author: ELLIS, Judge.

text:
    STOUSE v. SNELL et al.
    No. 2974.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.

      J. S'. Pickett, of Many, for appellant.
    J. R. Ferguson, of Leesville, for appel-lees.
   ELLIS, Judge.

Plaintiff, Albert Stouse, filed this suit against T. R. Snell, W. B. Morrison and T. J. Moss Tie. Company for trespass on his property and prayed for judgment for the manufactured value of 451 cross-ties at 96‡ per tie, making a total of $412.96. Plaintiff alleged the cutting was in legal and moral bad faith, but, in the alternative, in the event the trespass and cutting of the cross-ties was not done in legal and moral bad faith, plaintiff prayed for a judgment of 25{⅞ per tie, a total of $112.75.

Plaintiff alleged that during the months of November and December, 1944, and January and February, 1945, that the defendant, T. R, Snell, cut and removed from plaintiff’s property which is described in Article 2 of plaintiff’s petition, the above stated number of cross-ties, and that the said defendant, T. R. Snell was acting for and in behalf of the said T. J. Moss Tie Company, under instructions of said company and under instructions of its agent and employee, W. B. Morrison.

The defendant, T. R. Snell, on September 17, 1945 filed a plea of prescription of one year, stating that whatever timber was made into ties by exceptor was done more than a year prior to the filing of this suit, and that, therefore, plaintiff’s claim was barred by said prescription. There is no ruling by the trial court on this plea of prescription but as counsel for defendant has not urged this plea, we assume that same was abandoned.

• The defendant, T. R. Snell, answered denying the allegations of plaintiff’s petition and alleged that he had never worked for T. J. Moss Tie Company or under its control or direction and that he had only sold said company a few ties, none of which came from plaintiff’s land. Defendant T. R. Snell, under Article 7, Paragraph F, alleged: “That respondent made some 50 or 60 ties from timber which he believed to have been purchased from the Mansfield Bank, but did not knowingly make ties from timber belonging to the plaintiff herein.”

Defendants W. B. Morrison and T. J. Moss Tie Company also denied the allegations of plaintiff’s petition and set up that T. R. Snell had no connection whatever with them and that they had bought a few ties from T. R. Snell, and specifically deified that the T. J. Moss Tie Company, its employees or any one working for it or under its direction ever cut any timber whatever belonging to the plaintiff, Albert Stouse.

The District Court, after trial, rendered judgment in favor of the defendants W. B. Morrison and T. J. Moss Tie Company, rejecting plaintiff’s demand, hut as to the defendant, T. R. Snell, the District Court rendered judgment in favor of the plaintiff in the sum of $57.60, together with 5% per annum interest from August 15th, 1945 until paid.

The testimony reveals that the plaintiff was the owner of the following described property: “The Northwest Quarter of Southeast Quarter; Southwest quarter of Northeast Quarter, and East half of Northwest Quarter of Northeast quarter of Section 14, Twp. 4 North, Range 10 West.”

And, further, that the defendant, T. R. Snell and one David Hours, about the latter part of November and the first part of December, 1944, were cutting ties as partners on the plaintiff’s property. David Hours was not made a party to this suit hut the record discloses that he paid the plaintiff for 75 ties which he was supposed to have cut off of plaintiff’s land at that time. According- to an estimate made by two of the witnesses in this case, there was a total of 526 ties cut upon the plaintiff’s land, however this was not by count of the actual ties as they had already been removed. None of the witnesses for the plaintiff could testify as to how many ties were cut by the defendant, T. R. Snell. The only ties sold to the defendant W. B. Morrison consisted of 72 on February 21, 1945, and 20 on February 17, 1945. However, the defendant Snell testified that these ties came off of 40 acres of land owned by a Mr. Tannenbaum who lived in Dallas, Texas. There is no proof by the plaintiff that these ties came off of plaintiff’s land. This property was about one-quarter of a mile from the land of David Hours and about one-half to three-quarters of a mile from the home of the defendant Snell. While David Hours did not testify, his wife, Mrs. Eunice Hours testified that her husband and Snell were cutting ties together and that she took her husband’s dinner to him and saw the defendant and her husband cutting on the plaintiff’s property. However, she could not testify as to how many ties were cut.

From the testimony, there is no doubt that the defendant Snell was in legal and moral bad faith when he trespassed upon the plaintiff’s property and cut the ties in question. While he testified that he did not know he was on the plaintiff’s land, he offers no reason nor excuse for not knowing that he was on plaintiff’s land and the Court believes that he knew full well that he was trespassing. “The measure of damages in Louisiana for timber trespass in case of moral bad faith is value of the manufactured product without deducting the cost of manufacture.” Schneider v. Rockwell Powers Lbr. Co., D.C., 35 F.Supp. p. 695. Allen v. Frank Janes Co., 142 La. 1056, 78 So. 115.

In the case of Allen v. Frank Janes Co., 142 La. 1056, 78 So. 115, 116, the Supreme Court said: “In measuring the damages due by a trespasser for cutting and removing timber, this court has made a distinction between legal and moral bad faith. In both cases the value of the timber is fixed at the amount at which it was sold by the trespasser; but in the one case the expenses incurred by the trespasser are allowed to be deducted, whereas in the other, . they are not. State v. F. B. Williams Cypress Co., 131 La. [62], 70, 58 So. 1033; [Guarantee] Trust & [Safe] Deposit Co. v. [E. C. Drew] Investment Co., 107 La. 251, 31 So. 736.”

From the testimony, we are unable to arrive at any specific number of ties cut by the defendant T. R. Snell from the plaintiff’s property.

While the District Court did not give any written reasons, that judgment was evidently based upon the answer of the defendant Snell as set forth in Article 7, Paragraph F, above quoted, for 60 ties at 96‡ per tie which would amount to $57.60, the judgment given by the District Court. The record further discloses that the Court asked the witness, N. B. Hours, if several were cutting on the plaintiff’s land and this1 witnessanswered that such was true and he did not know whether the defendant cut all of them or just part of them.

The plaintiff has failed to prove that the defendants, W. B. Morrison and T. J. Moss Tie Company ever bought any of the ties that came off of the plaintiff’s property. Furthermore, the testimony is conclusive that the defendant Snell was not acting for and in behalf of the T. J. Moss Tie Company nor under its instructions nor under instructions of its agent and employee, the defendant W. B. Morrison.

We are therefore of the opinion that the judgment of the District Court dismissing plaintiff’s demand as to the defendants W. B. Morrison and T. J. Moss Tie Company is correct. We are of the opinion that while plaintiff has proven that defendant Snell did trespass upon the property of the plaintiff and that said trespass was in legal and moral bad faith, • that the plaintiff has failed to prove any specific number of ties as having been cut by the defendant Snell and, of course, such proof is necessary to plaintiff’s recovery.

The defendant has neither appealed nor answered plaintiff’s appeal and the judgment cannot be changed in that respect. “(2) Since the trial judge has not assigned any written reasons for his judgment in plaintiff’s favor for $200, we are not advised as to the grounds on which he predicated his award. But that is a matter of no importance, because the defendant has neither appealed nor answered plaintiff’s appeal, and, therefore, the judgment cannot be changed in that respect. West-wego Canal & Terminal Co. Inc. v. La. Highway Commission, 189 La. 870, 181 So. 429.”

For the reasons assigned, the judgment herein appealed from is affirmed.


source: Caselaw Access Project

author: LeBLANC, Judge.

license: Public Domain

text:
    THOMAS v. OXENDINE et al.
    No. 2973.
    Court of Appeal of Louisiana. First Circuit.
    Feb. 2, 1948.
    Colvin & Hunter, of Mansfield, for ap>-pellant.
    Stafford & Pitts, of Alexandria, for ap-pellee.
   LeBLANC, Judge.

This is a suit for workmen’s compensation instituted under the provisions of Act 20 of 1914 and its amendments, for total, permanent disability, arising out of an accident which is alleged to have occurred on June 17, 1946 while plaintiff was engaged in carrying out orders and instructions of his foreman, while employed by the Lees-ville Spoke & Handle Company, the business conducted by the defendant, E. L. Oxendine. The suit is directed against the employer asd his compensation insurance carrier, Maryland Casualty Company.

To the petition both defendants interposed an exception of prematurity based on an affirmative allegation made by the plaintiff to the effect that he was, at the time, being paid the maximum compensation to which he was entitled under the law.

The district judge sustained the exception of prematurity and dismissed plaintiff’s suit at his costs, and from the judgment so decreeing the plaintiff has taken this appeal.

The issue involved in the case is centered on the effect that has to be given to the amendment to Sec. 18 of the original Workmen’s Compensation Law, by Act No. 85 of 1926. By the amending act, there were added two paragraphs to subsection 1 of Sec. 18, one of which seems to be controlling on the question at issue in this case and in others that were presented before it. That is the paragraph designated by the letter (B) and which reads as follows: “Unless in the verified complaint above referred to (meaning the petition) it is alleged * * * that the employee or the dependent is not being or has not been paid, and that the employer has refused to pay, the maximum per cen-tum of wages to which petitioner is entitled under the provisions of this act, the presentation or filing of such complaint shall be premature and shall be dismissed.” The meaning of the words “the maximum per centum of wages to which petitioner is entitled under the provisions of this act,” was the subject of controversy in the case of Thornton v. E. I. Du Pont De Nemours & Co., 207 La. 239, 21 So.2d 46, 50. This court had interpreted the phrase to mean that when an employer was paying the injured employee the full amount of the wages he was receiving prior to his injury, either as a sort of gratuity or for performing lesser duties, the employee was then receiving the maximum per cent in wages to which he was entitled under the act, and consequently a suit filed by him for compensation under those circumstances was premature. The Supreme Court however disagreed and held that the words “maximum per centum of wages” in the amended section meant “the maximum amount of compensation”, to which the employee was entitled. We understand the ruling of the Supreme Court to be that in a suit where the injured employee failed to allege in his petition that his employer had not paid him compensation since the accident causing his injury had happened or that he had refused to pay, his suit was premature and would have to be dismisssed under Par. (B) Sub-Sec. 1 of Sec. 18 of the act.

In the case before us not only has plaintiff failed to allege that he was not being paid compensation, or that his employer had refused to pay him, but he has in Paragraph 14 of his petition, alleged that to the contrary, he “is now being paid the sum of Twenty & no/100 Dollars per week by the defendant, Maryland Casualty Co., insurer of E. L. Oxendine.” That of course would seem to dispose of the issue without further comment.

However plaintiff further alleged in Paragraph 16 of his petition that there exists a dispute between himself and the compensation insurance carrier as to the amount due him and that he is entitled to a judgment fixing his compensation for the maximum amount recoverable under the statute, and he argues in his brief, that because of that controversy, and especially because of a letter written to his attorneys by the insurance carrier, which is annexed to his petition, in which it is stated that they will pay him 125 weeks compensation, as for the loss of a hand as provided for in the Compensation Act, the issue as to whether his injury is total or permanent, or comes under a specific clause of the Compensation Act involving the loss of a member, is directly placed before the court and he is entitled to have that issue judicially determined at this time. He relies, in support of his contention, on certain cases decided by the Courts of Appeal and the Supreme Court, prior to the amendment of the Compensation Act by Act 85 of 1926, among them being the case of Daniels v. Shreveport Producing & Refining Corp., 151 La. 800, 92 So. 341, reference to which is specifically made in the opinion by the Supreme Court in the case of Thornton v. E. I. Du Pont De Nemours & Co., when it stated, after discussing those former decisions, that their authority had not been impaired by Act 85 of 1926. That same argument was made before this court since the decision of the Thornton case in the case of Lanoue v. Century Indemnity Co., 30 So.2d 207, in which the matter was thoroughly discussed and in as much as one of the points raised and decided in that case is the very point involved in the present case, we do not see the necessity of going all over the matter again just for the sake of repetition. When the Supreme Court stated that the authority of those older decisions had not been impaired by the amending act of 1926, we take it that it meant that they were properly decided under the law as it existed at that time, but in view of the many statements otherwise made with reference to the amendment, we certainly do not think that it meant to hold that they were authority under the law as it exists today.

We do not think that the statment contained in the letter attached to the plaintiff's petition has any effect whatever on the issue that arises in this case. If the defendant insurance company has determined, in its own mind, at the present date, that plaintiff is entitled to 125 weeks compensation instead of 400 weeks, that certainly can’’t have any effect on his contention if he still persists in it, at the expiration of the 125 weeks, that his disability is total and permanent and that he is entitled to 400 weeks compensation. Should the insurance carrier remain firm in the view which it takes of his disability, and refuse to pay him any further compensation, then will be the time for him to present his complaint to the court and allege that he is not being paid and that his employer or his insurance carrier is refusing to pay him compensation, and his suit then will no doubt be entitled to a hearing. Until that time however and as long as he is being paid all compensation that is due him, under the statute, we cannot think otherwise than that his suit has to be considered as premature under the amending provisions of the compensation statute by Act 85 of 1926.

The judgment appealed from correctly sustained the plea of prematurity, and it therefore stands affirmed at the costs of the plaintiff, appellant herein.


author: TALIAFERRO, Judge.

text:
    STROUD v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 7138.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Rehearing Denied March 8, 1948.

      Blanchard, Goldstein, Walker & O’Quin and Ben'C. Dawkins, Jr., all of Shreveport, and Meadors, Shaw & Meadors, of Plomer, for appellant.
    Julius T. Long, of Shreveport, for appel-lee.
   TALIAFERRO, Judge.

Plaintiff, while performing the duties of his employment with the Hunt Oil Company, on June 14, 1946, experienced an accident that produced an incomplete indirect inguinal hernia, right side. He submitted to a herniotomy by Dr. C. O. Wolff on June 27th and was discharged from the sanitarium on July Sth. He remained in bed for five days and thereafter intermittently returned to the doctor for further examinations. This continued for some twelve weeks. During this time, and until October 21, 1946, plaintiff was paid compensation at the rate of $20.00 per week. Payments were discontinued on the advice of Dr. Wolff, who was of the opinion that his physical condition was such that he was able to resume work as an oil field worker. He promptly employed counsel who instituted this suit against Hartford Accident and Indemnity Company, carrier of ' workmen’s compensation insurance for Hunt Oil Company, to recover compensation as in case of permanent total disability.

Plaintiff alleged that the operation performed by Dr. Wolff was unsuccessful; that since that time he has continuously experienced serious pain and tenderness in the area of the operation and that the hernia has recurred with totally disabling effects.

Defendant denies that plaintiff now suffers disability to perform the character of labor he was performing when injured and avers that the operation by Dr. Wolff was successful. For these reasons, it urges, compensation payments were properly discontinued.

Several months subsequent to joinder of issue by answer, plaintiff filed an amendment to his petition wherein he alleged that through recent examinations of himself at defendant’s instance, it was discovered that either as a result of the original injury or of the operation, or as a result of both, he “now has a serious trouble or impairment in and to his right testicle and cord thereof which are among the causes of his alleged disability to do work of any reasonable kind”; that hds right testicle and cord are greatly enlarged and swollen. Defendant denied the allegations of the amended petition.

There was judgment for plaintiff as by him prayed. Defendant appealed. The lower court gave lengthy written reasons for its judgment.

We are confronted in this case, as so often happens in cases of this character, with sharp conflict in the testimony of the physicians who, respectively, testified for the litigants.

Three physicians testified for plaintiff and two for the defendant. There is no doubt that plaintiff’s right testicle at date of trial was inflamed and swollen to some extent. There is irreconcilable difference in the opinions of these doctors with respect to the cause and character of the pathology that involves the gland. Two of plaintiff’s physicians are of the opinion that it is traumatic orchitis, which means inflammation of the testicle, due to injury, and which, if true, admittedly is disabling. One of plaintiff’s doctors was of the opinion that the testicle’s condition was directly traceable to the effects of the operation in that the repair work that followed was of such character as to produce interference with circulation. This doctor testified that the original hernia had been eliminated by the operation but he and the other doctors for plaintiff found what they thought to be evidence of incomplete hernia on the left side, but not of a disabling character.

Dr. Wolff, who performed the mentioned operation upon plaintiff, did not discover any evidence of hernia on the left side, either when the operation was performed or thereafter. He did find congenital weakness of the muscles and tissues of both sides. At date of trial he diagnosed the trouble affecting the right testicle as being hydrocele, which means a collection of fluid in the scrotum. This affliction is not necessarily disabling. The testimony of the other physician, introduced on behalf of defendant, in all material respects, corroborates that given by Dr. Wolff. Both are certain the operation was successful. These two doctors were clear in the opinion that at date of trial plaintiff was not disabled to do work of the character he had done before being injured, while defendant’s doctors entertained opposite opinions.

When defendant had concluded introduction of its evidence, its attorney in open court, made the following statement and request, to-wit:

“If the Court please, the Workmen’s Compensation Law provides that the Court may, on its own motion, or at the suggestion of any party in a case, appoint some medical expert of its own choice, to examine a man who is claiming compensation, to make a report upon his condition as to his findings.
“In this case, as Your Honor well knows, this question of the testicle being involved in a hydrocele, and as his doctors have said, an orchitis has come up. I think on the question of the hernia, the preponderance of the medical testimony shows there is no ground for compensation, but on the question of the testicle, that is something which should be passed upon and examined into by a competent medical expert, a urologist preferably, a specialist in that line, because it does involve a question of urology.
"We respectfully suggest and request that the Court select some competent urologist of the Court’s own choice to examine this plaintiff and make a report as to what he finds. We will stand or fall on that examination. I don’t know how we could be any fairer.”

Plaintiff’s counsel’s reply is as follows:

“The plaintiff takes the position that this request on the part of the Defendant is too late; it is planned to be made after we have tried this case and either have won or lost. Had they made such a request as this, as permitted by law, in the inception of this case, it would have come with a greater appearance of fairness, but we submit that for the court to appoint one party to make an examination of this plaintiff would be very unfair to the plaintiff, because where witnesses differ you can’t close his hands of having any chance to contradict that testimony and leave it to this examination as to the hydrocele or enlargement of the testicle, as to what one witness would report. This is not the contemplation of the Workmen’s Compensation Act or the law, that a case should be tried out and left, you might say, to the tossing of a coin, as to whether it is heads or tails, in that manner.
“Plaintiff now states he wasn’t through putting on testimony. He proposes to put. on certain important testimony in rebuttal in this case, which he desires to put on before the Court rules on this request.”

The rejoinder of defendant’s counsel follows: “May it please the Court, prior to the trial today, we had no information of any kind which would lead us to believe that plaintiff was claiming that he was suffering from orchitis. We did know he had been informed by Dr. Wolff he had hydrocele. Plaintiff’s own witness testified that any competent physician can tell the difference between hydrocele and or-chitis by transillumination. If the Court will investigate, I think there are other methods of determining, by drawing off fluid in the hydrocele, if it is a hydrocele. Since this is important and can be decided one way or the other, we feel that the Court should appoint someone to examine this man and make this test.”

Following these arguments, the Court said: ‘‘Of course, it is unfortunate that the medical experts disagree on the things we laymen think they should not disagree on. As to why they do, that I don’t know, other than that they just honestly see the situation differently. I would have to consider that more than I have done offhand, for the reason I am under the impression — I can’t recall who is a good urologist right now — for the further reason, the Court might be making a mistake in making the appointment.”

The court finally denied the application. The point is re-urged in this court.

Plaintiff relies upon subsection 3 of Section 9, of the Workmen’s Compensation Law, Act No. 20 of 1914, as amended, Act No. 38 of 1918, which reads: ‘‘If there be any dispute thereafter as to the condition of the employee the Court, upon application of either party, shall order an examination of the employee to be made by a medical practitioner appointed by the Court. * * * Such medical examiner shall report his conclusions from such examination to the Court, and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this act.”

Subsection 2 which immediately precedes the quoted section, makes it the duty of the employer to cause to be made a medical examination of the injured employee immediately after notice or knowledge of the accident, and to serve upon the injured employee within six days after the examination a copy of the physician’s report. If no such examination is made, it then becomes the duty of the injured employee to furnish the employer with a copy of the report of his examining physician. It is further provided that if either party, so served, desires to dispute the report he- shall notify the other party of his intention to do so within six days, otherwise the report shall be prima facie proof of its contents in any subsequent proceeding under the Act. The existence of these provisions and compliance therewith explains the meaning of the first words of the quoted sentence of subsection 3, to-wit: “If there be any dispute thereafter”. But, in this case it is not contended that either party served on the other a copy of the report made, respectively, by their physicians. However, we believe that the failure of either party to comply with the provisions of subsection 2 does not deprive him of the right to invoke the provisions of subsection 3 if the facts warrant such action and it is timely exercised. Ño such penalty is provided. Surely there is a sharp dispute as to the specific character of the ailment with which plaintiff is afflicted and the nature, extent and possible duration of his disability, if any. And, it is equally certain that the real facts serving as a basis of the “dispute” only developed while the trial was in progress.

In workmen’s compensation cases, as well as in all others, the paramount duty and desire of courts are to learn the true facts, and far reaching power is vested in them as a means to mete out justice between the litigants. In the present case it is indispensable to a correct and just decision to know exactly the true character of the trouble that involves plaintiff’s right testicle. If it is a hydrocele, a minor operation will relieve it. It is possible the original injury and/or operation may not have caused it. If the trouble is orchitis, then the situation is quite different as regards disability, its extent and duration. If the trouble is not hydrocele or orchitis, but is of the character as testified by one of plaintiff’s doctors, then total removal of the gland may be necessary in order to attain relief from pain and disability.

It seems to us a physician specially trained and experienced in genito urology should be more competent to enlighten the court concerning plaintiff’s physical condition, its cause, etc., than could the physicians who have testified in the case heretofore.

The facts, in our opinion, warranted the court in granting defendant’s request for the appointment of a specialist to examine plaintiff and report his findings to the court. The language of the quoted section is mandatory. It says: “The court * * * shall order an examination,” etc. As the trial of the case had not been concluded, for this reason and others herein assigned, the request did not come too late. Of course, the report of the specialist whom the court appoints will be only prima facie evidence of its contents.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed, and this case is now remanded to the lower court with instrutf-tions to grant the application of the defendant and to appoint a physician specially trained and experienced in genito urology to examine the plaintiff and who shall thereafter report his findings to the court; and to this end the court is empowered to make such other orders as may be necessary to effectuate the purpose for which the case is remanded; all in keeping with law and the views herein expressed.

Costs of appeal are hereby assessed against plaintiff, the appellee. Fixing liability for all other costs will await final decision in the case.

KENNON, J., absent


text:
    JOHNSON v. HELLER.
    No. 7134.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Charles L. Barnett, of Shreveport, for appellant.
    Tooke & Tooke, of Shreveport, for appel-lee.
   TALIAFERRO, Judge.

Defendant purchased from plaintiff in Oklahoma City, Oklahoma, on October 1, 1946, a used motorcycle on the price of which he paid $250 in cash and to represent the balance, plus carrying charges, etc. he executed his promissory note for '$346.80, payable in seven monthly installments, to secure the payment of which he gave a mortgage on the motorcycle. The first installment due on November 1st, being for $56.40, was paid. No further payments were made.

Defendant, at the time of the purchase, held the rank of lieutenant in the United States Army and was stationed at Enid, Oklahoma. He was soon thereafter transferred to Barksdale Field, in Bossier Parish, Louisiana, where the present suit was filed.

Plaintiff sued on the note of $346.80 and sought foreclosure of the mortgage by ordinary process. He provoked therewith issuance of a writ of sequestration, under which the motorcycle was seized by the sheriff.

Defendant, in defense of the suit, in effect, charges that the sale to him should be rescinded and annulled for redhibitory vices in the motorcycle, and prays for judgment for the amount paid by him on the price, plus judgment for the amounts expended by him in the effort to put and to maintain the machine in usable condition.

The court rendered judgment in plaintiff’s favor as by him prayed. Defendant appealed.

To make out his case, plaintiff offered in evidence the note and chattel mortgage on which he sued.

The testimony of defendant and a mechanic of Enid, Oklahoma, who did extensive repairs to the motorcycle, leaves no doubt as to the very poor condition of the machine when purchased. It developed defects of a serious character the day of the purchase, so serious that defendant had considerable trouble in operating it to Enid, a distance of 85 miles.

Plaintiff represented the machine as being a 1939 model, whereas it was three years older. Due to its age, worn and rundown condition, it is not surprising that it failed materially to give the service for which it was purchased. Plaintiff guaranteed the machine to be in satisfactory condition and that it would give the service which defendant desired of it, — that is, that it would run. He declined to allow defendant, who had had meager experience with motorcycles, to make a test run of the machine before closing the sale.

Defendant, when he made the payment on November 1st, complained by letter to plaintiff of the deficiencies of the machine and thereafter wrote him asking him to take it back and refund what had been paid to him thereon. These letters were ignored. Afterward, he telegraphed plaintiff that he had been overcharged and intended taking the matter to the OPA. This was also ignored. Defendant did present the matter to the OPA and learned that the ceiling price, under its rules, for a motorcycle of this character, was $194, and also, to his dismay, learned that as to cases of this character, the OPA’s jurisdiction ceased on September 10th prior.

On November 16th the machine was carried to a competent mechanic in Enid for examination and needed repairs. The mechanic found it to be in a wretched mechanical condition. He placed it in very good condition at a cost of $98.78, which defendant paid. Prior to this time he had expended $25 for repairs and replacements and, in addition, had himself done considerable repair work to it.

The case went to trial on March 14, 1947. At the conclusion of introduction of documentary and testimonial proof the court ordered that the case be “left open for ten days in order to get interrogatories and for plaintiff to file copy of Oklahoma law”. The interrogatories were thereafter filed but the trial of the case was closed without there having been filed the referred to law of Oklahoma. In such circumstances we have the right and it is our duty to presume that the applicable law of Louisiana is the same as that of Oklahoma. 11 American Jurisprudence, 313, 314, and 315, verbo Conflict of Laws, Sections 13, 14 and 15.

We shall now proceed to adjudicate the rights of the parties to this suit as is authorized by the laws of this state. The following articles of the Civil Code are controlling of the issues, to wit:

Article 2520.
“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
Article 2521.
“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”
Article 2530.
“The buyer who institutes the redhibitory action, must prove that the vice existed before the sale was made to him. If the vice has made its appearance within three days immediately following the sale, it is presumed to have existed before the sale.”
Article 2541.
“Whether the defect in the thing sold be such as to render it useless and altogether unsuited to its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”
Article 2543.
“The purchaser who has contented himself with demanding a reduction of the price, can not afterwards maintain the red-hibitory action.
“But in a redhibitory suit, the judge may decree merely a reduction of the price.”
Article 2545.
“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.”
Article 2547.
“A declaration made by the seller, that the thing sold possesses some quality which he knows it does not possess, comes within the definition of fraud, and ought to be judged according to the rules laid down on the subject, under the title: Of Conventional Obligations.
“It may, according to circumstances, give rise to the redhibition, or to a reduction of the price, and to damages in favor of the buyer.”

Defendant’s testimony positively establishes that the defective condition of the motorcycle existed when he purchased if, and continued without abatement to the time extensive repairs were made upon it, and, to some extent, thereafter. His testimony also shows that the machine’s mechanical condition and its age were knowingly misrepresented to him by plaintiff. Since it was purchased solely as a means of locomotion and it failed in this respect, “it must be supposed that the buyer would not have purchased it had he known of the vice”. The buyer testified that he would not have made the purchase had he known the machine’s true condition. There can be no doubt on this phase of the case.

It is worthy of note, and not without some significance, that plaintiff did not attend the trial nor was his testimony otherwise given to the court.

Our conclusion is that the amounts paid to plaintiff on account of the price of the motorcycle amply compensate him for its value; in fact, we seriously doubt that it was worth this much. Defendant was unconscionably imposed upon.

Under Article 2543 of the Civil Code, above quoted, courts of this state have the right merely to decree a reduction in the price in a redhibitory action. The effect of our decree falls within this express legal permit.

For the reasons herein assigned, the judgment appealed from is annulled, avoided and reversed; and, further, for said reasons, plaintiff’s demands are rejected and his suit is hereby dismissed at his cost.

KENNON, J., absent


author: HARDY, Judge.

text:
    INTERSTATE ELECTRIC CO. v. INTERSTATE ELECTRIC CO. OF SHREVEPORT, Inc.
    No. 7094.
    Court of Appeal of Louisiana. Second Circuit.
    Feb. 2, 1948.
    Rehearing Denied March 8, 1943.

      Irion & Switzer, of Shreveport, for appellant.
    Blanchard, Goldstein, Walker & (TQuin, of Shreveport, for appellee.
   HARDY, Judge.

This is a suit in which plaintiff seeks the recovery of a total principal sum of $1,969.-12 made up of a number of claims, as will be more particularly set forth in this opinion. After trial judgment was rendered in favor of plaintiff in the sum of $172.84, without interest, upon one of the the items comprehended in the demands of plaintiff, and its demands otherwise were rejected, from which judgment plaintiff has appealed.

The parties to this suit are Interstate Electric Company of New Orleans as plaintiff, and Interstate Electric Company of Shreveport, Inc., as defendant, which parties will be hereinafter referred to in this opinion as the New Orleans Company and the Shreveport Company respectively.

The original petition in this suit was filed on September 19, 1936. Plaintiff’s action was subsequently dismissed by the District Court for failure to comply with certain orders, but, on appeal to this court, was remanded. It now comes before us, for the second time, on appeal from a definite judgment on both the merits and on certain exceptions filed on behalf of the party defendant.

Some of the items originally claimed by plaintiff have passed out of consideration for various reasons which it is not necessary to detail here, and the issues presented for determination on this appeal are now made up of three separate and distinct claims with which we shall deal, seriatim.

As a background for an understanding of the origin of the claims sued upon it is desirable to set forth a brief history of the parties plaintiff and defendant which bear identical names, with the exception of the designation of the domicile of the Shreveport Company. There has never been any corporate relationship between the parties. Upon organization of the Interstate Electric Company of Shreveport the majority of the stock therein was subscribed by Percival Stern and members of his family. Stern became President of the Shreveport corporation and conducted its affairs for a period of years, being, during the same period, the President of the New Orleans Company. In or about the years 1930-31 the financial condition of the Shreveport Company deteriorated, because of general economic conditions, to such point that the first National Bank of Shreveport, which carried substantial loans of the corporation, felt required to select and install, in active management of the affairs of the company, one of its representatives as an alternative to foreclosing its loans, which would have been disastrous insofar as the continuance of business of the corporation was concerned. The individual selected to act in this capacity was Mr. E. R. Bernstein, who managed the affairs of the Shreveport Company until his death in May, 1932, at which time he was succeeded by Mr. R. A. Quer-bes, who served in the same capacity until some time during the spring of 1935 when the majority of the stock of the corporation was acquired by him and his brothers, and Mr. Stern’s connection with the company ceased.

A short time after the change in the-stock ownership of the Shreveport Company had taken place, a statement of the accounts between the New Orleans and the,. Shreveport Companies was prepared and. forwarded by the Shreveport Company in accordance with the showing on its books,! which statement disclosed a balance of $221.21 in favor of the New Orleans Company. After receipt of the statement the New Orleans Company protested the correctness thereof and countered with a statement of its own showing a balance in its favor in excess of $2,000. The disagreement as to the accounts existing between the two companies led to the institution of this action.

However, during the course of the negotiations, subsequent to the rendering of a statement by the Shreveport Company in 1935, the balance of $221.22 was further reduced by certain items resulting from in-tercompany transactions, as shown on the books of the Shreveport Company, and in November, 1935, the Shreveport Company transmitted its check in the sum of $172.84 to the New Orleans Company as payment in full of the indebtedness admittedly due by the Shreveport Company. This check was returned.

The first of plaintiff’s demands embraced in this suit seeks the recovery of the sum of $221.22 on the basis of the statement of the Shreveport Company, as rendered in April, 1935, which plaintiff alleged to be an account stated, and admitted to be due on numerous occasions by the defendant. On this item there was judgment below in favor of plaintiff and against the defendant in the sum of $172.84, without interest, on the ground that tender of this sum has been made to and refused by the plaintiff corporation.

The increase of judgment on this item is sought by plaintiff-appellant on the ground ■that defendant’s first statement fixed the amount due at $221.22, which thereupon became an amount stated, which defendant could not later be heard to deny.

We do not think this contention is meritorious inasmuch as the law contemplates that an account stated shall take into consideration all matters of credits and debits as between the parties. We know of no reason why an account as between debt- or and creditor, rendered upon a given date, should not be subject to subsequently accruing debits or credits requiring a restate.ment of the account at a later date. Such seems to have been the case in this instance, and our examination of the voluminous record before us fails to disclose any evidence rebutting the correctness of this item as reflected by the books of account of the defendant, Shreveport Company. It is therefore our opinion that the judgment of the lower Court relating to this item was correct to the extent of allowing recovery for the sum of $172.84 without interest, in consideration of the fact that payment had been offered and refused, thus obviating the necessity for a formal legal tender of the amount.

Proceeding to the basis of plaintiff’s claim on what we designate as its second demand, we find that the account is set forth in detail in an exhibit attached to plaintiff’s second supplemental and amended petition. This claim totals the sum of $676 and represents items alleged to have been paid by the New Orleans Company as dues, to certain specified trade organizations, over a period of time extending from October of 1932 through May of 1934.

Defendant interposed a plea of prescription of three years as against plaintiff’s right to recover on this claim. The lower Court in its judgment sustained the plea of prescription as to all sums comprehended by the dues covering a period of more than three years prior to December 31, 1936, which was the date of filing of plaintiff’s first supplemental and amended petition in which this item was first claimed to be due. The judgment further rejected on the merits the claims for all other dues included in this demand.

In addition to the plea of prescription, which was asserted by defendant with respect to this demand, the evidence offered by plaintiff in support thereof was additionally objected to on two grounds, first, that the books of merchants cannot be admitted in evidence in their favor; and, second, that the testimony tendered was not the best evidence as to the facts in question. This objection was first sustained by our learned brother of the District Court, but was subsequently modified to permit the introduction of the evidence and testimony subject to defendant’s objection.

Before proceeding to any discussion on the merits of this demand, it is necessary that we pass upon the plea of prescription and the objection to the admission of evidence as above set forth.

Defendant’s plea of prescription, which is based upon the provisions of Article 3538 of the Civil Code, fixing the application of the prescription of three years to actions for money due on accounts, is opposed by plaintiff on the ground that Article 3538 does not apply, but that the demands of plaintiff as to this particular claim are governed by the provisions of Article 3544 of the Civil Code, which fixes the prescription of personal actions at 10 years.

We find ourselves unable to subscribe to plaintiff’s theory on this particular point. The litigated matters before us concern, without exception, the determination of the merits of accounts existing between plaintiff and defendant companies. To our minds it is unnecessary to attempt to go behind the very plain wording of Article 3538 which fixes the prescription of three years, in addition to particularized matters, as operating “on all other accounts”. For this reason, we are of the opinion that the ruling of the lower Court and the judgment in accordance therewith sustaining the plea of prescription on all charges for dues covering a period of more than three years prior to December 31, 19'36, was eminently correct.

In passing upon the ruling of the lower Court as to the introduction of evidence in support of plaintiff’s claims on this demand, an analysis of the character of evidence by which plaintiff offered to support its claims discloses a number of significant facts. In the first place, there is no showing that the payment of the dues claimed in the several trade organizations, which payment was allegedly made by the New Orleans Company for the benefit of itself and the Shreveport Company, was ever authorized or approved by the actual manager of the Shreveport Company, after Mr. Stern was superseded, in the direction of the affairs of said Company, notwithstanding the fact that he remained its titular head. Nor is there any showing that any effort was made to collect the amounts represented by this payment of dues until after a complete severance of interest by reason of the sale of the stock owned by stockholders of the New Orleans Company. It was further shown that the dues were apportioned as between the New Orleans and the Shreveport Companies entirely upon an arbitrary basis established by the New Orleans Company. As a matter of fact, considering all the evidence tendered, it was not satisfactorily shown that the Shreveport Company was ever recognized as a member, nor that it ever participated as a member in any of these organizations. It appears that the principal virtue of the membership was to permit members to obtain certain rebates and allowances on the purchase of materials and supplies. In order to obtain a more favorable rating it was the policy of the New Orleans Company to add to its own statement as to the amount of its business the amount which was transacted by the Shreveport Company. In this way it would appear that the New Orleans Company received a more favorable rating. It is contended on the part of plaintiff that the Shreveport Company derived substantial benefits from its participation. However this may be, we are impressed with the fact that the memberships in the several organizations were held by the New Orleans Company. We fail to find any evidence of recognition of the Shreveport Company by these associations as an active member.

The character of the evidence which was tendered by plaintiff in support of this demand was made up of the testimony of its President, Stern, and its head bookkeeper, Breaud. The predicate for the introduction of secondary evidence on this point was attempted to be laid by the showing that plaintiff, in the regular course of business, periodically destroyed its vouchers, cancelled checks and other records. But the significant fact was developed that the records bearing upon these particular items apparently were destroyed after the filing of this suit, and certainly after the dispute with reference to the repayment of these amounts became an issue between the parties.

The doubt cast upon plaintiff’s explanation, and the acceptance thereof as a foundation for the introduction of secondary evidence, is further emphasized by the fact that'other checks and vouchers bearing upon matters involved in this litigation, older in point of time, were produced and introduced in evidence. This circumstance clearly indicates that plaintiffs failed in their attempt to show such an enduring custom of periodic destruction of records as would justify the acceptance of secondary evidence.

However, pretcrmitting any discussion on the point as to whether the destruction of this evidence after filing of suit should be considered simply as a suspicious circumstance and not as one that eliminated a consideration of secondary evidence, we are further impressed by the fact that no effort appeared to have been made to substantiate or corroborate plaintiff’s contentions through production of evidence or testimony from these various organizations themselves by way of establishing the membership of the Shreveport Company therein.

It is a general rule of evidence that where the best evidence is not available and the use of secondary evidence is therefore permissible, it should be shown that such is the best that can be produced.

It is contended on behalf of plaintiff that certain communications from officials of the Shreveport Company, which are in the record, constitute acceptance of existing memberships in the trade organizations specified. After careful examination of the evidence in the record on this point, we do not so conclude. The inferences which might be attached to certain statements in the communications referred to would be purely speculative, since they are without any of those characteristics of certainty which would form a proper foundation for a firm, consistent and enduring interpretation in the light contended for on behalf of plaintiff.

After careful consideration of the objections made on behalf of defendant to the character of the evidence which was tendered in support of plaintiff’s claims on this demand, we are of the opinion that the first ruling of the District Court in excluding the evidence was correct and should have been maintained. We have no doubt that the Judge of the District Court took all of these matters into consideration, notwithstanding the modification of his ruling.

In view of our opinion to the effect that the character of evidence offered by plaintiff in support of this demand should properly have been excluded, it perforce follows that plaintiff has failed to prove the items which were the basis for this claim, and, accordingly, the claim was properly rejected.

The third and final demand included in plaintiff’s action is based upon the alleged right to the recovery from the defendant company of a loss claimed to have been sustained by plaintiff in a transaction involving the discounting of notes owned by the St. John Electric Company of Monroe.

The St. John Electric Company of Monroe was a customer of the defendant, Shreveport Company, from which it purchased certain articles of merchandise. Sometime about 1930 the affairs of the St. John Electric Company became seriously involved at a time when it was substantially indebted to the Shreveport Company, and, as an alternative to bankruptcy, the St. John Electric Company offered to turn over a number of chattel mortgage notes which it held against its customers on the purchase of radios and other articles. The Shreveport Company was unwilling to undertake to handle these chattel mortgage notes and it appears that Mr. Stern, who, as must be borne in mind, was then President of both the New Orleans and Shreveport Companies, undertook to handle these notes of the customers of the St. John Company.

The plaintiff, New Orleans Company, contends, in this action, that these notes were discounted and the proceeds thereof were used for the payment of the indebtedness of the St. John Company to the defendant, Shreveport Company. Plaintiff sustained an eventual loss of $553.35 on this transaction, for which it seeks to recover from defendant, Shreveport Company, in this action.

The testimony on this point is very involved and the facts are somewhat obscure. We strongly incline to the belief that the difficulties and consequent disagreements between the parties to this suit, which arose from this particular transaction, are traceable to the fact that Stern, President of both companies, apparently interested himself in this matter and undertook to work it out without any definite understanding with the defendant, Shreveport Company. Counsel for plaintiff zealously contends on behalf of his client that the New Orleans Company had no interest in this St. John matter and that Stern’s activities were dedicated entirely to the benefit of the Shreveport Company. We have no doubt as to the truth of this contention but from a legal standpoint we are concerned, not with Stern’s interest and sincere desire to assist the Shreveport Company, but purely and simply with the legal liability, if any, which has attached by reason of his negotiations. It is asserted that, at the time the arrangement was made, the Shreveport Company guaranteed the New Orleans Company against any loss arising as the result of this transaction. We do not find that this has been satisfactorily established. It appears that proceeds derived from the negotiations of the chattel mortgage notes were remitted by the New Orleans Company to both the St. John Company and to the defendant, Shreveport Company. It is not shown that the defen-ant, Shreveport Company, received all of the proceeds of these notes, and, in fact, the contrary appears to have been established. Nor is it shown that the St. John Company remitted to the Shreveport Company all of the amounts it received from the New Orleans Company resulting from this negotiation. However this may be, we do not find ground to sustain the conclusion that the Shreveport Company guaranteed the New Orleans Company against loss with respect to this transaction. We are strongly persuaded that Mr. Stern, having the natural interest of the Shreveport Company at heart by reason of his connection therewith, undertook to use the resources of the New Orleans Company in order to help a good customer, and at the same time protect the Shreveport Company. However, since this action was taken without the precaution of procuring any written endorsement or guaranty, and, inasmuch as plaintiff has failed to establish by any other preponderating evidence that the Shreveport Company bound itself to protect the New Orleans Company against loss in the handling of these notes, we can only conclude that there was no liability on the part of the defendant, Shreveport Company. The mere fact that Stern occupied the position of President of both the companies involved is not of itself sufficient to justify the assumption that he could warrant one company against loss in any transaction in which the other company participated, to the extent of receiving indirect benefits but in which it was not directly involved.

An exception of no cause of action was filed on behalf of defendant, Shreveport Company, based upon the proposition that parole evidence is not admissible to prove a promise to pay the debt of a third person. The trial Court made no ruling on this exception it is re-urged by counsel for defendant, Shreveport Company, before this Court. Inasmuch as our finding on the merits, which has been above set forth, disposes of the issue, we deem it unnecessary to discuss the point presented in the exception.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.

KENNON, J., absent


author: HATCHETT, Justice.

text:
    A-1 BUS LINES, INC., Petitioner, v. William H. BEVIS et al., Respondents.
    No. 47860.
    Supreme Court of Florida.
    March 24, 1976.
    John P. Bond, Miami, for petitioner.
    Prentice P. Pruitt and J. B. Curasi, and John H. Wilbur and Christine A. Rieger of Milam & Wilbur, Jacksonville, for respondents.
   HATCHETT, Justice.

The petitioner herein, A-l Bus Lines, Inc., brings to this Court for review action taken by the Florida Public Service Commission in denying it the right to conduct a sightseeing service from Miami, Florida, to Key West, Florida.

Greyhound Lines, Inc., for more than 40 years, has operated a sightseeing service between Miami, Florida, and Key West, Florida, under a plan where passengers are picked up at several hotels in the Miami area in the early morning hours, driven to Key West, over its regular route, and returned to the hotels in the early evening hours. During these trips, a specially trained driver calls to passengers’ attention points of interest along the route.

The service proposed by A-l would include hotel pickups and returns, run over the identical route as that of Greyhound, stop at different places on the route, and stop long enough to allow passengers to ride the Conch Train while at Key West. A-l Bus Lines, Inc., would also employ an independent narrator to point out sights of interest to passengers rather than use its regular bus driver.

We are called upon to determine whether A-l produced competent and substantial evidence before the Public Service Commission to support the granting of the requested authority for the proposed sightseeing tour from Miami to Key West. In support of its request, it was incumbent upon A-l to show that public convenience and necessity would be served by the additional service. Where an area is served by another certificate holder, the applicant for a new certificate has a heavy burden of proof. In Allen Bonded Warehouse, Inc. v. Mayo, 247 So.2d 51, 52 (Fla.1971), the Court stated:

The issue turns on the amount and nature of proof which the applicant must make. Where an application is sought to service an area already served, the standards must be applied which were delineated by this Court in Wells Fargo Armored Service Corp. v. Mason, 196 So.2d 419 (Fla.1966). This is to say, the applicant must prove that his proposed service is necessary as well as desirable for the public, that existing service is inadequate, and that the granting of a new certificate would not adversely affect existing carriers.

To prove public convenience and necessity, A-l called before the Commission superintendents of service from various Miami Beach hotels. These witnesses acknowledged the existence of Greyhound’s service to Key West and indicated that some Greyhound passengers had criticized Greyhound’s tour on the basis that it only included the ride on the bus. The Public Service Commission found that this testimony failed to show that the services proposed by A-l were justified by public convenience and necessity when considered in light of the services rendered by Greyhound.

Nothing is more settled in the law of Florida than that a reviewing court will not overturn the decision of a Florida administrative agency, if that decision is supported by competent and substantial evidence in the record and if the decision is not arbitrary or unreasonable. Florida Rate Conference v. Florida Railroad and Public Utilities Commission, 108 So.2d 601 (Fla.1959). We hold that A-l failed to provide competent and substantial evidence of public convenience and necessity and the decision of the Commission is not arbitrary or unreasonable.

Since the Commission denied A-l’s application on the basis that it failed to show public convenience and necessity, we need not reach the questions of whether Greyhound has vested rights under Fla.Stat. § 323.03(3) (c) or whether the Public Service Commission departed from the essential requirements of law as set forth in Greyhound Lines, Inc. v. Bevis, 294 So.2d 65 (Fla.1974).

The petition for writ of certiorari is denied.

OVERTON, C. J., and ROBERTS, BOYD and SUNDBERG, JJ., concur.

      . The Commission’s orders are numbered 11993 and 12202. Three other requests made at the same time were granted. The three requests granted were for sightseeing tours from Miami, Florida, to Ft. Myers/Everglades; Cypress Gardens; and Ft. Lauderdale/Palm Beach,

      . The Commission’s order 11993 recited :
      the Commission finds that Greyhound is currently providing adequate service of a similar nature on this route, and that the grant of this portion of A-l’s application would be contrary to public convenience and necessity and would have an adverse effect on the existing carrier. Greyhound lias provided service from Miami to Key West in a one-day tour and in two and three-day tours as well as regular route services for a period in excess of forty years.


author: TENCH, Circuit Judge. ENGLAND, Justice

text:
    John A. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 45805.
    Supreme Court of Florida.
    March 24, 1976.

      Phillip A. Hubbart, Public Defender and Kathleen Gallagher and Michael L. Von Zamft, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen, and Michael M. Corin and Lee Elzie, Asst. Attys., Gen., for appellee.
   TENCH, Circuit Judge.

This is a direct appeal from the Circuit Court of Dade County which held that Florida Statutes Section 877.03 is constitutional and is not in violation ,of the first and fourteenth amendments to the United States Constitution or article I, sections 4 and 9 of the Florida Constitution. We have jurisdiction, Fla.Const. art V, § 3(b) (1). The parties will be referred to as in the court below.

The defendant with his mother and a friend entered the Perrine Substation of the Public Safety Department of Dade County for the purpose of providing bail for his father, who moments before had been brought into the substation after being arrested on a bench warrant. Thereafter the evidence is in conflict, but as finders of the facts the jury resolved it in favor of the state’s witnesses, whose testimony we summarize below.

The defendant demanded his father’s immediate release on bail saying, “I want to get my fucking father, and I come to get him right now.” He was advised that it would require approximately 15 to 20 minutes to complete the booking procedure for his father, to determine from the computer the amount of the bond, and to complete the arrest form. To this delay the defendant took violent exception.

Officer Lawrence testified that the defendant “went — almost—into a fit,” and that he was “screaming at the top of his lungs.” He continued “screaming at the top of his lungs, using all sorts of language and calling” the officers “mother-fucking pigs” for several minutes.

According to Officer Holloway, the conduct of the defendant “was affecting the entire station.” The commotion was taking place in the lobby of the substation, but it was loud enough to alert Officer Hodges who was behind a closed door in the adjacent squad room and to cause him to come into the lobby. Repeatedly, the defendant was requested to modify his conduct or to leave the station, and Officer Lawrence advised him to leave the station or at least to quiet down and have a seat. At last one of the officers approached the defendant and announced he was putting him under arrest. A fight followed, and the defendant was charged with disorderly conduct and with resisting arrest with violence. After trial by jury he was found guilty of both charges.

The defendant urges four (4) points on appeal. The first may be disposed of with brevity.

We find no merit in his contention that the trial court erred in denying his motion for judgment of acquittal at the close of the state’s case on the ground that the evidence was insufficient to support conviction for disorderly conduct and for resisting arrest. A careful reading of the record convinces us that the jury did not stretch the limits of its discretion in resolving the conflicts in the evidence in favor of the state.

Whether the statute is constitutional on its face against a challenge for over-breadth and vagueness is a question requiring more deliberate examination, for we have a responsibility to avoid a holding of unconstitutionality if a fair construction of the statute can be made within constitutional limits. State v. Beasley, 317 So.2d 750 (Fla.1975), and cases cited therein. Accordingly, after a careful reading of the controlling cases, we hold the statute constitutional subject to our limited construction.

In determining the narrow line between constitutionally protected speech and that which is unprotected, it is imperative to consider the circumstances in which the words were uttered. Bradshaw v. State, 286 So.2d 4 (Fla.1973). There, the same statute was under attack for overbreadth and vagueness. The Court pointed out that Bradshaw had “passed the bounds of argument” and had proceeded to incitement to riot. In the instant case, the defendant reached a similar position. His conduct passed the bounds of speech and reached the point where it was disorderly.

In Bradshaw the Court pointed out that “the disorderly conduct statute came into operation only when defendant [Bradshaw’s] interest in expression, judged in the light of all the relevant factors, was ‘miniscule’ compared to the particular public interest in preventing that expression or conduct.” 286 So.2d at 7. There, the public interest was in preventing a riot; in the instant case, the public interest was in preventing the disruption of the orderly administration of police business in the Perrine Substation.

The statute must not be construed to limit the use of a socially impermissible word merely as a tool of communication. Such expressions are constitutionally protected. That is not to say, however, that the use of constitutionally protected words, when accompanied by aural, nonverbal acts which infringe upon the rights of others to pursue their normal, lawful activities, ex- ’ tends the constitutional protection to such nonverbal acts. The defendant cannot excuse his shouting and screaming to the extent that it “was affecting the entire station” upon the ground that he was using socially impermissible, but constitutionally protected words. The gravamen of his offense was not words, but the acts which accompanied his words.

In this connection it is instructive to examine Beasley, in which this Court was called upon to so construe our riot statute that it would be constitutionally acceptable. In reasoning paralleling our own in this case, the Court pointed out that “[cjonduct which involves a clear and present danger of force or violence is not constitutionally protected even though it is intertwined with protected speech and conduct.” 317 So.2d at 753.

We announce specifically that by our limited construction of the statute in question we do not rule out the possibility that some protected speech may provoke violent dissent. Indeed, that is what freedom of speech is about — the right vigorously to advance a minority opinion even though that opinion may anger others and arouse forceful disagreement. Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974).

In Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 38 L.Ed.2d 303 (1973), the United States Supreme Court dealt with language, similar to that used in the case before us, and rejected the Indiana statute as unconstitutional when attacked for vagueness and overbreadth. There, the sheriff and his deputies were clearing antiwar demonstrators from the street when defendant Hess said, “We’ll take the fucking street later,” or, “We’ll take the fucking street again.” 414 U.S. at 107, 94 S.Ct. at 328, 38 L.Ed.2d at 306. Factually, the case is distinguishable from the instant case for the testimony showed that Hess’s “tone, although loud, was no louder than that of the other people in the area.” 414 U.S. at 107, 94 S.Ct. at 328, 38 L.Ed.2d at 306. Thus, while Hess’s words may have offended the sensibilities of the sheriff and others who heard them, the words in no way invaded their right to pursue a lawful activity. It is that which distinguishes Hess from the instant case; by their very decibel count the defendant’s words did invade the right of others to pursue their lawful activities.

In the leading case of Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed. 2d 408 (1972), the United States Supreme Court cited with approval language in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), denying protection to words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” 405 U.S. at 522, 92 S.Ct. at 1106, 31 L.Ed. 2d at 414. This is the so-called “fighting words” exception to protected speech.

In Chaplinski, and again in Good-ing, the Supreme Court made it clear that for a statute such as ours to withstand an attack on grounds of vagueness and over-breadth it must be so construed by our Court that it is not subject to unconstitutional interpretation. “In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to unprotected expression.” 405 U.S. at 522, 92 S.Ct. at 1106, 31 L.Ed. 2d at 414. In Chaplinsky the Court found that New Hampshire had construed its statute as limited to prohibiting “face-to-face words plainly likely to cause a breach of the peace by the addressee,” State v. Chaplinsky, 91 N.H. 310, 321, 18 A.2d 754, 762 (1941); but in Gooding Georgia was found not to have so limited its interpretation, Wilson v. State, 223 Ga. 531, 156 S. E.2d 446 (1967). The New Hampshire statute was permitted to stand because the New Hampshire Supreme Court had limited its application to “fighting words”, and the Georgia statute fell because of no sufficiently narrow interpretation.

Similarly, in Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965), although the Court refused to convict Shuttlesworth under Section 1142 of the General Code of the City of Birmingham, Alabama, it pointed out that the defect in the section subsequently had been cured by “an explicitly narrow construction,” 382 U.S. at 91, 86 S.Ct. at 213, 15 L.Ed.2d at 179, by the Alabama Court of Appeals in Middlebrooks v. City of Birmingham, 42 Ala.App. 525, 170 So.2d 424 (1964).

Shuttlesworth stands for the proposition that the offending section of the Birmingham Code was too broad in making it an offense to stand, loiter, or walk upon any street or sidewalk after the offender was requested by any police officer to move on. The offending section was acceptable only after the Alabama Court of Appeals narrowed its effect by requiring that there must also be a showing of the accused blocking free passage.

We find ourselves in a similar position, and we require that, for conviction under our statute to be acceptable, more must be shown than that the words were offensive to a part of the general population.

In sum, the words used by the defendant are protected even though they may not be acceptable in certain strata of society. It is the degree of loudness, and the circumstances in which they are uttered, which takes them out of the constitutionally protected area. Indeed, his conduct would have been equally disorderly had he merely recited “Mary Had a Little Lamb” in the same tone and under similar circumstances.

We hold that mere words, used as a tool of communication, are constitutionally protected. The protection fails only when 1) by the manner of their use, the words invade the right of others to pursue their lawful activities, or 2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace. Limited by this construction, we hold the statute constitutional.

The remaining points on appeal raise the questions whether the statute is constitutional as applied to the facts of this case, and whether the jury was properly charged. It is clear that because the trial court did not have the benefit of our restricted interpretation of Section 877.03 it was unable to charge the jury in such manner as to assure the constitutional application of the statute, and the case must be reconsidered in the light of the test we have here adopted.

Reversed and remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

OVERTON, C. J., ROBERTS and ADKINS, JJ., and ALDERMAN and MOR-PHONIOS, Circuit Judges, concur.

ENGLAND, J., concurs with an opinion.

ENGLAND, Justice

(concurring).

I agree that appellant is entitled to a new trial in which the key element of proof must be the extent of appellant’s acts in disruption of the Perrine substation.

