text:
    Murray A. CANDIB, Appellant, v. Roy J. CARVER, Appellee.
    No. 78-30.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    John W. Watson, III, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, III, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by plaintiff below from an order of the Circuit Court of Dade County, Florida amending and supplementing a final order previously entered in the cause. The order supplemented and amended was the basis of a prior appeal to this court. The facts and legal questions involved herein may be found in our opinion and decision in Candib v. Carver, 344 So.2d 1312 (Fla.3d DCA 1977).

The order being reviewed in this appeal is as follows:

“In accordance with the Opinion of the Third District Court of Appeal filed in this cause on April 26, 1977, and the Mandate thereon, and this court having fully considered said Opinion and Mandate and the dictates thereof and having held a hearing in accordance with same and the court being desirous of complying with said Mandate and the court being fully advised in the premises it is hereby ORDERED and ADJUDGED:
“1. The Final Order of April 6, 1976, entered in this cause is hereby amended and clarified nunc pro tunc by the addition of the following after the second sentence of paragraph 1 of said Order:
“After full consideration of all the evidence introduced in this cause and after considering all the facts and circumstances of the matter as well as arguments of counsel and memorandums of law the Court finds that not only is there no legal nuisance but also that the provisions of the condominium documents have not been violated by Defendant and Defendant’s actions do not constitute an unreasonable source of annoyance or interfere with the peaceful and proper use of Plaintiff’s property as set forth in the condominium documents. There being no legal nuisance and no actionable violation of the condominium documents Plaintiff is not entitled to injunctive relief or damages and shall go hence without day.
“2. In all other respects said Final Order of April 6,1976, shall remain as drafted.”

It is appellant’s contention in this appeal that the trial court abused its discretion in entering the order appealed.

We have carefully considered appellant’s point on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been made to appear, therefore the order appealed is affirmed.

Affirmed.

KEHOE, J., dissents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Katherine ALEXANDER, Appellant, v. Irving KANE and Kent Furniture, Inc., Appellees.
    No. 78-71.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Shirley Woolf and George P. Sampas, Miami Beach, for appellant.
    Cohen, Shapiro, Polisher, Shiekman & Cohen and A. Budd Cutler, Miami, for appel-lees.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958).


author: KEHOE, Judge.

text:
    Harold WINEGARDEN, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 78-90.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Brumer, Moss, Cohen & Rodgers and Burt E. Redlus, Miami, for appellant.
    Mahoney, Hadlow & Adams and William C. Crenshaw, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment entered by the trial court on December 14, 1977, after a non-jury trial, in favor of appellee, defendant below. We reverse.

In July, 1962, appellant purchased two insurance policies from appellee. One policy was titled an accident policy and the other a comprehensive accident policy. The first included coverage for the “permanent loss of the sight of one eye” and the second offered coverage for the “loss of the sight of one eye.” In regard to the latter policy, it included the following definition: “loss shall mean . , . with regard to eyes the entire and irrevocable loss of sight.”

In February of 1975, appellant was involved in an accident and suffered a traumatic laceration of the cornea with secondary intra-occulation infection. During his hospitalization, appellant’s intra-occular lens was surgically removed. Since this surgery, appellant without a corrective lens cannot see faces or objects; however, with the use of a corrective contact lens, his vision is normal.

Upon appellee’s refusal to pay under the policies, appellant filed a complaint seeking recovery. After a non-jury trial, the trial court entered a final judgment, the relevant portions of which are as follows:

“THIS ACTION was tried before the Court on Plaintiff’s claim for benefits under two separate accident policies, one providing benefits for ‘the entire and irrecoverable loss of sight’ of one eye, the other policy providing payment for ‘permanent loss of the sight of one eye.’
“The Plaintiff suffered an injury to his right eye on February 28, 1975. He obtained treatment for his injuries and his treating doctor testified that he presently has correctable vision with a contact lens at 20/15. An examining physician called by the Defendant testified that the Plaintiff has corrected vision with a contact lens at 20/20.
“It is stated in Massachusetts Indemnity & Life Ins. Co. v. Schupper, 301 So.2d 789, 791 (Fla. 3d DCA 1974):
‘. . . total and irrecoverable loss of sight means loss of useful or beneficial sight as those terms are understood in everyday usage.’
‘. . . whether a disability insurance policy insures against loss of sight, loss of entire sight, or entire loss of sight . . . it is generally interpreted to mean loss of practical use of sight
“Since the testimony supports the view that the Plaintiff has correctable vision with a contact lens, he has not lost the ‘practical use of sight’ of the eye.
“The Court therefore concludes, based on the evidence presented, that the Plaintiff suffered neither ‘permanent loss of the sight of one eye’ nor the ‘entire and irrecoverable loss of sight’ of one eye, and he is, therefore, denied recovery under the policies in question.”

We believe that the instant case differs from the Massachusetts Indemnity case, cited in the final judgment, in at least one important aspect. Although appellant lost practical vision in his eye as a result of the accident, by use of a corrective lens, appellant’s vision is normal. Based on this distinction, neither the parties’s research nor ours has revealed any Florida authority directly on point with the instant case. Under these circumstances, we are presented for review the question of what coverage was afforded under the insurance policies, i. e., contracts, in this case.

In making this review, we must start with the well established rule that a policy of insurance must be liberally construed in favor of the insured so as not to defeat the claim to the indemnity which the policy protects. The courts in this State have consistently adhered to the principles that a contract of insurance should be construed so as to give effect to the intent of the parties and that when there are uncertain or ambiguous terms in a policy they should be construed against the insurer and in favor of the insured. See, e. g., Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (1975); Harris v. Carolina Life Insurance Co., 233 So.2d 833 (1970); Travelers Insurance Co. v. Smith, 328 So.2d 870 (Fla. 3d DCA 1976); and Winters v. Phillips, 234 So.2d 716 (Fla. 3d DCA 1970).

Our review of the record shows that policies involved herein frequently mention benefits for the accidental injury to one or both eyes, but neither policy specifically mentions that the measure of any such loss will be applied to corrected vision, as opposed to uncorrected vision. In our opinion, this raises an ambiguity in the insuring contracts. Here, the policies never indicate whether loss of vision means the loss of actual eye vision or the loss of corrected eye vision. Because of this ambiguity and based on the principles of interpretation set forth above which require us to construe this ambiguity against appellee, we believe that the trial court erred in finding that appellant was not covered for his injuries under the insurance policies in question. We note that by the appropriate policy language, appellee could avoid this result if it so desired. For the reasons set forth above, the final judgment appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    The CITY OF MIAMI, etc., Appellant, v. BAL ENTERPRISES, INC., Gayety Theatre and 7839 Corp., c/b/a Little River News, Appellees.
    Nos. 78-253 to 78-255.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    George F. Knox, Jr., City Atty., and Robert D. Klausner, Asst. City Atty., for appellant.
    Hirschhorn & Freeman, Joseph Mince-berg, Joseph Pardo, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Vicbar, Inc. v. City of Miami, 330 So.2d 46 (Fla.3d DCA 1976), cert. den. 344 So.2d 324 (Fla.1977).


text:
    Gloria M. LLEWELLYN, Appellant, v. James LLEWELLYN, Appellee.
    No. 78-306.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 1, 1978.
    Mason & Meyerson and William John Mason and Jay B. Green, Miami, for appellant.
    Hall & Swann and Richard H. M. Swann, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Appellant/respondent/wife appeals from a final judgment of dissolution of marriage which, in substance, (1) dissolved her thirty-one year marriage to appellee/petitioner/husband; (2) found that appellant had failed to prove that she was entitled to a special equity in any property of the husband and had failed to prove that she was entitled to alimony of any nature; (3) and found that appellant had sufficient financial resources and income to secure and pay for the services of an attorney. We affirm.

Appellant contends that the chancellor abused his discretion in refusing to award her (1) a special equity in appellee’s property, (2) alimony, and (3) attorney’s fees. The record, however, reveals that the chancellor’s findings have strong record support. In particular, we note that the parties had been separated for approximately seven years prior to the dissolution. During that time, the income of appellant, a successful stock broker, was relatively equal to that of appellee, a real estate salesman. In addition, we note that appellant had supported herself during the seven year separation without the financial aid of appellee.

As the chancellor’s findings were based upon competent substantial evidence, the judgment appealed is hereby affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA 1977); Lytton v. Lytton, 289 So.2d 17 (Fla. 2d DCA 1974).

