text:
    William Joshua MILES et al., Plaintiffs-Appellants, v. William Julius MILES, Jr., et al., Defendants-Appellees.
    No. 5349.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      Lawson L. Swearingen, Jr., Monroe, for plaintiffs-appellants.
    Long & Peters, by Glenn T. Cambre, Jena, Patrick C. Morrow, Opelousas, for defendants-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

William Joshua Miles, widower of Estelle Weems, joined by Mrs. Cleo Miles Wroten, Mrs. Vara Beatrice Miles Man-nies, Mrs. Beryl Estelle Miles Beebe and Mrs. Ruby Lynn Miles Hemphill, four of the five heirs of Estelle Weems, deceased, sued William Julius Miles Jr., one of the two forced heirs of William Julius Miles Sr., seeking judgment declaring two tracts of land situated in the Parish of LaSalle, title to which stands in the name of William Julius Miles, to belong Y2 to William Joshua Miles and the other Y2 to belong to the Succession of Estelle Weems.

Plaintiffs in their petition allege that William Julius Miles was married twice; first to Vaudie Lee Allbritton which marriage terminated in divorce and secondly to Ruby Idelle Berryhill, who predeceased William Julius Miles, having died on October 18, 1967. Two children were born of William Julius Miles’ first marriage, William Julius Miles Jr., defendant and appel-lee and Leah Jean Miles Prickett. Mrs. Prickett is not named as a defendant in this proceeding. William Julius Miles died intestate on December 21, 1972, while domiciled in Concordia Parish. His estate was thereafter opened and by judgment of the 7th Judicial District Court for Concor-dia Parish, his two children above named were recognized as his sole heirs and as such entitled to the ownership and possession of all properties entering his estate.

Plaintiffs allege in their petition that William Joshua Miles and Estelle Weems were married but once and then to each other of which marriage five children were born, namely, Cleo Miles Wroten, Vara Beatrice Miles Mannies, Beryl Estelle Miles Beebe, Ruby Lynn Miles Hemphill and William Julius Miles, deceased. Mrs. Estelle Weems Miles died intestate January 13, 1973. The estate of Estelle Weems has never been opened.

Also named as a party defendant in this proceeding is the “Unopened Succession” of Ruby Idelle Berryhill Miles, the lower court having appointed an Attorney, Glenn Cambre to represent the unopened succession.

The properties, ownership of which plaintiffs claim, were acquired by William Julius Miles Sr. during his lifetime by two acts of sale, a 13.33 acre tract by sale from William Joshua Miles, husband of Estelle Weems, dated December 15, 1958, and a 6 acre tract by sale from J.'Ellis Miles, husband of Essie Gibson, dated January 10, 1967. These two tracts of land were acquired during William Julius Miles’ marriage to Ruby Idelle Berryhill and presumably belonged to the community of acquets and gains which existed between them. Plaintiffs allege and contend that the sale first above referred to is a simulation the purported consideration of $200.00 having never been paid. As to the sale of January 10, 1967, plaintiffs contend that title to this 6 acre tract was placed in the name of the vendee, William J. Miles Sr. for purposes of convenience only; that William Joshua Miles, husband of Estelle Weems, actually paid the $300.00 consideration called for and although not named as vendee is the true and lawful owner of the property. Accordingly, plaintiffs assert that William Joshua Miles should be recognized as owner of a \/¡ interest in each of said tracts and that the other 1/2 interest therein should be brought back to the Succession of Estelle Weems Miles.

William Julius Miles Jr. excepted to the petition of plaintiffs on the ground that such petition stated neither a right nor a cause of action. The attorney appointed to represent the “unopened succession” of Ruby Idelle Berryhill joined in these exceptions by oral motion. The trial court sustained the filed exceptions and dismissed the suit of plaintiffs, holding that plaintiffs had failed to establish a right to proceed on behalf of their deceased mother, her succession having never been opened; that the petition did not urge sufficient grounds for nullity of the judgment of possession rendered by the 7th Judicial District Court; and, plaintiffs failed to demonstrate any interest in the unopened succession of Ruby Berryhill. We affirm in part, on grounds other than those set forth by the Trial Judge, and reverse in part.

At the outset we feel that we should point out that although the Trial Judge in part reached a correct result that his reasons therefor are erroneous. It was not necessary for plaintiffs, Mrs. Wroten, Mrs. Mannies, Mrs. Beebe and Mrs. Hemp-Jiill, to have first been recognized as heirs by the probate court, before bringing suit to recover as an heir of their deceased mother. It is well settled that an heir can sue directly without having been recognized as such by the probate court, all that is required is that he furnish satisfactory evidence of his right to inherit. Long v. Chailan, 187 La. 507, 175 So. 42, 48; Guidry v. Caire, 195 La. 167, 196 So. 56; Catlett v. Catlett, 99 So.2d 135 (La.App.). In this case the evidence adduced on the trial of the exception of no right of action clearly establishes the right of the plaintiffs to sue as heirs of their deceased mother. The Trial Coúrt apparently felt that it was necessary that the ex parte judgment of the 7th Judicial District Court be declared a nullity before plaintiffs could be adjudged entitled to the relief which they sought. This is error. Plaintiffs are not affected by that judgment. Their rights in the subject properties, if any, cannot be affected by a judgment which as to them is ex parte. In fact they would have no standing to seek a nullity of that judgment in the district court of Concordia Parish. As to the third premise relied upon by the trial court for sustaining the exceptions:

“It is further held the petition fails to establish or demonstrate a right of action or an interest in the unopened or open successions of . Ruby Ber-ryman . . J’

we must confess that we do not understand the import of his ruling. In any event, we do notice that under the allegations of plaintiffs’ petition the subject properties were purportedly acquired during the marriage between William Julius Miles and Ruby Idelle Berryhill; that the latter predeceased her husband, having died intestate on October 18, 1967; that no children were born of the marriage between William Julius and Ruby and she was survived at her death by her husband, her mother and collateral heirs. The succession representative appointed by a court of this state or the heirs of the deceased are certainly proper parties to this action. See LSA-C. C.P. Article 734. In this latter regard we observe that we know of no authority under our law which would permit the join-der as a party defendant of an “unopened succession” by the appointment of a curator ad hoc.

We turn now to a consideration of the exceptions filed by the defendant, William Julius Miles Jr., considering first this exception insofar as it relates to the attack of plaintiffs on the sale dated December 15, 1958.

THE SALE OF DECEMBER 15, 1958

The record reflects that by deed dated December 15, 1958 passed before J. E. Nu-gent, a Notary Public of LaSalle Parish, Louisiana, William Joshua Miles, husband of Estelle Weems, conveyed unto his son, William J. Miles, husband of Ruby Idelle Berryhill, Lot 5 of the partition between Margaret Pauline Russell Craddox et al being a 13.33 acre tract situated in the NE/4 of NW/4 Section 24, Township 10 North, Range 1 East. The sale was made in consideration of the sum of $200.00 cash the receipt of which the vendor acknowledged. It is this sale that the plaintiff-vendor and four of the heirs of his deceased wife seek to have declared a simulation. Plaintiffs do not aver that the vendee was guilty of fraud or that the sale is invalid by reason of mutual error or force, rather they simply allege that no consideration was actually paid to the vendor. Following the institution of suit petitioners directed interrogatories to be answered by defendant, William J. Miles Jr. The latter responded categorically and under oath that his father did in fact acquire the 13.33 acre tract by purchase from William Joshua Miles; that the recited consideration was in fact paid by William J. Miles and received by the vendor; and, that following execution of the sale the vendee went into possession of such property and retained such possession until his death.

It is well settled in our jurisprudence that a sale of immovable property in the form of an authentic act which recites consideration cannot be attacked by a party thereto who attempts to controvert the recital of consideration by proof that the consideration was not actually given, unless the attacking party alleges fraud, mutual error, or force; or produces written evidence in the nature of a counter-letter; or, the lack of consideration is indicated by answers to interrogatories or requests for admissions of fact. Templet v. Babitt et al., 198 La. 810, 5 So.2d 13; Johnson v. Johnson, 191 La. 408, 185 So. 299; Jeansonne et al v. Jeansonne, 171 So. 497; Lewis v. Clay, 221 La. 663, 60 So.2d 78; R.C.C. Articles 2236, 2237 and 2276. It is equally well settled that forced heirs have an absolute right to annul by parol evidence the simulated contracts of those from whom they inherit and in this regard are not restricted to their legitime. R.C.C. Articles 2239 ; 2444; 2480; Crain v. Crain, 175 So.2d 665; Camus v. Camus, 91 So.2d 120; Miller v. Arnold, 81 So.2d 181; Succession of Elrod v. Elrod, 218 So.2d 83.

Applying these well settled legal principles to the matter under consideration it necessarily follows that plaintiff, William Joshua Miles, the vendor, has neither stated a cause of action nor does he have a right of action to annul the sale of December 15, 1958 and the trial court properly sustained the filed exceptions insofar as he is concerned. On the other hand, it is equally clear that the other plaintiffs, Mrs. Wroten, Mrs. Mannies, Mrs. Beebe and Mrs. Hemphill, as forced heirs of Estelle Weems, deceased, do state a cause of action and likewise have a right of action to seek to have the 1958 sale declared a simulation and therefore the trial court erred in sustaining these exceptions as to them.