Under any reading of the evidence in this case as it was first tried, two controlling facts stand out. First, the sole activity which preceded physical contact between the police and appellant was appellant’s use of words. Second, whatever degree of physical contact took place (and the evidence is in dispute on the extent of contact), the initial contact was made by a police officer. Under these circumstances, appellant has been charged and convicted for the use of words. Offensive as these words may have been, it is my understanding that they are constitutionally protected. Lewis v. New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (a municipal ordinance which “punishes only spoken words . . . can therefore withstand appellant’s attack upon its facial constitutionality only if . . . it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.”); Plummer v. Columbus, 414 U.S. 2, 94 S.Ct. 17, 38 L.Ed.2d 3 (1973) (an ordinance which “punishes only spoken words ... is facially unconstitutional”) ; Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973) (reversing conviction under disorderly conduct statute for uttering an obscenity during street demonstration); Gooding v. Wilson, 405 U.S. 518, 521-22, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972) (reversing conviction for obscene and threatening words because “the constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within ‘narrowly limited classes of speech.’ ”) ; Cohen v. California, 403 U.S. 15, 22, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971) (“if Cohen’s [obscene] ‘speech’ was otherwise entitled to constitutional protection, we do not think the fact that some unwilling ‘listeners’ in a public building may have been briefly exposed to it can serve to justify this breach of peace conviction”). See also Wiegand v. Seaver, 504 F.2d 303, 307 (5th Cir. 1974), finding the statute at issue here unconstitutional because it “broadly encompasses both protected and unprotected speech.”

By remanding for a new trial in which the jury is instructed to disregard the offensive character of the words uttered, and to convict appellant only if the manner and circumstances of his behavior in fact disrupted the operation of the Perrine substation, the Court has set a standard for application of the statute which is not only constitutionally permissible but is also consistent with prior Florida precedents. See Gonzales v. City of Belle Glade, 287 So.2d 669 (Fla.1973), and In re Fuller, 255 So.2d 1 (Fla. 1971).

      . “Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in Section 775.082 or Section 775.083.”

      . “All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree, punishable as provided in Section 775.082, Section 775.083, or Section 775.084.” Fla.Stat. § 870.01(2).

      . “Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction, shall be fined in any sum not exceeding five hundred dollars ($500) to which may be added imprisonment for not to exceed one hundred eights (180) days.” Ind.Code § 35-27-2-1, Inds.Stat.Ann. § 10-1510.

      . “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . . .” N.H.P.L.1926, chapter 378, § 2.

      . “Any person who shall, without provocation, use to or of another, and in his presence opprobrious words or abusive language, tending to cause a breach of the peace shall be guilty of a misdemeanor.” Ga.Code Ann. § 26-6303.

      .“It shall be unlawful for any person or any number of persons to so stand, loiter or walk upon any street or sidewalk in the city as to obstruct free passage over, on or along said street or sidewalk. It shall also be unlawful for any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.”


author: PER CURIAM. MOORE, J. H., Circuit Judge

text:
    THE FLORIDA BAR. In re PETITION TO AMEND the CODE OF PROFESSIONAL RESPONSIBILITY.
    No. 47272.
    Supreme Court of Florida.
    Feb. 26, 1976.
    Rehearing Denied April 29, 1976.
    James A. Urban, Orlando, and J. Rex Farrior, Jr., Tampa, of The Florida Bar, and Marshall M. Criser and James G. Pressly, Jr., of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for The Florida Bar, petitioner.
    Robert M. Ervin and Thomas M. Ervin, Jr., of the law firm of Ervin, Varn, Jacobs & Odom, Tallahassee, and Arthur L. Stern, of Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., for respondents.
   PER CURIAM.

The Florida Bar at the direction of its Board of Governors has petitioned this Court to amend the Code of Professional Responsibility to prohibit interstate law firms from using their respective firm names on offices in this state, unless those named are members of The Florida Bar.

It is requested that we amend Disciplinary Rules 2-102(D) and 2-102(F) as follows :

“DR 2-102(D) — A partnership shall aet may be formed or continued between or among lawyers licensed in different jurisdictions ttnless aH enumeratteas ©f •fee members aad associates ef fee frém ©a its lettefeead and ia efeea permissible listings make dear fee j-urlsdictienal láa-itatieae ea these members aad associates ef fee -firm aet licensed te practico ia all listed -juriodictionst heweveaj fee same íaaa aarae may be «sed ia eaeh ■jti-ris-dictkmT, however, no enumeration of the members and/or associates of the firm on its announcements, letterheads or in any other manner, including permissible listings, shall include any person not admitted to practice in Florida. Similarly, no firm name shall include the name of any person not admitted to practice in Florida, except for deceased or retired members as provided in sub-paragraph (B).
“DR 2-102(F) — Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law, or his admission to practice in a jurisdiction other than Florida.”
[Portions of the present DR shown as being stricken are proposed deletions; portions underlined are proposed additions.]

The present Disciplinary Rules 2-102(D) and 2-102 (F) were adopted by this Court as presented by The Florida Bar on June 3, 1970. There is opposition to the proposed amendment by firms interested in the interstate practice of law, some of whom have already opened offices and made necessary commitments including expenditure of funds and movement of personnel for the operation of offices.

We have the inherent and constitutional responsibility under Article V, Section 15, Florida Constitution, to regulate the members of the Bar in order to ensure that the public will have competent and honest legal service available for its use. The Code of Professional Responsibility was adopted to carry out that purpose, and any amendment must have this purpose as its primary obj ective.

Petitioner contends that an interstate law firm’s use of its name on an office in this state, staffed by members of The Florida Bar whose names are not included in the firm name, creates and promotes a-deception on the public, since the named members are not present to render legal services. It is our opinion that such use is no different than the staffing of an intrastate branch office or the use of the name of a deceased or retired partner in the firm name. The petitioner in both its brief and oral argument recognized that in order to meet constitutional requirements, this Court might have to review and amend the Disciplinary Rules pertaining to the use of a deceased or retired partner’s name. In order to consider such an amendment, full notice would have to be given to all members of the Bar who might be adversely affected.

The petitioner further contends that interstate law firms present jurisdictional disciplinary problems and foster the unauthorized practice of law in Florida by attorneys not admitted in this state. The present Disciplinary Rules were approved by national and state ethics committees as well as the Board of Governors before their submission and final adoption by this Court. No problem was anticipated at that time and, to our knowledge, no actual problems have occurred. Petitioner admits that there has not been the “slightest impropriety in the operation of interstate firms under their national name in Florida.” Petitioner has shown no actual incident of public complaint against deception, unauthorized practice of law, or other conduct requiring an immediate review and amendment of the present DR 2-102(D) and 2-102(F).

Accordingly, we are unable to consider favorably the petition in its limited form, and it is therefore denied.

It is so ordered.

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

ROBERTS, J., dissents.

MOORE, J. H., Circuit Judge, dissents with an opinion.

MOORE, J. H., Circuit Judge

(dissenting).

I respectfully dissent. In my opinion the proposed amendment to the Code of Professional Responsibility is consistent with the duties and obligations of this Court under Article V, Section 15, Florida Constitution. The fact that adoption of the proposed amendment would have peripheral ramifications should not act as an obstacle to this Court’s approval of amendments to the Code of Professional Responsibility which are needed for the Court to completely exercise its responsibilities in disciplining persons admitted to The Bar of Florida. I would approve and adopt the Petition of The Florida Bar.


author: ENGLAND, Justice.

text:
    Darion Northrup CASTLE, a/k/a Sam H. Castle, Appellant, v. STATE of Florida, Appellee.
    No. 46996.
    Supreme Court of Florida.
    March 17, 1976.
    Rehearings Denied April 28, 1976.

      Cone, Wagner, Nugent, Johnson and McKeown, and Larry Klein, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., for appellee.
   ENGLAND, Justice.

By appeal of a decision rendered by the Fourth District Court of Appeal, reported at 305 So.2d 794, we have before us the constitutionality of Section 775.12, Florida Stahites (1973), which provides:

“Limitation of repeal as to criminal cases. No offense committed, and no penalty and forfeiture incurred, prior to the taking effect of these statutes, shall be affected thereby, and no prosecution had or commenced, shall be abated thereby, except that when any punishment, forfeiture or penalty shall have been mitigated by the provisions of these statutes, such provisions shall apply to and control any judgment or sentence to be pronounced, and all prosecutions shall be conducted according to the provisions of law in force at the time of such further prosecution and trial applicable to the case.”

This case involves facts which are set out fully in the district court’s opinion.

Appellant received a ten year sentence of imprisonment for a violation of Section 806.05, Florida Statutes (1969). He asks for a reduction of this sentence on the basis of Section 775.12. Ten years was the maximum penalty in effect when the crime was committed, but by the time of the trial the Legislature had reduced the maximum sentence to five years imprisonment. For the reasons expressed by the district court, appellant was not entitled to the benefit of the later-enacted lower maximum sentence, and to the extent that Section 775.12 suggests otherwise it would have been unconstitutional. See Florida Constitution Article X, § 9.

Appellant also asks us to award him a new trial (1) because the police officer who arrested him allegedly testified to appellant’s exercise of his right to remain silent in direct response to a question put to him by defense counsel, (2) because the trial court refused to admit into evidence a hearsay deathbed statement made by a young woman who accompanied appellant when the criminal acts were committed, and (3) because certain evidence was obtained without a search warrant. Each of these matters were addressed and accurately resolved in the district court’s opinion.

The decision of the Fourth District Court of Appeal is affirmed.

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

BOYD, J., dissents.

      . Jurisdiction to entertain this appeal is conferred by Fla.Const. art. V, § 3(b)(1).

      . Chapter 71-136, Laws of Florida (1971).

      . This statute has now been repealed. Chapter 74-383, Laws of Florida (1974).


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re Thomas A. WARREN.
    No. 48607.
    Supreme Court of Florida.
    March 17, 1976.
    James P. Hollaway, Palm Beach, Asst. Staff Counsel, for The Florida Bar, petitioner.
    Thomas A. Warren, in pro. per.
   PER CURIAM.

This case is before the Court on Petition for Suspension filed by The Florida Bar pursuant to Rule 11.07(4) of Article XI of the Integration Rule of The Florida Bar, said petition setting forth in part:

“On December 8, 1975, in U. S. v. Thomas A. Warren, Case No. 75-425-Cr-WM in the United States District Court for the Southern District of Florida, Miami, Florida, the Respondent was adjudicated guilty, after a jury trial, of the felonies of:
‘(W)illfully, knowingly, and unlawfully combine, conspire, confederate and agree with each other to commit offenses against the United States, to violate Title 21, United States Code, Section 952(a), all in violation of Title 21, United States Code, Section 963 and did willfully and knowingly transport and caused to be transported monetary instruments in an amount exceeding $5,000 without filing a report as required, in violation of Title 31, United States Code, Section 1058.’
“Respondent has been found guilty of conspiring to import marijuana into the United States. Respondent has also been found guilty of failing to file a required report when monetary instruments in an amount exceeding $5,000 are transported from the United States.”

The Florida Bar in its Response to Petition for Modification of Suspension Petition states:

“It is immaterial that Florida now views Respondent’s conduct, a federal felony, as a misdemeanor of the first degree. At the time the offense was committed, Florida viewed the offense as a felony of the third degree. Florida Statutes, Section 883.04 (1972). Respondent knew that he was engaged in conduct that was a violation of Florida and federal law. The issue is not whether Respondent’s conduct is viewed as less offensive by Florida’s legislature than by Congress, but by [sic] whether a Florida lawyer is entitled to continue as a member of the Bar and as an officer of the court after knowingly engaging in illegal conduct.”

It is, thereupon, ordered by the Court that the Petition for Suspension is granted and Thomas A. Warren is suspended from The Florida Bar until further order of this Court, this Opinion to be published in the Southern Reporter. The suspension shall be effective on May 3, 1976, thereby giving Respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that Respondent shall not accept any new business. The filing of a petition for rehearing shall not alter the effective date of his suspension.

It is so ordered.

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


author: OWEN, Chief Judge.

text:
    In the Interest of D. J., a child.
    No. 74-800.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1975.
    Irving B. Gussow, Asst. Public Defender, Sanford, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON MOTION TO DISMISS

OWEN, Chief Judge.

Appellant was adjudicated a delinquent by the Juvenile Division of the Circuit Court of Seminole County and thereafter filed this appeal as authorized by Section 39.14, F.S. Appellee has moved to dismiss the appeal for certain alleged rule violations, one of which we feel merits discussion.

Appellee’s motion asserted, among other things, that despite a specific request to appellant’s counsel, the latter had failed to provide appellee with a copy of the record on appeal, including a certified copy of the court reporter’s transcribed notes of the proceedings. Upon oral argument of the motion it became apparent that appellant’s failure in this respect was due primarily to a lack of definitive guidelines governing appeals in juvenile cases.

Section 39.14(1), F.S., provides that an appeal may be taken “within the time and in the manner prescribed by the Florida appellate rules.” Unfortunately, neither the statute nor any of the rules make it clear as to whether the appeal is to be perfected under Part III of the appellate rules (governing civil appeals) or under Part VI (governing criminal appeals), the proce-. dures for which differ in several respects. The principal differences lie in the area of preparation of the record on appeal (including obtaining a certified transcript of the court reporter’s notes), the time schedule, and the method of transmitting the record on appeal to the appellate court.

There are many cases which discuss the question of whether juvenile proceedings are civil, rather than criminal, in nature, but merely attaching a label will not necessarily resolve the problem. Considering the nature of the delinquency proceedings, and the necessity under Rule 8.-130, Rules of Juvenile Procedure, for a court order for the testimony to be transcribed, we conclude that the record on appeal in juvenile delinquency cases should be prepared and transmitted to the appellate court under the provisions of Part VI of the Florida Appellate Rules.

The record on appeal in this case has not been so prepared. However, we are not disposed to dismiss this appeal on that ground. Instead, leave is granted appellant to have the record on appeal prepared, served and filed within thirty days in a manner conformable to the views herein expressed.

Motion to dismiss denied.

CROSS and DOWNEY, JJ., concur.

      . See State v. Bryant, Fla.App.1973, 276 So. 2d 184; Richardson v. State ex rel. Milton, Fla.App.1969, 219 So.2d 77; In re T.W.P., Fla.App.1966, 184 So.2d 507; State v. R.E.F., Fla.App.1971, 251 So.2d 672; In re T.A.F., Fla.App.1971, 252 So.2d 255; In re .T.R.H. v. State, FIa.App.1973, 278 So.2d 314; In re D., Fla.App.1971, 245 So.2d 273; In re E.P., Fla.App.1974, 291 So.2d 238 and In re L.G.T., Fla.App.1968, 216 So.2d 54.


author: PARHAM, Associate Judge.

text:
    In the Interest of D. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 74-800 and 74-724.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Franklin D. Kelley, Public Defender, Titusville, and Irving B. Gussow, Asst. Public Defender, Casselberry, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PARHAM, Associate Judge.

This is a timely appeal by the defendant, D. J., a minor, from an order adjudging her to be a delinquent child and committing her to the custody of the Division of Youth Services.

On April 16, 1974, at about 12:10 a. m., an officer stopped a vehicle occupied by four persons, including appellant, who was sitting in right front seat. The officer smelled the odor of burning marijuana emanating from the vehicle as he approached same. With the aid of a flashlight, he saw and seized: a half burned marijuana cigarette on the floor next to appellant; another half burned marijuana cigarette on the floor by the driver’s seat; a marijuana cigarette in the ashtray; a marijuana cigarette in the glove compartment, none of which were burning; and numerous marijuana seeds in the driver’s seat and on the console between the two front bucket seats. The officer arrested all the occupants upon a charge of possession of a controlled substance. The officer further testified that he had observed the vehicle and its occupants for approximately ten minutes prior to the arrests. His sole immediate clue, in the middle of the night, to any presence of marijuana was the smell described above. According to the evidence, the defendant at no time had actual possession of any marijuana.

The question on appeal is whether the above stated facts are sufficient to sustain the adjudication of delinquency and subsequent commitment.

It is well established that if the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drug’s presence on the premises and the ability to maintain control over it by the accused will not be inferred but must be established by proof. Frank v. State, Fla.App.1967, 199 So.2d 117, 120; Markman v. State, Fla.App.1968, 210 So.2d 486, 487; Harris v. State, Fla.App.1974, 307 So.2d 218, 220.

The only evidence in this case with which the State could prove knowledge of the presence of marijuana by the defendant is as quoted above. This is clearly circumstantial evidence, and in order for circumstantial evidence to be sufficient for conviction, it must be “ . . . consistent with the accused’s guilt, inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. Brown v. State, 1937, 127 Fla. 225, 172 So. 921; Miller v. State, Fla.App.1972, 270 So. 2d 423, 424; Gaetano v. State, Fla.App. 1973, 273 So.2d 84, 86; Whitehead v. State, Fla.App. 1973, 273 So.2d 146, 147, 148; Harris v. State, Fla.App.1974, 307 So.2d 218, 220.

We are of the opinion that the facts subjudice are supportive of reasonable hypotheses of the defendant’s innocence and, for this reason, the Adjudication of Delinquency and Order of Commitment to Division of Youth Services hereby are reversed, with directions to discharge the appellant.

Reversed and remanded, with directions.

CROSS and MAGER, JJ., concur.


author: DOWNEY, Judge.

text:
    Frank E. KUCERA, Appellant, v. Jane H. KUCERA, Appellee.
    No. 75-1005.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.

      Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, and Cone, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.
    James P. O’Flarity and Sales & Chris-tiansen, Palm Beach, for appellee.
   DOWNEY, Judge.

During the pendency of this dissolution proceeding in the trial court, original counsel for the appellant-husband withdrew. Thereafter, upon counsel’s motion the trial court on April 9, 1975, adjudicated the amount of attorney’s fees due counsel from appellant and directed that the fee be paid from funds held for appellant by another law firm.

Appellant filed a petition for rehearing directed to the order of April 9, 1975. The court denied the petition on May 28, 1975. Appellant then filed what was denominated an interlocutory appeal from the May 28, 1975 order. Since that time various motions have been filed to dismiss the appeal and to strike the appellant’s brief and appendix.

In order to return these appellate proceedings to their proper perspective we deem it appropriate to make the following observations.

The order of April 9, 1975 was a final judgment subject to a plenary appeal. Hastings v. Osius, Fla.1958, 104 So.2d 21. Thus, the timely petition for rehearing tolled the time for appeal from said judgment. Although appellant’s notice of appeal designates this as an appeal from the order of May 28, 1975, denying the petition for rehearing, examination of the record on appeal demonstrates that appellant is seeking review of the action of the trial court set forth in the judgment of April 9, 1975. We therefore consider this appeal as if it were from the final judgment of April 9, 1975. State ex rel. Poe v. Allen, Fla. 1967, 196 So.2d 745; DeLoache v. DeLoache, Fla.1973, 274 So.2d 83; Shute v. Keystone State Bank, Fla.App.1963, 159 So.2d 106.

Accordingly, the motions to dismiss and to relinquish jurisdiction, filed November 5, 1975, and November 10, 1975, respectively, are denied. The order of this court dated November 4, 1975, is vacated sua sponte, and appellee shall have 20 days from date hereof within which to file ap-pellee’s brief.

It is so ordered.

CROSS and MAGER, JJ., concur.