author: BARKDULL, Chief Judge.

text:
    STATE of Florida, Petitioner, v. George D. NOURSE, Respondent.
    No. 76-786.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Richard E. Gerstein, State’s Atty., and George Volsky, Asst. State Atty., for petitioner.
    Jose Manuel Quignon, Jr., Miami, for respondent.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   BARKDULL, Chief Judge.

By this petition for writ of certiorari, the State of Florida seeks review of an order of the circuit court [sitting in its appellate capacity] reversing the appellee’s convictions and sentences entered pursuant to a trial court’s finding that the respondent was guilty of violating §§ 370.14(2)(a)(l), 370.14(4), Fla.Stat. [possession of undersized crawfish and possession of crawfish during the closed season].

On July 29, 1975, two days before opening of the crawfish season, the respondent [a commercial fisherman] was aboard his boat in Biscayne Bay. A marine patrol officer boarded the respondent’s boat and seized eleven crawfish, nine of which were undersized. As a result thereof, respondent was charged with violation of §§ 370.-14(2)(a)(l) and 370.14(4), Fla.Stat. He pleaded not guilty and the cause proceeded to non-jury trial in the county court. At trial, the respondent attempted to establish that, in fact, he was lawfully setting out his traps pursuant to § 370.14(3)(a)(2)(a), Fla. Stat., and that the crawfish were being used as bait. The trial court found the respondent guilty as charged and fined him $50.00 on each charge. Timely appeal was taken to the circuit court which, after hearing thereon, found that there was a conflict between § 370.14(3)(a)(2)(a) and §§ 370.-14(2)(a)(l), 370.14(4), Fla.Stat., and that inasmuch as the prior statute was specific in nature it would control over the latter general provision. Therefore, the circuit court reasoned that as the respondent was using the crawfish as bait he could not be guilty of violation of §§ 370.14(2)(a)(l) and 370.-14(4), Fla.Stat. Based on this reasoning, the circuit court reversed the trial court. This petition for writ of certiorari followed.

The petitioner contends that the circuit court departed from the essential requirements of law in construing § 370.14, Fla.Stat. contrary to the explicit legislative intent, and in reversing the trial court’s convictions with respect to the charge of Possession of Undersized Crawfish. The State contends that § 370.14(2)(a)(l), Fla. Stat., is controlling:

“No person, firm or corporation shall take or have in his possession at any time regardless of where taken, any salt water crawfish * * * unless such salt water crawfish * * * shall have a carapace measurement of more than three inches or shall have a tail measurement of more than five and one-half inches, not including any protruding muscle tissue.” [emphasis added]

This statute makes it clear that possession of undersized crawfish, at any time, is unlawful.

In regard to the charge of Possession of Crawfish during the Closed Season, the petitioner contends § 370.14(4) is relevant:

“Closed season. — No person, firm, or corporation shall take or have in his possession, regardless of where taken, any saltwater crawfish * * * between March 31 and August 1 of each year, except by special permit, and as provided by Section 370.141, for storage and distribution of inventory stocks.” [emphasis added]

In the same way that § 370.14(2)(a)(l), Fla. Stat., clearly prohibits possession of undersized crawfish, § 370.14(4), Fla.Stat. prohibits possession of any saltwater crawfish during the closed season, unless a special permit is obtained.

In spite of the unequivocal language of §§ 370.14(2)(a)(l), 370.14(4), the circuit court held that § 370.14(3)(a)(2)(a), Fla. Stat., controlled over the two previously cited statutes. § 370.14(3)(a)(2)(a), Fla. Stat., provides in part:

“ * * * Traps may be placed in the water and baited ten days prior to the opening of the crawfish season, and shall be removed within five days after the close of the crawfish season; provided, however, nothing herein shall authorize the landing or sale of any crawfish during the closed season.” [emphasis added]

The legislative intent in the crawfish regulation statutes is explicit in § 370.14(1), Fla.Stat.:

“Intent.- — It is the intent of the legislature to maintain the crawfish industry for the economy of the state and to conserve the stocks supplying this industry. The provisions of this act regulating the taking of saltwater crawfish are for the purposes of insuring and maintaining the highest possible production of saltwater crawfish.”

All of the above-cited statutes relating to crawfish regulation were passed at the same session of the Legislature, and should be read in pari materia in such a manner as to harmonize them and, at the same time, to give effect to the legislative intent. See: Singleton v. Larson, 46 So.2d 186 (Fla.1950); Mann v. Goodyear, 300 So.2d 666 (Fla.1974). When the statutes in this cause are read as a whole, the inescapable conclusion is that the word “baited”, as used in § 370.14(3)(a)(2)(a), Fla.Stat., cannot include crawfish, either undersize or legal size.

The appellee urges that the Legislature created an exception to the prohibition against possession of undersized crawfish for the ten-day period immediately prior to the opening of the season, and it is his contention that the word “baited” merits the use of undersized crawfish during this limited period. This appears to be absurd reasoning; that for 355 days a year the appellee concedes he could not have in his possession undersized crawfish but for ten days a year it would be permitted. This would defeat the overall intent of Ch. 370.-14, Fla.Stat.

It is further noted that the appel-lee urges that § 370.14(3)(a)(2)(a), Fla.Stat., relating to the right to bait traps ten days before the opening of the season, is an exception to the general prohibition contained in §§ 370.14(2)(a)(l), 370.14(4), Fla. Stat. Being an exception to a general prohibition, any such statutory provision is normally construed strictly against the one who attempts to take advantage of the exception. See: United States v. Allen, 163 U.S. 499, 16 S.Ct. 1071, 41 L.Ed. 242 (1896); 73 Am.Jur.2d, Statutes, § 313. And, unless the right to the exception is clearly apparent in the statute, no benefits thereunder will be permitted. Celia Commission Co. v. Bohlinger, 147 F. 419 (8th Cir. 1906); State v. Heard, 246 Miss. 774, 151 So.2d 417 (1963); 73 Am.Jur.2d, Statutes, § 314. Any ambiguity in an exception statute is normally construed in a manner that restricts the use of the exception. State v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65 (1949); State v. Christensen, 18 Wash.2d 7, 137 P.2d 512 (1943); 73 Am. Jur.2d, Statutes, § 313.

Therefore, for the reasons above stated, the decision under review be and the same is hereby quashed, and the matter is returned to the circuit court with directions to affirm the convictions in the county Court.


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    G. W. B., a juvenile, and G. F. G., a juvenile, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    Nos. CC-439, CC-440.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1976.
    As Amended On Rehearings Jan. 21, 1977.

      Lynn A. Williams, Asst. Public Defender, Pensacola, for appellants.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Following an adjudicatory hearing, the two juveniles were found guilty of receiving stolen property as charged.

At the conclusion of the State’s case and at the conclusion of all of the evidence, the juveniles moved for judgments of acquittal on the ground that the evidence was insufficient. In both instances, the only argument made in support of the motions was that the juvenile, G.F.G., had not been identified. Following adjudication of guilt, the juveniles orally moved for a new trial on the ground that the adjudications were contrary to the law and the weight of the evidence. No supporting argument was made. The trial court denied all of the motions.

Thereafter, the juveniles appealed and assigned as errors that the adjudications were contrary to the law, that they were contrary to the weight and sufficiency of the evidence, and that they were contrary to the law and the evidence. In their brief, the juveniles argue that the court erred in refusing to dismiss the charge made against them because the State failed to prove that the property was stolen property on the date it was received by them and failed to prove the ownership of the property.

The motions for judgment of acquittal were insufficient because they did not fully set forth the grounds on which they were based. Fla.R.Crim.P. 3.380(b). The only argument made in support of the motions was that the juvenile, G.F.G., had not been identified. On appeal, this issue is not urged as error.

The oral motion for a new trial was stated in mere general terms and did not point out to the court with specificity why the juveniles were entitled to a new trial. In fact, no presentation or argument was made to establish the grounds asserted. Unless the error complained of is brought to the attention of the trial court, it is not preserved and cannot be considered by this Court.