Affirmed.


text:
    Lawrence A. PEACOCK, as guardian of the property of William Claiborne, incompetent, Appellant, v. SOUTH FLORIDA STATE HOSPITAL and Department of Legal Affairs, Robert L. Shevin, as Attorney General of the State of Florida, Appellees.
    No. 78-505.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Hendricks & Hendricks and B. E. Hendricks, Coral Gables, for appellant.
    Leonard Helfand, Coral Gables, for appel-lees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Forbes v. Board of Health, 27 Fla. 189, 9 So. 446 (1891); McKibben v. Mallory, 293 So.2d 48 (Fla.1974). See Annot. 77 A.L.R.2d 336 (1961).


text:
    AMERICAN MOTORISTS INSURANCE COMPANY, a Foreign Corporation, American Artos Corporation, a Foreign Corporation, Appellants, v. Aziz HUSSAIN and Patricia Hussain, his wife, Appellees.
    No. 78-605.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Gordon C. Brydger, Miami, for appellants.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The order under review is reversed and the cause remanded to the trial court with directions to enter a final summary judgment for the defendants American Motorists Insurance Company and American Ar-tos Corporation based on the authority of AB CTC v. Morejon, 324 So.2d 625 (Fla. 1975); Griffis v. J. C. Penney Co., 333 So.2d 503 (Fla. 1st DCA 1976). See also Genaw v. Volkswagenwerk, 536 F.2d 1039 (5th Cir. 1976).


text:
    Robert A. MALLARD, Property Appraiser of Duval County, Florida, H. S. Albury, Tax Collector of Duval County, Florida, the Board of Tax Adjustment of Duval County, Florida, and J. Ed Straughn, Director, Department of Revenue, State of Florida, Appellants, v. R. G. HOBELMANN & COMPANY, INC., a corporation, Appellee.
    No. FF-286.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Michael S. Nabi and William Lee Allen, Jacksonville, David K. Miller and Caroline Mueller, Asst. Attys. Gen., for appellants.
    William G. Cooper and William L. Durden of Kent, Sears, Durden & Kent, Jacksonville, for appellee.
   PER CURIAM.

Appellants, the property appraiser of Du-val County, the tax collector of Duval County, the Board of Tax Adjustment of Duval County and the Director of the Department of Revenue of the State of Florida, who were defendants in the trial court, here seek review of a final judgment in favor of appellee, plaintiff in the trial court, granting an exemption from ad valorem tax.

Appellee is a private corporation for profit which leases land owned by the Jacksonville Port Authority (JPA), a public body organized under Chapter 63-1447, Laws of Florida. Appellee’s operations consist primarily of the storage (warehousing) and servicing of imported motor vehicles, for which it is paid by the importer. The JPA provides warehousing, sampling, loading and unloading, handling, weighing and other services demanded by a shipper in connection with docking ships. Appellant Mallard assessed ad valorem tax against plaintiff resulting in a suit for declaratory and injunctive relief. At trial appellee contended that it engaged in an activity which is defined as a “project” under the act creating the JPA; without the plaintiff performing its present functions and operations such functions and operations could and would of necessity be performed by the JPA; to perform such functions and operations presently performed by appellee, JPA would be required to utilize public funds; and that the legislature has declared the operations and functions of the JPA to be for a public purpose. Essentially, appellee contended that its use of the property sought to be taxed is a public or governmental purpose entitling it to an exemption. Appellants argued that appellee is merely another commercial enterprise and that its leasehold is subject to taxation in the same manner as any other private property. The learned trial judge entered a final judgment in favor of appellee holding that its leasehold interests are exempt from ad va-lorem taxation pursuant to F.S. 196.-199(2)(a) and F.S. 196.012(5). This appeal followed.

The issue to be resolved is whether, under the facts of this case, appellee’s use of its leasehold constitutes a governmental use entitling it to be exempt from taxes.

At the time the learned trial judge heard and decided this case he did not have the benefit of Lykes Brothers, Inc. v. City of Plant City, et al., 354 So.2d 878 (Fla.1978); Thomas E. Archer, et al., v. Seymour J. Marshall, et al., 355 So.2d 781, (Fla.1978) nor St. John’s Associates v. Mallard, et al., (Fla. 1st DCA 1978), Case No. HH-235, Opinion filed October 3, 1978. Although the two Florida Supreme Court cases above cited are not dispositive their holdings are relevant. However, St. John’s Associates v. Mallard, supra, is dispositive and controlling. The law and reasoning found in that decision is equally applicable sub judice and mandates reversal. Accordingly, for the reasons set forth by this court in the last cited opinion the final judgment here appealed is

REVERSED.

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


author: SMITH, Judge.

text:
    Arnett P. ROGERS and House of Rogers Funeral Home, Petitioners, v. BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Respondent.
    No. HH-221.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Bartley K. Vickers of Mahon, Farley & Vickers, Jacksonville, for petitioners.
    Robert L. Shevin, Atty. Gen., and Thomas M. Beason, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Judge.

Respondent Board of Funeral Directors and Embalmers is without statutory authority to revoke the funeral home license of petitioner House of Rogers Funeral Home for violation of rules of the Board, as distinguished from statutes. Section 470.-12, Florida Statutes (1977). The Board was therefore without jurisdiction to revoke the license of House of Rogers Funeral Home for violation of Rules 21J-8.02, 21J-11.-03(a), and 21J-11.04, Fla.Admin.Code, pertaining to the display of caskets and descriptions of funerals of various prices. We do not pass on the validity of those rules. The specifications of rule violations in paragraph 4(b), (c), and (d) of the complaint, incorporated as findings of fact and conclusions of law in the agency’s final order, are therefore VACATED. We cannot assume that the Board would have revoked the funeral home’s license for statutory violations which are established on this record. We therefore REMAND the case, insofar as it concerns House of Rogers Funeral Home, for Board consideration of the appropriate penalty or remedy. No other error appears as to petitioner House of Rogers Funeral Home, and the prayer of its petition is otherwise DENIED. No error affecting the fairness of the proceedings or the correctness of the Board’s action concerning petitioner Rogers is shown. The prayer of Rogers’ petition for review is therefore DENIED.

BOYER, Acting C. J., and BLACK, SUSAN H., Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    Ezra Joshua MISHAN, Petitioner, v. The Honorable John J. CREWS, as Judge of the Circuit Court for the Eighth Judicial Circuit In and For Alachua County, Florida, Respondent.
    No. LL-169.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Larry G. Turner of Turner & Morris, Gainesville, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   McCORD, Chief Judge.

Petitioner seeks a writ of prohibition contending the circuit court lacks jurisdiction to try petitioner on Counts 7 and 8 of an amended information filed against petitioner. The undisputed facts reveal that on May 24, 1978, petitioner was charged in a three-count felony information with one count of attempted sexual battery and two counts of sexual battery. On the same date, petitioner was arrested pursuant to that information and was released on bail. On June 7,1978, the state filed an amended information increasing the number of counts charged against petitioner from three to nine, including five felony charges and four misdemeanor charges. On June 8, petitioner filed a motion for clarification of conditions of release, seeking the trial court’s permission for appellant to make a two-week trip to his home in England. At the June 9 hearing on that motion, the state announced to the court and petitioner that an amended information had been filed on June 7. A copy of the amended information was shown to petitioner and his counsel. Upon the state’s suggestion and petitioner’s motion, the court applied the conditions of bail for the original three-count information to the nine-count amended information. At that hearing, the court also granted petitioner’s request to travel to England and thereupon, petitioner took a two-week trip to England in June. On September 8, petitioner filed a motion for discharge for violation of speedy trial rights as to Counts 7 and 8, which were misdemeanors. The trial court denied the motion, finding that speedy trial, under Fla.R. Crim.P. 3.191(a)(1), commenced when petitioner filed his written plea of not guilty as to Counts 7 and 8 on June 19, 1978.

