.R. 183 entitled “Probable cause or want thereof, in malicious prosecution action, as question of law for court or of fact for jury” confirms this view. In his summary at page 186, the annotator states in part:

“The rule that the question of probable cause in an action for malicious prosecution is for the court, and not for the jury, although undoubtedly anomalous in that it substitutes the judgment of the court for that of the jury as to the reasonableness of the defendant’s conduct in the light of the admitted or established facts and beliefs, is nevertheless, except in a few jurisdictions, established, in theory at least, by the overwhelming weight of authority. The rule in its origin is probably traceable to the apprehension of the courts that if the question of probable cause were left to juries, they might not sufficiently safeguard the rights of defendants, and thus might discourage the performance of a public duty of bringing complaints against persons they believe to have committed offenses.

The annotation lists Florida among those jurisdictions supporting the majority view, and our study of Florida cases supports this conclusion. In Stone v. Hamic, Fla.App.2d~ 1966, 189 So.2d 908, this court stated:

“. . . When the facts relied upon to show probable cause are in dispute, their existence is a question of fact for the jury to resolve; the légal effect of such facts, when found or admitted to be true, is a question of law for the court to decide. . . . ”

See also Glass v. Parrish, Fla.1951, 51 So.2d 717; Lewton v. Hower, 1895, 35 Fla. 58, 16 So. 616; Cold v. Clark, Fla.1965, 180 So.2d 347; contra Oosterhoudt v. Montgomery Ward & Company, Inc., supra.

Thus, it appears that where, as in the instant case, one version of the facts would support the court’s determination of probable cause and another version would support the court’s determination of lack of probable cause, the issues of fact are to be presented to the jury, preferably by way of, special verdict, but in any event, under proper instructions as to what does and what does not legally constitute probable cause. The instructions in this case fell, somewhat short of this criteria in that they appeared to submit the entire issue of probable cause to the jury. However, these instructions were essentially a composite of those requested by both parties, and the record does not reflect that appellant sought, by way of special verdict or more specific instructions, to have the question of probable cause determined by the court once the issues of fact were resolved. Hence, we cannot say that judicial error' was committed when the whole question was submitted to the jury. The jury‘obviously resolved the issue in favor of Mrs. Kincaid and there are facts in the record which would dictate a determination of the lack of probable cause. Therefore, the judgment in her favor on the count of malicious prosecution must be sustained.

Nevertheless, because we have held that count one cannot stand, we must comment on the matter of damages. At the trial, the store’s attorney requested special verdicts whereby the jury would have been required to pass on each count. The court declined the request and submitted a general verdict which was returned favorably to Mrs. Kincaid. While some of the damages applicable to each count necessarily overlapped, some of the damages which pertained to false arrest were not recoverable under the claim for malicious prosecution. Cf. S. H. Kress v. Powell, 1938, 132 Fla. 471, 180 So. 757. We cannot tell, however, how much of the total award the jury determined to be attributable to the circumstances within the factual configuration of count one. Accordingly, while liability under count two must be sustained, a new trial should be awarded on the issue of damages recoverable under that count.

We have also considered Mrs. Kin-caid’s appeal as to submitting the issue of punitive damages to the jury and under the facts we hold that the trial court was eminently correct in withdrawing this issue from the jury.

The cause is remanded for further proceedings not inconsistent herewith.

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

HOBSON, J., concurs in part and dissents in part with opinion.

HOBSON, Judge

(dissenting in part).

I respectfully dissent from the majority in their holding that the evidence viewed most favorably to Mrs. Kincaid as a matter of law did not exceed the protection afforded by Fla.Stat. § 811.022 (1971), now Fla. Stat. § 901.34 (1975). It is my view that there is sufficient evidence for the jury to find, as it did, that Mrs. Kincaid was not detained and treated by the employees of Food Fair in a reasonable manner. Therefore, I would affirm the final judgment entered on the jury verdict in favor of Mrs. Kincaid.