In addition, the assignments of error were insufficient. Fla.App. Rule 3.5(c) requires that assignments of error shall designate identified judicial acts. The assignments of error in this case failed to comply with the applicable appellate rule.

The orders appealed are affirmed.

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


author: PER CURIAM. BOARDMAN, Acting Chief Judge BOARDMAN, Chief Judge,

text:
    BLUE CROSS OF FLORIDA, INC., a Florida Corporation, and Blue Shield of Florida, Inc., a Florida Corporation, Appellants, v. William O. DYSART, Jr., as Administrator of the Estate of William O. Dysart, Deceased, Appellee.
    No. 75-1583.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1976.
    Rehearing Denied Jan. 12, 1977.

      George D. Lynn, Jr., of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellants.
    Kenneth C. Deacon, Jr., Law Offices of Harris, Barrett & Dew, St. Petersburg, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment entered in favor of appellee/plaintiff in its action against appellants/defendants whereby plaintiff recovered reimbursement for benefits under hospitalization and medical contracts issued by defendants to plaintiff’s decedent.' We reverse.

As a result of injuries sustained in a motor vehicle accident on December 26, 1972, plaintiff’s decedent Dysart incurred hospital and medical expenses from December 26 to December 27 and from January 3, 1973, to the date of his death, January 20, 1973. The parties stipulated that Dysart’s readmission to the hospital on January 3 was for injuries and complications resulting from the accident.

At the time of the accident the decedent was employed by Pasadena Community Church in St. Petersburg, and was a subscriber under group medical and surgical and hospitalization policies issued by appellants. The contract year as defined by the policies expired on December 31,1972. The policies were cancelled by the decedent’s employer and replaced as of midnight December 31, 1972, with a health and accident insurance policy issued by Fireman’s Fund America. Fireman’s Fund America specifically excluded expenses incurred in connection with illness or injury sustained prior to the effective 'date of its policy.

Defendant refused to pay the medical and hospital expenses incurred by plaintiff subsequent to January 1, 1973. This action followed. Both parties moved for summary judgment, and the court entered summary judgment in favor of the plaintiff for hospitalization coverage, medical benefits, attorney’s fees, interest and costs, concluding that:

“. . . while this contract expired on December 31,1972, which date was subsequent to Plaintiff’s covered illness, but prior to his rehospitalization on January 4, 1973, (which hospitalization ‘was caused by the accident and was the cause of injuries which possibly initiated the chain of events responsible for his death’ and further that ‘the injuries received in the December 26 accident were in all likelihood the proximate cause of his hospitalization in January.’), the coverage in effect in December continued over and binding upon the insurance company in January.”

The issue here is whether the Blue Cross Hospital Service contract and the Blue Shield Medical & Surgical contract afford coverage to a subscriber for expenses incurred after termination of those policies where the cause for such hospitalization and medical services and indeed the initial hospital and medical treatments originated prior to termination.

We think the trial court erred. While the court’s rationale may, in proper instances, be applicable to an accident and health policy, it is not applicable to hospitalization and medical expense policies which afford benefits only during the time of coverage. Here, coverage was provided to the plaintiff as a Blue Cross/Blue Shield group subscriber. Continuation of that coverage was to be furnished in consideration of payment in advance of the rates applicable for the type and extent of coverage specified in the contract. Thus, it appears coverage, to be effective, is dependent upon continued payment of premiums by the subscriber. It seems, therefore, axiomatic that upon termination of the contracts and cessation of premium payments, the only coverage available is that stipulated in the contracts. We note the lack of any stipulated postter-mination benefits in the contracts in this case.

Admittedly, there is a paucity of authority on the question of an insurer’s liability under a hospitalization or medical expense policy which terminates prior to completion of hospitalization and medical treatment. An insurer’s liability under an accident policy which terminates after accidental injury but prior to completion of medical treatment has been the subject of more frequent litigation with the cases reaching contrary results, accounted for in part by difference in language of the policies. These views are discussed in an annotation in 75 A.L. R.2d 876.

In the absence of specific language to the contrary, a good argument can be made for extending the liability of an insurer under an accident policy for medical and hospital expenses incurred after the termination of the policy because these policies generally contemplate coverage for all such expenses incurred as a result of an accident which takes place within the policy period. On the other hand, a hospitalization or medical expense policy relates to all hospital and medical expenses incurred during the contract period regardless of whether they were occasioned by an accident.

This point is illustrated in Bartulis v. Metropolitan Life Ins. Co., 72 Ill.App.2d 267, 218 N.E.2d 225 (1966), in which the court construed a hospital and medical expense policy. There the plaintiff was a Standard Oil Company dealer. As such, he was a certificate holder of one of Metropolitan’s group hospitalization and medical expense policies issued to dealers and employees of Standard Oil Company Service Stations. The plaintiff was injured in May 1959. His group coverage was terminated effective July 31, 1959, by the trustees who administered hospital coverage for owners and employees of Standard Oil Company Service Stations. Bartulis received medical treatment in September and entered the hospital incurring expenses there until October 11, 1959.

In reversing a judgment in favor of the group policy holder, the Illinois court wrote:

“It seems crystal clear that the coverage provided was for confinement as a patient in a hospital while the policy was in force and surgery performed while the policy was in force. Neither event occurred during the life of the policy. Neither in such provisions nor elsewhere in the policy is there language suggesting that the policy could or should be read as providing coverage for hospitalization or surgery resulting from injuries sustained while the policy was in force. To so read this policy is to annex to it a coverage neither specifically stated nor reasonably implied. We would observe that Section 10 entitled ‘Benefits after Cessation of Insurance’ provided that if a certificate holder is totally disabled as a result of injuries or sickness on the termination date of the policy, the hospitalization and surgery coverages continue, for a period of 31 days. If a female, and pregnancy exists on the termination date of the policy, coverage is extended over a period of 9 months for hospitalization and surgery resulting from such pregnancy. It is thus apparent that this is not only a limited coverage policy, but its post-termination coverage is likewise specifically limited to specific circumstances. Coverage for injuries sustained during the lifetime of the policy with hospitalization or surgery resulting therefrom thereafter is conspicuous by its absence. The clear implication is that there was no intention to provide such coverage.”

See also, Cohen v. Northwestern National Life Ins. Co., 124 Ill.App.2d 15, 259 N.E.2d 865 (1970). Cf. Reliance Mutual Life Ins. Co. of Ill. v. Booher, 166 So.2d 222 (Fla.2d DCA 1964).

It likewise seems clear to us that there was no intent manifested in the policies before us to provide any posttermination coverage since these policies provide only limited specified benefits and contain no provisions for posttermination coverage.

The plaintiff, however, contends that coverage continued by virtue of the automatic termination provision in Section VII(d) which provides in part:

“Automatic Termination. Coverage for all subscribers covered under this contract shall immediately terminate on the earliest of the following dates:

(1) If this Contract is issued through a franchise group plan with an employer, the date coverage under this Contract is terminated and replaced by coverage under a contract issued by another insurer.”

The argument is made that since the Fireman’s Fund America policy which plaintiff’s employer obtained as replacement coverage does not, in fact, provide plaintiff with coverage he would have had under Blue Cross/Blue Shield, therefore, the defendants have a liability. We reject this contention as being unsound. To accept this reasoning would mean that even though the old policies had been replaced by the employer with the policies from a different company, the old policies still remained effective to provide benefits in every instance where coverage under the new policies was not at least equal to that under the old policies. We think the defendants were entitled to conclude that their liability had terminated when the plaintiff’s employer informed them that they had elected to replace their Blue Cross/Blue Shield coverage with a new policy from Fireman’s Fund America.

Under the policies issued by the defendants, successive hospital confinements occurring within 90 days are considered one single confinement for determining a subscriber’s entitlement to 31 days hospitalization for each confinement within a contract year. Citing these provisions, plaintiff makes the further contention that decedent’s second entry into the hospital was a continuation of his prior admission and that coverage is, therefore extended beyond the term of the contracts. We construe these single confinement provisions as limitations on the coverage and not as provisions which extended the coverage beyond the expiration of the term of the policies.