On appeal, petitioner argues that because the conditions of his original bond were attached to the additional counts contained in the amended information at the June 9 hearing, his liberty was effectively restricted, and he was placed “in custody” as to those additional counts for the purposes of the speedy trial rule as of June 9. Petitioner asserts that failure to bring him to trial on the misdemeanor Counts 7 and 8 within 90 days after June 9 amounted to a speedy trial violation under Fla.R.Crim.P. 3.191(a)(1). We agree. According to Rule 3.191(a)(1), speedy trial time commences when a defendant is “taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.” As stated in Dinsmore v. State, 348 So.2d 413 (Fla. 2 DCA 1977), the test for commencement of the speedy trial period under the “taken into custody” requirement of Rule 3.191(a)(1) is one of “formal restraint” or “a determination of when the defendant’s liberty was formally restrained by some pretrial action or procedure.” See also Singletary v. State, 322 So.2d 551 (Fla.1975). By its nature, the setting of bail is a restraint upon a defendant’s liberty. Even the attachment of an existing bond to new counts, as was done here, places new restrictions upon a defendant’s liberty. From June 9 forward, petitioner was subject to the conditions of the bail as to Counts 7 and 8. Thus, speedy trial began to run from June 9 and by September 7, the 90-day period in which to bring petitioner to trial on Counts 7 and 8 had expired. Thus, the trial court should have dismissed Counts 7 and 8 against petitioner pursuant to Fla.R. Crim.P. 3.191(a)(1).

Respondent argues that, even assuming arguendo that the June 9 hearing began the running of speedy trial as to Counts 7 and 8, petitioner’s claim for relief still should be denied because petitioner was not continuously available for trial as required by Rule 3.191(a)(1). Respondent asserts that because petitioner ventured beyond the boundaries of the state by traveling to England for two weeks, he was unavailable for trial during that period and thus he waived his right to be tried within 90 days. We disagree. Petitioner did not violate his bail conditions by traveling; instead, he was given specific permission by the trial court to make the trip. There has been no showing that the trial was delayed because of petitioner’s trip nor was there a showing that, if notified of trial during his trip, petitioner would not have returned immediately for trial. Thus, we find, as did the trial court in the order appealed here, petitioner was continuously available for trial.

Writ of - prohibition is granted as to Counts 7 and 8 of the amended information.

SMITH and ERVIN, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, a State agency, Petitioner, v. The Honorable Charles A. WADE, Judge of the Circuit Court in and for Okaloosa County, Florida, Respondent.
    No. LL-254.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Jon W. Searcy, Dist. Legal Counsel, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Acting Chief Judge.

The Department of Health and Rehabilitative Services petitions for a writ of prohibition to prevent execution of a circuit judge’s order directing that James T. Rogers, who has pleaded nolo contendere to two counts of sexual battery, be transported to Florida State Hospital at Chattahoochee for examination to determine whether Rogers is a mentally disordered sex offender. Sections 917.13, et seq., Florida Statutes (1977). The court’s order provides in relevant part:

1. The Okaloosa County Sheriff’s Office is to transport the Defendant to the State Mental Hospital in Chattahoochee, Florida.
2. The State Mental Hospital shall cause the personal examination of the Defendant by not less than two experts; one of which shall be a physician who is licensed in Florida and who has primarily diagnosed and treated mental and nervous disorders for a period of not less than five (5) years. The experts shall personally examine the Defendant to determine whether the Defendant is a mentally disordered sex offender. .
Section 917.17 provides:
(1) The court shall appoint not less than two or more than three experts to make personal examinations of the defendant. At least one expert shall be a physician who is licensed in Florida and who has primarily diagnosed and treated mental and nervous disorders for a period of not less than 5 years.
(2) The experts shall personally examine the defendant to determine whether the defendant is a mentally disordered sex offender. Each expert shall file a written report . .

And Section 917.176 provides:

The experts designated by the court shall examine the defendant where the defendant is detained. However, upon receipt of a recommendation of the experts, the court may order the defendant transferred to another place of detention, as may be designated by the experts, in a county, municipal, or privately operated hospital, clinic, or teaching hospital with psychiatric facilities for a reasonable period for observation and examination. When the defendant is so transferred, the court may require the sheriff of the county where the defendant is held to furnish sufficient personnel to guard the defendant.

While broader authority may be wished for, Chapter 917 is quite explicit in its direction that the court appoint the examining experts; that the experts examine the defendant where he is detained, in this case the Okaloosa County jail; and that the defendant may be transferred under the sheriff’s guard to a county, municipal or privately operated facility only upon recommendation and designation by the examiners. Here the respondent judge has proposed that the Okaloosa County Sheriff place Rogers in charge of Florida State Hospital at Chattahoochee, not a facility designated by Section 917.176; in effect, that the hospital take responsibility for Rogers as if he were committed; that the hospital designate the examiners; and that the experts examine Rogers at the Florida State Hospital in Chattahoochee. The order thus imposes responsibilities on the Department of Health and Rehabilitative Services which are not authorized by and are inconsistent with Chapter 917.

There is no contention in this case that the statutory strictures unconstitutionally impair procedures otherwise available to the trial court, subject to rulemaking supervision by the Supreme Court, in the determination of Rogers’ status under substantive provisions of Chapter 917. See Article II, Section 3, and Article V, Section 2, Constitution of Florida; In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204, 205 (Fla.1973); Johnson v. State, 308 So.2d 127 (Fla. 1st DCA 1975). We are obliged to hold that the respondent judge proposes to act in excess of the court’s statutory jurisdiction by asserting authority over the Department of Health and Rehabilitative Services in the proceedings contemplated by Sections 917.17 and 917.176. Contrast Hill v. State, 358 So.2d 190 (Fla. 1st DCA 1978).

The petition for writ of prohibition is GRANTED to prevent the further assertion of jurisdiction over the Department of Health and Rehabilitative Services in the pending Section 917.17 and 917.176 proceedings. The writ itself will be withheld unless issued by further order.

ERVIN and BOOTH, JJ., concur.


author: BARKDULL, Judge.

text:
    Dale W. THORPE, Appellant, v. Joseph COOK and the City of Miami, Appellees.
    No. 77-1349.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Orr, Nathan & Williams and Martin L. Nathan, Miami, for appellant.
    Hawkesworth, Schmick, Ponzoli & Was-senberg, Richard M. Gale, McCrary, Ber-kowitz & Davis and Jeffrey L. Berkowitz, Miami, for appellees.

      Before PEARSON, BARKDULL and KEHOE, JJ.
   BARKDULL, Judge.

In a malicious prosecution action, the trial court granted a summary judgment for the defendants. In said summary judgment, the following is found:

* * * jfc sfc
“ORDERED AND ADJUDGED:
“1) That it affirmatively appears from the records that there is no genuine issue of material fact with respect to the filing by the State Attorney for the Eleventh Judicial Circuit in and for Dade County, Florida, of an Information against the Plaintiff, DALE THORP.

“2) That this Court, in view of the direct filing of the Information, feels constrained to enter its Order granting a Summary Judgment in favor of the Defendants based upon the decision of the Third District Court of Appeals in McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d Dist.1977), wherein it was held that:

‘When a prosecuting attorney files an information against a Defendant he conclusively determines that the evidence is adequate to establish probable cause to put the Defendant on trial.’
“3) That the existence or non-existence of additional triable and genuine issues of material facts concerning the presence of the remainder of the requisite elements to an action for a malicious prosecution have not been reached by this Court as it is the finding of this Court that the decision of McKinney, establishes the existence of probable cause for the proceeding complained of, the existence of which probable cause is fatal to the action at bar.
“4) That the Complaint fails to state a claim upon which relief can be granted, and that the Defendants, JOSEPH COOK and THE CITY OF MIAMI, are entitled to judgments in their favor as a matter of law.”
******

Subsequent to the rendition of this order, and while the matter was pending in this court for review, the Supreme Court decided Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977) and, in this decision, it expressly overruled this court’s holding in McKinney v. Dade County, 341 So.2d 1061 (Fla.3d DCA 1977).

Therefore, the final summary judgment be and the same is hereby reversed and the matter is returned to the trial court, with directions to proceed with the cause.

This opinion shall not preclude the trial court from entertaining such other motions for summary judgment as may be filed by any of the parties.

Reversed and remanded, with directions.


text:
    Blanca HAMMOND, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 77-2617.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Irma V. Hernandez, Theodore Z. Deutsch, Hialeah, for appellant.
    Stuart L. Simon, County Atty., and Thomas Goldstein, Asst. County Atty., for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See: Hall v. Seaboard Air Line Railway Company, 84 Fla. 9, 93 So. 151 (1921); Wong v. City of Miami, 237 So.2d 132 (Fla.1970); Henderson v. City of St. Petersburg, 247 So.2d 23 (Fla. 2d DCA 1971).


text:
    Rene SAVI, Individually and as parent and guardian of Robert Savi, Appellant, v. Abraham GRETA and Gloria Greta, Appellees.
    No. 78-531.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Law Offices of Norman K. Schwarz, P.A., Miami Beach, for appellant.
    Ponzoli & Wassenberg and Ronald P. Ponzoli, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Donner v. Arkwright-Boston Manufacturers Mutual Insurance Company, 358 So.2d 21 (Fla.1978).


author: MARCUS, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Richard LIGGETT.
    No. 61958.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Clayton M. Perkins, Jr., Kilbourne & Dart, St. Prancisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon Picou, Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Richard Liggett was indicted by the grand jury for simple escape in violation of La.R.S. 14:110A(1). After trial by jury, he was found guilty as charged and sentenced to serve four years at hard labor. The court expressly directed that the sentence was to be served consecutively. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the other three.