In all other respects I concur with the majority opinion.


author: BOYER, Chief Judge.

text:
    Steven Thomas LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. AA-237.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    Rehearing Denied Aug. 16, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty, Gen., and Jeanne Davis Schwartz, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

Appellant was charged, tried, convicted, and sentenced for sexual battery by the use of physical force and violence not likely to cause serious personal injury. (F.S. 794.011(5)) His main arguments on appeal are that his statements made to interrogating officers should have been ruled inadmissible because of inadequate Miranda warnings, and that his several motions for mistrial based on prosecutorial misconduct and testimony by a prosecution witness reflecting upon his right to remain silent should have been granted.

Officer Linwood Sweeney took three statements from appellant. Prior to each of the first two statements, appellant was informed of his constitutional rights and signed a waiver of rights form. Upon Officer Sweeney attempting to take a third statement from appellant, the officer told appellant that he had the right to remain silent, that anything he did say would be used against him in court, and that he had a right to consult a lawyer before talking. According to the officer, appellant stated that he did not know, and had never met or seen the victim of the crime, and did not want to talk to Officer Sweeney anymore.

Appellant claims that the third statement should have been suppressed because the warnings given by Officer Sweeney to appellant were legally inadequate: Specifically that appellant was not informed that he had a right to court-appointed counsel. We do not agree that the warnings were inadequate. Appellant had been fully apprised of his constitutional rights and had signed written waiver forms on June 4 and 5. On June 9, the date of the third statement, the interrogating officer orally informed appellant of his constitutional rights, “to the best I could”.

In State v. Craig, Sup.Ct.Fla.1970, 237 So.2d 737, the Supreme Court of Florida said:

“In determining whether proper warnings with respect to right to counsel and right to remain silent have been given to a suspect, factors to be considered are whether the suspect understood that he did not have to speak, the consequences of speaking, and that he had a right to counsel before and while doing so if he wished.
“A statement by the accused that he fully understands and waives his rights is not an essential link in the chain of proof. Waiver may be shown by attendant circumstances. United States v. Hayes, 385 F.2d 375 (4th Cir.1967), certiorari denied, 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106 (1968).”

Under the circumstances of this case, the oral warnings given by Officer Sweeney to appellant adequately apprised appellant of his constitutional rights, particularly in view of the extensive warnings which were given to him some four days earlier.

A more serious objection to the testimony of Officer Sweeney concerning the third statement relates to the alleged comment on the appellant’s right to remain silent. Appellant argues that permitting Officer Sweeney to testify that appellant told him that appellant “didn’t want to talk to me anymore” was improper and that his motion for mistrial should have been granted. The landmark case in Florida on the issue of testimony by a witness concerning an accused’s right to remain silent is Bennett v. State, Sup.Ct. Fla.1975, 316 So.2d 41, wherein the Supreme Court ruled that a mistrial should have been granted when a witness called by the State let it be known to the jury that the defendant had refused to sign a waiver of his Miranda rights. We fail to see any significant distinction between the objectionable testimony in the Bennett case and the testimony challenged in the case sub judice. Accordingly, we must order a new trial because such error is “ . . .of constitutional dimension, [and warrants] reversal without regard to the doctrine of harmless error.” (Bennett v. State, supra, at page 44)

Reversal is also required because of certain statements made by the prosecutor during closing argument. At one point, the prosecutor described the crime involved (sexual battery), and queried of the female members of the jury, “Think how you ladies would feel if that happened to you.” The technique of asking jurors to place themselves in the position of the victim has been held to be improper in both criminal and civil cases. (See Adams v. State, Sup. Ct.Fla.1966, 192 So.2d 762; Bullock v. Branch, Fla.App. 1st 1961, 130 So.2d 74.) The prosecutor’s statement to the jurors, sometimes referred to as the “Golden Rule argument”, is improper in that it tends to deprive a defendant of a fair trial by impartial jurors.

Another aspect of the prosecutor’s closing argument deserves attention. On four separate occasions, the prosecutor referred to the fact that appellant had four prior convictions on his record. Although prior convictions, properly introduced into evidence, may he considered in weighing credibility, there is a point at which repeated references may be beyond the bounds of propriety. Although it is not necessary for us to here determine whether the prosecutor’s remarks were harmful error, we do feel constrained to admonish the prosecutor to temper his zeal.

Reversed and remanded for a new trial.