Accordingly, we hold that the coverage provided under the Blue Cross/Blue Shield contracts was available to the plaintiff only during the period for which he was a premium paying subscriber; that upon termination of the coverage by his employer and replacement with another group contract that his coverage was automatically terminated.

Under Section 627.666, Florida Statutes, effective October 1, 1975, a succeeding insurer on replacement of a group contract cannot specifically exclude expenses incurred in connection with an illness or injury sustained prior to the effective date of its policy. Unfortunately, this statute is of no comfort to the plaintiff in this case. Yet, it is not the function of the court to rewrite the policies or redefine the coverage contracted for by the parties.

Accordingly, summary judgment for the plaintiff is vacated and the trial court is directed to enter final judgment in favor of the defendants.

GRIMES and SCHEB, JJ., concur.

BOARDMAN, Acting C. J., dissents with opinion.

BOARDMAN, Acting Chief Judge

(dissenting).

The issue presented in this case has been carefully considered for what may be regarded as an undue length of time. In my judgment the question posed demanded such attention. The opinion I had originally authored reached a contrary result from that of the majority. Accordingly I feel it necessary that I dissent and give my reasons for doing so. Although my colleagues, Judge Grimes and Judge Scheb, make a plausible distinction between the purposes of an accident and health policy and a hospitalization and medical expense policy I do not consider that argument to be persuasive and conclusive in view of the interpretation the average person would be expected to give to the terms and provisions of the two policies under our consideration. I could readily accept the majority’s conclusion as to the finality of the Blue Cross automatic termination provision under the more typical circumstance where an insured did not require treatment for an illness or injury continuing beyond the termination date. I cannot agree though that under the terms of this policy the cessation of premium payments releases the insurer from liability arising from prior payments particularly where the policy does not explicitly and unequivocally provide that termination of ■coverage is effected simultaneously with the termination date of the policy.

The Blue Cross policy provided for automatic termination on the date that its hospitalization coverage was replaced by coverage issued under another carrier. However neither policy expressly provided that those expenses incurred subsequent to termination or cancellation were not covered. Both policies provided that successive hospital confinements within 90 days constitute a single, continuous confinement, and both limit coverage to 31 days per confinement. It is this language coupled with the absence of an explicit statement pertaining to coverage for continuing treatment which creates the uncertainty.

Cancellation of an insurance policy does not terminate the insured’s right to recover for losses or expenses incurred subsequent to the cancellation date if that right has vested. See generally Service Life Ins. Co. v. Branscum, 234 Ark. 463, 352 S.W.2d 586 (1962). The policies considered here vest a right to recover expenses incurred during a single hospital confinement regardless of the date the policies are cancelled. The holding of the Supreme Court of Washington in Myers v. Kitsap Physicians Service, 78 Wash.2d 286, 474 P.2d 109 (1970), a factual situation similar to the one before us, is persuasive. The contract in Myers stated that:

Kitsap Medical agrees to provide medical, surgical hospital and other services to each member enrolled hereunder, as occasion demands, during the life of this contract. .

The court held that the provision

is susceptible of the reasonable interpretation that the “life of the contract” is automatically extended to such time as may be required to medically treat and medically care for the injury or illness that occurs during the year of the contract. We find it difficult to believe that the “average man purchasing insurance” would, or could, contemplate from a reading of this contract that the defendant’s obligation terminates when the clock strikes midnight and the contract year ends, even though the insured may still be hospitalized or in need of further medical treatment for an illness incurred during the contract year.

It is a universally accepted principle of law that uncertain or ambiguous language in a contract will be strictly construed against the party who drafted the instrument. E. g., Financial Fire & Casualty Co. v. Callaham, 199 So.2d 529 (Fla.2d DCA 1967). It would be extremely difficult to conclude that the average person reading these policies would understand that the policies excluded coverage for continuing treatment of an illness contracted or injury suffered prior to the termination date. If appellants, who drafted the policies, had so intended it would have been a comparatively simple matter to spell out clearly and succinctly that the carrier is not liable for expenses incurred subsequent to termination of the policy. Cf. Northeastern Life Ins. Co. v. Gaston, 470 S.W.2d 128 (Tex.Civ. App.1971). The omission, whether by oversight or design, should not work to the detriment and prejudice of the insured. The legislature in its wisdom has been fit to take steps to see that this unfortunate situation will not arise in the future. In fairness, in my opinion, it should not be allowed to occur in this case.

ON REHEARING

Counsel for appellee having filed in this cause a Petition for Rehearing and the same having been considered by the Court, it is

ORDERED that said Petition be and the same is hereby denied.

GRIMES and SCHEB, JJ., concur.

BOARDMAN, C. J., concurs specially.

BOARDMAN, Chief Judge,

specially concurring.

I have previously expressed my reason for disagreement with the majority; however, in view of the fact that no new issues have been raised in the Petition for Rehearing, I join in its denial.

      . The Blue Cross and the Blue Shield policies provided for termination when the insured left the franchise group or where the carrier can-celled the policy, neither is applicable here.

      . The Blue Cross policy provided that
      [e]ach subscriber is entitled to benefits . when service is rendered during the covered period. .
      The critical phrase is not “when service is rendered” but is “during the covered period.”


author: PER CURIAM.

text:
    Charles L. WALKER and his wife, Wanda L. Walker, Appellants, v. William B. SENN and his wife, Ruby E. Senn, Appellees.
    No. AA-423.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1976.

      Robert Goldhagen, Tampa, for appellants.
    C. David Fonvielle, Tallahassee, for ap-pellees.
   PER CURIAM.

By this interlocutory appeal, appellants, defendants in the trial court, challenge two orders. The first denied their motion to amend affirmative defenses, while the second refused to quash the notice for trial or set aside the order of trial, and denied appellants’ motions for continuance of trial and for an order of sanctions against appel-lees.

Appellants first argue that the court erred in not allowing them to amend their answer by filing revised second amended affirmative defenses. The record indicates that the issues contained in the proposed affirmative defenses are similar to those alleged in the amended counterclaims which had previously been filed in the cause. Appellees do not claim that they were surprised by the issues contained in the proposed amended affirmative defenses, and the record does not support their allegation that permitting appellants to amend their answer would have necessarily delayed the final hearing. It is ordinarily within the trial court’s sound discretion as to whether to allow or disallow amendments to pleadings. However, under the facts of this case it is clear that no prejudice could have resulted to appellees. That, coupled with the liberal construction placed upon the rule of civil procedure relating to amendments to pleadings (Rule 1.190, RCP) and the purpose of the rule which is to achieve justice and allow the parties to fully present their respective positions, leads us to hold that the trial court should have permitted appellants to amend their answer.

Appellants further argue that the trial court erred in not quashing appellees’ notice for trial and in denying appellants’ motion for continuance of trial. It appearing that both points have become moot, those points do not require further consideration.

Finally, appellants argue that the trial court erred in not granting appellants’ motion for sanctions based on appellees’ failure to appear for their duly noticed deposition. Rule 1.380, RCP, describes the various forms of sanctions and the conditions under which the sanctions may be imposed. Usually, where a party fails to respond to discovery and does not give notice and sound reason for his failure to respond, sanctions should be imposed. However, in the case sub judice, the record is insufficient to determine whether a legally valid excuse was given for appellees’ failure to appear, or what costs appellants incurred by reason of the non-appearance at the time and place scheduled for the taking of the depositions. Therefore, the trial judge did not abuse his discretion in refusing to impose sanctions on appellees.

Accordingly, the orders appealed are affirmed in part and reversed in part, and the cause is remanded with directions that ap-pellees be permitted to amend their answer, and for further proceedings consistent herewith.

BOYER, C. J., and RAWLS and McCORD, JJ., concúr.


author: GRIMES, Judge.

text:
    Marcia D. WARDEN, Appellant, v. Michael M. BENNETT et al., Appellees.
    No. 76-250.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1976.