Defendant contends the trial judge erred in denying his motion for a new trial. He argues, inter alia, that the evidence presented at trial did not show that he was in the custody of any law enforcement officer or officer of the Department of Corrections at the time the alleged simple escape occurred; in the alternative, defendant argues that if such custody were established, there was no showing that he escaped from such custody.

In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C). It is well settled that a contention made in a motion for a new trial that no evidence was produced to prove the crime charged or an essential element thereof presents a question of law which can be reviewed by this court. State v. Williams, 354 So.2d 152 (La.1977). We consider that the allegations in defendant’s motion for a new trial adequately raise the contention that there was no evidence produced of the crime charged, simple escape, or an essential element thereof. Hence, this issue is properly before us.

The evidence adduced at trial establishes the following facts. Defendant was legally committed to the state penitentiary at Angola on February 3,1972. He was assigned to a dormitory in the medium security complex area. In addition, defendant was assigned to work in the prison tag plant. The record also reflects that prior to the start of the work day, inmates have the option to leave their dormitory and go to the kitchen area for breakfast or remain in the dormitory. Whether they remain in the dormitory or depart for breakfast, inmates are required to report to their job assignment no later than 8:00 a. m. The inmates, whether in the dormitory, kitchen area, or at their work assignment are the responsibility of a prison officer assigned to a particular area or building. The inmates may be excused from any of their work assignments or assigned areas on various “call-outs”: e. g., attorney call-outs, hospital call-outs, visits, education call-outs, and classification call-outs. We note also that inmates walk from area to area along fenced walkways unescorted by guards.

The officer in charge of defendant’s dormitory, John Frank, testified that he saw defendant in the dormitory at approximately 7:30 a. m. on April 6, 1977. He stated that at about 7:55 a. m., he received a call from Edward Thomas, the prison officer assigned to the tag plant, stating that Lig-gett had not reported to work at the plant. A search for defendant in the dormitory was made without success. A prison chase crew subsequently located Liggett hiding in a conveyor machine in the prison cannery at approximately 5:00 p. m. Defendant was found inside the machine lying down on his back with his hands resting on his stomach. He had a pillow, or something in the form of a pillow, under his head. He even had a pocket novel to read. It was noticed that defendant had apparently taken two pieces of cardboard and placed them on both sides of the conveyor machine so that he could not be observed inside the machine. Upon discovery, defendant neither struggled nor attempted to get away from the search crew. He had not broken or damaged anything while hidden in the cannery building. The prison cannery is located approximately two hundred and fifty to three hundred yards from the prison tag plant, defendant’s assigned place of work.

La.R.S. 14:110A(1) defines simple escape as

[t]he intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections from any place where such person is legally confined .

Since the word “intentional” is included in the above definition of simple escape without a qualifying provision, only general criminal intent is required as an essential element of the crime. La.R.S. 14:11; State v. Boleyn, 328 So.2d 95 (La.1976). General criminal intent is present when “the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” La.R.S. 14:10. Though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

The evidence adduced at trial establishes only that defendant did not report to work by 8:00 a. m. on April 6,1977, and was found hiding later that same day in the prison cannery reading a novel. Such evidence might well constitute a violation of prison disciplinary rules which may be punished by sanctions imposed by the appropriate prison administration board. However, we find no evidence in the record of circumstances which indicate that defendant, in the ordinary course of human experience, adverted to the prescribed criminal consequences as reasonably certain to result from his act. In other words, there was no evidence of facts or circumstances from which general criminal intent, an essential element of the crime of simple escape, can be inferred.

We next determine the proper disposition of this case. In State v. Gatlin, 241 La. 321, 129 So.2d 4 (1961), we overruled prior jurisprudence and held that when this court found no evidence of the crime charged or an essential element thereof upon review of a bill of exceptions taken to the overruling of a motion for a new trial grounded on such a contention, defendant would not be discharged but rather the case would be remanded for a new trial con-formably with the nature of the pleadings.

The United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), addressed the issue of whether a defendant may be tried a second time when a reviewing court had determined that in a prior trial there was no evidence of the crime charged or an essential element thereof. The Court held that the double jeopardy clause of the fifth amendment precludes a second trial once the reviewing court has found no evidence of the crime charged or an essential element thereof. The Court further stated, “the only ‘just’ remedy available for [the reviewing] court is the direction of a judgment of acquittal.” The Court noted that the contention that there was no evidence of the crime charged or an essential element thereof may properly be raised solely by a motion for a new trial. In addition, the Court expressly held that a defendant does not waive his right to a judgment of acquittal by moving for a new trial.

The double jeopardy prohibition of the fifth amendment is applicable to a state criminal trial through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). It is our opinion that we are compelled under the holding in Burks and the federal constitutional standard pronounced therein to enter a judgment of acquittal when this court upon review properly presented finds no evidence of the crime charged or an essential element thereof in the record of the trial. To the extent that State v. Gatlin, supra, and our other decisions relying thereon suggest that by moving for a new trial a defendant waives his right to a judgment of acquittal on the basis of no evidence, they are overruled.

DECREE

For the reasons assigned, the conviction and sentence are annulled and set aside and a judgment of acquittal is entered as to the charge of simple escape.

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

ON APPLICATION FOR REHEARING

PER CURIAM.

The conviction was reversed on a due process question which the defendant would be entitled to raise by habeas corpus. Treating the appeal as a post-conviction remedy application, it is granted and judgment of acquittal is ordered. The application for rehearing is denied.

SANDERS, C. J., and SUMMERS, J., would grant a rehearing.

      . Defendant states in brief that as a result of this incident, he was sentenced by the Disciplinary Board of the Louisiana State Penitentiary to the cell blocks for ninety days subject to a clean disciplinary record during that time.

      . The Court distinguished reversals due to trial error from reversals resulting solely from no evidence presented of the crime charged or an essential element thereof. The holding in Burks and this court’s implementation of that holding are strictly limited to those cases wherein this court upon review properly presented determines that there was no evidence of the crime charged or an essential element thereof.


text:
    Wayne P. DeROCHE et al. v. Dennis O. CUQUET et al.
    No. 62590.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: St. Paul Fire & Marine Insurance Company applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 359 So.2d 1338.

Writ denied.

DIXON, J., would grant this writ.


text:
    STATE of Louisiana v. David Scott DARBY.
    No. 62570.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: State of Louisiana, through the District Attorney, J. Carl Parkerson, applying for remedial writs. Parish of Ouachita.

Granted with Per Curiam.

Treating this appeal from a non-appeala-ble ruling, see State v. Johnson, 342 So.2d 863 (La.1977), as an application to our supervisory jurisdiction, Louisiana Supreme Court Rule I, Section 11, the judgment setting aside the bond forfeiture is annulled. See La.R.S. 15:87(B) (1966) and State v. Watson, 249 La. 789, 191 So.2d 500 (1966).


author: DIXON, J.,

text:
    Michel J. HANKEL, Jr. v. HARTFORD FIRE INSURANCE COMPANY and Roger P. Blitz, M. D.
    No. 63101.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   In re: Michel J. Hankel, Jr., applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of St. Tammany.

Granted, and remanded to the Court of Appeal for its reconsideration in light of Ardoin v. Hartford Accident and Indem. Co., 360 So.2d 1331 (La.1978) without limitation on the Court of Appeal’s consideration of any other issues advanced at the reargument.

SUMMERS, J., would deny the application.

DIXON, J.,

concurs in the remand; in addition, the Court of Appeal might wish to dispose of the contended issue, if serious, that the injury was caused in part by the failure to extend the surgical procedures to another interspace.


text:
    STATE of Louisiana v. Ralph ANDERSON.
    No. 62733.
    Supreme Court of Louisiana.
    Oct. 25, 1978.
   In re: Ralph Anderson, applying for writ of habeas corpus. Parish of Jefferson.