THE SALE OF JANUARY 10, 1967

By deed dated January 10, 1967, passed before Mrs. Myrtle H. Ory, a Notary Public of LaSalle Parish, J. Ellis Miles, husband of Essie Gibson, conveyed unto William Julius Miles, husband of Ruby Idelle Berryhill, a six acre tract of land situated in the W/2 of NW/4 Section 25, Township 10 North, Range 1 East, Town of Tullos, LaSalle Parish, Louisiana. This sale was made for a recited consideration of $300.00 cash the receipt of which the vendor acknowledged. This sale was later corrected as to description by an authentic act dated September 1, 1967. As to the property covered by this sale and correction deed plaintiffs seek judgment recognizing William Joshua Miles as owner of t/2 thereof and the Succession of Estelle Weems as owner of the other 14 interest and allege in their petition the following as grounds therefor:

“Petitioners aver that in truth and fact the act of sale referred to in paragraph 8 hereinabove was executed by the said J. Ellis Miles for the purpose of transferring and conveying ownership of the property described therein to petitioner, William Joshua Miles. Petitioners further show that the recited consideration of $300.00 cash was not paid by the purported vendee, William Julius Miles, but rather was paid to the vendor by petitioner William Joshua Miles. Petitioners show further that the said William Julius Miles was named as the vendee of the said property solely for the convenience of your petitioner, William Joshua Miles, and that the true and rightful owner of the property is William Joshua Miles.”

As in the case of the other sale here under attack plaintiffs do not allege fraud, mutual error, force or that a counter-letter exists. As in the case of the 1958 sale defendant responded under oath to interrogatories propounded to him that William Julius Miles was the purchaser, that he actually paid the recited consideration and subsequently went into possession of the property and held such possession until his death.

The holdings in the cases of Scurto v. LeBlanc, 191 La. 136, 184 So. 567 and Eberle v. Eberle, 161 La. 313, 108 So. 549 are dispositive of the issue presented. In Scurto, supra, the court stated:

“It is axiomatic under the law and jurisprudence of this State that parol evidence is inadmissable to create a title in one who never owned the immovable property or to show that the vendee was in reality some other person than the person named in the act of sale. Ceromi v. Harris, 187 La. 701, 175 So. 462, and the authorities therein cited.
And it has been held that the rule finds no exception in the case of a purchase of real estate by an agent with funds alleged to belong to his principal. Hackenburg v. Gartskamp, 30 La.Ann. 898; Perrault v. Perrault, 32 La.Ann. 635; Stierle v. Kaiser, 45 La.Ann. 580, 12 So. 839.
Even where real estate is acquired with stolen money the owner of the money does not become the owner of the property. George v. Campbell, 26 La.Ann. 445.
It is also the general rule of our jurisprudence that the verity and reality of authentic sales of immovable property can be assailed only in two ways: First, by means of a counter letter; second, by the answers of the other party to interrogatories on facts and articles, which stand in lieu of and are equivalent to a counter letter. Godwin v. Neustadtl, 42 La.Ann. 735, 7 So. 744.
When answers to interrogatories on facts and articles are used to supply the place of a counter letter, they are not subject to contradiction by anything short of a counter letter or other written evidence. Id.
The rule finds its only relaxation where the owner of real estate is influenced by fraud or error to rest his title in another. LeBleu v. Savoie, 109 La. 680, 33 So. 729; Maskrey v. Johnson, 122 La. 791, 48 So. 266; Cuggy v. Zeller, 132 La. 222, 61 So. 209; Hodge v. Hodge, 151 La. 612, 92 So. 134.”

One claiming as a forced heir is equally without right under LSA-C.C. 2239 to create by parol evidence a title in one who never owned the immovable property or to show that the vendee was in reality his ancestor rather than the person named in the act of sale. In Eberle, supra, the court speaking to this issue, said:

“For a forced heir to avail himself of this article (2239, as amended) it ought to appear that the property belonged to his ancestor by some title recognized by law, such, for instance, as by act of sale, or by inheritance, or by prescription, and that his ancestor thereafter apparently transferred the property to another, or made some other simulated contract with reference to it. It is the transfer or contract, made by the ancestor, as owner of the property, that his forced heir may attack as simulated, and show the simulation by parol evidence. In other words, a forced heir may attack by parol a transfer made by his ancestor, for the purpose of showing that it was a simulation, in order to bring the property back into his ancestor’s succession or to recover it for himself, but he cannot use parol evidence to bring into the succession or recover property, which under no form of title recognized by law ever belonged to his ancestor or to his ancestor’s succession.”

To the same effect as Scurto, supra, and Eberle, supra, see: Succession of Nelson., 224 La. 731, 70 So.2d 665; Little v. Haik, 246 La. 121, 163 So.2d 558; Burt v. Valois, 144 So.2d 196 (La.App.); and Hayes v. Muller, 245 La. 356, 156 So.2d 191.

Considering the above, plaintiffs not having alleged fraud, mutual error, force or that a counter-letter exists and defendant’s answers to the interrogatories propounded to him not being subject to contradiction it is axiomatic that plaintiffs have neither stated a cause of action nor do they have a right of action to alter the 1967 sale as they seek to do. Therefore, we conclude for these reasons that the trial court was correct in sustaining the filed exceptions to the attack made on the sale of January 10, 1967.

For the above and foregoing reasons the trial court judgment is affirmed insofar as it sustained the exceptions of no cause and no right of action and dismissed the demand of plaintiff, William Joshua Miles, and insofar as it dismisses the demand of the other plaintiffs, Mrs. Wroten, Mrs. Mannies, Mrs. Beebe and Mrs. Hemphill as to the sale of January 10, 1967; but such judgment is reversed insofar as it dismisses the demand of plaintiffs, other than William Joshua Miles, to have the sale of December 15, 1958 declared a simulation. Accordingly, this matter is remanded to the District Court for further proceedings consistent with the views herein expressed, the costs of this appeal to be equally divided between appellants and appellee. Costs of the trial court are to await a final determination of this matter.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Although the record does not indicate why Mrs. Prickett was not joined as a party in brief counsel for the “unopened Succession” of Ruby Idelle Berryhill suggests that after the filing of this suit Mrs. Prickett conveyed her interest in the subject properties to William Julius Miles Jr.


source: Caselaw Access Project

author: PAVY, Judge.

license: Public Domain

text:
    Sam FARACE et al., Plaintiffs-Appellees, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5359.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr., Alexandria, for defendants-appellants.
    Garrett & Ryland by Donald M. Garrett, Eugene P. Cicardo, Alexandria, for plaintiffs-appellees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a suit by Mrs. Sam Farace (hereinafter usually designated as plaintiff) and her husband (who joined to assert the medical expense claim) for damages arising out of an automobile accident on July 24, 1973. The trial judge awarded the wife $40,000 for her injuries and $6,323.44 to the husband for medical expenses. Mrs. Farace was a guest passenger in a car which collided at an intersection with one driven by an insured of Government Employees Insurance Company, the other defendant. Both defendants have appealed. They did not contest the issue of liability and direct their arguments solely to the matter of quantum.

The evidence shows that the accident was of sufficient force to throw plaintiff against the windshield and stun or daze her if not actually render her momentarily unconscious. Her original complaints consisted of pain in the head, neck and hip. The hip injury has passed out of the picture. She was hospitalized for a week.

Her family physician, Dr. Wesley Dyer, treated her initially and, off and on, during most of the times involved. In August, he referred her to Dr. Louis Cayer, an Alexandria orthopaedist, who treated her until November 28, 1973. On October 31, 1973, at Dr. Cayer’s suggestion, Mrs. Farace was examined by Dr. F. C. Boykin, a Shreveport neurosurgeon. On December 28, 1973, she consulted Dr. Homer Kirgis, a neurosurgeon at the Oschner Clinic in New Orleans. He treated plaintiff conservatively until September, 1974, when he operated on her and removed the intervertebral disc at the 5th cervical level and fused the two adjoining vertebrae with a piece of bone from the hip.

On December 2, 1974, subsequent to the operation and shortly before the trial held on January 9, 1975, Mrs. Farace was examined by Dr. Richard Levy, a New Orleans neurosurgeon. All the aforementioned experts had examined or treated plaintiff and testified in the case. Additionally, two radiologists, Dr. Lawrence Heard of New Orleans and Dr. R. O. Chadwick of Alexandria, neither of whom had seen or treated plaintiff, testified as to their interpretations of x-rays, a myleogram and a disco-gram, which latter two were performed on plaintiff at the Oschner Clinic.

It is defendants’ argument that, prior to the accident, plaintiff suffered from degenerative changes in neck and shoulder area, and that she suffered some type of cervical strain injury but not a disc involvement as a result of the accident; and that, although she may be entitled to a substantial sum for the pain, suffering etc., the award should not be based on a disc injury and should be substantially lower than the $40,000 awarded.

At the time of the accident, Mrs. Farace was 52 years of age and had been an active housewife and frequently assisted her husband at his store. She had no trouble or complaints of pain in the neck, shoulder, head or arm. Since the accident, she has constantly complained of pain in those areas except that the arm pain was not constant and late in manifesting itself. None of the doctors doubted her sincerity or thought her complaints were not genuine except that there were a few expressions by the experts that her complaints were slightly out of proportion to the findings. She was treated with muscular relaxants, analgesics, heat (lamps and soaks), hospital and home traction, cervical collar and shoulder harness.

Specifically, defendants argue that the weight of the clinical findings by the experts, the correct interpretation of the x-rays, myleogram and discogram and the information, or lack of it, from the operation rule out any disc injury whatsoever and, especially, because of the time factor, rule out any disc involvement resulting from the accident.

It is true that the experts who examined plaintiff in the first phases of her problem diagnosed her condition as one other than a disc problem but none of these definitely ruled out such a possibility. Also, although most of the experts thought that any disc injury would manifest itself within the first several months subsequent to the accident, none would deny a causal relationship between the accident and an actual disc condition if there was no indication of a disc problem prior to the accident, there was constant complaints of the kind Mrs. Farace experienced subsequent to the injury and an operation actually revealed a disc involvement. There is reliable expertise in the record that a progression of the condition from the complaints of Mrs. Farace during the first few months to actual disc involvement at time of operation is not atypical.

The x-rays showed degenerative (aging process) changes which probably existed prior to the accident. They (the x-rays) were not indicative of any disc involvement, but it is clear that x-rays never rule out a disc problem. Most of the experts interpreted the myleogram to be negative, but it is shown that there are false negatives, the exact frequency of which is uncertain. A discogram is a diagnostic device in which dye is injected into the suspected disc itself. If the visualized dye exudes or shows the disc sac to protrude it is considered that the disc is pathological. Additionally, the injection of the dye into the disc sac is supposed to reproduce the complained-of pain if the disc is pathological. The determination of whether the pain is reproduced is made by the neurosurgeon attending the discogram. The report on the discogram shows that it resulted in reproduction of shoulder and neck pain. The report of the discogram by the radiologist attending the discogram and Dr. Kirgis’ interpretation of the discogram x-ray confirmed a bulging of the disc. The other testifying experts, who were not in attendance at the discogram, could not express themselves one way or the other with regard to the question of the pain reproduction. On the question of whether there was a bulging or exuding shown on the discogram x-rays, some of the experts (even radiologists), refused to express themselves because of their inexperience in, or skepticism toward, discography or because they thought the technique in the particular instance involved was not sufficient to justify a decision. Other experts interpreted the discogram film to be negative. While there may be doubt as to the discogram film interpretation, the evidence that the complained-of pain was reproduced stands uncontradicted and this evidence is supportive of a disc involvement condition.

The evidence shows that in a cervical disc operation there are two methods of gaining access to the disc. One is anteri-orly, from the front of the neck, and the other is posteriorly, from the rear of the neck. Both are accepted techniques in the medical profession. The anterior approach is the more preferred one and was used by Dr. Kirgis. Dr. Levy, defendants’ main expert on this aspect of the case, employs the posterior approach.

Defendants argue that in the anterior approach it is impossible for the surgeon to determine that the disc actually impinges on the nerve root because the disc is cut out before the nerve root, located to the rear of the disc, is visible; that in this case Dr. Kirgis could not testify that the disc impinged against the nerve root and there is a lack of proof that plaintiff had a disc problem.

We think defendants’ argument does not give accurate appraisal to the testimony and the reasonable inferences to be drawn therefrom. On direct examination, Dr. Kirgis testified as follows:

“Q. When you went through the operative procedure and laid the facia open and were able to look at the site of the disc at the C-5 level, were you able — and you know, after you moved away the muscles or the ligaments, or the fibers that cover the area, were you able to see the ruptured disc in that location, Doctor ?
A. Yes.
Q. How did you remove it? Do you have a surgical instrument that goes in there ?
A. Yes, sir.
Q. And you did at that time remove the pathological disc material ?
A. Yes, sir.
Q. Are you able to visualize the nerve root that emanates from that area at that time, too ?
A. Yes, sir.
Q. Are you able to recall if you could tell whether it was pressing against the nerve root, the disc material ?
A. Well, this is a- — it’s not as easy to determine as — in the cases in which we use the so-called posterior approach. We can tell if the disc is pathologic. But as far as determining at the operation the degree of compression of the nerve, it is not as easily done as —this is not as easily determined from the posterior approach. We remove all of the disc in order to be certain that the nerve is unimpinged.
Q. Is this the usual procedure, Doctor, the anterior approach or is that a relatively new surgical procedure ?
A. We have been doing it for ten or twelve years.
Q. What is the advantages over it as compared to the posterior approach?
A. It’s very advantageous in several ways.
No. 1, we can remove the disc completely from the anterior approach, which we can’t from the posterior approach.
No. 2, we can do this procedure with much less danger of damage to the nerves or to the spinal cord. And
No. 3, there is much less discomfort post-operatively than with the posterior approach. For instance, the patients are usually out of bed either later the day of the operation or later on the day after the operation. And the entire course is usually more satisfactory than with the posterior approach.”

On cross-examination this doctor testified as follows:

“Q. Now, Doctor, what we’re concerned with in this case is whether or not the accident of July 24th, 1973 caused the — any rupture or disturbance of the disc that you later took out? As I appreciate what you said, you go in the front to take the disc out, is that correct ?
A. Yes, sir.
Q. And the bulge that you believe was observed as a result of this myelo-gram was a bulge to the rear or posterior of the cervical spine, is that correct ?
A. Yes.
Q. And I think that what you were telling us earlier when you did the operation, you don’t actually see and observe the bulge, do you, in this particular lady, let’s say, because that’s all we’re really concerned about.
Well, what I said was when we do the operation from the anterior approach we have removed parts of the disc before we reach the back of the disc. >
That’s correct. ©
So we can’t say — describe the degree of protrusion that we see at the operation like we can if we do this operation from the back. >
From the back. All right. Specifically as a matter of fact you can’t see the bulge at all when you go in from the front because you have cut it out by the time you have gotten there, haven’t you? a
Well, sometimes we can see it if there has been a large protrusion so that this part that has escaped from the disc space has become almost or completely separated from the rest of the disc. But in a case of this sort we don’t see that. >
Okay. So what you did really was you cut aloose the skin and the ligaments and all the things that cover the spine and then, you are able to observe the two vertebrae or particularly the two vertebrae that you’re after and you also see the disc material there right in front of you ? a
That’s correct. >
Now, you begin to cut it out and get rid of it? ©
Yes, sir. But we can tell by the manipulation of the spine whether or not the disc is pathological. >
Q. Well, I am not saying that it was not pathological. I know when you looked in there and you saw and decided that it was pathological ?
A. Yes.
Q. But you could not see from the position that you were in any bulging from the rear of the spine of the disc?
A. No, sir.
Q. All right. Now, is there any way, Doctor, other than the complaints that the patient had to you at the time you saw her and the period that you did observe the lady to say with any certainty that this accident caused the pathological condition that you later operated on ?
A. Well, of course I can’t say with complete certainty. But the x-ray films of the cervical spine in this case won’t demonstrate any changes that we sometimes see in the cervical spine and with which we can say without any doubt that the disc was injured originally a year or more before the accident. Her- — the x-ray films of her spine don’t show such changes. So we can say that the injury to the disc was relatively recent.
Q. Well, aren’t we in this case talking about a degenerated disc condition?
A. No. That’s precisely what I am saying. We don’t see the changes that are described as a degenerated disc.
Q. So in other words, it is your judgment that that lady’s disc at the time of the operation was not what you would consider to be a degenerated disc situation ?
A. That’s correct.
Q. All right. Were you able by looking at the disc material that you took out to discern if the material itself was damaged as a result of any accident?
A. Well, I can tell it was damaged. But I can’t tell whether it was damaged because of the accident or what damaged it.
Q. Well, when you got it out I guess it was all cut up because of the procedure that you had to apply ?
A. Well, we can tell by the consistency of the disc and the gross appearance of whether it had been damaged or has been injured in some way.
Q. Okay. Did the report of the pathologist indicate to any extent that it was a damaged disc material ?
A. He states simply that it’s cartilagenous tissue compatible with intervertebral disc.
Q. Did you give him the entire disc material or did you give him the cartila-genous material ?
A. No. I gave him everything that I got out. All the material that I removed.”

Dr. Levy, defendants’ expert, did not contradict the testimony to the effect that the surgeon, using the front approach, can determine if the disc is damaged although he may have trouble actually seeing if the disc impinges upon the nerve. We can not see that there is any reasonable inference other than that because the disc was damaged it was probably impinging the nerve root. Surely, the more probable inference is not that, though damaged, it did not impinge because the surgeon did not actually see the impingement. It appears that the former inference, that is, that the damaged disc impinged, justifies the medical profession in proceeding to remove the whole disc and necessitate fusion.

Defendants further argue that plaintiff’s complaints have persisted since the operation, thus supporting his position that the disc was not the problem. Dr. Kirgis admitted that he was not completely satisfied with plaintiff’s course of recovery since the operation, but there is no hard evidence that her condition subsequent to the operation definitely rules out the disc problem or shows that the operation was not justified. We know as a fact that these disc conditions do not result in overnight recoveries and in many cases residuals remain indefinitely. We are not convinced by the evidence on this point. After all, the disc was damaged, and the only known cause of the damage was the accident. If plaintiff still has other problems, to what do we attribute these other than the accident? She had no such problems before the accident. We think plaintiff has made out her case for a substantial award.

Both Drs. Levy and Kirgis gave her a 10 percent disability of the body as a whole. At trial time, she had been suffering intensely for over 18 months and is still suffering. The extent of her future suffering is yet unknown. Besides the initial hospitalization and the 20-day hospitalization for surgery, plaintiff was in the Oschner Foundation Hospital for 10 days in late April, 1974. Both the myelogram and the discogram are painful procedures and induce apprehension to a substantial extent. The disc operation actually involved two surgeries, one on the neck and the other on the hip. Plaintiff suffered an allergic reaction subsequent to the operation. The neck scar, although not hideous, definitely detracts from her appearance. The hip scar is not usually observed but is on the feminine anatomy and is an element of damage. The fusion will prevent full neck motion for the rest of her life and constitutes potential trouble to adjoining vertebrae in the future. Her day-to-day activities will probably be limited to a considerable extent for some time to come.

In view of all of the above consequences, we do not feel that the trial judge abused his discretion in awarding plaintiff wife $40,000 for her injuries. The jurisprudence mandates that it be left undisturbed unless it is so obviously excessive as to be beyond the “much discretion” accorded the trier of fact. We cannot so conclude.

Accordingly, for reasons assigned the judgment of the lower court is affirmed. All costs of this appeal are to be borne by appellants.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Gilbert AUSTIN, Jr., Plaintiff and Appellant, v. Bobby DUPRE, Defendant and Appellee.
    No. 5496.
    Court of Appeal of Louisiana, Third Circuit.
    March 18, 1976.
    David J. Dennis, Lafayette, for plaintiff and appellant.
    William Tracy Barstow, Opelousas, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

This is a suit to contest a school board election. The district judge sustained defendant’s exception of prescription on the grounds that plaintiff did not file this suit within two days after the official promulgation of the result of the election, as required by LSA-R.S. 18:364(H), and LSA-R.S. 18:420(H). From a judgment dismissing his suit, plaintiff appealed.

The issue is: What was the date of the official promulgation of the result of the election? Was it February 24, 1976, the date on which the Board of Supervisors of Elections for the Parish of St. Landry met and compiled the election returns and announced the results, or was it February 26, 1976, the date on which the action of the Board of Supervisors was published in the Official Journal of the Parish of St. Landry?

The facts are that the plaintiff, Gilbert Austin, Jr., the defendant, Bobby Dupre, and one Joseph Cluse were candidates for the St. Landry Parish School Board District #10 in the primary election which was held on February 21, 1976. The Board of Supervisors of Elections for the Parish of St. Landry held a public meeting on February 24, 1976, at about 2:00 p. m. in the St. Landry Parish Courthouse. They compiled the votes cast at the election, drafted and signed a document in the presence of a notary public and three witnesses proclaiming the result of the compilation. As to the particular office with which we are concerned, this proclamation states that Austin received 554 votes, Cluse 183 votes and Dupre, 1,148 votes.

This document proclaiming the results of the election was published on February 26, 1976, in the Daily World, a newspaper in the City of Opelousas, Parish of St. Landry, State of Louisiana.

The plaintiff knew the unofficial vote count before the meeting of the board. He attended the meeting on February 24, 1976, and protested to the board the alleged fraud by defendant. But he left the meeting before the board officially announced the final count.

On Monday, March 1, 1976, plaintiff filed the present suit alleging that the defendant, Dupre, and certain of his supporters committed acts of fraud by purchasing votes in violation of LSA-R.S. 18:369 and 18:414. Plaintiff contends that by reason of these fraudulent and illegal acts he was prevented from either winning the primary election or at least being able to participate in the “run-off” with Mr. Dupre. Plaintiff prays that the election be declared null and void and that a new election be held.

The defendant, Dupre, filed an exception of prescription on the grounds that this suit was not filed within two days after the official promulgation of the result of the election, as required by LSA-R.S. 18:364(H). As stated above, the district judge sustained this exception and dismissed plaintiff’s suit.

Act 1 of 1975, which is commonly referred to as the “Open Primary Election Law”, changed the prior election laws of this State so as to eliminate party primaries and provide for one primary election of candidates, regardless of party affiliation, followed by a general election if necessary. As regards election contests, Act 1 of 1975, Section 420, H (LSA-R.S. 18:420, H) provides as follows:

“H. No contest shall be entertained unless brought within two days after the official promulgation of the result of the election.”

Section 416 of Act 1 of 1975 deals with the tabulation, compilation and promulgation of returns. Subparagraph A provides that for state officers and officers elected from certain districts of the State, the secretary of state shall compile the returns and “shall promulgate them in the official journal of the state”. Subsection B, regarding local officers, provides as follows:

“B. In all other primary elections the returns shall be tabulated and compiled by the respective boards of supervisors of elections for the parish wherein the election was held and the results thereof shall be certified to the secretary of state. The president of the board of supervisors, immediately upon receiving the returns, shall open them and cause them to be tabulated and compiled, and within six days after the primary the board conducting it shall convene and the president thereof shall submit to it the tabulated statement showing the result of the primary and the original returns received by him. The secretary of state and the president of each of the respective boards of supervisors of elections under the provisions of this Part shall safely keep and preserve for six months all tally sheets, poll lists and returns received by them, as well as all compilations of returns made by them. All of these documents are public records and are open to inspection by anyone.”

From the above, it is seen that Act 1 of 1975 provides that as to state officers and certain district officers the secretary of state shall promulgate the returns in the Official Journal of the State. However, there is no provision that promulgation of the returns of other primary elections requires publication in an official journal. A reading of Subsection B quoted above indicates that for local elections, as the one with which we are concerned in this case, promulgation of the returns occurs when the board of supervisors of elections for the parish convenes and receives from the president the tabulated statement of the results of the primary and approves that tabulation.

Act 1 of 1975, Section 423 provides that “any and all other provisions of the election laws of this state, that are not in conflict with any provision in this Part, shall be applicable to and shall be applied in conducting any primary election held under the provisions of this Part.” When we look to the other pertinent existing election laws, we find that LSA-R.S. 18:364(H) provides:

“H. No contest shall be entertained unless brought within two days after the official promulgation of the result of the election, made by the secretary of state, or by respective committees as provided in this Part.”

LSA-R.S. 18:355 of the existing laws provides that for state officers and certain other district officers the secretary of state shall promulgate the returns “in the official journal of the state”. However, as to local primary elections, there is no requirement for promulgation by publishing in an official journal. Thus, the other election laws which were applicable at the time of the adoption of Act 1 of 1975 contain essentially the same provisions as to what constitutes official promulgation of returns.

The issue has been considered in prior cases. In Smith v. Fitch, 194 So. 435 (1st Cir. 1940), the court construed Section 27 of Act No. 97 of 1922, which is substantially the same as the present LSA-R.S. 18:364(H). The court held that for local elections promulgation occurred when the committee in charge of tallying the votes for the particular election announced at a meeting the results thereof.

In Brown v. Democratic Committee, 165 So. 167 (S.Ct.1935), our Supreme Court considered the definition of promulgation under Act 97 of 1922. The court stated: “The law does not provide in what manner the decisions of the committee shall be promulgated. The purpose of promulgation is to give notice. The record clearly shows that the attorneys for the relators were notified and had knowledge of the committee’s action on October 28, 1935, at 11 o’clock p. m.”

In Cooper v. Broussard, 266 So.2d 549 (La.App. 1 Cir. 1972), the court construed LSA-R.S. 18:364(H). Citing both the Brown and Smith cases, supra, the court held:

“If the action of the committee in compiling and tabulating the results of the election and certifying and declaring the result thereof that Moseley was the Democratic nominee for the Judge of Division ‘K’ is not an official promulgation, then there is no statutory method prescribed for promulgation of the returns and the result of a primary election. This analysis would effectuate an untoward and impractical result and would make it cumbersome and almost impossible to determine the time of promulgation by the committee.” 266 So.2d 552

In Etheridge v. Doughty, 323 So.2d 160 (La.App. 1 Cir. 1975); writ of cert. den. 325 So.2d 613, for the reason “no error in the judgment”, the Court followed the holding in Cooper v. Broussard, supra. The Court also stated in conclusion:

“We interpret the foregoing to mean that certification of the result of the election by the Board is tantamount to promulgation thereof. R.S. 18:416(B) provides that ‘all of these documents are public records and are open to inspection by anyone.’ The law does not provide for any notice or publication thereof beyond the certification to the Secretary of State.” 323 So.2d 162

Also supporting the result which we reach herein are State ex rel. Jeanfreau v. Giordano, 10 Orl.App. 98 (1912); State ex rel Munsterman v. DeArmas, 10 Orl.App. 99 (1912); Opinion, Attorney General, 1938 through 1940, page 233.

Plaintiff’s principal argument on appeal is that although he was present at the beginning of the meeting of the Board of Supervisors, and actually protested to the board the alleged fraudulent acts committed by Dupre, he left the meeting of the board before the results of the election were actually announced and therefore he had no actual notice as to any promulgation of these returns. Furthermore, plaintiff contends that he was advised by Mr. Brinkman, chairman of the board, that the official promulgation would be by publication in the newspaper. In our view, neither one of these circumstances can change the result in this case. Plaintiff admittedly was present at the meeting of the board and could have remained to hear the announcement of the results and promulgation of the returns. The fact that he left the meeting before the returns were announced could not change the law as to when the promulgation was effected. As to the alleged statements made by Brink-man, the testimony is somewhat vague. Plaintiff says he was told by Brinkman that promulgation would be by publication in the newspaper. However, Brinkman testified he told plaintiff he was uncertain as to when promulgation was effected under the new law. In any event, it is our view that regardless of what Brinkman told the plaintiff, this could not change the law as established by the above cited jurisprudence construing the statute with which we are concerned.

We conclude that under LSA-R.S. 18:420(H), and 18:364(H), the official promulgation of the result of the election occurred at the meeting of the Board of Supervisors of Elections for the Parish of St. Landry on February 24, 1976. Since this suit was not filed until Monday, March 1, 1976, it was not brought within two days after the official promulgation and must therefore be dismissed.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

WATSON, J., dissents, being of the opinion that plaintiff’s rights were not prescribed under the particular facts of this and that the serious charge of buying votes should be tried on the merits.


author: DOMENGEAUX, Judge.

text:
    Everett L. HOFFPAUIR, Plaintiff and Appellant, v. BANKERS LIFE AND CASUALTY COMPANY, Defendant and Appellee.
    No. 5343.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      Nathan A. Cormie and Ronald J. Bertrand, Lake Charles, for plaintiff and appellant.
    Raggio, Farrar, Cappel & Chozen by Frederick L. Cappel, Lake Charles, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Everett L. Hoffpauir, instituted this action to recover benefits allegedly due under a disability insurance policy issued by the defendant, Bankers Life & Casualty Company, and further sought statutory penalties and attorney’s fees based upon defendant’s failure to perform its obligation under the contract of insurance. Defendant filed a peremptory exception of no cause of action based upon prescription which the trial judge sustained. From this judgment plaintiff has appealed.

According to the record no evidentiary hearing was held on the exception. LSA-C.C.P. Article 931 provides in part:

No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.”

We are of the opinion that prescription and no cause of action cannot be compatibly raised in the same exception. Generally, the exception of no cause of action requires that the trial judge determine its merits by reference to the petition and exhibits attached thereto and is triable on the face of the papers. Succession of Lambright v. Lambright, 252 So.2d 349 (La.App. 3rd Cir. 1971). However, the exception of prescription requires an evi-dentiary hearing for the simple reason that, although a cause of action may appear to be prescribed on its face, prescription may be waived, interrupted, or inapplicable for a number of different reasons. Obviously such a determination cannot be made by a mere perusal of the pleadings which a plaintiff has filed.

As the Supreme Court held in White v. Davis, 169 La. 101, 124 So. 186 (1929):

“We know of no authority which requires a plaintiff to anticipate a plea of prescription. If the petition otherwise sets forth a cause of action, the suit cannot be dismissed on an exception of no cause of action because the evidence of the debt sued upon is prescribed on its face. Prescription is a defense which must be pleaded, and there must be a hearing thereon, a fortiori the plaintiff might show an interruption of prescription. Prescription may be waived. Many persons observe their moral obligations as faithfully as they do their legally enforceable ones, and the books are full of cases where enforceable judgments have been rendered where prescription might have been successfully pleaded as a bar to recovery.”

See also the case of Succession of Thompson, 191 La. 480, 186 So. 1 (1938), in which the court stated:

“The exception of no cause of action can not be made to fill the place of an exception or plea of prescription.”

Also applicable to this litigation is the case of Brooks v. Robinson, 163 So.2d 186 (La.App. 4th Cir. 1964), writ refused 246 La. 583, 165 So.2d 481, which states that a petition:

‘ . . . stating a prescribed cause of action is not the equivalent of stating no cause of action at all; the two grounds of exception are distinct.” (Emphasis added.)

In the instant litigation, defendant’s contention that plaintiff’s cause of action is barred by prescription may well be a valid and meritorious one. However, such a determination cannot be made by a mere reference to the face of the pleadings filed by the plaintiff. In order to sustain a plea of prescription, which is separate and distinct from an exception of no cause of action, evidence must be adduced to support or controvert the objection. In ruling upon the exception of no cause of action, we must view plaintiff’s petition in the most favorable light and in doing so find that it states a cause of action, prescribed or otherwise.

The case of Hall v. Provident Life and Accident Insurance Company, 250 So.2d 435 (La.App. 3rd Cir. 1971) relied upon by the trial judge involved the use of summary judgment proceedings and hence is not applicable to the factual situation presented by the case at hand.

For the above and foregoing reasons the judgment of the district court is reversed and judgment is hereby rendered overruling defendant’s exception of no cause of action, and this case is remanded for further proceedings not inconsistent with the views herein expressed.

Costs of this appeal are assessed against defendant. Assessment of costs of the trial court must await a final determination there.

REVERSED AND REMANDED.


author: SCHOTT, Judge.

text:
    Chalin O. PEREZ v. Mary Ellen Sheehan, wife of Chalin O. PEREZ.
    No. 7689.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 1976.

      Gibson Tucker, Jr., New Orleans, for defendant-appellant.
    Sidney W. Provensal, Jr., New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

Appellee has moved to dismiss the appeal of his wife from a judgment of divorce in his favor.

Appellee took his judgment pursuant to LSA-R.S. 9:302 on the ground that the parties lived separate and apart without reconciliation for over one year after a judgment of separation. Appellant had filed an answer to the petition for divorce, admitting that there was a judgment of separation in favor of appellee, that more than one year had elapsed since that judgment had become final, that no reconciliation had occurred and that appellee was entitled to the judgment under the provisions of R.S. 9:302. Appellee’s motion to dismiss the appeal is based upon the proposition that appellant confessed judgment in the proceedings in the trial court and is barred from taking an appeal by LSA-C.C.P. Art. 2085. We note that, while appellant made these admissions, there could be no confession of judgment; divorce cannot be obtained by consent.

When the petition for divorce was filed appellant’s first pleading was an “Exception of Improper Procedure.” This exception was overruled by the trial judge, whereupon appellant filed her answer containing the admissions referred to above and also an incidental demand by appellant to be held free from fault in connection with the divorce. Appellee filed an exception of no right or cause of action in re-, sponse to this incidental demand on the theory that appellant was precluded from raising the issue of fault in the divorce proceedings because the issue of fault had already been tried and decided in appellee’s favor in the separation proceedings and could not be re-litigated.

Appellant had no right to appeal from the interlocutory judgment of the court which overruled “Exception of Improper Procedure,” and the validity of that judgment is now an issue on appeal. Furthermore, the jurisprudence which has developed to the effect that the question of fault cannot be re-litigated in the divorce proceedings once an adjudication has been made in the separation proceedings does not deprive appellant of her right to take an appeal from the judgment. Consequently, appellant is entitled to proceed with her appeal.

Accordingly, the motion to dismiss the appeal is denied.

MOTION DENIED.


text:
    Norman W. BOURQUE, Individually and as Administrator of the Estate of his Deceased daughter, Norma Elizabeth Bourque, and as Head and Master of the Community of Acquets and Gains existing between him and his wife, and Mary Lou Veazey, his wife, Plaintiffs-Appellees, v. Dudley John LEBLANC, d/b/a River Oaks Trailer Park, and Motor Vehicle Casualty Company, Defendants-Third-Party Plaintiffs-Appellants. John Thomas SPARKS, Defendant, v. COULEE KINNEY DRAINAGE DISTRICT, Third-Party Defendant-Appellee, and John Thomas Sparks, Third-Party, Defendant.
    No. 5382.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.

      Caffery, Duhe & Davis by Jerry A. Oubre, New Iberia, for defendants-appellants.
    Davidson, Meaux, Onebane & Donohoe by James R. Lewis, Lafayette, for defendant-appellee.
    Thompson & Sellers by Roger C. Sellers, Abbeville, for plaintiffs-appellees.
    Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   DOMENGEAUX, Judge.

This is an action for wrongful death brought by Norman W. Bourque and his wife, the parents of the minor decedent. Defendants are Dudley John Leblanc, d/b/a River Oaks Trailer Park, Motor Vehicle Casualty Company, his liability insurer, and Thomas Sparks. Defendants Leblanc and Motor Vehicle Casualty Company instituted a third party action against Sparks and Coulee Kinney Drainage District. Leblanc and Motor Vehicle Casualty Company, as defendants, and Coulee Kinney Drainage District, as third party defendant, each filed Exceptions of No Cause of Action. The trial judge overruled the exception raised by Leblanc and Motor Vehicle Casualty Company but sustained the exception of Coulee Kinney Drainage District. From the judgment dismissing their third party action against Coulee Kinney Drainage District, Dudley John Leblanc and Motor Vehicle Casualty Company have appealed. We affirm.

The pleadings reveal the following facts:

Defendant Leblanc was the owner and operator of a mobile home-trailer park known as River Oaks Trailer Park which abutted the Coulee Kinney Drainage Canal in Vermilion Parish. Both plaintiffs and co-defendant Sparks were residents of said trailer park. On May 31, 1973, plaintiffs’ six year old daughter, Norma Elizabeth, drowned in Coulee Kinney.

Coulee Kinney is a natural drainage canal, under the supervision and control of the Coulee Kinney Drainage District of Vermilion Parish. There are allegations to the effect that defendant Leblanc had placed a trash pile near the Coulee and had constructed a step or steps going down into the canal. There are further allegations that defendant Sparks, or his minor son, owned and operated a boat which was used in the Coulee and tied up at the site of the trailer park.

In their petition, plaintiffs allege that defendant Leblanc’s negligence is based upon the following:

1. Coulee Kinney constituted an attractive nuisance and was left thoroughly and completely unguarded and open and attractive to young children.

2. Failure to adequately safeguard and protect minors living in his trailer park against the danger of Coulee Kinney.

3. Failure to provide safe premises for renters and their minor children.

4. Failure to post adequate signs warning of the danger of Coulee Kinney in the trailer park.

5. Failure to take any steps to protect his renters against Coulee Kinney, although mishaps had occurred prior to May 31,1973.

6. Failure to do what he should have done.

7. Allowing steps to be placed by his minor son along Coulee Kinney, and allowing an unguarded boat to remain on the waters of Coulee Kinney near his trailer park.

8. There is a further allegation that a trash pile was kept near the Coulee by defendant Leblanc and that said trash pile constituted an attraction to small children.

The petition of third party plaintiffs, Dudley John Leblanc and Motor Vehicle Casualty Company, against Coulee Kinney Drainage District (and James Thomas Sparks), alleges the following:

1.Coulee Kinney constitutes an attractive nuisance.

2.The unguarded boat was an attractive nuisance.

Said third party petition further alleges that Coulee Kinney Drainage District’s negligence is based upon:

1. Failure to provide barricades or other safeguards to prevent children from playing in or near the Coulee.

2. Failure to clean, dredge, and maintain the Coulee in such a manner as to prevent children from gaining access.

3. Failure to maintain a proper method of extrication for children from the Coulee.

4. Failure to warn the general public of the dangers of the Coulee.

5. Failure to do the things that it should have done or see the things it should have seen to avoid an accident.

Defendants-appellants contend that the trial court erred in sustaining the Exception of No Cause of Action in favor of Coulee Kinney Drainage District, but overruling a like exception filed by them. The basic position of Leblanc and his insurer is that the allegations in plaintiffs’ original petition are essentially the same as those in appellants’ third party petition, and that both parties should have been treated equally concerning these exceptions. Appellants argue that either both exceptions should have been sustained, or they should have been overruled together.

The allegations of both petitions are based upon the same theories: “attractive nuisance” and negligence. The trial judge found that as a matter of law the Coulee itself could not be considered an attractive nuisance and that the allegations of negligence contained in the third party plaintiff’s petition were almost identical to those in the case of Slaughter v. Gravity Drainage District No. 4, 145 So.2d 50 (La.App.3rd Cir. 1962), cert, denied December 10, 1962.

The factual situation presented in Slaughter is remarkably similar to that of the instant case. Plaintiff’s petition in Slaughter based its cause of action upon theories of attractive nuisance and negligence. The type of canal involved in that case was, like Coulee Kinney, a natural drainage canal maintained by the municipal government. The court in Slaughter stated:

“There, of course, are inherent dangers of drowning in every body of water, including a canal. A drainage district which constructs and maintains a canal as a part of its public function, however, does not become the insurer of the lives and safety of all children who come near the waterway. Where the canal is open and in full view of those who come near it, the facility itself serves as a warning of the dangers which are apparent especially to those who are of the age of discretion. Where the danger is not hidden or concealed and there are no unusual circumstances which render the facility peculiarly attractive to young children, we think there is no duty on the part of the drainage district to provide safeguards against persons falling into the excavation, such as fences or •warning signs. Where those conditions exist the drainage district has the right to presume that for every child under the age of discretion, there is some one of mature judgment on whom rests the special duty and responsibility for the safety of the child. Also, we feel that the construction of the canal with extremely steep inclines along its banks or sides alone does not constitute actionable negligence on the part of the drainage district.” (Emphasis added)

The third party petition of Leblanc and his insurer fails to allege any unusual circumstances relative to Coulee Kinney and its maintenance which would take it outside the scope of the Slaughter case and place it into the attractive nuisance category. Likewise based upon the rules set forth in the above case, the drainage district does not owe a duty to the general public to place warning signs and/or fences along the banks of its drainage canals. See also the cases of Atwell v. City of Baton Rouge, 286 So.2d 783 (La.App. 1st Cir. 1973), writ refused 288 So.2d 648; and Miles v. City-Parish Government, 2S3 So.2d 681 (La.App.lst Cir. 1971), writ refused 260 La. 108, 255 So.2d 93. In view of the current state of the jurisprudence concerning the issues presented by this case, we find that the third party petition fails to state a cause of action against the Coulee Kinney Drainage District.

However, the original petition of the plaintiff in this action states that the defendant Leblanc’s maintenance of a trash pile near the Coulee, construction of steps leading down into the canal, and allowing a tenant to place a boat in the waterway contributed, with the Coulee, to constitute an attractive nuisance and negligence on the part of the defendant. While Slaughter is authority for the proposition that the Coulee in this case is not an attractive nuisance per se, it is conceivable that the addition of the above mentioned factors by the defendant Leblanc, could have converted it into one. The actual determination of whether the trash pile, steps, and boat combined with the Coulee to create an attractive nuisance and negligence on defendant’s behalf is for the determination of the trial court. Suffice it to say that viewing plaintiff’s petition in the most favorable light, we find that it states a cause of action against Leblanc and Motor Vehicle Casualty Company, based upon the theories of negligence and attractive nuisance.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against appellants.

AFFIRMED.

      . Since defendant Sparks is not a party to this appeal it is unnecessary to discuss the allegations made against him.


author: OVERTON, Chief Justice.

text:
    Marcia D. PROTHEROE, Petitioner, v. M. Vincent PROTHEROE, Respondent. M. Vincent PROTHEROE, Appellant, v. Marcia D. PROTHEROE, Appellee.
    Nos. 46471 and 48794.
    Supreme Court of Florida.
    March 3, 1976.
    S. Gordon and Blalock, Blalock, Hol-brook, Lewis, Paul & Isaac, P. A., Jacksonville, for appellant and respondent.
    Arthur T. Boone and Gordon H. Lee, Jacksonville, for appellee and petitioner.
   OVERTON, Chief Justice.

Certiorari was initially granted in this cause because of an apparent conflict between the instant decision of the First District Court of Appeal reported at 300 So.2d 748 (Fla.App. 1st 1974), and Chastain v. Chastain, 73 So.2d 66 (Fla.1954), Gamse v. Gamse, 291 So.2d 620 (Fla.App. 3d 1974), and DeFrancisco v. DeFrancisco, 273 So.2d 780 (Fla.App. 2d 1973).

The issue concerns the modification of an award of alimony by termination at a set date without a finding of a change of circumstances by the trial court and its approval by the District Court of Appeal. The trial court in an order dated May 1, 1973 terminated the alimony as of May 1, 1974. The opinion of the District Court of Appeal extended the termination date to May 1, 1976, and acknowledged there was no change of circumstances.

While the petition for certiorari was pending in this Court, a motion to relinquish jurisdiction was made by the respondent requesting that we allow him to petition for modification of the alimony award based upon changed circumstances occurring subsequent to the order of modification on review before this Court. We granted the motion.

The trial court found that there were in fact changed circumstances subsequent to the date' of the prior order and entered a modified order so stating April 29, 1975. The District Court opinion was in conflict because it acknowledged there were no changed circumstances in the record justifying the modification in the first order. The factual circumstances between the parties now have changed, and the practical effect of the first order which is before this Court for review is moot.

The opinion of the District Court of Appeal is quashed to the extent that it affirms modification of an alimony award without a showing of changed circumstances. We express no opinion on the modified order of the trial court dated April 29, 1975, which was consolidated here with the original certiorari proceeding. We transfer it without prejudice to the District Court of Appeal.

It is so ordered.

ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JT., concur.


author: ENGLAND, Justice.

text:
    FLORIDA STEEL CORPORATION, Petitioner, v. Fred O. DICKINSON, Jr., et al., Respondents.
    No. 47209.
    Supreme Court of Florida.
    Feb. 25, 1976.
    L. Robert Frank and William H. Cauthen of Allen, Dell, Frank & Trinkle, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., Larry Levy and E. Wilson Crump, II, Asst. Attys. Gen., Howard Horowitz, Gen. Counsel, and William B. Corbett, Jr., Asst. Gen. Counsel, Tallahassee, for respondents.
    Thomas C. MacDonald, Jr., and Donald A. Gifford of Shackleford, Farrior, Stall-ings & Evans, Tampa, for Jim Walter Corp., amicus curiae.
   ENGLAND, Justice.

By petition for a writ of certiorari, this case is before us to resolve a conflict between the decision of the First District Court of Appeal, reported at 308 So.2d 623, and this Court’s decision relative to Florida’s intangible personal property tax in Starkey v. Carson. We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

Florida Steel Corporation brought this lawsuit to challenge imposition of the intangible personal property tax by the State of Florida on accounts receivable generated by the sale outside of Florida of products manufactured in North Carolina, South Carolina and Georgia. The Leon County Circuit Court ruled Florida Steel taxable on all of its accounts receivable. That court also found that Florida Steel had failed to prove a “business situs” outside Florida for any of its accounts receivable. The district court affirmed the circuit court in an opinion carefully addressing all of the arguments raised before us.

Florida Steel contends, contrary to the district court, that Starkey created a judicial exemption to the intangible personal property tax for intangible personal property which has a “business situs” outside the State of Florida, and that this exemption has survived legislative re-enactment of substantially identical provisions in the current version of Chapter 199, Florida Statutes. We disagree.

This Court has never excused any taxpayer from payment of intangible personal property taxes on the theory of a foreign business situs, in the absence of a specific statutory exemption. Starkey and the later cases of Smith v. Lummus and Wood v. Ford contain language which assumes the existence of a foreign business situs exemption. These decisions did not, however, rely on that concept to construe the applicable tax laws. At the time Starkey was decided, decisions of the United States Supreme Court implied the existence of a constitutional barrier to the taxation of intangibles by both the state of domicile and the state of commercial activity. Citation of those cases in Starkey suggests that the Court was concerned with a presumed constitutional doctrine rather than the intent of the Florida Legislature. It is now clear that there is no constitutional infirmity in the taxation of the same intangible property by two states. State Tax Commission of Utah v. Aldrich, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358 (1942). This was recognized by this Court in State ex rel. United States Sugar Corp. v. Gay, 46 So.2d 165 (Fla.1950). The wariness exhibited by the Court in Starkey is not now a valid basis for limiting the Legislature’s clear mandate.

We are in agreement with the views expressed by the district court. Chapter 199 taxes all intangible personal property owned by a Florida, domiciliary corporation unless specifically exempted. No statutory exemption applies to the intangibles involved here. In order to harmonize the law of the state as it is reflected in published opinions, we now expressly disclaim the existence of a general foreign business situs exemption to the intangible personal property tax. The decisions of this Court in Starkey, Smith and Wood are clarified accordingly, and the decision of the First District Court of Appeal is affirmed.

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

      . 138 Fla. 301, 189 So. 385 (1939).

      . 149 Fla. 660, 6 So.2d 625 (1942).

      . 148 Fla. 66, 3 So.2d 490 (1941).

      .See, First Bank Stock Corp. v. Minnesota, 301 U.S. 234, 57 S.Ct. 677, 81 L.Ed. 1061 (1931) ; Farmer’s Loan and Trust Co. v. Minnesota, 280 U.S. 204, 50 S.Ct. 98, 74 L.Ed. 371 (1930).


author: PER CURIAM.

text:
    In re CERTIFICATE OF JUDICIAL MANPOWER AS REQUIRED BY SECTION 9, ARTICLE V, CONSTITUTION OF FLORIDA, AS REVISED MARCH 14, 1972.
    No. 48987.
    Supreme Court of Florida.
    March 4, 1976.
   PER CURIAM.

The courts and our system of justice must be fully open and readily available for the administration of justice. Courts cannot restrict the number of cases they hear, or deny an individual his day in court. Congestion and delay, however, create that effect. When Article V was adopted in March of 1972, we certified the necessary judicial manpower on the basis of July, 1971 population figures. The population increase from July 1, 1971 to July 1, 1975 was estimated at 1.4 million. The additional' judicial manpower created to take care of that population growth has only been twelve circuit judges and thirteen county judges.

The future provides no respite for our growth problems. Some courts of this state have developed congestion and backlogs in their court calendars. In addition, some legislative acts have caused increased work loads for certain courts. Two examples are the Administrative Procedure Act and its resulting increase in appellate review matters in the District Courts of Appeal, and Medical Mediation Panels which require additional proceedings in medical malpractice actions in the circuit courts.

We bring to your attention that in 1975 we certified 23 judicial positions which the Legislature, because of the severe economic situation, failed to approve. These positions are with one exception recertified today.

We further direct your attention to the fact that as of January 1, 1977, all remaining municipal courts must be abolished. Presently 70% of the population of this State is served exclusively by the state court system, while 30% is served by both the state court system and municipal courts. A substantial number of the municipal courts that must be abolished are in five counties of this state, specifically Bro-ward, Orange, Palm Beach, Pinellas, and Volusia. A number of municipal courts for large population cities will be abolished in Dade County. These Dade County municipal courts do not presently have jurisdiction of traffic offenses. We note that our certification for county judges is substantially less than the 62 recommended by the Select House Committee for Municipal Courts.

We therefore, in accordance with Section 9, Article V, Constitution of Florida, as revised March 14, 1972, hereby certify the need for additional District, Circuit, and County Judges in accordance with the following schedule. For information purposes, we note in a separate column the judge positions certified but not approved by the Legislature in 1975 and in a separate column the 1976 request by each Circuit Chief Judge:

First Second Third Fourth 1 0 1 1 3 2 0 0** 2 2 2 1 4 2 1 0 2 2 3*(Modified) 2 1 1 1 1 4 2 1 1 8 6 1 1 1 1 1 1 2 0 County Santa Rosa Duval Pinellas Putnam Volusia Alachua Orange Osceola Polk Dade Sarasota Bay Palm Beach Monroe Broward Brevard Seminole Lee Hillsborough District Courts Judges Certified Judges Certified Judicial of Appeal:_ in 1975 and Requested Positions for 1976 Not Approved in 1976 TOTAL 9 39 26 ** Originally requested one but modified it if an additional judgi was provided in Volusia. TOTAL Circuit Courts: Circuit Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh Thirteenth Fifteenth Seventeenth Nineteenth Twentieth 1 2 1 2 2 1 4 1 4*(Modified) 3 3 4 1 1 TOTAL 30 18 County Courts: |N> Ní NJ N5 Its) O N) N)

This Court certifies the aforementioned judicial officers as necessary and recommends that they be made permanent by law and funded by this State.

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


author: SUNDBERG, Justice.

text:
    Francis W. MOHME et al., Appellants, v. CITY OF COCOA, a Municipal Corporation, Appellee.
    No. 47556.
    Supreme Court of Florida.
    Feb. 25, 1976.

      James R. Dressier, Cocoa Beach, for appellants.
    Leon Stromire, of Stromire, Westman, Lintz & Baugh, and William R. Clifton, of Antoon & Clifton, Cocoa, for appellee.
   SUNDBERG, Justice.

This matter is before us upon appeal from the Circuit Court of the Eighteenth Judicial Circuit, in and for Brevard County, Florida, which upheld the constitutionality of Section 180.191, Florida Statutes. We have jurisdiction pursuant to the provisions of Subsection 3(b)(1), Article V, Constitution of Florida.

On November 29, 1974, in the Circuit Court for Brevard County, Florida, plaintiffs-appellants filed their complaint, styled as a class action for themselves and all others similarly situated, against defendant-appellee, City of Cocoa, a municipal corporation. The complaint charged that: (1) plaintiffs were non-city resident customers of the water system owned and operated by the defendant; (2) defendant City adopted a resolution adjusting the rates to be charged the customers of the water system and providing an effective date for this adjustment; (3) the rates to be charged customers living outside the city limits were unjust and inequitable and were not based on the same factors used in fixing the rates for city customers; (4) defendant City held public hearings on the new adjusted rates, at which hearings defendant City acknowledged that the non-city user rates bore no relationship to the cost of producing 'or distributing water to those customers; (5) the rates charged the non-city users were purely arbitrary and were based on the amount of money needed to be raised and on a fixed percentage of this raise which was to be borne by the non-city resident users. Plaintiffs sought a declaratory judgment adjudicating the adjusted rates to be charged them null and void as being discriminatory and unreasonable, as well as money damages and a permanent injunction against defendant’s collecting the adjusted rates. Defendant City filed its motion to dismiss, in which it alleged that plaintiffs failed to meet the necessary criteria for maintenance of a class action and also that plaintiffs failed to allege ultimate facts which entitled them to relief and to state a cause of action.

On February 28, 1975, the circuit court granted the motion to dismiss without leave to amend. The court held (1) none of the adjusted rates charged non-city resident users exceeded 1.5 times the rate charged city resident users; (2) Section 180.191(1) (b), Florida Statutes, authorizes cities to.charge non-city resident users 1.5 times the rates charged city resident users; and (3) plaintiffs had to seek their remedy in the Legislature and not in the court. Thereafter, plaintiffs filed a motion for rehearing and asked leave to amend their pleadings to at least allege the unconstitutionality of the statute. The lower court entered its order on May 12, 1975, granting plaintiffs’ motion for leave to amend to allege the unconstitutionality of Section 180.191, Florida Statutes, and denying with prejudice plaintiffs’ motion for rehearing and their prayer to declare the statute at issue to be unconstitutional.

In addition to the constitutionality of Section 180.191, Florida Statutes, the points raised on this appeal are: (i) whether the allegations of the complaint state a cause of action and (ii) whether thi^ suit may be maintained as a class action.

Section 180.191, Florida Statutes, reads in pertinent part:

“Limitation on rates charged consumer outside city limits.—
“(1) Any municipality within the state operating a water or sewer utility outside of the boundaries of such municipality shall charge consumers outside the boundaries rates, fees, and charges determined in one of the following manners :
“(a) It may charge the same rates, fees, and charges as consumers inside the municipal boundaries. However, in addition thereto, the municipality may add a surcharge of not more than 25 percent of such rates, fees, and charges to consumers outside the boundaries. Fixing of such rates, fees and charges in this manner shall not require a public hearing except as may be provided for service to consumers inside the municipality.
“(b) It may charge rates, fees, and charges that are just and equitable and which are based on the same factors used in fixing the rates, fees, and charges for consumers inside the municipal boundaries. In addition thereto, the municipality may add a surcharge not to exceed 25 percent of such rates, fees and charges for said services to consumers outside the boundaries. However, the total of such rates, fees, and charges for said services to consumers outside the boundaries shall not be more than 50 percent in excess of the total amount the municipality charges consumers served within the municipality for corresponding service. No such rates, fees and charges shall be fixed until after a public hearing at which all of the users of the water or sewer systems, owners, tenants, or occupants of property served or to be served thereby, and all others interested shall have an opportunity to be heard concerning the proposed rates, fees, and charges . . . .”

Appellants submit that Section 180.191, Florida Statutes, violates Sections 2 and 9 of Article I of the Constitution of Florida. The argument advanced by appellants in this regard is not explicit. They simply assert in general, on the authority of Miami Bridge Co. v. Miami Beach Ry. Co., 152 Fla. 458, 12 So.2d 438 (1943), that a public utility rate made by the Legislature or a commission set up by the Legislature may be set aside by the courts if such is found to be an unreasonable rate. They cite the proposition supported by the weight of authority that a municipality may not lawfully charge customers outside of its geographical limits more for electricity than it charges similar customers within such limits merely because the former group is outside and the latter group inside those boundaries. Refinement of this rule, however, is found in cases decided by this Court and by our District Courts of Appeal. For example, this Court in Cooper v. Tampa Electric Co., 154 Fla. 410, 17 So.2d 785 (1944), held that the mere fact that customers outside the city are charged different rates for service from those inside the city is no showing of discrimination. The Court made it clear that positive factual allegations are necessary on which to base a charge of discrimination. A different rate may be charged if it is justified because of the difference in cost to furnish service to those without the municipal limits, as compared to the cost to furnish it to those within the municipality. See Clay Utility Co. v. City of Jacksonville, 227 So. 2d 516 (1st D.C.A.Fla.1969).

In Florida, it is a well recognized principle of law that rate-setting for municipal utilities is a legislative function to be performed by legislative bodies like local municipal governments and the commissions to which these bodies delegate such authority. Cooksey v. Utilities Comm’n., 261 So.2d 129 (Fla.1972); Cooper v. Tampa Electric Co., supra; Southern Utilities Co. v. City of Palatka, 86 Fla. 583, 99 So. 236 (1923). Our courts will intervene to strike down unreasonable or discriminatory public utility service rates prescribed by the Legislature, a municipality, or municipal commission; however, courts will not themselves fix prospective rates. See Cooper v. Tampa Electric Co., supra, and Tampa Electric Co. v. Cooper, 153 Fla. 81, 14 So.2d 388 (1943). It should be noted that in the above cited Tampa Electric Co., cases the Court reverted to the common law rule that utility rates must be reasonable and nondiscriminatory on the premise that the Legislature had not acted to regulate utility rates.

The nub of the question, then, is whether the Legislature has exceeded its authority in Section 180.191, Florida Statutes, by authorizing a municipality to add a surcharge of not more than 25% of municipally fixed rates to consumers outside the boundaries of the municipality. Under Subsection 180.191(1) (a), Florida Statutes, the rate to which the 25% surcharge may be added is the rate charged to consumers inside the municipal boundary. Whereas, under Subsection (b) of 180.191(1) the rate to which the surcharge may be added is to be a just and equitable rate which is based on the same factors used in fixing the rates, fees and charges for consumers inside the municipal boundaries. In the case of Subsection (b), the municipality is required to hold a public hearing at which all of the users of the service and all others interested shall have an opportunity to be heard. As a limiting condition on rates set under Subsection 180.191(1) (b), Florida Statutes, the Legislature has provided that the total of such rates for services to consumers outside the boundaries of the municipality shall not be more than 50% in excess of the total amount the municipality charges consumers served, within the municipality for corresponding service.