      Larry G. Turner of Goldin, Turner & Cates, Gainesville, for appellant.
    Edward A. Turville of McClure & Tur-ville, St. Petersburg, for appellees.
   GRIMES, Judge.

This is an appeal from an order denying a petition for mandatory injunction to furnish certain information and records under the Public Records Act.

Appellant, Warden, is a citizen of the State of Florida and a labor organizer for the Communication Workers of America. Appellee, Bennett, is the president of the St. Petersburg Junior College. Warden brought suit against Bennett and the trustees of the college asserting that she had been illegally refused access to those records containing the names and addresses of the employees of the college and denied the right to be furnished with copies of the working papers used in preparing the college budget. Warden admitted that she was seeking this information for the purpose of assisting in her efforts to organize the employees of the college. The court dismissed the petition holding that the defendants were not obligated by law to furnish these records.

It is not seriously suggested that these were not public records within the purview of Chapter 119, Florida Statutes. See City of Gainesville v. State ex rel. I.A.F.F., Loc. 2157, 298 So.2d 478 (Fla. 1st DCA 1974). Likewise, there is no intimation that the time required of the college employees to furnish these records would unreasonably disrupt the orderly business of the college or that Warden was unwilling to pay the reasonable cost of furnishing these records. The court’s ruling was essentially based upon four grounds which shall be discussed in turn.

First, it was said that the public policy of the state as reflected by Section 447.201, Florida Statutes (1974), is neither to encourage nor discourage organization of public employees and that to furnish Warden with the requested material would be improperly aiding the organization of the college’s employees. We find it difficult to comprehend how the furnishing of public records would violate the spirit of Chapter 447, Part II, Florida Statutes (1974), sometimes called the Public Employees Relations Act. Moreover, the Public Records Act does not direct itself to the motivation of the person who seeks the records, and the purpose for which Warden sought these records was certainly not illegal. The fact that she intended to use them to help her in her labor organizing was irrelevant.

The court further indicated that the college might be committing an unfair labor practice by providing the records to Warden in her capacity as a labor organizer and, therefore, it was necessary for Warden to first exhaust her administrative remedies before the Public Employees Relations Commission under Chapter 447. Our court held in Public Employees Relations Commission v. Fraternal Order of Police, Local Lodge No. 38, 327 So.2d 43 (Fla.2d DCA 1976), that the federal doctrine of preemption is applicable to the activities of public employers in Florida who commit acts which are arguably unfair labor practices. But with all due respect, we cannot see how the furnishing of the records requested in this case pursuant to a statutory mandate could “arguably” be considered an unfair labor practice. Cf. Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla.App., 4th DCA 1976). The refusal to furnish the records might come closer to being an unfair labor practice, but there is nothing in, the Public Records Act that would intimate that a citizen’s right to public records is conditioned upon first asserting an unfair labor practice before the Public Employees Relations Commission whenever the refusal to furnish the records might constitute such a practice.

Thirdly, the court felt that to require the college to provide the requested information would be to bypass the collective bargaining process and contradict Rule 8H-3.27 of the Public Employees Relations Commission. This rule reads as follows:

“8H-3.27 Eligibility List. Public employees must file with the Chairman and the parties to an election an Election Eligibility List containing names and addresses of all eligible voters within ten (10) calendar days after approval by the Chairman of a Consent Election Agreement or after a direction of an election by the Commission. The 10-day requirement may be extended by the Chairman in unusual circumstances.”

The fallacy in this reasoning is that it presupposes that simply because the information contained in certain public records might be available from other sources, the person seeking access to these records must first show that he has unsuccessfully sought the information from these sources. The Public Records Act contains no such requirement. Moreover, Rule 8H-3.27 would only provide a source for obtaining the names and addresses of the employees and then only after the approval or direction of an election.

Finally, the court observed that any right to request this information under the Public Records Act must give way to the statutory scheme for regulating public employee labor relations in the state as reflected by Chapter 447. Yet, there is nothing in Chapter 447 which remotely suggests that records otherwise available under the Public Records Act should not be furnished to those engaged in organizing government employees. It is significant to note that Section 447.605(3), Florida Statutes (1974), provides that all work products developed by the public employer in preparation for negotiations and during negotiations shall be exempt from the provisions of Chapter 119. The fact that the legislature specifically chose to exempt those particular records from the Public Records Act suggests that the legislature saw no other conflict between the public policies it expressed in the Public Employees Relations Act and in the Public Records Act.

The only doubt we entertain in this case is whether the addresses of the college employees could be considered part of their personnel records and thereby deemed confidential under the principles announced in this court’s decision in Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla. 2d DCA 1975). The primary reason we held that personnel files were not subject to the provisions of the Public Records Act was to protect the privacy of the many employees of our state and local governments. While an employee may occasionally want his address kept confidential, it is seldom that the address of a governmental employee would not be ascertainable from other sources. Therefore, an employee’s expectation that his address cannot be ascertained is minimal. Moreover, there are legitimate reasons why the public might wish to know the address of a public employee. On balance, we believe that the addresses of public employees do not fall within the confidentiality of personnel files afforded by the Wisher case.

Accordingly, we hold that Bennett and the trustees were obligated by the Public Records Act to furnish Warden with the requested information.

REVERSED.

McNULTY, C. J., and SCHEB, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Johnnie E. GOODNIGHT, as Administratrix of the Estate of Geneva Goodnight, Deceased, Plaintiff, v. John J. CAPIELLO et al., Defendants.
    No. 76-637.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1976.
    Daniel R. Monaco, Monaco & Cardillo, Naples, for plaintiff.
    Kempton P. Logan, Henderson, Franklin, Starnes & Holt, Fort Myers, for defendants.
   HOBSON, Acting Chief Judge.

The Circuit Court of the Twentieth Judicial Circuit has certified to this court a question which is stated will be determinative of the cause and which is without controlling precedent. The question presented to us is:

Is the word “survivors” as it appears in the second sentence of Section 768.-21(6)(a) to be read in conjunction with the definition of that term as it appears in Section 768.18(1), so that loss of net accumulations is a recoverable element of damages to the estate in an action for wrongful death pursuant to Chapter 768, Florida Statutes, only when (1) there is a surviving spouse; (2) there are minor children; or, (3) there are lineal descendants who were partially or wholly dependent on the deceased for support or services?

The record-on-appeal reveals that the complaint, in addition to the loss of net accumulations, claims damages for funeral, medical and other expenses related to the death. Therefore, the answer to the certified question would determine but one of such elements of damage. This being true, the answer to the question would not be determinative of the question.

In Niemi v. Mebane Oil Company, Inc., 303 So.2d 661 (Fla. 4th. DCA 1974), the identical situation was presented wherein the answer would determine only one of the elements of damage. In Niemi the court stated:

“Rule 4.6(a), F.A.R., provides: '
“ ‘When Certified. When it shall appear to a judge of the lower court that there is involved in any cause pending before him questions or propositions of law that are determinative of the cause and are without controlling precedent in this state and that instruction from the Court will facilitate the proper disposition of the cause, said judge, on his own motion or on motion of either party, may certify said question or proposition of law to the Court for instruction.’

Said rule is to be strictly construed and applied. Newcomb v. Roarty, Fla.1957, 93 So.2d 373. Incidental questions occurring throughout the litigation, the resolution of which might be helpful, if not dispositive of the entire case, are not properly the subject of a certified question. Newcomb v. Roarty, supra; Gordon v. Norris, Fla.1956, 90 So.2d 914. In the latter case the Supreme Court pointed out that in order to avoid intruding on established areas of judicial procedure the exercise of jurisdiction under the certified question rule necessarily has its limitations, some of which are:

“ ‘(1) the essential facts must be agreed upon thereby producing a single determinative question of law the answer to which would be dispositive of the entire cause; (2) [the appellate] court must not be required to speculate on the existence or nonexistence of essential facts in order to formulate its legal conclusion; (3) [the appellate] court should not be requested to advise private litigants on the nature or extent of what their claims should be; and (4) [the appellate] court should not be requested to answer questions involving fundamental property rights of persons who are not parties to the cause.’ ”

The answer to the question not being dispositive of the cause, we must deny the certificate.