Granted. The State is ordered to try applicant on charge arising from the detain-er within 30 days or cancel the detainer.


text:
    Sonja SMITH et al. v. STATE of Louisiana THROUGH DEPT. OF HIGHWAYS et al.
    No. 63236.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Sonja Smith applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Plaquemines.

Writ denied.

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

2


text:
    Sonja SMITH et al. v. STATE of Louisiana THROUGH DEPT. OF HIGHWAYS et al.
    No. 63241.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Sonja Smith applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Plaquemines.

Writ denied.

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


text:
    STATE of Louisiana v. Gracie PHILLIPS.
    No. 63249.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Gracie Phillips applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jackson.

Writ denied.

SANDERS, C. J., and DENNIS, J., would grant the writ.


text:
    James SMITH v. STATE of Louisiana THROUGH DEPT. OF HIGHWAYS et al.
    No. 63240.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: James Smith applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans.

Writ denied.

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


text:
    Lawrence J. AIAVOLASITI v. Foster G. JUDLIN.
    No. 63235.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Foster G. Judlin applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Clyde ROBINSON.
    No. 63221.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: State of Louisiana applying for supervisory or remedial writs. Parish of East Carroll.

Writ denied.


text:
    STATE of Louisiana ex rel. James DUNN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63213.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: James Dunn applying for writ of habeas corpus and motion to proceed in forma pauperis. Parish of West Feliciana.

Writ denied.


text:
    Lloyd G. MANGUM v. The STATE of Louisiana THROUGH DEPT. OF HIGHWAYS.
    No. 63209.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Lloyd G. Mangum applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Plaquemines.

Writ denied.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Kermit EAST.
    No. 63205.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: State Farm Mutual Automobile Ins. Co. applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Calcasieu.

Writ denied.


text:
    Walter C. HAYES, Jr. v. Dyer D. DAVIDSON, d/b/a D & M Construction Company et al.
    No. 63204.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Walter C. Hayes, Jr., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Calcasieu.

Writ denied.


text:
    CITY OF BATON ROUGE v. John E. FIRMIN, III.
    No. 63198.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: John E. Firmin, III, applying for writs of certiorari, mandamus and prohibition. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Wayne D. THOMAS, Sr.
    No. 63197.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Wayne D. Thomas, Sr., applying for remedial writ. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard M. BROWN v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 63196.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Richard M. Brown applying for remedial writ. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Courtland DAVIS v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 63195.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Courtland Davis applying for writ of mandamus. Parish of East Baton Rouge.

Denied. Moot.


text:
    STATE of Louisiana v. Dewey Wilbur CREEL, Jr.
    No. 63190.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Dewey Wilbur Creel, Jr., applying for writs of certiorari, prohibition, mandamus and supervisory writs. Parish of St. Charles.

Writ denied.


text:
    Succession of Daisy Mae PICOU v. Eldred A. HEBERT et al.
    No. 63175.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Eldred A. Hebert and Julius P. Hebert applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.


text:
    Louise J. SMILEY et al. v. Ray BLOUNT.
    No. 63168.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Louise J. Smiley applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston.

Writ denied.


text:
    Kim Guidroz ADAMS v. LIPTON PET FOODS, INC., et al.
    No. 63165.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Kim Guidroz Adams applying for writ of certiorari to the First Circuit Court of Appeal. Parish of Lafourche.

Denied.


text:
    STATE of Louisiana v. Floyd ABRAMS.
    No. 63161.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Floyd Abrams applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Stay order denied.


text:
    STATE of Louisiana v. Jeffery J. CARSON.
    No. 63160.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Jeffery J. Carson, applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary.

Writ denied.

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


text:
    STATE of Louisiana v. Charles ABBOTT.
    No. 63109.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Charles Abbott applying for remedial writs. Parish of Livingston.

Writ denied. Moot. The return from the Department of Corrections shows that the relator was discharged from custody on September 30, 1978.


text:
    STATE of Louisiana v. Willie TRIPLETT, Jr.
    No. 63105.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Willie Triplett, Jr., applying for supervisory writs of review, prohibition, mandamus and a stay order. Parish of East Baton Rouge.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. John McGOWAN v. T. N. ARMISTEAD.
    No. 63090.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: John McGowan applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.

SUMMERS, TATE and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. CRIMINAL DISTRICT COURT OF ORLEANS PARISH, SECTION “E”.
    No. 63216.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Arthur M. Davis applying for writ of certiorari. Parish of Orleans.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph Becker, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 11th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Virgil PUGH.
    No. 63208.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Virgil Pugh applying for supervisory writ. Parish of Rapides.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Jules L. Davidson, Jr., Judge of the 9th Judicial District Court, for the Parish of Rapides, to transmit to the Supreme Court of Louisiana, on or before the 11th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Leo ALLEN.
    No. 62974.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Leo Allen applying for mandamus. Parish of Orleans.

Writ denied. Relator has been granted out-of-time appeal on January 16,1978, and counsel has been appointed to represent him on said appeal.


text:
    In the Matter of the Succession of Piper W. COLEMAN.
    No. 63212.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Mrs. Shirley Jackson Coleman applying for writs of certiorari, mandamus and prohibition. Parish of East Baton Rouge.

Not considered. Not timely.


text:
    STATE of Louisiana v. Joaquin OLIVARES.
    No. 63250.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Joaquin Olivares applying for supervisory writs and/or remedial writs. Parish of Jefferson.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Floyd W. Newlin, Judge of the 24th Judicial District Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 9th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. C. W. BRELAND and Donald W. Cooper.
    No. 63199.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan Parker, Judge of the 19th Judicial District Court, for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 9th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    STATE of Louisiana v. Chester HAMILTON.
    No. 63174.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Charles Ward, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 11th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

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


text:
    Gary Wayne SIMS v. CHARLES CARTER COMPANY, INC.
    No. 63169.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Gary Wayne Sims applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Granted.

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


text:
    STATE of Louisiana v. Ray A. LAWSON.
    No. 63159.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Ray A. Lawson applying for writs of certiorari prohibition, supervisory writs and writ of mandamus. Parish of East Baton Rouge.

Granted; new trial ordered.


text:
    STATE of Louisiana ex rel. Thomas McMILLAN v. Hon. Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 62641.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Thomas McMillan, applying for writ of mandamus. Parish of Orleans.

Writ granted. Trial Judge is ordered to rule upon relator’s application forthwith and thereafter transmit copy of ruling to this court.


text:
    STATE of Louisiana v. Paul GOODBIER.
    No. 63121.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Paul Goodbier applying for remedial writ. Parish of Iberia.

Writ granted. Upon the showing made the matter is remanded to the trial court for proceedings to determine the applicant’s entitlement for appellate purposes to (1) the transcript of the voir dire examination; (2) copies of subpoenas of witnesses; and (3) the transcript of the hearing on the motion for a new trial and the motion in arrest of judgment, as well as any scientific reports introduced in evidence and the transcript of the sentencing hearing, if any.


text:
    200 SOUTH BROAD STREET, an Ordinary Partnership v. Joseph F. BISHOP, Jr.
    No. 63310.
    Supreme Court of Louisiana.
    Oct. 26, 1978.
   In re: Joseph F. Bishop, Jr., applying for supervisory writs and stay order. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Charles Earl BAKER.
    No. 63321.
    Supreme Court of Louisiana.
    Oct. 27, 1978.
   In re: Charles Earl Baker applying for supervisory writ, prohibition, mandamus and a stay order. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Larry LUSTER.
    No. 63337.
    Supreme Court of Louisiana.
    Oct. 31, 1978.
   In re: Larry Luster applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied. No abuse of discretion.

SUMMERS, J., would grant the writ.


author: SCHOTT, Judge.

text:
    Geraldine Clark DESSELLE et al. v. TIDEWATER MARINE SERVICE, INC., et al.
    No. 9807.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1978.
    Rehearing Denied Nov. 20, 1978.
    Dermot S. McGlinchey and William V. Dalferes, Jr., New Orleans, for relator.
    Robert M. Murphy, New Orleans, for respondent.
    Before SAMUEL, SCHOTT and GARRISON, JJ.
   SCHOTT, Judge.

We granted certiorari in order to consider a judgment of the trial court denying a motion of Tidewater Marine Service, Inc., defendant and relator, to compel plaintiff to answer certain interrogatories propounded to it by relator.