RAWLS and McCORD, JJ., concur.


author: SMITH, Judge.

text:
    Joycie T. BOLINGER, Petitioner, v. DIVISION OF RETIREMENT, STATE DEPARTMENT OF ADMINISTRATION, and State Retirement Commission, Respondents.
    No. AA-323.
    District Court of Appeal of Florida, First District.
    July 13, 1976.
    Rehearing Denied Aug. 16, 1976.

      Eric E. Wagner and George A. Stelo-geannis, Ocala, for petitioner.
    L. Keith Pafford and Catherine M. Washington, Tallahassee, for respondents.
   SMITH, Judge.

Bolinger petitions for review of an order of the State Retirement Commission which at the instance of respondent Division of Retirement, Department of Administration, partially denied Bolinger’s application for disability retirement from state employment. Ch. 75-248, Fla.Laws, § 121.23, F.S.1975. The Commission ordered that Bolinger is “totally and permanently disabled” and so entitled to disability benefits from the Florida Retirement System but that she is not entitled to enhanced benefits payable to one so disabled “in line of duty.” Sec. 121.091(4)(a), (d), F.S. 1975. The Retirement Commission did not disturb findings of fact recommended by a hearing officer pursuant to the Administrative Procedure Act, § 120.57(1) (b)9, F.S.1975, but rejected the hearing officer’s recommended conclusion of law to the effect that Bolinger was permanently and totally disabled in line of duty. Bolinger’s petition seeks reversal of the Commission’s order denying her “in line of duty” disability benefits.

The findings of fact reported by the hearing officer to the Retirement Commission in his recommended order became binding on the Commission in the absence of an explicit Commission determination they were not based on competent substantial evidence or were the product of proceedings not comporting with essential requirements of law. Sec. 120.57(1) (b)9, F. S.1975. The hearing officer’s findings therefore became in effect the agency’s findings, and as such they are entitled to similar respect in our review of the matter. Secs. 120.68(10), 121.23(4), F.S.1975.

Bolinger, a 59-year old woman having 8 years of creditable service under the Florida Retirement System, was employed as a housemother at McPhearson School for Girls near Ocala. She tripped over a tree root on uneven ground and fell while escorting a group of girls under her care from the dining hall to the dormitory. Her rib was broken and she later complained of headaches, neck pains, low back pains and, finally, leg pains. She was unable to continue working. Competent evidence supports the finding that Bolinger’s fall aggravated congenital spondylolisthesis in her low back and resulted finally in disability for which surgery is not advised, in the opinion of the physicians, because her arteriosclerosis and aortic aneurysm make such treatment dangerous.

The Division of Retirement seeks to overcome the implications of these facts and to sustain the Commission’s decision by two arguments: first, that Bolinger’s radiating leg pain was caused by a course of chiropractic manipulation rather than by her fall; and second, that it will place an undue and unintended burden on the Florida Retirement System to award enhanced “line of duty” disability benefits to employees like Bolinger who are getting older, have congenital or other long-standing physical defects which are likely to disable on relatively mild aggravation, and may suffer still other infirmities, due to the ravages of age or other causes independent of the employment, which make effective treatment difficult or impossible.

The Division’s first argument is a veiled attack on the hearing officer’s findings of fact which the Retirement Commission left undisturbed and are supported by substantial competent evidence. We will not reweigh the evidence.

The Division’s second argument must likewise be rejected. There may well be reason for apprehension concerning the actuarial soundness of a retirement system that, regardless of length of service, pays enhanced disability benefits to an employee whose prior physical condition makes her peculiarly susceptible to a disabling illness or injury and peculiarly untreatable for it. But that is a legislative question, as is whether an employee should receive substantially more retirement benefits, in addition to workmen’s compensation, if the disabling fall happens at work rather than at home. The Florida Retirement System Act defines “disability in line of duty” as

“ . . .an injury or illness arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular working hours as required by the employer.” Sec. 121.-021(13), F.S.1975.