GRIMES and SCHEB, JJ., concur.


text:
    J. K. NICHOLAS, Individually and d/b/a J. K. Nicholas & Co., Appellants, v. MIAMI BURGLAR ALARM CO., INC., Appellee.
    No. 74-55.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1977.
    Leo M. Alpert and Jonathan L. Alpert, Miami, for appellants.
    Robert C. Lane, Miami, for appellee.
    Before PEARSON and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 26, 1974 (297 So.2d 49) affirming the judgment of the Circuit Court of Dade County, Florida, in the above styled appeal, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed October 7, 1976 (339 So.2d 175) and mandate now lodged in this court quashed a portion of this court’s judgment and remanded the cause for further proceedings in accordance with the opinion and judgment of the Supreme Court of Florida,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on July 18, 1974 is withdrawn, the opinion and judgment of this court filed June 26,1974 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the circuit court (Rule 3.16(b), Florida Appellate Rules.)


text:
    Dorothea Chase TURNER, Appellant, v. Edward M. STRAWGATE and Gerald M. Higier, Appellees.
    No. 74-504.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1977.
    Richard M. Gale, Philip F. Ludovici, Miami, for appellant.
    Helliwell, Melrose & Dewolf and Douglas S. Lyons, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 28, 1975 (307 So.2d 902) reversing the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed June 30, 1976 (339 So.2d 1112) and mandate now lodged in this court, quashed this court’s judgment with directions to affirm the judgment of the trial court.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on February 25, 1975 is withdrawn, the judgment of this court filed January 28,1975 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the circuit court (Rule 3.16(b), Florida Appellate Rules).


author: PER CURIAM

text:
    STATE of Florida, Appellant, v. James WADE, Appellee.
    No. 74-692.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1977.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Roy S. Wood, Jr., Asst. Public Defender, for appellee.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM

WHEREAS, the judgment of this court was entered on December 31, 1974 (305 So.2d 851) reversing the order of dismissal of the Circuit Court of Dade County, Florida, in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed November 18, 1976 (339 So.2d 648) and mandate now lodged in this court quashed this court’s judgment with directions;

NOW, THEREFORE, It is Ordered that the mandate of this court entered in this cause on January 28,1975 is withdrawn, the opinion and judgment of this court filed herein on December 31,1974 is vacated, the said opinion and judgment by the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of dismissal of the circuit court herein appealed is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 3.16 b Florida Appellate Rules).


text:
    SOUTHERN GULF UTILITIES, INC., a Florida Corporation, Appellant, v. CITY OF NORTH MIAMI BEACH, a Municipal Corporation of the State of Florida, Appellee.
    No. 75-207.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1977.
    Walton, Lantaff, Schroeder, Carson & Wahl and William J. Gray, Miami, for appellant.
    Joseph Nazzaro, City Atty., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on November 25, 1975 (323 So.2d 669) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed October 7, 1976 (339 So.2d 173) and mandate now lodged in this court quashed a portion of this court’s judgment,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on January 14,1976 is withdrawn, the opinion and judgment of this court filed November 25, 1975 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the Circuit Court (Rule 3.16(b), Florida Appellate Rules).


text:
    CHASE MANHATTAN BANK, a New York National Banking Association, Appellant, v. SAILBOAT APARTMENT CORP., a Florida Corporation et al., Appellees.
    No. 75-519.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1977.
    Jones, Paine & Foster and Marjorie D. Gadarian, West Palm Beach, for appellant.
    Pettigrew & Bailey, Greenberg, Traurig, Hoffman, Lipoff & Quentel, Smathers & Thompson, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Whereas, the judgment and decision of this Court in this cause was filed July 29, 1975, and reported in 318 So.2d 575, wherein the judgment of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida was affirmed; and

Whereas, said decision and judgment was declined review by the Supreme Court of Florida by certiorari proceedings, 334 So.2d 604; and

Whereas, in the November Term, 1976, the said cause came on to be heard before the Supreme Court of the United States on petition for writ of certiorari to this Court and response thereto; and

Whereas, the mandate of the Supreme Court of the United States has been filed with this Court, which said mandate was predicated upon the order and judgment of the Supreme Court of the United States, entered November 1, 1976, - U.S. -, 97 S.Ct. 300, 50 L.Ed.2d 278 (1976), which said judgment vacated the judgment of this Court first above mentioned and remanded the case to this Court for consideration in light of National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92; accordingly,

The judgment and opinion of this Court filed July 29, 1975, is set aside and held for naught, and the opinion and judgment of the Supreme Court of the United States filed November 1, 1976, is adopted as this Court’s opinion and judgment and the same shall accompany the mandate of this Court to the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida; and, accordingly,

The Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida is directed to hold a hearing for the purpose of determining whether the appellant, defendant in the trial court, has waived the protection of the venue provision of the National Bank Act, 12 U.S.C. § 94, and for such other proceedings as may be deemed appropriate in the premises.


author: TATE, Justice.

text:
    Charles WALKER, Plaintiff-Appellee-Relator, v. GAINES P. WILSON & SON, INC. and Liberty Mutual Insurance Company, Defendants-Appellants-Respondents.
    No. 58028.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 10, 1976.
    Clark A. Richard, Edward R. Drury, New Orleans, for plaintiff-applicant.

      John C. Combe, Jr., David F. Edwards, Jones, Walker, Waeehter, Poitevent, Carr-ere & Denegre, New Orleans, for defendants-respondents.
   TATE, Justice.

The plaintiff sues his employer and its insurer for compensation benefits. The trial court awarded compensation during permanent total disability, La.R.S. 23:1221(2) (1968), and also assessed the defendant insurer with penalties and attorney’s fees for the non-payment of compensation undoubtedly due, La.R.S. 22:658.

The court of appeal: (1) reduced the award to compensation during temporary total disability, La.R.S. 23:1221(1) (1968); and (2) disallowed the penalties and attorney’s fees. 328 So.2d 917 (La.App. 4th Cir. 1976). We granted certiorari, 332 So.2d 866 (La.1976), to review these two determinations.

The plaintiff suffered a back injury while at work as a laborer. His duties included heavy lifting. As a result of the work-injury, back surgery (a laminectomy) was performed on October 29, 1973, to remove a herniated disc, some six weeks after the accident. The operating neurosurgeon discharged the plaintiff as able to return to work on February 12, 1974, some three months after the disc surgery.

The issue is whether, despite this initial prognosis of an unusually swift recovery (see below), the workman’s disability continued, as subsequent medical examinations and treatment by another specialist indicated; and, if so, whether the insurer was justified in refusing to resume compensation payments for disability solely in reliance upon this initial optimistic report of the operating surgeon, without at least verifying from him whether his initial prognosis would remain unchanged despite the re-manifestation of objective symptoms of a painful back.

(1)

The operating physician discharged the claimant as able to return to work on February 11. The latter still complained of a painful residual in the low back. In discharging him, the physician gave him a prescription for a pain-reliever, and also told him to return if he had any difficulty in the future.

The claimant testified that, since the back pain persisted, he consulted an orthopedic surgeon during the following month, March. He was examined and treated by this orthopedist on numerous occasions through September. (He testified that he did not return to the neurosurgeon because he interpreted that specialist’s final conversation as indicating “the only thing he could give me was some pain pills”, and because he and the doctor “weren’t getting along too well”.)

On the occasion of his initial examination, the orthopedist found the claimant still disabled from performing heavy work, as a residual of the back-injury and operation. On the basis of his physical examination, he found positive, objective findings (muscle spasms, atrophy, and leg-raising tests), which corroborated the claimant’s complaints of continued disabling back pain.

The doctor continued his patient on a course of conservative treatment, prescribing muscle relaxants and analgesics. He thought the patient was improving, but in April fitted him with a corset for back-protection. By May 27, the doctor thought his patient should return to light duty. By report of June 6, the doctor so informed the defendant insurer, pointing out that, since the symptoms were residing, a trial period of four to six weeks at light duty should be considered.

The claimant attempted to perform some light mopping at home, but his painful symptoms immediately recurred. He returned to the orthopedist on June 10, and this physician then diagnosed, based on the complaints and objective symptoms, the cause of the disabling painful residual as a back instability residual to the surgery. To rectify this condition, further surgery by way of fusion is required.

By July 11, as we interpret this orthopedist’s testimony, he had concluded that the claimant was permanently disabled from the heavy lifting duties of the work in which injured: An ability to return to such heavy lifting might possibly result from major surgery by way of fusion surgery in the back. Otherwise, he could only perform light work, if he wore his corset, providing it did not involve repetitive stooping or lifting of over fifty pounds.

On his final examination of September 25, the orthopedist confirmed the diagnosis of permanent back instability and the prognosis above-stated. The physician on this last date told the patient not to return unless further complications occurred.

(2)

An injured employee is deemed totally and permanently disabled “whenever he is unable to perform work of the same or similar description to that which he performed before the accident.” Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271, 273 (La.1973). A common laborer is “considered as totally and permanently disabled within the meaning of the compensation statute if the injury has substantially decreased his ability to compete with ablebodied workers in the flexible general labor market.” Ball v. American Marine Corporation, 245 La. 515, 159 So.2d 138, 139 (1964). The present claimant, because of his residual painful back, is totally disabled from performing the heavy duties of a laborer, the occupation in which injured. See also Mitchell v. Litwin Corp., 304 So.2d 725 (La.App. 4th Cir. 1974).

A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration. Montgomery v. Delta Concrete Products Co. Inc., 290 So.2d 769 (La.App. 1st Cir. 1974); Blazier v. Georgia-Pacific Corporation, 301 So.2d 701 (La.App. 3d Cir. 1974); Deville v. Travelers Insurance Company, 176 So.2d 824 (La.App. 3d Cir. 1965); Harris v. Argonaut Insurance Company, 142 So.2d 501 (La.App. 2d Cir. 1962); Louisiana compensation law has accepted this as established principle since at least Connell v. Gilliland Oil Company, 2 La.App. 435 (2d Cir. 1925). Malone, Louisiana Workmen’s Compensation Law Section 280 (1951).

The trial court was correct in awarding compensation during total permanent disability, as required by the established jurisprudence. Under this jurisprudence, the court of appeal was in error in reducing the award to compensation during temporary total compensation, where the workman is shown to be totally disabled at the trial, even if, as the court of appeal felt, there was a possibility that the disability might lessen over the course of time.

(3)

We likewise find no error in the trial court’s award of penalties for the non-payment of compensation benefits undoubtedly due.

Weekly disability compensation was terminated on February 12, 1974, following receipt of the operating neurosurgeon’s report to the effect that the claimant could return to work. The neurosurgeon estimated a 5-10% partial, permanent anatomical (non-functional) disability as a residual of the operation.

At this point, of course, the insurer was entitled to terminate compensation payments in reliance upon this physician’s report. However, if subsequent to an initial optimistic report, an insurer receives medical information indisputably showing disability at a subsequent date, the insurer may not blindly rely upon the early report and solely on its basis avoid penalties for arbitrary non-payment of compensation benefits indisputably due a disabled workman. Seal v. Lionel F. Favret Co., 238 La. 60, 113 So.2d 468 (1959); Stockstill v. Bituminous Casualty Corp., 144 So.2d 918 (La. App. 4th Cir. 1962), certiorari denied; Gloston v. Coal Operators Cas. Co., 85 So.2d 100 (La.App. 1st Cir. 1955), certiorari denied.

The claims manager for the insurer did not deny receiving the orthopedist’s reports of continuing diagnosis of disability, nor the statements rendered for treatment of the disabled claimant. Essentially, the claims manager rested on his contention that he was not obliged to pay disability compensation because on February 11 the operating neurosurgeon had indicated that the claimant could return to work.

In judging the good faith of this reliance, we like the trial court take into consideration: the failure of this agent of the insured to contact the neurosurgeon for his advice on the claim of continued disability or to send the claimant back for further examination, after receiving the orthopedist’s reports diagnosing continued disability; that he considered the orthopedist qualified and reliable; that he admitted he did not discount the orthopedist’s reports completely, but instead on their basis attempted to compromise the claim for $5,000 on the basis of at least partial, permanent disability; that he realized back instability is an orthopedic problem and not a neuro-surgical problem; that he refused to tender payment of medical treatment for this residual of the accident for no reason shown; and that in his entire experience he had never satisfied compensation liability for the residual of a herniated disc for as little as the twenty-two weeks’ compensation here paid.

Even if (as the claims manager contended) the orthopedist’s undisputed reports showed only partial disability at the time following initial discharge, an insurer may avoid penalties upon the ultimate award for total disability only if it unconditionally tenders benefits for the partial disability shown. Fruge v. Pacific Employers Insurance Co., 226 La. 530, 76 So.2d 719 (1954).

Or even if the insurer felt that the reports indicated that the employee could return to light work and (perhaps) eventually recover his ability to perform the heavy work in which injured, an employee under the law is nevertheless regarded as totally disabled if at the time he is then unable to perform the heavy type of work he was doing before the accident. Holmes v. New Amsterdam Casualty Company, 128 So.2d 269 (La.App. 1st Cir. 1961), certiorari denied; Cummings v. Albert, 86 So.2d 727 (La.App. 1st Cir. 1956); Brown v. International Paper Co., 58 So.2d 557 (La.App. 2d Cir. 1952). (As these decisions indicate, the courts will not under such circumstances speculate as to when (if ever) the claimant might recover and be able to perform the duties of the employment in which injured.)

We thus cannot find any abuse of discretion or error of the district court in its imposition of penalties and attorney’s fees upon the defendant insurer because of its arbitrary refusal to resume compensation payments upon receiving medical evidence indisputably showing continued disability of the injured claimant, without at least having the employee re-examined or otherwise finding a reasonable basis to question the validity of such apparently reliable medical evaluation.

Decree

Accordingly, for the reasons stated, we set aside the judgment of the court of appeal, and we reinstate and affirm the judgment of the district court in all respects, including its award of compensation during total permanent disability and its imposition of penalties and attorney’s fees for the arbitrary nonpayment of compensation benefits undoubtedly due.

COURT OF APPEAL JUDGMENT SET ASIDE; DISTRICT COURT JUDGMENT REINSTATED.

      . See the orthopedist’s testimony at Tr. 106-08:
      “July 11th. At that time he was doing well in the corset and this, to me, confirms the thing that, as long as his back is stable, where he wears a corset and is not stooping, he does well. And I felt he may be a good candidate for a fusion, but I tell the person in all honesty, if you can avoid doing heavy liñing, you don’t want to do heavy liñing and you wear the corset, you don’t have to have the operation. If you want to do heavy lifting, the only way is to do the operation. It’s a big operation; 80 percent chance it will work, 20 percent it won’t
      “September 25th was the last examination I saw him. He had some numbness in the posterior calf. I didn’t see anything to upset me about that. I went along with instability and irritation of the nerve root. I didn’t feel he had ruptured another disc. As long as he was comfortable in his corset, not repetitive in stooping or lifting objects over 50 pounds, he was okay; and he should only return as needed at that point.
      “Q. When you last saw him, did you think he was a candidate to be a laborer in occupation?
      “A. No.
      “Q. And why is this?
      “A. Again, because everytime he would stress his back he would get into trouble. And as long as he would protect his back he would do fine.

      . If the claims manager had contacted the neurosurgeon, he would have discovered that the neurosurgeon had in fact found some residual indicating functional impairment on the date of his last examination, Tr. 68-69, 75-76; that the specialist had not ruled out further complication, having requested the patient to return to him if further difficulty arose, Tr. 58; and that this doctor was familiar with “back instability” (diagnosed by the orthopedist in his reports), and that he would defer to the opinion of an orthopedist on it as concerning a disability within the realm of orthopedics and more properly diagnosed and treated by an orthopedist, Tr. 71.

      . The orthopedist’s testimony indicates that usually, following surgery for a disc, a patient may not return even to light work following stress for from four to six months, and then progress on to heavy work only if the back accommodates to it. Here, the claimant was initially discharged as completely able to perform heavy work some three months and two weeks following surgery.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Claude J. BREAUX.
    No. 59056.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: Claude J. Breaux applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Application denied; No error as to specifications of errors, 2, 3, 4; adequate remedy by appeal in event of conviction if defendant’s rights under # 5 are violated at trial. Application granted as to specification # 1, and the State is ordered to specify with particularity which paragraph of R.S. 14:89.1 it intends to conduct its prosecution.

SANDERS, C. J.,

concurs in granting the application in part, being of the opinion that the State may rely upon more than one paragraph of R.S. 14:89.1 and amend the bill of information to conform if paragraph 5 is relied upon.

SUMMERS, J.,

is of the opinion the writ should be denied in all respects.


text:
    STATE of Louisiana v. Soloman POLLARD and Jefferson Johnson.
    No. 58831.
    Supreme Court of Louisiana.
    Jan. 5, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition.

Writ denied. No abuse of discretion.

SANDERS, C. J., and SUMMERS and MARCUS, JJ.,

are of the opinion that a writ should be granted.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Lovaughn LEWIS.
    No. 58891.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Lovaughn Lewis, applying for writ of review.

Writ denied. The showing made is not sufficient to warrant the exercise of this Court’s supervisory jurisdiction.

CALOGERO, J.,

concurs in writ denial. Applicant’s withdrawing motion for new trial prior to sentencing precluded trial court’s entertaining it, and prevents this Court’s review of denial of the motion (assuming the trial court would have denied motion for a new trial).


author: DIXON, J., DENNIS, J.,

text:
    Rowena SPENCER, M.D. v. Harry BURGLASS.
    No. 58867.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Dr. Rowena Spencer, applying for certiorari, or writ of review, to the Court of Appeal, 337 So.2d 596, Fourth Circuit, Parish of Jefferson.

Writ denied. The ruling of the Court of Appeal is correct.

DIXON, J.,

dissents and for the reasons expressed in the dissenting opinion in the Court of Appeal, would grant the writ.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    Mrs. Orelia Moten THOMAS et al. v. Hon. William H. STEWART, M.D., et al.
    No. 58857.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: William H. Stewart, M.D. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. Under the facts found, we cannot say the result is incorrect.

SANDERS, C. J.,

is of the opinion that a writ should be granted, being of the opinion that the dissenting views expressed by Presiding Judge Samuel in the Court of Appeal are legally correct. See La.App., 337 So.2d 645, 647.

SUMMERS, J.,

is of the opinion that the writ should be granted, agreeing with the dissenting opinion of Judge Samuel. See 337 So.2d 645, 647 (La.App.1976).


author: DENNIS, J.,

text:
    CITY OF MINDEN v. Merrick GRAY.
    No. 58855.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Merrick Gray, applying for writs of certiorari, prohibition, mandamus and/or review and for Stay Order.

Writ denied. No abuse of discretion.

DENNIS, J.,

is of the opinion the case should be remanded for further proceedings, including an examination of relator by an independent medical expert and an additional hearing to determine whether relator should or can be taken to his physician for periodic checks on the performance of his medication, whether and to what extent relator is presently confined to bed or his activities restricted, whether he is able to withstand the stress of incarceration, and whether he is now in a period of convalescence which medical experts expect to terminate within a reasonable time so that execution of sentence should be temporarily suspended. In light of relator’s proven history of recent and serious heart trouble, the Court should not require his incarceration on a non-violent, non-larcenous misdemean- or without first obtaining such information.


text:
    STATE of Louisiana v. Donald K. ROBINSON.
    No. 59108.
    Supreme Court of Louisiana.
    Jan. 11, 1977.
   In re: Donald Robinson, applying for writs of certiorari, prohibition and mandamus.

Writ granted. The State is ordered to grant defendant a trial on or before January 17, 1977, or release the defendant. In the event of impossibility to comply with this order its right to apply to this Court for relief is reserved.

SANDERS, C. J., and SUMMERS and MARCUS, JJ.,

would not order the release of this applicant as the majority orders. No adequate showing has been made of prejudice and the prescriptive period for this prosecution has not run.


author: TATE, J.,

text:
    Willie Lee WOOD v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
    No. 58903.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Willie Lee Wood applying for cer-tiorari, or writ of review, to the Court of Appeal, 338 So.2d 739, Third Circuit, Parish of Natchitoches.

Writ denied. On the facts found by the court of appeal, no error of law.

TATE, J.,

dissents, being of the view there was no manifest error in the trial court’s determination that the Highway Department’s negligence was a contributory proximate cause of the accident.


text:
    Joseph Michael MONDELLO, III v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS. Willie Lee WOOD v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 58935.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Joseph Michael Mondello, III, individually and as natural tutor for Joseph Michael Mondello, IV applying for Certiora-ri, or writ of review, to the Court of Appeal Third Circuit, Parish of Natchitoches.

Writ refused. On the facts found by the Court of Appeal, 338 So.2d 730, there is no error of law in its judgment.

TATE, J.,

dissents insofar as the passenger is concerned, being of the view there was no manifest error in the trial court’s determination that the Highway Department’s negligence was a contributory proximate cause of the accident.


author: TATE, J., DIXON, J., CALOGERO, J.,

text:
    Clair MARCEAUX v. Wilfred (Lulu) BROUSSARD.
    No. 58937.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Clair Marceaux, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron. 338 So.2d 308.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

TATE, J.,

believes that certiorari should be granted to determine whether Civil Code Article 701 applies to a subportion of tract initially partitioned 25 years earlier, so as to prevent the present owner of this subportion contained in one part of the tract initially partitioned from obtaining access to the nearest public road under Article 699 due to the alleged responsibility of the owner of the other part of the tract initially partitioned to furnish under Article 701 a passage much less convenient and sufficient. See Planiol, Civil Law Treatise, Volume 1, Section 2921 (LSLI translation, 1939).

DIXON, J.,

is of the opinion the writ should be granted.

CALOGERO, J.,

is of the opinion the writ should be granted.


author: CALOGERO, J., SUMMERS, J., DENNIS, J.,

text:
    CARROLL W. MAXWELL LUMBER CO., INC. v. JEFFERSON INSURANCE CO. OF NEW YORK.
    No. 58941.
    Supreme Court of Louisiana.
    Jan. 12, 1977.
   In re: Jefferson Insurance Co. of New York applying for certiorari, or writ of review, to the Court of Appeal, 338 So.2d 370, Third Circuit, Parish of Rapides.

Writ refused. On the facts found by the court of appeal, the result is correct.

CALOGERO, J.,

dissents. In my opinion the court of appeal erred in concluding that Thomas Lashley did not divest his interest in the skidder when on August 21, 1974 he signed the “Voluntary Surrender Form”.

SUMMERS, J.,

is of the opinion the writ-should be granted for the reasons stated by Mr. Justice Calogero.

DENNIS, J.,

is of the opinion the writ should be granted.


text:
    J. L. HASKINS v. Ben J. CLARY, Superintendent of Utilities, et al.
    No. 58896.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: J. L. Haskins, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Lincoln. 338 So.2d 166.

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:
    Dorothy CONELLA et al. v. Bobby JOHNSON et al.
    No. 58909.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Bobby Johnson, et al. applying for Writs of Certiorari, Mandamus and Prohibition.

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 Guy E. Humphries, 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 21st day of January, 1977, 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 the 11th day of April, 1977, 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 ex rel. Quenton N. BROWN v. STATE of Louisiana.
    No. 58916.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Quenton N. Brown, applying for writ of habeas corpus.

Granted. Evidentiary Hearing is ordered on the issue of alleged ineffectiveness of counsel.


text:
    Leonard SCHEXNAYDER et ux. v. James R. CARPENTER et al.
    No. 58920.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Leonard Schexnayder and Dorothy M. Schexnayder, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia. 338 So.2d 344.