This is a wrongful death action brought by the widow of Ronald Gregory Desselle, who was killed in an airplane accident which occurred on April 18, 1977. Defendants are Tidewater Marine Service, Inc., relator, the owner of the plane, and its insurer, United States Aviation Underwriters, Inc. Plaintiff alleged that at the time of the accident the airplane was in the exclusive control and under the operation of defendant, Tidewater, and/or its employees, and that the negligence of Tidewater or its employee Gerald Sievers, or both, was the cause of the accident.

Relator propounded to plaintiff 21 interrogatories of which 15 were answered, but plaintiff objected to the last five interrogatories which were as follows:

“16.
Please specify and describe in detail each and every act of negligence which you claim against Tidewater Marine Service, Inc.
“17.
Please specify and describe in detail each and every act of omission or commission which you claim against Tidewater Marine Service, Inc.
“18.
Please specify and describe in detail each and every act of omission or commission which you claim against Gerald Sievers.
“19.
Please specify and describe in detail each and every act of negligence which you claim against Gerald Sievers.
“20.
Please specify and describe in detail the manner in which you claim in paragraph XI of your petition that Tidewater failed to:
(a) Maintain the aircraft in good operating condition;
(b) Provide adequate security for the operation of its aircraft;
(c) Oversee the operation of its aircraft;
(d) Select qualified pilots for the operation of its aircraft;
(e) Supervise pilots in the operation of its aircraft;
(f) Train the pilots of its aircraft;
(g) Establish proper procedures and guidelines for mechanical checks of its aircraft;
(h) Implement procedures to discover and prevent unauthorized use of its aircraft;
(i) Impose sanctions and penalties on employees for improper and unauthorized use of its aircraft.
“21.
State all the facts and circumstances upon which you base any allegation against Tidewater Marine Service, Inc. and as to each such fact or circumstance, state the name and address of each witness whom you intend to present in support of such allegation.”

We have concluded that relator is not entitled to compel plaintiff to answer interrogatories 16 through 19 because the information requested in these interrogatories is already answered by plaintiff in paragraph 11 of her petition as quoted by relator in Interrogatory No. 20, quoted above.

As to Interrogatory No. 20, we have concluded that the trial court properly refused to compel an answer thereto. LSA— C.C.P. Art. 1459 provides that interrogatories may relate to matters which can be inquired into under Arts. 1422 through 1425, Art. 1424 provides in part as follows:

“The court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney or an expert.”

We have concluded that to require plaintiff to answer Interrogatory No. 20 would violate the quoted provisions of Art. 1424, and the motion insofar as it sought to compel plaintiff to answer that interrogatory was properly denied. In addition, the matters referred to in Interrogatory No. 20 are particularly within the knowledge of Tidewater.

However, we see no reason why plaintiff should not answer Interrogatory No. 21 since the information sought appears to be within the proper scope of discovery as set forth in Art. 1422 and to the extent that the trial court refused to compel plaintiff to answer Interrogatory No. 21, the judgment complained of is reversed.

Accordingly, it is ordered that the motion of relator to compel plaintiff to answer Interrogatory No. 21 is granted, and to that extent the judgment of the trial court is reversed, but in all other respects, to wit, the denial of the motion to compel answers to Interrogatories Nos. 16 though 20 is affirmed.

WRIT MADE PEREMPTORY; JUDGMENT REVERSED IN PART AND AFFIRMED IN PART.


author: JONES, Judge.

text:
    FIRST NATIONAL BANK OF RUSTON, Appellee, v. PINE BELT PRODUCERS CO-OP, Martin S. Sanders, Jr., Claude L. O’Bryan, et al., Appellants.
    No. 13618.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 1978.
    Rehearing Denied, En Banc. Nov. 14, 1978.
    Writ Refused Dec. 14,1978.

      Barham, Adkins & Coleman by Ronald G. Coleman and Charles C. Barham, Ruston, for appellee.
    Sanders & Castete by Martin S. Sanders, Jr., Winnfield, for appellants Pine Belt and Sanders.
    Kelly, Ware & Salim by Richard N. Ware, Natchitoches, for appellant O’Bryan.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant, Pine Belt Producers Co-Operative, Inc., a non-profit corporation, appeals from a judgment against it based upon two promissory notes signed by its president, payable to the order of the plaintiff. Defendants, Claude L. O’Bryan, president of Pine Belt, and Martin S. Sanders, Jr., Vice-President of Pine Belt, appeal the judgment which held them solidarity obligated to plaintiff based upon their Continuing Guaranty Agreements in favor of the plaintiff wherein they guaranteed the payment of Pine Belt’s obligations. Sanders also complains that the judgment incorrectly enforced in favor of plaintiff his individual mortgage note and chattel mortgage note, which he had pledged to the plaintiff as security for Pine Belt’s obligations. O’Bryan complains the judgment erroneously enforced his individual mortgage note which he had pledged to plaintiff as security for Pine Belt’s obligations. We reverse.

On April 18, 1973 O’Bryan in his capacity as president of Pine Belt, pursuant to a resolution of the board of directors of the corporation, signed on behalf of the corporation a promissory note payable to plaintiff in the amount of $35,000, due on or before 6 months from date, bearing 8% per annum interest from date as consideration for a loan of $35,000 to the corporation. This note was secured by a pledge of a collateral chattel mortgage note in the amount of $35,000 and by a collateral mortgage note in the amount of $45,000 executed by Sanders. The Pine Belt note was also secured by a collateral mortgage note executed by O’Bryan in the amount of $35,-000 which he pledged to the bank.

Following the execution of the Pine Belt note reflecting the three pledged notes as security and the execution of a collateral pledge agreement by Sanders and O’Bryan, the plaintiff deposited in a checking account created by Pine Belt the $35,000 proceeds from the loan. Pine Belt placed on file with plaintiff a certified copy of a resolution of the board of directors of Pine Belt designating the bank as a depository of corporate funds which resolution authorized the withdrawal of these funds by appropriate instruments signed by any two of its three listed officers, namely, Claude L. O’Bryan, President; Martin S. Sanders, Jr., Vice-President; and Linda S. Wise, Secretary of the Corporation. The pertinent part of the resolution is quoted as follows:

“RESOLVED, that the bank be designated as a depository of this corporation and that funds of this corporation deposited in said bank be subject to withdrawal upon checks, notes, drafts, bills of exchange, acceptances, undertakings of other orders for the payment of money when signed on behalf of this corporation by any two (2) of its following officers, to-wit:
Claude L. O’Bryan
Martin S. Sanders, Jr.
Linda S. Wise”

The proceeds of the loan were withdrawn from the checking account in the following manner:

1. One check dated April 18, 1973 in the amount of $15,000 payable to Pine Belt Producers Co-Operative, Inc., executed by Pine Belt over the signatures of Claude L. O’Bryan and Martin S. Sanders, Jr.
2. One check dated April 24, 1973 payable to Pine Belt Producers Co-Operative, Inc., in the amount of $2,000 executed by Pine Belt over the signatures of Martin S. Sanders, Jr. and Claude L. O’Bryan.
3. One check dated April 27, 1973 in the amount of $3,512.50, payable to Winn State Bank & Trust executed by Pine Belt over the signature of Martin S. Sanders, Jr.
4. One check dated May 1, 1973 in the amount of $500 payable to Merchants Insurance Agency, drawn by Pine Belt over the signatures of Linda S. Wise and Claude L. O’Bryan.
5. One check dated May 1, 1973 in the amount of $3,000 payable to Merchants Insurance Agency, drawn by Pine Belt over the signatures of Linda S. Wise and Claude L. O’Bryan.
6. One debit against Pine Belt’s checking account by plaintiff on June 8, 1973 in the amount of $10,987.50 per authority of Jim Hall, executive vice-president of the plaintiff bank, which plaintiff’s initiated checking account withdrawal was credited to Pine Belt’s loan from plaintiff of April 18, 1973. This withdrawal left Pine Belt’s checking account with a “0” balance.

There was no activity in the Pine Belt checking account following the bank’s initiated withdrawal until December 24, 1973. On this date Pine Belt president, O’Bryan, pursuant to the authority of a resolution of the board of directors of Pine Belt dated December 21, 1973, borrowed the sum of $20,000 from plaintiff. Claude L. O’Bryan signed on behalf of Pine Belt in his capacity as president of the corporation a note for said loan in the principal amount of $20,000, due on demand, bearing 10% per annum interest. In consideration of this note plaintiff issued its cashier’s check bearing date of December 24, 1973 payable to the order of Pine Belt. This check was endorsed as follows: “For Deposit, Pine Belt Producers Co-Operative, Inc., Claude L. O’Bryan, President” and was then deposited in Pine Belt’s checking account with plaintiff. The proceeds of this deposit were withdrawn from the checking account by a draft dated December 24, 1973, payable to the order of Sam Factor and on the same date deposited to Sam Factor Account No. 16-856-4-01 at the First National Bank of Ruston. This draft of Pine Belt Producers Co-Operative, Inc. was signed by Claude L. O’Bryan, president, and was drawn upon Pine Belt’s checking account in the First National Bank of Ruston, Louisiana. There has been no activity in Pine Belt’s checking account with plaintiff other than that here-inabove set forth.