Appellants contend that the 25% surcharge authorized by the statute is arbitrary, unreasonable and discriminatory, per se, making the statute unconstitutional. We disagree. As was noted in the opinion in Clay Utility Co., supra, the evidence there reflected that as the demand for electricity by consumers outside the municipality grew, generating plants at a cost of many millions of dollars were built and heavy transmission lines were erected in order to meet the increased demand of those outside the municipality. The total cost of those capital improvements could not be definitely shown in that case, but there was enough testimony on the point to indicate that the cost was substantial. The situation presented in the Clay Utility Co. case, supra, is simply a mirror image of what has and is occurring throughout the State of Florida as density increases in areas adjoining municipalities, thus creating an ever increasing demand for utility services from established municipal utility systems. We believe that the Legislature reasonably concluded that there are additional costs attendant to the providing of these services by a municipal utility system and that these costs cannot be pinpointed even under sophisticated cost accounting techniques. Because of the interconnection of the components of a utility system as demonstrated in Clay Utility Co., supra, the exact additional cost of delivery of utility services to those outside the municipal limits cannot be assessed with mathematical certainty although it is obvious that such additional costs exist, and that they include substantial expenditures for capital improvements which are brought about by the demand of non-city residents. We believe further that it was in response to this problem that the Legislature enacted Section 180.191, Florida Statutes, which authorizes a surcharge not exceeding 25%, but at the same time limits rates charged to consumers outside municipal limits to not more than 50% in excess of the rates charged consumers served within the municipality. This is not such unreasonableness or discrimination referred to in Tampa Electric Co. v. Cooper, supra, as to invoke action by the courts to hold Section 180.191, Florida Statutes, unconstitutional.

Nonetheless, was the trial court correct in dismissing the appellants’ complaint with prejudice? We believe not. Subsection 180.191(1)(b), Florida Statutes, provides a procedure, after hearing, for establishing rates, fees and charges which are “just and equitable and which are based on the same factors used in fixing the rates, fees, and charges for consumers inside the municipal boundaries.” It is not disputed that appel-lee proceeded to set the rates complained of pursuant to the authority of such Subsection. Appellants expressly alleged, not only that the rates established were unjust and inequitable, but that they were not based on the same factors used in fixing the rates for city customers. The trial judge apparently concluded that such allegations were immaterial because none of the adjusted rates charged non-city resident users exceeded 1.5 times the rate charged city resident users. But the requirements of Subsection 180.191(1) (b), Florida Statutes, are twofold:

(1) The rates must be just and equitable and based on the same factors used in fixing the rates for consumers inside the municipal boundaries; and

(2) The rates shall not be more than 50% in excess of rates charged consumers served within the municipality for corresponding service.

Based on a factual situation similar to the one in the case at bar, the District Court of Appeal, Second District, held that it was appropriate for the trial judge to deny a motion for summary judgment when there existed a genuine issue of fact as to whether the City could show that its 50% additional rate charged to non-city users was based on cost factors in compliance with Section 180.191, Florida Statutes. See Hunger v. City of Zephyrhills, 307 So.2d 487 (2d D.C.A.Fla.1975).

The appellants in the instant case have pleaded that the rates established by appellee failed to meet the first criteria of Subsection 180.191(1)(b), Florida Statutes, enumerated above. Such allegation of ultimate facts is sufficient to state a cause of action. However, the question is raised as to who bears the burden of proof in the proceedings. Hunger, supra, indicates that the burden is upon the City to establish that the rates were fair and equitable and based upon the same factors used in fixing the rates for city customers. Predating the statute in question, the Clay Utility Co. case, supra, clearly indicates that the burden is upon the consumers who are contesting the rates. The rationale of Clay Utility Co. more nearly comports with practicality and the established rules affecting burden of proof. One who asserts a fact ordinarily has the burden of proving that fact. Additionally, we believe that a municipality which has utilized the provisions of Subsection 180.191(1) (b), Florida Statutes, should not be required to come forward to prove the efficacy of its rates unless and until a dissatisfied customer has made a prima facie showing based on competent evidence of invalidity.

Regarding the remaining point raised in this appeal, although we observe no proscription in Section 180.191, Florida Statutes, against class actions by dissatisfied consumers, the propriety of a class action is not ripe for review in this appeal. The trial judge has not expressly ruled on the point at this juncture. It is a matter which should be addressed by him through application of the usual criteria relating to class actions.

Accordingly, the order appealed is affirmed in part and reversed in part and this cause is remanded to the trial court for further proceedings not inconsistent with the views expressed herein.

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

BOYD, J., dissents.


text:
    GATEWAY SPORTING GOODS CO., and Insurance Company of North America, Petitioners, v. Mary LUTZ, widow of Theron C. Lutz, Deceased, Respondent.
    No. 47227.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Rehearing Denied April 20, 1976.
    Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for petitioners.
    Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for respondent.
   ENGLAND, Justice.

This case is before us upon a petition for certiorari to the Industrial Relations Commission, for which we have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution.

Respondent’s claim for the death benefits now sought was first litigated in 1971. A Judge of Industrial Claims in that case found that Theron Lutz had died from a stroke caused by unusual exertion expended in cleaning stains from a shower stall during the course of his employment, and awarded benefits. The Commission reversed the Judge’s order on the ground that it was not supported by substantial and competent evidence establishing a causal relationship between Lutz’ employment and his death. This Court denied certiorari.

Subsequently another evidentiary hearing was conducted before another Judge of Industrial Claims. The evidence introduced at this second hearing repeated that which was previously in the record, with the addition of one interchange between the Judge and the doctor who had diagnosed the cause of death. This exchange developed a statement from the doctor that, within a reasonable medical certainty, cleaning stains from a shower stall would have contributed to Lutz’ death if it had taken an unusual effort. In the first proceeding the doctor had considered Lutz’s cleaning activity to be only one of various possible causes.

The record in the first proceeding, and now, contains no proof of the effort required to clean the shower stall, the nature of the stains removed, the time involved in removing them, or the materials and chemicals used by Lutz. The record does show that he had to go over the stains three times to remove them. The record also shows, however, that during the one-hour period he was performing various cleaning and plumbing tasks in the shower area Lutz left the building on several occasions, and that his specific complaints of strain were not directed to this cleaning effort but rather to the exertion required in lifting garbage cans he was required to empty. The evidentiary gaps as to causation were apparently a concern of the Judge of Industrial Claims, as he took judicial notice of the fact that a removal of stains caused by “iron sulfur water” is difficult. On this state of the record, the Commission affirmed the Judge’s order in a two to one decision.

Under our decisions in Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla. 1962) and Friendly Frost Used Appliances v. Reiser, 152 So.2d 721 (Fla. 1963), compensation would be available to Lutz’s widow if death had resulted from exertion unusual to the ordinary requirements of employment. In this case, there was simply no competent evidence to show that unusual exertion was required to perform the task alleged to have precipitated Lutz’ death, or that the task itself was causally related to Lutz’ death. The Commission erred in affirming the award. Orange County Board of County Commissioners v. Brenemen, 233 So.2d 377 (Fla. 1970).

Certiorari is granted, oral argument is denied, the order of the Commission is quashed, and the case is remanded to the Commission to direct the Judge of Industrial Claims to dismiss the claim.

OVERTON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., and ROBERTS and BOYD, JJ., dissent.

      . Luts v. Gateway Sporting Goods Co., 278 So.2d 286 (Fla.1973).


text:
    In re FLORIDA BOARD OF BAR EXAMINERS. In re AMENDMENT OF the RULES OF the SUPREME COURT OF FLORIDA RELATING TO ADMISSIONS TO THE BAR-ARTICLE I, SECTION 2.
    No. 46763-D.
    Supreme Court of Florida.
    Feb. 27, 1976.
    Joseph J. Gersten, Miami, and C. Graham Carothers, Tallahassee, for the Florida Board of Bar Examiners.
   PER CURIAM.

Article I, Section 2 of the Rules of the Supreme Court of Florida Relating to Admissions to The Bar is hereby amended effective immediately to read as follows:

There is hereby created a Florida Board of Bar Examiners consisting of twelve members of The Florida Bar. The members now constituting said Board shall continue to hold office for the terms now appointed. Their successors shall continue to be selected and appointed in the manner now prescribed in Article Í of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, effective November 1, 1955. As terms expire all appointments shall be for five years, and any vacancy occurring during any term shall be filled by appointment. No person appointed by the Court as a result of a vacancy occurring during a term shall be appointed for less than five years, and the term of all such appointments shall be extended to October 31 of the last year of such term. Such members shall be members of The Florida Bar and shall possess the qualifications prescribed by the Code of Standards of Bar Examiners.

It is so ordered.

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


text:
    Rosa Ortega GRILLO, Petitioner, v. BIG “B” RANCH et al., Respondents.
    No. 46854.
    Supreme Court of Florida.
    Feb. 25, 1976.
    Larry Klein, Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for petitioner.
    Kirk Sullivan, Adams, Sullivan & Coog-ler, and Marjorie D. Gadarian, Jones, Paine & Foster, West Palm Beach, for respondents.
   ENGLAND, Justice.

Pursuant to Article V, § 3(b)(3) of the Florida Constitution, we have before us a workmen’s compensation case involving the special employer doctrine explained in Berrier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1940) and Stuyvesant Corp. v. Waterhouse, 74 So.2d 554 (Fla. 1954). The respondent’s manager admitted in a deposition introduced in evidence that he had the power to discharge the petitioner from his employment, but attempted in his oral testimony to explain away this admission. The Judge of Industrial Claims chose to believe the admission. However, the Industrial Relations Commission rejected this choice and reversed the order of the Judge.

It is clear that the Commission is not permitted to be a trier of fact in proceedings before it. Adams v. Wagner, 129 So. 2d 129 (Fla.1961). By usurping the role of the Judge in making a determination of credibility the Commission ignored the essential requirements of law. Therefore the writ of certiorari is granted, the order of the Commission is quashed and this case is remanded with instructions to reinstate the order of the Judge of Industrial Claims.

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

ROBERTS and BOYD, JJ., dissent.