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:
    CITY OF LAKE CHARLES v. Earnest BELL.
    No. 58845.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Earnest Bell, applying for remedial writs and Stay Order.

Writ denied. On the showing made there is no merit in this application.


text:
    Isaac H. SOILEAU v. CHET AND KENNYS AUTO PARTS, INC., et al.
    No. 58859.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Isaac H. Soileau applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 337 So.2d 604.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment complained of.


text:
    Judith Drane deBOISBLANC v. Robert deBOISBLANC.
    No. 58865.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Judith Drane deBoisblanc applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 337 So.2d 573.

Writ Denied: The result is correct. We cannot say the court of appeal erred in finding no abuse of discretion by the trial court.


text:
    James L. HIGHSTREET v. REGENCY APARTMENT HOTEL AND RELIANCE INS. CO.
    No. 58866.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: James L. Highstreet applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 337 So.2d 536.

Application denied. The result is correct.


text:
    MEDICORPORATION v. Anna Burglass DUNKER.
    No. 58869.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Anna Burglass Dunker, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 337 So.2d 613.

Writ denied. No error of law.


text:
    CITY OF SHREVEPORT and State of Louisiana v. David P. KAUFMAN.
    No. 58870.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: David P. Kaufman applying for Writ of Certiorari.

Writ refused. No error of law.


text:
    Claude TRICHE, Jr. and Kenneth Triche v. CITY OF HOUMA et al. Dale THIBODEAUX v. CITY OF HOUMA et al.
    No. 58873.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: The City of Houma, Chicago Insurance Co. and Interstate Fire and Casualty Co. applying for Writs of Certiorari, Prohibition and/or Mandamus.

Not considered. No relief has been applied for in the Court of Appeal which has supervisory jurisdiction of the case. Until this is done, this court will not exercise its supervisory jurisdiction in the absence of extraordinary circumstances of great public interest.


text:
    STATE of Louisiana v. Howard A. WOODRUFF.
    No. 58876.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Howard A. Woodruff applying for Writ of Certiorari or Review.

Writ denied. No merit in the application.


text:
    STATE of Louisiana ex rel. Joseph LIVING v. STATE of Louisiana.
    No. 58878.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Joseph Living applying for Writ of Habeas Corpus.

Writ denied. The ruling of the trial court is correct.


text:
    St. George CREAGHE v. Olga Mae Clayton CREAGHE.
    No. 58884.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: St. George Creaghe applying for certiorari, mandamus, prohibition and review.

Writ denied. Insufficient showing to justify the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana, ex rel. Larry Joe PURKEY v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary, et al.
    No. 58887.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Larry Joe Purkey, applying for writ of mandamus.

Writ denied. The application is moot inasmuch as trial court has now acted upon the petitioner’s writ of habeas corpus.


text:
    Elzie A. SHOWS v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY, et al.
    No. 58892.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Elzie A. Shows applying for certio-rari, or writ or review, to the Court of Appeal, Second Circuit, Parish of Jackson. 338 So.2d 162.

Writ denied. No error of law.


text:
    Mercedes REED and Richard K. Reed v. WEST BROTHERS OF EUNICE, LA., INC., et al.
    No. 58897.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: West Brothers of Eunice, La., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 338 So.2d 324.

Writ denied. The issues are factual. On the facts found by the court of appeal, there is no error of law.


text:
    STATE of Louisiana et rel. Lewis Eugene BROWN v. STATE of Louisiana et al.
    No. 58899.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Lewis Eugene Brown, applying for writ of habeas corpus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    CITY OF BATON ROUGE v. Ferris ROBERSON, Jr.
    No. 58901.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Ferris Roberson, Jr. applying for Writs of Certiorari, Prohibition and Stay Order.

Application denied. Even if there were some error involving proof of procedures for administering P. E. I. tests, the admission without objection of the results of the privately made blood test rendered the error, if any, harmless.


text:
    STATE of Louisiana v. Theodore CONRAD, aka Steve Rogers.
    No. 58924.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Theodore Conrad aka Steve Rogers, applying for writs of certiorari, prohibition and mandamus and for Stay Order.

Writ denied. No error in the ruling of the trial judge.


text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORP. v. Orlando LEMON.
    No. 58926.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Southwest Louisiana Electric Membership Corp. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 338 So.2d 367.

Writ denied. On the facts found, the judgments below are correct.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Humble W. THURSTON.
    No. 58929.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: State of Louisiana, through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Union. 338 So.2d 154.

Writ denied. No error of law in opinion of Court of Appeal.


text:
    Kenneth DUTILE et al. v. James AYMOND.
    No. 58930.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: James Aymond applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoch-es. 338 So.2d 350.

Application denied. No error of law in the judgment of the court of appeal.


text:
    Ann Olivier ESTILETTE v. J. D. ESTILETTE.
    No. 58934.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: J. D. Estilette applying for writs of certiorari, mandamus and prohibition.

Writ refused. The showing made is insufficient to show an abuse of trial court’s discretion.


text:
    Carrie Mae HALL et al. v. Greggory J. PONDS et al.
    No. 58939.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Carrie Mae Hall, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 338 So.2d 376.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58991.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Herman Smith, Jr. applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ denied. There is no merit in the application.


text:
    Lloyd FLANNER et al. v. Succession of Thomas J. FLANNER.
    No. 58932.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Mrs. Olga Flanner Bannister and Lloyd Flanner applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 338 So.2d 355.

Writ denied. On the facts found by the Court of Appeal there is no error of law in the judgment.


text:
    STATE of Louisiana v. John LANDRY.
    No. 58905.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: State of Louisiana, applying for writ of certiorari.

Not considered. The relator has not applied to the trial judge and secured a fixing of time for applying for writs following the finality of this court’s decision. See Rule X(b) Rules of this court.


text:
    STATE of Louisiana v. Eddie LeBLANC, Jr.
    No. 58881.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Eddie LeBlanc, Jr. applying for Remedial Writs and Stay Order.

Writ granted. In view of the fact that the evidence establishes the indigence of relator, that portion of the sentence ordering relator to pay Court costs or serve an additional 30 days imprisonment is set aside. See Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971).


author: REDMANN, Judge.

text:
    Clarence THIBODEAUX v. DUDLEY DOWNING AND ASSOCIATES.
    No. 7582.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Philip A. Gattuso, Robert F. Fadaol, Gretna, for plaintiff-appellant.
    Steven K. Faulkner, Jr., Robert L. Simpson, New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal of his claim for a share in his former employer’s commission on the sale of a house whose listing plaintiff had obtained. We reverse.

Plaintiff had left defendant’s employ to establish his own brokerage firm, which actually sold the house and received half of the commission. The trial judge reasoned that on forming his own brokerage plaintiff created a relationship adverse to his former employer’s interest, and that allowing a former employee to recover both the listing agent’s 25% and the selling broker’s full 50% of the commission would grant the former employee a greater portion than he could have recovered had he stayed with his employer. There is merit to the trial judge’s observation that, in effect, defendant broker’s part of the commission would have been greater had plaintiff remained in his employ and there sold the house.

We respond, however, that any other broker could have produced the buyer and thereby received half of the commission, leaving defendant in his present position. Indeed, had plaintiff not produced the buyer, defendant might have gotten no commission at all. Thus another broker’s seeking and finding a buyer is not, in any absolute sense, adverse to the listing broker’s interest. Plaintiff’s actions were not adverse to defendant, and defendant has no cause and no authority to refuse to pay plaintiff the listing agent’s share of the commission which, as held in Ruiz v. Treadaway, La.App.1944, 17 So.2d 378, he had already earned. See also Nebel v. Wise & Miller, 1927, 6 La.App. 773; Barilleau v. Paquet, La.App.1935, 159 So. 418, and Eastman v. Gamble, La.App.1949, 39 So.2d 642.

Reversed; judgment for plaintiff for $311.29 with interest from judicial demand and costs.