On April 5, 1974, Claude L. O’Bryan presented to plaintiff the following resolution of the board of directors of Pine Belt authorizing him to make an additional loan from plaintiff, to-wit:

“RESOLVED that pursuant to the needs of the co-operative for additional equipment rentals and to cover outlays and expenses not usually incurred in the operation because of the nationwide truck strike, the President of the association be and he is hereby authorized to borrow on behalf of the association from the First National Bank of Ruston, Louisiana, sum or sums of money up to $80,000 and to execute any and all notes, pledges, or other security devices in order to effectuate and complete said loan; further that in the absence of the President, either the Vice-President, that is John G. Jones or Martin S. Sanders, Jr., in co-signature with the Secretary-Treasurer, Linda S. Wise, are authorized to make the same loan and jointly execute evidence of such indebtedness as may be required.
RESOLVED that this be an all inclusive resolution of authority and includes the authorization of December 21,1973 meeting.”

At the time of the presentation of this resolution plaintiff prepared and presented to O’Bryan a promissory note in the principal amount of $57,199.29, payable to the order of plaintiff, due on demand, bearing 10% per annum interest from date, which note was signed by O’Bryan on behalf of Pine Belt and delivered to plaintiff. This note listed as security the same pledged collateral notes as were shown on Pine Belt’s $35,000 loan of April 18, 1973.

At the time this $57,199.29 Pine Belt loan transaction was being processed in plaintiff’s Ruston office, plaintiff secured Continuing Guaranty Agreements assuring the payment of Pine Belt’s obligations to it from Claude L. O’Bryan in the amount of $30,000 and from Martin S. Sanders, Jr. in the amount of $75,000. Simultaneous with the receipt of this note, plaintiff delivered to O’Bryan one cashier’s check payable to Pine Belt Producers Co-Operative, Inc. in the amount of $57,199.29. There was a typed endorsement on the back of the check:

PINE BELT PRODUCERS CO-OP
By: -
and O’Bryan signed the endorsement on the check and handed it to the executive vice-president of the plaintiff.
The check representing the proceeds of this loan was retained by plaintiff for the purpose of liquidating loans reflecting on its books as follows:
1. Balance of Pine Belt’s loan Dec. 24, 1973, Note No. 52126 Principal-$10,910.51 Interest - 51.52
2. Note 51046 Martin Sanders and K. R. Stephenson dated 2/21/73 Principal- 5,800.00 Interest - 145.64
3. Note 51079 Martin Sanders and K. R. Stephenson dated 2/23/73 Principal- 4,700.00 Interest - 118.02
4. Note 51036 Martin Sanders and K. R. Stephenson dated 2/16/73 Principal- 6,100.00 Interest - 153.18
5. Note 51037 Martin Sanders and K. R. Stephenson dated 2/2/73 Principal- 4,500.00 Interest - 113.00
6. Note 51109 Martin Sanders and K. R. Stephenson dated 3/1/73 Principal- 22,700.00 Interest - 570.02
7. Note 52127 Martin Sanders and K. R. Stephenson dated 12/24/73 Principal- 959.54 Interest - 27.19
8. Note 50988 Martin Sanders and K. R. Stephenson dated 2/15/73 Principal- 342.08 Interest 8.59 TOTAL: $57,199.29

Plaintiff filed this suit against Pine Belt Producers Co-Operative, Inc., on the note dated April 18,1973 in the principal amount of $35,000, alleging an unpaid balance of $25,514.47 with 8% per annum interest from January 1, 1976 and 25% of principal and interest for attorney fees and also sued Pine Belt on the note dated April 5, 1974 in the principal amount of $57,199.29 alleging an unpaid balance of $50,229.91 plus interest in the amount of 10% from January 1, 1976 and 25% of principal and interest as attorney fees. Plaintiff also sought enforcement of the pledge of Sanders’ collateral chattel mortgage note and collateral mortgage note against the property mortgaged to secure these notes, and sought enforcement of the pledged mortgage note executed by O’Bryan against the property describe^ in his collateral mortgage. Plaintiff also sought solidary judgment against the makers of each of the Continuing Guaranty Agreements signed by Sanders and O’Bryan.

Defendant, Pine Belt, asserted in defense of plaintiff’s suit:

(1) that its April 18, 1973 $35,000 note had been fully paid

(2) that its president, O’Bryan had no authority to borrow the $57,199.29 for the purpose of paying the alleged $10,962.02 balance of the December 24, 1973 $20,000 note for which it had received no consideration and for the purpose of paying the sum of $46,237.26 on the loans of Sanders and Stephenson which had no connection with the corporate affairs of Pine Belt. Pine Belt asserted it received no consideration for the note of April 5, 1974.

The trial judge rendered judgment in favor of the plaintiff as prayed for giving as its reasons “that the plaintiff herein having established the allegations of its petition by a preponderance of the evidence” and otherwise failed to articulate his reasons for judgment.

The issues are (1) did Pine Belt pay in full its debt to the plaintiff created by the $35,-000 note of April 18, 1973? (2) did Pine Belt’s president, O’Bryan, have authority to sign the $57,199.29 promissory note of April 5,1974 and to endorse in blank the cashier’s check given in consideration of the note and return same to the bank in payment of a $10,910.51 balance on the Pine Belt note of December 24, 1973 and in payment of personal debts of Sanders and Stephenson in the amount of $46,237.26?

Between the dates of August 28, 1973 and December 18, 1974 Pine Belt paid in cash to plaintiff the sum of $28,000. Plaintiff had on June 8, 1973 taken from Pine Belt’s checking account $10,987.50. These sums received by plaintiff are more than adequate to liquidate in full the principal and interest owed on Pine Belt’s note of April 18, 1973 if there were no other notes owed to plaintiff by Pine Belt on which a portion of these payments could have been properly credited by plaintiff. The only other notes held by the plaintiff during the time when these payments were made were the $20,000 note of December 24, 1973 and the $57,199.29 note of April 5, 1974. In order to resolve the plea of payment directed at the April 18,1973 note it must first be determined whether the bank could properly apply a portion of the funds received by it toward payment of the $20,000 note or the $57,199.29 note.

WAS PLAINTIFF ENTITLED TO ATTRIBUTE ANY OF PINE BELT’S PAYMENTS TO THE $20,000 NOTE?

O’Bryan testified Pine Belt received no consideration for the $20,000 note.

The record contains plaintiff’s $20,000 cashier’s check issued in consideration for the note endorsed on the back for deposit Claude L. O’Bryan and a photocopy of the deposit slip, both of which establish the corporation’s checking account was credited with the proceeds of the loan.

Plaintiff was directed by Pine Belt’s resolution creating plaintiff as Pine Belt’s depository to permit the withdrawal of Pine Belt funds from its checking account only upon presentation of instruments signed by two of its officers. The resolution listed the officers who could sign these instruments of withdrawal to be Sanders, O’Bryan and Wise.

A review of the five checks which were drawn on Pine Belt’s checking account reflects that O’Bryan as president signed four of them and that all checks signed by him were co-signed by either Sanders or Wise as required by the resolution of the board of directors.

The $20,000 draft dated December 24, 1973, payable to the Sam Factor account, drawn on Pine Belt’s checking account was signed for Pine Belt only by O’Bryan. The bank had no authority under the resolution of the board of directors of the corporation to permit Pine Belt’s funds to be withdrawn in this manner. To do so was contrary to the resolution of the board of directors which required the signatures of two of its officers before permitting withdrawals to be made from the checking account. O’Bryan had never previously made withdrawals from this checking account by his signature alone.

The evidence establishes that “Sam Factor” was the name of a partnership composed of Sanders and Stephenson which had no business relations with Pine Belt. Pine Belt received no benefit from the deposit to the Sam Factor account.

The corporate checking account at a time when it had a “0” balance received the proceeds of the loan and for a very short period of time the claim of the bank against Pine Belt on this note was viable. However, it was immediately offset by a claim of Pine Belt against the bank for the $20,-000 which the bank delivered to Sam Factor account based upon the draft signed by only one of Pine Belt’s officers, dated the same day as the note.