The 1970 Legislature which enacted chapter 121 deliberately selected a definition for “disability in line of duty” which closely resembles the “deceptively simple and litigiously prolific” test for workmen’s compensation coverage: “arising out of and in the course of employment,” § 440.09(1), F.S.1975. The legislature may thus be presumed to have intended that, as in the workmen’s compensation context, “the words ‘arising out’ refer to the origin of the cause” of the injury, and that “in the actual performance of duty,” like “in the course of employment” in workmen’s compensation acts, “refer [s] to the time, place, and circumstances under which the accident occurs.” Bituminous Cas. Corp. v. Richardson, 148 Fla. 323, 325, 4 So.2d 378, 379 (1941).

The linkage between workmen’s compensation concepts and the Retirement System Act definition of “in line of duty” disability is underscored by the provision in § 121.021(13) that the administrator of the Division of Retirement, when initially passing on applications for such disability benefits, may require appropriate proof of the “cause of any such injury or illness” and, in that connection, that “[wjorkmen’s compensation records under the provisions of chapter 440 may also be used.” Legislative purposefulness in the choice of a workmen’s compensation test is indicated also by the existence of another statute, when the Retirement System Act was enacted, preventing duplication of workmen’s compensation and retirement disability benefits payable to public employees. Sec. 440.09(4), F.S.1971; 1973 Op.Att’y Gen. 104, no. 073-62. The law prohibiting duplicate benefits was repealed three years later by ch. 73-127, § 2, Fla.Laws. But compare § 440.15(10), F.S.1975, which reduces workmen’s compensation benefits duplicating social security disability benefits payable under 42 U.S.C. § 423.

Judged under judicial standards which have developed abundantly since the Florida compensation act was passed in 1935, Bolinger’s fall and resulting injury had a sufficient causal relationship with her employment to be characterized as “arising out of” it. Damon v. Central Hotel, 135 So.2d 204 (Fla.1961); Protectu Awning Shutter Co. v. Cline, 154 Fla. 30, 16 So.2d 342 (1944); Looney v. W & J Constr. Co., 289 So.2d 723 (Fla.1974). That conclusion is consistent also with the single decision we are aware of which applies § 121.021(13). In re Nelson, 288 So. 2d 218 (Fla.1974). Clearly, Bolinger’s injury also occurred “in the actual performance of duty.” The Commission erred in denying Bolinger “in line of duty” disability benefits.

The Commission’s order is quashed and the case remanded for proceedings consistent with our decision.

BOYER, C. J., and HODGES, JOHN G., Associate Judge, concur.

      . One disabled “in line of duty” is entitled to a monthly disability benefit “regardless of service,” whereas one otherwise disabled must have completed five years of creditable service. More significant for purposes of Bo-linger’s claim, the minimum benefit for one disabled “in the line of duty” is 42 percent of average monthly compensation, while the benefit for one disabled not “in the line of duty” is 25 percent of average monthly compensation. See. 121.091(4) (d), F.S.1975.

      . Bolinger’s claim was ready for hearing after 1975 legislation created the State Retirement Commission, cb. 75-248, FlaXaws, but before its members were appointed by the Governor. The Division of Retirement and Bolinger therefore submitted the dispute to a hearing officer assigned by the Division of Administrative Hearings, Department of Administration. Sec. 120.57(1) (a), F.S.1975. Neither of the adversaries here, Bolinger and the Division of Retirement, is in a position to complain that the hearing should have been before the State Retirement Commission rather than a hearing officer. See § 120.57(1) (a) 1, (b)3, § 121.23(2), F.S.1975.

      . An industrial claims judge found Bolinger’s injury and disability arose out of and in the course of her employment, within the meaning of § 440.09(1), F.S.1975, and workmen’s compensation benefits were ordered paid.

      . Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S.Ct. 801, 91 L.Ed. 1028 (1947).


text:
    William TINDER, Individually and d/b/a 19th Hole Grille, and the City of Coral Gables, et al., Appellants, v. Raul MENOCAL and Aliette Menocal, his wife, Appellees.
    No. 75-1213.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellants.
    Milton Kelner, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Cleveland v. City of Miami, Fla.1972, 263 So.2d 573; Acosta v. Daughtry, Fla.App.1972, 268 So.2d 416; Seaboard Coastline Railroad Company v. Magnuson, Fla.App.1974, 288 So.2d 302.