The relationship of a bank and a depositor is that of debtor and creditor. The bank has the right to use the deposit and in consideration thereof, it covenants to pay it out only as directed by the depositor. Pelican Well Tool & Supply Co. v. Sabine State Bank & Trust Co., 18 La.App. 590, 138 So. 161 (La.App. 2d Cir. 1931). The president of a corporation has no authority to withdraw corporate funds from its deposito ry bank except in accord with authority given to him by the board of directors of the corporation. Hibernia National Bank of New Orleans v. National Bank of Commerce in New Orleans, 204 La. 777, 16 So.2d 352 (1943).

In the decision of Schrew v. Scott Manufacturing Corp., 258 So.2d 668 (La.App. 4th Cir. 1972) the court refused to enforce against a corporation a contract signed only by its president where the corporate bylaws required the signature of two officers to such a contract. The court therein quoted from North American Sales Alliance, Inc. v. Carrtone Laboratories, Inc., 214 So.2d 167 (La.App. 4th Cir. 1968):

“. . . . It has been well settled by our jurisprudence that any person attempting to enforce an alleged contract must first show that the corporate officer with whom he dealt had the authority to bind the corporation. This is particularly true in those instances wherein the officer is exercising authority which contemplates more than the normal and usual power of an officer whose duty it is simply to manage the day-to-day business of the corporation. T. P. Ranch Co. v. Gueydan & Riley, 148 La. 455, 87 So. 234 (1921). Buckley v. Woodlawn Develop- merit Corporation, 233 La. 662, 98 So.2d 92 (1957), and numerous citations therein.”

It is significant that the resolution presented to the bank authorizing the $20,000 loan provided that the funds derived from the loan were to be used for equipment rentals and acquisitions. The Sam Factor partnership was engaged solely in factoring of accounts receivable for the Winn Farmers Co-Op and plaintiff did not attempt to show that it was authorized to permit Pine Belt’s $20,000 to be paid to Sam Factor by withdrawal over the sole signature of O’Bryan.

Under these circumstances there existed no debt against Pine Belt based upon the $20,000 note of December 24,1973 and none of Pine Belt’s payments to the bank should have been attributed to payment of this obligation.

DID PINE BELT OWE PLAINTIFF ON THE $57,199.29 NOTE?

Plaintiff contends it accepted $10,962.03 of the O’Bryan endorsed $57,199.29 Pine Belt check in payment of the alleged unpaid balance on the $20,000 note (as discussed above, this note was paid in full by offset), and that the remaining $46,237.26 of the check was received in payment of the personal debts of Sanders and Stephenson.

The debts of Sanders and Stephenson were incurred as result of loans they obtained from plaintiff bank to secure funds to factor accounts receivable of Winn Farmers Co-Op. There was no relationship between Pine Belt and the debts owed by Sanders and Stephenson to plaintiff. Pine Belt received no benefit from paying these debts.

A corporate officer has no authority in absence of a specific resolution from the board of directors of the corporation to pay from corporate funds the personal debts of a corporate officer or the personal debts of a third party. Stephens v. Brackin, 16 La. App. 272, 134 So. 326 (La.App. 2d Cir. 1931); Proctor v. Opelousas Insurance Agency, 181 La. 79, 158 So. 627 (1934); Wallace v. Mouton, 170 La. 47, 127 So. 360 (1930); Lillie-dahl & Mitchel v. Avoyelles Trust & Savings Bank, 352 So.2d 781 (La.App. 3rd Cir. 1977); Guaranty Bank & Trust Co. of Alexandria v. C & R Development Co., Inc., 260 La. 1176, 258 So.2d 543 (1972).

The president of a corporation by virtue of his office does not have the power to endorse checks payable to the corporation. The fact that a president is given by special resolution of the board of directors authority to secure a loan for a corporation does not constitute the president as the general financial agent of the corporation or vest in him the general authority to sign or endorse checks of the corporation. Hibernia National Bank v. National Bank of Commerce in New Orleans, supra. The Pine Belt depository resolution wherein the board of directors required the signature of two of its officers before the bank was authorized to honor checks drawn on the corporate account within itself advised the bank an unrestrictive endorsement upon a check by the president alone is not within the scope of his authority.

In the decision of Lilliedahl & Mitchel v. Avoyelles Trust & Savings Bank, supra, the corporate president by the following resolution of the board of directors was authorized to handle the corporation funds:

‘“BE IT FURTHER RESOLVED that the following named officer of this Corporation, namely: MARVIN N. LILIE-DAHL, President, be and he is hereby authorized to carry bank accounts for LILLIEDAHL & MITCHEL, INC., in such banks as he may deem best and to make the profits of money belonging to LILIEDAHL & MITCHEL, INC. in such accounts, and disburse monies on his signature for any purpose in connection with the purpose of the Corporation.’ ”

The court held the corporate president was without authority to endorse a certificate of deposit payable to the corporation and return it to the bank with instruction that the proceeds be applied to his personal debt. The court found the possession by the bank of the certificate of deposit payable to the order of the corporation and endorsed by its president did not have the effect of giving the corporation actual or constructive possession of the funds represented by the certificate of deposit and for this reason the corporation was entitled to claim from the bank the value of the certificate of deposit which the bank had applied to the personal debt of the president of the corporation.

A review of Pine Belt’s resolution presented at the time O’Bryan executed the $57,199.29 note reflects the corporation authorized its president to borrow up to $80,-000 to meet “the needs of the corporative for additional equipment rentals and to cover outlays and expenses not usually incurred in the corporation because of the national truck strike.”

The bank by virtue of the very language of this resolution was clearly aware that the loan being obtained by O’Bryan pursuant to the resolution was not authorized to be expended for the payment of debts of third persons totally unrelated to the needs of the corporation for which the loan was designed to provide funds to meet.

Even when the corporate officer has been given the authority to endorse checks payable to the corporation, the recipient of the endorsed check who knows that the officer is breaching his fiduciary obligation by using the check for the payment of debts which he has no authority to pay, is under a duty to inquire of the corporation about the transaction before it is entitled to accept the endorsed instrument. La.R.S. 9.-3804.

Plaintiff’s knowledge concerning the purposes of the loan and concerning the use plaintiff was making of the proceeds of the loan, constituted actual knowledge that O’Bryan was breaching his fiduciary relationship with Pine Belt within the contemplation of La.R.S. 9:3804 and under these circumstances plaintiff bank was bound to inquire of Pine Belt with regard to whether or not its president had the authority to endorse in blank the cashier’s check and deliver it to the bank in payment of the debts of Sanders and Stephenson. The bank was fully aware of O’Bryan’s lack of authority when it received back its cashier's check which it had delivered to O’Bryan simultaneous with O’Bryan signing the note, and under these circumstances the note creates no binding obligation against Pine Belt who received no consideration for it.

Plaintiff bank had received from Pine Belt prior to the institution of this suit funds more than adequate to pay in full Pine Belt’s principal and interest obligation created by its April 18,1973 note payable to the bank and plaintiff possessed no other valid notes owed by Pine Belt to which any of these payments could be attributed. For these reasons Pine Belt has established its defense of payment of this note.

Plaintiff has no claim against O’Bryan and Sanders on the continuing guaranty agreements they signed to guarantee payments of Pine Belt’s debts to the plaintiff because Pine Belt owed the plaintiff naught. For the same reason plaintiff has no right to assert a claim on the collateral notes pledged by Sanders and O’Bryan as security for Pine Belt’s obligation.

For the reasons assigned the judgment appealed from is REVERSED and plaintiff’s demands are rejected with all costs below and on appeal assessed against plaintiff.

      . “RESOLVED that pursuant to the need of the co-operative for additional monies in connection with equipment rentals and acquisition the President of the association be and he is hereby authorized to borrow on behalf of the association from the First National Bank of Ruston, sum or sums of money up to $20,000 and to execute any and all notes, pledges, or other security devices required in order to effectuate and complete said loan, further that in the absence of the President, either the Vice-President, that is, John G. Jones or Martin S. Sanders, Jr., in co-signature with the Secretary-Treasurer, Linda S. Wise, are authorized to make the same loan and jointly execute the same required instruments.”

      . . . if any negotiable instrument payable or endorsed to his principal is endorsed by a fiduciary empowered to endorse such instrument, on behalf of his principal, the endorsee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in endorsing or delivering the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith."