text:
    Emilio REYES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1407.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

On this appeal, the defendant argues that the judgment must be reversed because venue was not sufficiently established. We affirm upon a holding that the record affirmatively shows the issue was never-presented to the trial judge and defendant failed to move for acquittal upon that ground or for a new trial. See Smith v. State ex rel. Dade County, 314 So.2d 161 (Fla.3d DCA 1975).

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Florida, Appellant, v. James McCOY, Appellee.
    No. 78-1503.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.

      Janet Reno, State’s Atty., and Arthur Joel Berger, Asst. State Atty., for appellant.
    Alfonso C. Sepe and Alan R. Soven, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate J udge.
   SCHULZ, GEORGE E. (Ret.), Associate Judge.

The State of Florida brings this appeal, seeking review of an order of the trial court dismissing the cause and discharging the defendant for failure of the State to comply with the speedy trial rule. Florida Rules of Criminal Procedure 3.191.

The pivotal question determinative of this appeal is whether or not, under the facts of this case, the defendant was continuously available for trial within the meaning of Florida Rules of Criminal Procedure 3.191(e). We find he was not, and reverse.

The defendant was arrested on December 16, 1977 and was to be tried no later than June 14, 1978 in order to comply with the speedy trial rule. As a result of delays and continuances, not chargeable to the defendant, trial was ultimately set for the week of June 12, 1978. On the morning of June 12, defendant’s counsel appeared and announced he was ready for trial but that he was trying another case before another judge, which he said would be finished in two days. On that representation, the trial court postponed trial and requested that defense counsel check in with the court each morning. This defense counsel did on June 13 and 14, each time informing the trial judge he had not completed trial of his other case. Each day the trial court postponed trial; at no time did the defendant’s court-appointed counsel indicate to the court that anyone other than himself was to handle the trial of the cause. On June 15, defendant’s court-appointed counsel and another attorney (who was formerly associated with court-appointed counsel and had worked on the case) appeared before the trial court, claiming at that time that 181 days had passed since arrest and that the speedy trial rule had run. It was claimed at this time that the second attorney was available at all times to try the cause. Based on that allegation, the trial court entered the order appealed dismissing the cause and discharging the defendant for failure to grant a speedy trial.

Under these facts, it is evident that the defendant was not continuously available for trial within the meaning of Florida Rules of Criminal Procedure 3.191(e) and was not entitled to discharge. The record clearly shows trial was delayed to accommodate court-appointed defense counsel, who was unavailable for trial as he was down the hall trying another case. This accommodation was made without knowledge that someone else would be available to try the cause. The fact that court-appointed counsel was down the hall trying another case shows he was not continuously available for trial [State v. Exposito, 327 So.2d 836 (Fla. 3d DCA 1976)], which cannot be cured by an after the fact representation that another attorney was available to handle the trial.

Accordingly, the order of dismissal is hereby reversed, and the cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.


author: PEARSON, Judge.

text:
    Aline JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1524.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PEARSON, Judge.

Appellant Aline Jackson was charged by information with battery of a police officer and with resisting arrest with violence. A Jury found her not guilty of the battery charge and guilty of the lesser-included offense of resisting arrest without violence. On this appeal, she urges reversible error because, prior to trial, she moved for the production of statements by the officer she was accused of striking, made in a departmental investigation of the officer’s conduct.

Appellant’s trial attorney was fully aware of the investigation and made repeated efforts pursuant to Florida Rule of Criminal Procedure 3.220 to obtain, for use at the trial, statements made by the police officer during the progress of the intra-de-partmental investigation. The trial court denied the various motions for the production of such statements but agreed to conduct, and did conduct at the time of trial, an in-camera inspection of the investigation record. The trial court made a determination that the statements contained therein would not be useful for impeachment inasmuch as they were not inconsistent with the officer’s testimony at trial.

Appellant relies upon this court’s opinion in State v. Dumas, 363 So.2d 568 (Fla. 3d DCA 1978), and authorities cited therein, for a rule that the court must order the production of any police reports which contain a statement made by an officer or agent of the state who recorded such statement contemporaneously with the making thereof.

We hold that this rule does not require the production of statements made at investigative hearings in intra-departmental investigations of the conduct of police officers for the reasons set out in W. B. and D. B. v. State, 343 So.2d 928 (Fla. 3d DCA 1977). See also State v. Johnson, 284 So.2d 198 (Fla.1973), and Poitier v. State, 303 So.2d 409 (Fla. 3d DCA 1974).

Further, we hold that by conducting the in-camera inspection, the court fully discharged its responsibility in seeing that no “Brady” material was contained in' the statements of the police officer.

Appellant’s second point, urging error upon the denial of her motions for mistrial, does not present error under the law stated in Johnsen v. State, 332 So.2d 69 (Fla.1976), and Garcia v. State, 142 So.2d 318 (Fla. 2d DCA 1962).

Affirmed.

KEHOE, J., dissents.

      . This investigation was initiated by the com•plaint of an ambulance driver and the present appellant that the police officer had struck both the present appellant and her husband.

      . “THE COURT: As I indicated this morning, and I think this is a correct ruling, what I intend to do is at the time of the trial as each police officer is called, once he finishes testifying if he has in fact given a statement to the Internal Affairs Department of the Sheriff’s Office, I will read the statement in Chambers and determine whether or not there is any Brady material or impeachable material in it, and if there is such material Til make it available to the defense at that time. That is my ruling on that motion.” ' ■ "


author: PER CURIAM.

text:
    CITY OF NORTH MIAMI, Florida, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Employment Security, and William J. Cummings, Appellees.
    No. 78-2223.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    John H. Lipinski, Miami, for appellant.
    James R. Parks, Miami, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Palm Coast Oxygen v. Pelkey, 364 So.2d 63 (Fla. 4th DCA 1978); Bagwell Lumber Company v. Department of Commerce, 353 So.2d 1261 (Fla. 2d DCA 1978); Pasco County School Board v. P. E. R. C., 353 So.2d 108 (Fla. 1st DCA 1977); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963); § 120.-68(10), Fla.Stat. (1977); and Fla.Admin. Code Rule 8B-5.11(3)(c).


text:
    Donald R. PETTY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1780.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Richard L. Jorandby, Public. Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Freber, 366 So.2d 426 (Fla.1978).

CROSS, ANSTEAD and BERANEK, JJ., concur.


author: LETTS, Judge.

text:
    Henry Frank KING, Appellant, v. STATE of Florida, Appellee.
    No. 77-2132.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Richard L. Jorandby, Public Defender, and Rendell Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal centers around a sentence as a habitual offender. We reverse and remand.

Appellant was convicted by a jury of sexual battery and petit larceny and the trial court so adjudicated; however, sentencing was deferred pending the receipt of a P.S.I. Upon receipt thereof the appellant was sentenced as a habitual offender pursuant to Section 775.084, Florida Statutes (1977) from which sentence he now appeals.

Subsection (3) of the above quoted statute says:

“(3) In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4) . . . (emphasis added)

The appellant does not challenge his prior convictions nor the manner in which they were proven at the hearing. Rather, he asserts that there was no evidence adduced to establish that it was necessary, for the protection of the public, to sentence him to an extended term. We agree. In Chukes v. State, 334 So.2d 289 (Fla.4th DCA 1976), the appellant therein made the same argument because although the State established that he had previously been convicted of a felony within five years of his subsequent conviction, they did not adduce any proof to show that an enhanced sentence was necessary for the protection of the public. In Chukes the court stated:

“It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under Section 775.084, F.S.1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with Section 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled.”

We therefore vacate the enhanced sentence and remand this case for further proceedings. If at that time the court determines that appellant should also be sentenced in accordance with Section 775.084, Florida Statutes (1975), it shall make findings of fact supported by the record before doing so. The findings of fact need not be in writing; findings reported at the sentencing hearing are sufficient to satisfy the statute. Phipps v. State, 352 So.2d 102 (Fla.1st DCA 1977).

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.

      . See Also McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978); Grimmett v. State, 357 So.2d 461 (Fla.2d DCA 1978) and Grey v. State, 362 So.2d 425 (Fla.4th DCA 1978).


text:
    Edward HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2146.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant pleaded nolo contendere to a charge of grand larceny, reserving his appellate rights to review an order denying his motion for discharge under the speedy trial rule.

Appellant’s contention that the speedy trial time had expired is correct unless he was granted a continuance during the period of time in question. We relinquished jurisdiction so that the trial court could make that determination. We now have the trial court’s order in which he found during an evidentiary hearing that appellant’s counsel, an assistant public defender, was going to be on vacation July 13, 1977, and thus requested a continuance of the trial which had been set.

Accordingly, we think the record is now adequate to support the denial of the appellant’s motion for discharge and we affirm the judgment appealed from.

AFFIRMED.

DOWNEY, C. J., and LETTS and BERA-NEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    U SHOP RITE, INC., et al., Appellants, v. RICHARD’S PAINT MFG. CO., INC., etc., et al., Appellees.
    No. 77-2188.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Larry Klein, West Palm Beach, and Harvey C. Poe, Melbourne, for appellants.
    Grady N. White, Melbourne, for appel-lees.
   DAUKSCH, Judge.

This is an appeal from a judgment awarding injunctive relief and a judgment awarding compensatory and punitive damages. We reverse.

The permanent injunction provides “U Shop Rite, Inc., Paint Rite Mfg., Inc., O. A. Griffis, Ronald V. Rowsey and each of them, their agents, servants and/or employees and those acting in concert therewith, directly or indirectly be and they are hereby forthwith jointly and severally, perpetually enjoined and restrained from the manufacture, distribution, sale and/or offering for sale, any and all paint products manufactured, produced, sold or offered for sale by the defendant Paint Rite Mfg., Inc.” A perpetual injunction is unknown to the law, therefore unenforceable through a judgment of the court and the attempt to impose such a sanction is an abuse by the trial court of its equity powers. There was a contract between the appellants O. A. Griffis and U Shop Rite, Inc. as one party, and appellees, Edward J. Richard and Richard’s Paint Mfg. Co., Inc. as the other party, by the terms of which appellants would not “enter into a competitive business such as the paint manufacturing business, within a 350 mile radius of the Richard’s Paint Mfg. Co., Inc. paint manufacturing plant located in Brevard County, Florida, for a ten year period from the date of this agreement.” As worded this agreement limits its no-competition clause to paint manufacturing which competes with Richard’s Paint Mfg. Co., Inc. within 350 miles of the plant in Brevard County for ten years. The injunction which expands the contract duties is erroneous to the extent it expands those duties. The injunction is also excessive where it enjoins persons other than those party to the contract.

As to the judgment for damages, the trial court committed error when it awarded punitive damages in a breach of contract case, since the acts constituting the breach of contract do not also amount to a cause of action in tort. Henry Morrison Flagler Museum v. Lee, 268 So.2d 434 (Fla. 4th DCA 1972). The award of “punitive damages ... in consideration of attorney fees incurred by plaintiffs” was error not only because punitive damages.are not proper but because there was no contractual or statutory right to attorneys fees.

In the course of the trial the judge found “. . .1 don’t have any testimony as to how much it is, and you can say that the court couldn’t allow damages.” Yet he went ahead and awarded compensatory damages of $150.00. We agree with his statement no compensatory damages were proved and decline to accept appellees urging that the judge really meant to say nominal damages, in order to support the punitive damages award. Thus the award of compensatory damages was error.

The judgment is reversed and this cause is remanded for entry of a proper judgment in accordance herewith.

REVERSED and REMANDED.

DOWNEY, C. J., and CROSS, J., concur.


author: LETTS, Judge. DAUKSCH, Judge,

text:
    In re ESTATE of Ruth W. PARKER, Deceased.
    No. 77-2293.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.

      Edna L. Caruso, William A. Johnson of Johnson, Ackerman & Bakst, P. A., West Palm Beach, and Richard C. Sorgini, Lake Worth, for appellant.
    Larry Klein, West Palm Beach, and Day, Williamson, Grantham, Hess & Deason, Lake Worth, for appellee.
   LETTS, Judge.

In this ease the appellant estate petitioned to establish a lost or destroyed will by way of an alleged “correct copy” plus the testimony of the personal representative. The court below denied the petition. We reverse.

There is a dearth of Florida law as to what constitutes a “correct copy.” The problem here presented concerns Chapter 733.207(3) of the Florida Statutes (1977) which provides:

No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised. The content of the will must be clearly and distinctly proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness. (emphasis supplied)

In the instant case the decedent’s lawyer and named personal representative first prepared a handwritten draft of a proposed will and later, with the exception of the insertion of the actual name of the personal representative, had an identical typewritten draft prepared and delivered to the decedent. This typewritten version left spaces for the insertion of; the legal description of a parcel of real estate already fully described by street address, appropriate dates and finally spaces for the signatures of the testator and witnesses. There were also two very minor and obvious typographical errors corrected in pencil on this typewritten version.

The decedent then retyped the final original herself which, according to the testimony of the lawyer, was once more almost identical to the earlier drafts except for the insertion of the legal description in the space left therefor and some trivial address changes for one or two of the named beneficiaries. Apparently this synonymity was established at a proofreading session between lawyer and client upon the conclusion of which two neighbors were immediately summoned to witness the execution of the will. They did so, but were not informed as to its contents.

The will itself, coupled with a pour over provision into a trust, left the bulk of the estate to decedent’s sister and to charity, subject to a life estate in the decedent’s husband. The record is replete with evidence that such is exactly what this strong-willed and alert-minded woman intended.

Upon her death, followed by her husband’s a week later, the husband’s relatives came to town and took over. The original of the charitable will was never found and all that remained was the' two aforede-scribed drafts.

The husband’s relatives, who will inherit if the estate is intestate, contend that the word “copy” mandates an identical transcript, or double, of an original writing and cite various law dictionaries and one case for that proposition. See In Re Jane’s Estate, 18 Cal .2d 512, 116 P.2d 438 (Cal.1941). On the other hand the personal representative claims that a draft with overwhelmingly similar “content” and only insignificant clerical insertions should satisfy the requirements of the statute. See Nugent v. Greenfield Life Association, 172 Mass. 278, 52 N.E. 440 (1899). To that the relatives respond, in the alternative, that even if it is true that a draft with overwhelmingly similar content and only insignificant clerical insertions will suffice, the insertions here are substantial, significant and render the draft produced clearly dissimilar.

We first hold that, in our view, the differences here between the lost will and the typewritten draft are not significant enough to refute the correctness of the draft. The two are indeed identical in content and wording, except for trivial typographical errors and single digit corrections of some street addresses of otherwise fully identified beneficiaries. The lone exception is the insertion of a legal description to a parcel of real estate. This parcel was already fully set forth by street address and there would be no problem whatever in distributing the estate if said legal description had been excluded altogether. To insert it is good practice but in effect redundant. All this being so, we find the typewritten draft to be substantially identical to the executed will and therefore correct.

We are aware that when a will is lost or destroyed, the presumption is that the testator destroyed it with the intent of revoking it. In Re Washington’s Estate, 56 So.2d 545 (Fla.1952). However, we feel the presumption is overcome here. Only a week before her unexpected death, the decedent discussed her charitable bequests and she had a history of giving to educational institutions. She was well aware that her feeble, hospitalized husband had a limited life expectancy. The decedent was also knowledgeable and conscious of the consequences of taxation. All this being so, we are persuaded that the estate has carried the burden of proving that she did not intend to destroy the will and thus enrich her husband’s relatives.

The problem remains as to whether the draft presented, satisfied the statutory requirement of a “correct copy.” We are unhappy with the choice of legislative language in this entire section. For example, if there are two disinterested witnesses, there is apparently no requirement to have any written material to establish the will and said witnesses can establish it merely by testifying as to its “substance.” However, if, as here, there is only one disinterested witness, the standard then requires a “correct copy.” The question then is what the legislature had in mind when choosing these two words.

The relatives cite what appears to be the prevailing law in other jurisdictions to the effect that a copy must be an identical instrument to the original. See 9A Words and Phrases, 336 et seq. (1960). Under this definition the present draft would be unacceptable for it is neither a xerox nor a carbon copy and it is not identical.

We must then interpret what the legislature intended when it placed the word correct before the word copy. Is “correct” redundant? Can one have an in correct copy? Definitions of the word correct, in the sense it is used here, run the gamut from identical to “conforming to or agreeing with fact, logic or known truth.” Webster’s Seventh New Collegiate Dictionary (1971). Another frequent comparative adjective is “accurate” and in the same dictionary the synonyms for correct are; accurate, exact, precise and right. In that same order, each is given a higher standard of fidelity to the original and of “right” it is said:

Right is close to correct but has a stronger positive emphasis on conformity to fact or truth rather than mere absence of error or fault.

Returning now to the legislative purpose, it is obvious that it was to facilitate the carrying out of every testator’s intent notwithstanding that the actual original is missing. This intent is the polestar of all construction in probate matters. In Re Johnson’s Estate, 347 So.2d 785 (Fla. 1st DCA 1977), aff’d 359 So.2d 425 (Fla.1978). We are united that the record clearly reflects that this decedent intended to dispose of the bulk of her property in the manner set forth in the typewritten draft, rather than have it pass to her husband’s relatives. The decedent and her attorney proofread the original will against the typewritten version and the attorney testified as to the insignificant differences between the one and the other. Accordingly, we find the draft to be an accurate and correct reflection of the lost original and we construe it to satisfy the statutory language. It may not be an identical instrument, but it is an accurate one and, as we have said, the previous subparagraph of the statute does not require any kind of copy at all if two witnesses be available. That being so, surely an accurate and correct draft, coupled with the testimony of one witness, should satisfy the legislature’s requirement and intent. In this context, we see no difference between a draft and a copy. Neither the one nor the other would be signed and the purpose of both would be to accurately reflect the original. If the document here presented had been a xerox copy, we would certainly not have excluded it because of insignificant clerical insertions made on the original after the xerox copy was produced. To do so would both defeat the purpose of the statute and patently frustrate the testator’s intent.

Notwithstanding our conclusion, arrived at in so labored a manner, we are concerned about the well reasoned language adopted by the court below. In denying probate it said:

The key word [two words would be more accurate] as stated in the above statute is “correct copy.” It is in fact a copy of a draft which was alleged to have been copied by decedent . . .. The facts and testimony are wholly insufficient to prove the contents of the document signed by the decedent.

We disagree, but recognizing the far reaching effect of our decision and conceding its novelty, we deem the issue to be of great public interest, and hereby certify the following question to the Supreme Court:

UNDER CHAPTER 733.207(3) OF THE FLORIDA STATUTES (1977) DOES THE LANGUAGE “CORRECT COPY” MANDATE AN IDENTICAL COPY SUCH AS A CARBON OR XEROX COPY OR WILL A SUBSTANTIAL CORRECT COPY SUFFICE?

This cause is reversed and remanded for the entry of a judgment in accordance herewith.

REVERSED and REMANDED.

DOWNEY, C. J., and DAUKSCH, J., concur.

DAUKSCH, Judge,

concurring specially:

I concur in the well reasoned conclusion and suggest it should be just that, a conclusion to this litigation. I perceive no great public interest in the posed question and see no reason for our Supreme Court to invoke its jurisdiction.

      . A retired IRS agent with no established law office or secretarial staff.

      . E. g. “I (the witness) said you (the decedent) said your family didn’t need it and they all have plenty, and she (the decedent) said that’s true. And I’ll say it again. She (the decedent) says my money is going to my favorite charities and that was the Sunday before she passed away.”

      . Syn. correct, accurate, exact, precise, nice, Right mean conforming to fact, standard, or truth, correct usu. implies freedom from fault or error as judged by some standard; Accurate implies fidelity to fact or truth attained by exercise of care; Exact stresses a very strict agreement with fact, standard, or truth; Precise adds to exact an emphasis on sharpness of definition or delimitation; Nice stresses great precision and delicacy of adjustment or discrimination; Right is close to correct but has a stronger positive emphasis on conformity to fact or truth rather than mere absence of error or fault. Webster’s Seventh New Collegiate Dictionary (1971).


text:
    A. Kenneth PINCOURT, Jr., Appellant, v. Frances B. OYLER, f/k/a Frances B. Pincourt, Appellee.
    No. 78-82.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Sidney M. Dubbin, West Palm Beach, for appellant.
    No appearance by appellee.
   DAUKSCH, Judge.

In this post-judgment dissolution matter the trial court erred in reducing to judgment a debt allegedly owed by the appellant to the appellee. The motion upon which the relief was sought was insufficient to support the judgment and apparently the appellant was not given an opportunity to present a partial defense. The judgment is reversed and this cause is remanded for further proceedings should the appellee properly seek relief.

CROSS and MOORE, JJ., concur.


text:
    SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Gail HARRIS, Individually, and as Administratrix of the Estate of Donald E. Harris, Deceased, Appellee.
    No. 78-507.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Robert A. Wohn, Jr. of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Rockledge, for apjpellant.
    Hale Baugh of Stromire, Westman & Lintz, Cocoa, for appellee.
   PER CURIAM.

We have considered all of appellant’s contentions on this second appeal in this case Fla.App., 353 So.2d 613 and find them to be without merit. Accordingly, the order appealed from is affirmed and the appellee’s motion for allowance of attorney’s fees is granted in the sum of $1500.00.

DOWNEY, C. J., and LETTS and MOORE, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Stephen J. BOROVINA, CG 007016, Appellant, v. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 78-527.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Jordan I. Fields, Stuart, for appellant.
    Barry S. Sinoff and Jeffery B. Morris of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks review of a final order of the Florida Construction Industry Licensing Board revoking appellant’s Certified general contractor’s license.

An administrative complaint was filed against appellant by the Florida Construction Industry Licensing Board charging appellant, a licensed general contractor, with violating Section 468.112(2)(b) and (c), Florida Statutes (1977), by conspiring with and aiding and abetting an uncertified or unregistered person to engage in unauthorized construction activities. Pursuant to the Administrative Procedure Act, a hearing was held on September 9, 1977, and as a result thereof the Hearing Officer rendered a Recommended Order proposing to dismiss the administrative complaint in its entirety. On February IS, 1978, the Florida Construction Industry Licensing Board entered a final order revoking the appellant’s general contractor’s license. Said final order, in pertinent part, states:

“The FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD on February 10, 1978, after reviewing a complete transcript of the Administrative Hearing, by motion duly made and seconded voted to revoke the certified general contractor’s license of STEPHEN J. BOROVINA. It is therefore,
“ORDERED that the certification of respondent STEPHEN J. BOROVINA, Number CG C007016, be and is hereby revoked.”

On appeal it is contended that the agency’s final order is fatally defective for failure to comply with Section 120.57(l)(b)(9). of the Florida Administrative Procedure Act. The aforesaid section sets out the procedure to be followed when an agency reviews a Recommended Order of a Hearing Officer. It provides:

“(9) The agency may adopt the recommended order as the agency’s final order. The agency and its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court reverses an agency’s order, the court in its discretion may award attorney’s fees and costs to the aggrieved prevailing party.” Section 120.57(l)(b)(9), Florida Statutes (1977). (Emphasis supplied.)

The final order of the agency, under review, totally failed to follow the mandate of the foregoing section. In pertinent part, the order simply stated that the Board had reviewed a complete transcript of the administrative hearing and voted to revoke the contractor’s license. This will not fit the bill. The purpose of the statutory requirements relative to the agency review of the Hearing Officer’s Recommended Order is to afford the Hearing Officer’s findings and conclusions, the dignity usually afforded the findings of a special master. As the Third District Court of Appeal stated in Venetian Shores Home and Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3rd DCA 1976):

“We believe the entire tenor of the provisions of the Administrative Procedure Act having to do with the functions of a Hearing Examiner leads to the inescapable conclusion that the action of the agency, after a full hearing, is in the nature of a procedural review. Extensive provisions are made for remand or correction where the hearing is not complete or in accordance with the rules of due process, but there is no provision which suggests that -the agency should make a new judgment upon the evidence. This relationship between agency and examiner is not new to the law. The rule long applied in chancery matters is that where a master is appointed to take the evidence and report the same, together with his findings of fact and conclusions of law, his findings should be approved by the chancellor unless clearly erroneous or it appears that the master has misconceived the legal effect of the evidence. Frank v. Frank, Fla.1954, 75 So.2d 282. We do not think that the Administrative Procedure Act can be read to grant to the head of an agency greater powers over an examiner’s findings than those of a trial judge over the findings of a master in chancery.” 336 So.2d at 401.

Numerous cases have held that when an agency rejects or modifies the findings of a Hearing Officer it must strictly comply with the terms of the aforementioned statutory section. Turner v. Florida State Board of Chiropractic Examiners, 356 So.2d 1315 (Fla. 4th DCA 1978); Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla. 4th DCA 1978); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977); Campbell v. State Department of Transportation, 326 So.2d 66 (Fla. 4th DCA 1976).

In view of the agency’s failure to follow the mandate of Section 120.57(l)(b)(9), Florida Statutes (1977), the order appealed from is reversed and the cause is remanded with directions to the Florida Construction Industry Licensing Board to further consider the matter and enter such order as it may be advised in conformity with said section.

REVERSED and REMANDED, with directions.

LETTS and MOORE, JJ., concur.


text:
    Lance WOODWORTH, Appellant, v. DEPARTMENT OF EDUCATION, OFFICE OF BLIND SERVICES, Appellee.
    No. 78-728.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Jerome J. Bornstein of Bornstein & Pe-tree, Orlando, for appellant.
    James D. Little, Gen. Counsel, State Board of Education, Tallahassee, for appel-lee.
   DAUKSCH, Judge.

This is an appeal from an Opinion and Order from the Career Service Commission which affirmed the action of the appel-lee of dismissing the appellant from his employment as a vocational rehabilitation counselor. Our scope of review is limited and defined by Section 120.68, Florida Statutes (1977) and within those guidelines we find no error. There were certain disputed facts which were resolved by the factfind-ing body and after a resolution of those disputed facts there is substantial competent evidence to warrant the finding of guilt. There was evidence the appellant disobeyed proper orders of his superior, failed to follow established standards of communications within the agency by “going over his supervisor’s head” to voice grievances and otherwise caused disruption, all of which led the employer to determine appellant’s presence was counter-productive. Appellant urges he was motivated by a proper consideration for his clients best interests and any breaches of the rules were not such to warrant such a harsh penalty as dismissal. We have no authority to review the penalty so long as it is within the limits allowed by law. Florida Real Estate Commission v. Webb, 367 So.2d 201. (Fla.1978). The penalty was within the limits of the authority of the appellee. Section 110.-061(1). Florida Statutes (1977).

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    TURNER COMMUNICATIONS, INC., Appellant, v. Lawrence H. ROGERS, II, Victor E. Ferrall, Jr., Paul W. Chellgren, Orin E. Atkins, James J. Zand, Edward F. Starr, Jr., in his official capacity as Receiver of Sun World Broadcasters, Inc., Sun World Broadcasters, Inc., and Omega Communications, Inc., Appellees.
    No. 78-2543.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Ernest J. Rice of Lowndes, Drosdick & Doster, Orlando, for appellant.
    Eli H. Subin of Subin, Shams, Rosenbluth & Moran, P. A., Orlando, for appellee Edward F. Starr, Jr., Receiver.
    • George E. Adams of Adams & Hill, Orlando, for appellee Omega Communications, Inc.
   PER CURIAM.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

Appellant filed a complaint alleging the trial court should reconsider a previously entered judgment.

This complaint set out certain allegations which appellant urges showed a fraud was perpetrated upon the court in persuading the judge to enter the judgment. The complaint also alleges it is brought “pursuant to Rule 1.540(b) of the Florida Rules of Civil Procedure to set aside a judgment.”

Rule 1.540(b), Florida Rules of Civil Procedure was not designed to establish a cause of action and a rule of procedure could not do so. If a party to a lawsuit seeks to set aside a judgment it can seek that relief by motion before the trial court, just as the rule says. It is not by filing a complaint and thus constituting a new supposed cause of action that brings forth the relief available under the rule.

The trial court properly dismissed the complaint with prejudice.


text:
    Susan LYNCH, Petitioner, v. CITY OF DEERFIELD BEACH, a Municipal Corporation, Broward Ambulance Corporation, a Florida Corporation, d/b/a Atlantic Intercity Ambulance, and North Broward Hospital District, d/b/a North Broward Hospital, Respondents.
    No. 79-546.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Ted H. Bartelstone and Leonard H. Rubin and Sinclair, Louis, Siegel & Heath, Miami, for petitioner.
    Robert G. Welcher of Ryskamp, Welcher & Carrier, Miami, Dieter H. Gunther of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for respondent-City of Deerfield Beach.
    George B. Pomeroy of Pomeroy, Betts & Wiederhold, Fort Lauderdale, for respondent-Broward Ambulance.
    Ellen Mill Gibbs of Gibbs & Itkin, Fleming, O’Bryan & Fleming, Fort Lauderdale, for respondent-North Broward Hospital.
   PER CURIAM.

By Petition for Certiorari we are asked to review an interlocutory order of the trial court denying petitioner’s motion to strike two affirmative defenses. One defense alleged the defendant’s liability, if any, was limited to $50,000 pursuant to Section 768.-28, Florida Statutes (1978), while the other defense alleged failure of the plaintiff to present the claim in writing to the Department of Insurance, pursuant to Section 768.28, Florida Statutes (1978).

It is abundantly clear that the error ascribed to the trial court’s ruling can be adequately rectified on plenary appeal. As we have repeatedly held, this court will not grant certiorari to consider alleged errors committed in interlocutory orders when an adequate remedy is available by plenary appeal. Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975). See also: Esler v. Gabinet, 369 So.2d 93 (Fla. 4th DCA 1979).

CERTIORARI DENIED.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


author: HALL, Justice Ad Hoc.

text:
    Nathan WALKER, Jr., et ux. v. UNION OIL MILL, INC., et al.
    No. 62994.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied May 4, 1979.

      R. L. Davis, Jr., Theus, Grisham, Davis & Leigh, Monroe, for defendants-respondents.
    Jack F. Owens, Jr., Reeves & Owens, Jonesville, for plaintiffs-applicants.
   HALL, Justice Ad Hoc.

The parents of a fifteen-year-old boy brought this wrongful death and survival action for the death of their son who became trapped and suffocated in a soybean storage tank owned and operated by the defendants. The district court rendered judgment for plaintiffs and all parties appealed; defendants as to liability and plaintiffs as to quantum. The Court of Appeal reversed, holding plaintiffs failed to prove negligence on the part of defendants and were not entitled to recover under the doctrines of res ipsa loquitur or attractive nuisance. 360 So.2d 894 (La.App. 3rd Cir. 1978). We granted certiorari to review the court of appeal’s conclusion that defendants were not guilty of actionable fault in leaving a fifteen-year-old boy alone and unsupervised on the premises of the storage facility. After review we conclude the judgment of the court of appeal is correct.

Nathan Walker, Jr., and Martha Walker, the decedent’s parents, originally brought this action in 1959 against the owner of the storage tanks, Union Oil Mill, Inc., the storage facility operator, Victor Cross d/b/a United Elevator Company, and their liability insurer, Employers Liability Assurance Corporation, Ltd. The case was tried on the merits on June 17, 1960 and then taken under advisement by the trial court.

Martha Walker died in 1962 and on June 16, 1965 her heirs were substituted as parties plaintiff. Immediately thereafter all plaintiffs moved for summary judgment. On June 24, 1965 defendants filed an exception of unauthorized use of summary proceedings directed toward plaintiffs’ motion for summary judgment and exceptions of no cause of action’and prescription, attacking the substitution of Mrs. Walker’s heirs as parties plaintiff. Although these exceptions were set for trial on three separate occasions, the record indicates that no action was taken on them. There was no further activity regarding this matter until September 22, 1977 when the court rendered judgment in favor of Nathan Walker, Jr. in the amount of $1000 and in favor of the heirs of Martha Walker in the amount of $25,000. The judge who presided at the trial had died and a successor judge decided the ease.

The facts are as found by the Court of Appeal:

“The tank in which young Nathaniel lost his life is part of a large grain elevator facility which is used for the storage and processing of soybeans and grain in Ferri-day, Louisiana. This facility consists of five cylindrical tanks along with several structures and other supporting equipment. Four of these tanks are situated in a line adjacent to a road and are used mostly for the storage of soybeans. A cross conveyor apparatus traverses the tops of these tanks. A ladder affixed to the exterior of one of the tanks allows a person to reach the top of any of the four tanks.

“Tank number 1 in which Nathaniel met his death, measures 19 feet in diameter with a height of 40 feet, 4 inches. Access to the interior of this tank was provided by means of a manhole located in the top of the tank measuring 1 foot, 7 inches in diameter, and also by a small door located in the side of the tank approximately 12 feet above the ground. This side door opens inward, and thus can be opened only when the level of ■ the beans in the tank falls below the level of the door. Otherwise, pressure from the inside makes this door impossible to open. However, entrance by way of the top manhole can be made at any time, regardless of the level of the beans in the tank. A wooden ladder extends from the manhole down into the tank, allowing a person to descend until he is standing on top of the beans. There are no locks to prevent unauthorized pérsons from entering the tank through either the side or top entrance. There are no warning signs present.

“Part of the storage process requires a continuing transfer of the beans from one storage tank to another. This is accomplished by allowing the beans to drain out of the tank by means of gravity flow through a six inch line where they are then conveyed elsewhere. However, when the level of the beans drops to a certain point, gravity is no longer sufficient and the beans will cease flowing on their own. A motor is then used to turn a screw in the center of the tank which pulls the remaining beans out. While being emptied, it is necessary for someone to stand by outside of the tank to clear the line should it become clogged with foreign matter.

“There is no danger to a person entering the tank while it contains beans, .if the beans are not moving, i. e., if they are not being drained out of the tank. But it is dangerous to enter the tank if the beans are being transferred as they have a tendency to cave in.

“After the level of the beans drops below the side door, it often becomes necessary for someone to enter the tank to rake or knock some of the remaining beans loose with sticks. However, this is only done when the bean level’ is near the bottom of the tank.

“Nathaniel’s older brother, James Henry Lewis, was employed at the grain elevator. The record shows that Nathaniel hung around the grain elevator and sometimes assisted his brother with some of the cleanup work. At trial, Mr. Cross denied that Nathaniel was an employee or that he had ever observed him in the tanks. There is some evidence to the effect that Mr. Cross had on occasion instructed James Henry Lewis to give Nathaniel some money out of his paycheck. This was denied by Mr. Cross, who further testified that Nathaniel had been advised to leave the premises quite often. Nathaniel had been in the tanks with his brother when the latter’s duties required him to enter them to rake out the remaining beans when they reached a low level. James Henry Lewis testified that Nathaniel was familiar with the premises and knew how the entire operation worked.

“The record indicates that on the morning of December 18, 1958, tank number 1 was approximately % full. The beans were being transferred out of the tank by means of the gravity flow process described above. James Henry Lewis was on duty that morning. He testified that Nathaniel was there that morning to assist him with some cleaning under the scales.

“Victor Cross’ brother, Howard, sometimes assisted in the operation of the grain elevator. He testified that he stopped by soon after 9:00 A.M. He advised Nathaniel to go home and then left the premises.

“Nathaniel left sometime before noon. After a break for lunch, both Janies Henry Lewis and Nathaniel returned to the grain elevator at about 1:00 P.M. James Henry Lewis testified that he left the premises at about 2:00 P.M. to visit with a cousin. When he left, Nathaniel was around the base of the tanks. When he returned about fifteen or twenty minutes later, he was no longer there. He did not search for Nathaniel, as he thought he had gone home. The next day, Nathaniel’s body was recovered from the tank. At that time, the tank was approximately lh full.

“. . . There is no evidence in the record tending to show that the tank in question or its appurtenances were in any way defective in design or construction. We cannot say that a bean storage tank is a dangerous instrumentality per se. .

“It is reasonable to conclude that Nathaniel entered the tank by way of the top manhole, as the level of the beans in the tank would prevent access through the side door. However, there is a complete absence of evidence showing how he came to be trapped in the beans themselves. We do not know how or why he came to the inside of the tank. We do not know if Nathaniel lost his balance and fell into the tank while peering inside, or if he voluntarily climbed down into the tank and then somehow became engulfed in the beans. Any attempt on our part to resolve this matter would be based on pure speculation and conjecture.”

Plaintiffs, who are granted a right of action under Civil Code Article 2315 for their son’s wrongful death, may recover if they can prove that: defendants had a duty to observe a certain standard of care toward the youth; defendants breached this duty by falling below that standard; defendants’ breach of this duty was a cause-in-fact of the youth’s death; and the harm which actually occurred was the sort of harm that defendants’ legal duty was designed to prevent. Boyer v. Johnson, 360 So.2d 1164 (La.1978).

Plaintiffs contend defendants had a duty not to knowingly leave a fifteen-year-old alone and in charge of this mechanical grain elevator operation with all of its attendant dangers, including particularly the danger which resulted in the lad’s death, and that defendants should be held to the highest degree of care and constant vigilance.

If plaintiffs’ ■ contention accurately defines defendants’ duty and standard of care owed to the decedent, then liability would follow because there was a breach of duty by leaving him alone on the premises, the breach of duty was a cause-in-fact of the accident which probably would not have happened if he had not been left alone and the harm which occurred was the sort of harm the duty was designed to prevent.

The inquiry in this case, therefore, focuses on the duty and standard of care owed by these defendants to this particular person who was harmed, considering the facts and circumstances of this case. It might be that a breach of a general duty, although a eause-in-fact of the harm, might not impose liability for the harm because the duty was designed to protect some other potential victim. LeJeune v. Allstate Insurance Co., 365 So.2d 471 (La.1978).

In determining an owner’s liability under Civil Code Articles 2315 and 2316 the test has been stated to be whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976). The owner and operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In determining a particular defendant’s duty consideration should be given to the nature of the facility and the dangers presented by it. In considering a defendant’s duty to a particular person, consideration should be given to the person’s age, maturity, experience, familiarity with the premises and its dangers, and other such factors which might increase or decrease the risk of harm to that person. The duty would be greater to a person of young age and immature judgment. It would be lesser to a person with experience, knowledge and familiarity with the premises.

The storage facilities and operation were not dangerous to persons on or around the premises, even while the beans were being transferred. The facility did not present a multitude of hazards. The only mechanical operation taking place was the conveyance of the beans by an auger conveyer, completely enclosed, from the tank being drained to another tank. The only function of an employee during this process was to loosen the beans by poking a stick up the six-inch drain pipe if they became clogged, a completely harmless task. There was no occasion during this stage of the process to go to the top of the tanks or to enter the manhole at the top of the draining tank. It was only necessary to go into the tank to assist the flow of beans when the level of the beans was below the side door, which it was not when the accident happened. The only demonstrated danger presented by the entire facility and operation was to one who climbed the ladder to the top of the tank and entered the hole at the top of the tank. Considering the physical remoteness of danger, the effort one had to make in order to encounter the danger, and the lack of any necessity for doing so, it cannot be said that the facility and operation was a hazardous or dangerous instrumentality or that it posed an unreasonable risk of harm to persons who were in the vicinity of the facility.

Nathaniel was fifteen years old and, according to his mother, had the appearance of a grown man — tall and stout. He had been hanging around the facility and working there assisting his brother off-and-on for several months or a year. According to his brother, he was entirely familiar with the operation. According to his brother, he had never been on top of the tanks and had never entered the tanks from the top. Nathaniel attended school and there is no evidence to indicate he was other than a normal fifteen-year-old. He was old enough to be aware of and to appreciate the limited dangers of the operation. The evidence does not establish that he was left in charge of the facility during his brother’s brief absence or that he was expected to perform any duties connected with the facility during the brother’s absence.

Given these facts, the defendants’ general duty to exercise reasonable care for the safety of those in and around the premises did not include the duty to exercise constant supervision of the decedent. The conduct of defendants’ employee, Nathaniel’s brother, in leaving Nathaniel alone on the premises in a position- of apparent safety for a period of 15 to 20 minutes was not substandard or blameworthy, nor did it expose Nathaniel to an unreasonable risk of harm. There was no breach of any duty owed to this particular person harmed.

Plaintiffs urge the applicability of the doctrines of res ipsa loquitur and attractive nuisance. We agree with the court of appeal that neither doctrine is applicable in this case. Res ipsa loquitur is merely a rule of circumstantial evidence whereby negligence is inferred on the part of the defendant because the facts indicate such to be the most probable cause of the injury. The real test of applying res ipsa loquitur is: Do the facts of the controversy suggest negligence of the defendant, rather than some other factor, as the most plausible explanation of the accident? Application of the principle is defeated if an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). Res ipsa loquitur does not apply if there is sufficient direct evidence explaining the occurrence and establishing the details of the negligence charged. King v. King, 253 La. 270, 217 So.2d 395 (1968).

In this case, all of the defendants’ actions complained of are established by direct evidence. Only the actions of decedent remain partially a mystery. If the facts concerning his actions suggest anything at all, it is that the accident was caused by decedent’s negligence rather than that of defendants.

Regarding attractive nuisance, application of this doctrine necessarily includes a finding that the injured child was too young to understand and avoid the danger. Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791 (1949); Richards v. Marlow, 347 So.2d 281 (La.App. 2d Cir. 1977). The decedent not only was old enough to perceive the danger but had actual knowledge of the danger because of his familiarity with the operation.

Having concluded on the merits that plaintiffs are not entitled to recover, it is unnecessary to consider issues raised by defendants concerning abandonment of the action by non-prosecution and untimely substitution of parties plaintiff.

The judgment of the court of appeal is affirmed. All costs are assessed to the plaintiffs.

DIXON, J., dissents.

      . One of the judges of the three-judge panel of the court of appeal concurred in the result on the basis that the decedent was presumptively an employee of defendants and his survivors’ rights are governed exclusively by the Workmen’s Compensation Law. Both sides take the position that the decedent was not an employee and that the Workmen’s Compensation Law is not applicable. Although serious arguments to the contrary could be made based on the facts developed at trial, this court accepts the position of the parties that their rights and liabilities should be determined under tort law.

      . The facts as found by the court of appeal differ significantly from the ultimate factual conclusions made by the trial court from its review of the transcript. Since the trial judge who decided the case was not the same judge who tried the case, the manifest error rule is not applicable. In any event, the court of appeal’s findings are accurate and correct.


author: DIXON, Justice.

text:
    STATE of Louisiana v. James Albert ANDREWS.
    No. 63151.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearing Denied May 4, 1979.

      Stephen J. Hornyak, Gretna, Gordon S. Patton, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Kenneth L. Sanders, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DIXON, Justice.

Defendant, James Albert Andrews, was-charged with the first degree murder of Herbert Harris. (R.S. 14:30). On December 7, 1977 a jury found defendant guilty as charged. Following a sentence hearing pursuant to C.Cr.P. 905 et seq., the jury recommended that defendant be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, and defendant was sentenced on December 22, 1977. Relying on three assignments of error, defendant now appeals his conviction and sentence to this court.

The state adduced the following facts: on. the evening of August 8, 1977 defendant was playing football with Herbert Harris and other neighborhood teenagers in Marre-ro, Louisiana; at some point, defendant and Harris began to argue, apparently over who was the better football player, but no physical fight took place. However, defendant announced that he was going home to retrieve his tennis shoes. A short while later, defendant returned, armed with a knife, walked up to Harris and stabbed him fatally in the heart. Defendant then left the scene, but was later arrested.

Assignment of Error No. 1

Defendant argues that the trial court erred in permitting a state witness to testify about a diagram he had prepared. The defense objection was based on hearsay and the right of confrontation. At trial state witness Don Carson, a Jefferson Parish evidence custodian and crime lab technician, testified that in connection with his work he prepares diagrams of crime scenes; that he had no formal training, but did have two and one-half years practical experience; and that he has diagramed over sixty locales. He stated that it is not unusual for him to prepare a diagram on the basis of measurements provided by another officer which was the procedure he had used in the instant case. When the state asked Mr. Carson to identity S-6, the sketch, the defense counsel objected on grounds of hearsay because Mr. Carson did not take the measurements.

In Louisiana the rule concerning the introduction of demonstrative evidence is that the foundation laid must establish that it is more probable than not that the evidence is connected with the case and that the evidence has some relevance which the trial court considers sufficient to warrant its introduction. State v. Drew, 360 So.2d 500, 518-19 (La.1978) and cases cited therein. Ultimately connexity is a factual matter for determination by the jury. State v. Drew, supra; State v. King, 355 So.2d 1305 (La.1978). Maps or diagrams generally are admissible to aid the jury in understanding testimony if shown to be an accurate representation of the subject matter in question and the ruling of the trial court relative to admissibility will not be disturbed on appeal unless there has been abuse of discretion. 3 Wharton’s Criminal Evidence, § 641 (13th ed. Torcia, 1973). See also United States v. Goodwin, 470 F.2d 893 (5 CA 1972). In State v. Triplett, 285 So.2d 532 (La.1973), where the arresting officer had returned to the scene and drawn a sketch, this court held that admission of the sketch at trial was not an error. In so concluding, this court noted that the fact that the sketch was not absolutely accurate in every detail and distance did not negate its relevancy or render it inadmissible, but rather would go to the weight accorded the sketch by the jury.

In the present case, the technician who took some of the measurements and prepared the sketch and the detective who also took some of the measurements both testified that the sketch appeared accurate. The mere fact that the preparer relied on some measurements taken by another is not critical under these circumstances when both parties are subject to cross-examination. Further, as the state contends in brief, the diagram and related testimony were admitted not to show the truth of the measurements used in its preparation but merely to aid the jury in understanding the ease. There is no substantial hearsay violation. R.S. 15:434; C.Cr.P. 921.

This assignment is without merit.

Assignment of Error No. 2

Defendant argues that the trial court erred in refusing to allow Dr. Arnoult, a psychologist specializing in educational psychology, to testify as to defendant’s prior medical history. In brief defense argues that Dr. Arnoult’s testimony should have been admitted over the state’s hearsay objection as an exception to the hearsay rule. He contends that the excluded medical history involved ordinary diagnostic findings based on objective data whose trustworthiness is satisfied without cross-examination and the Mississippi physician who treated defendant is deceased, thus necessitating the proffer evidence. Defendant counsel argues that his case was prejudiced by the exclusion because he was barred from proving that defendant suffered from a disease of the mind which prevented him from contemplating the natural and probable consequences of his actions or rendered him unable to distinguish right from wrong.

Although not admissible as evidence of the truth of the facts stated, a statement by a patient to a physician as to past matters, including past medical history, may be included in the physician’s testimony to show the basis for his opinion. Wharton’s Criminal Evidence § 312 (13th ed., Torcia, 1972); C. McCormick, Evidence § 293 (Cleary ed. 1972); State v. Watley, 301 So.2d 332 (La.1974). Medical experts are expected to rely in part on tests and examinations performed by others in arriving at their opinions and this reliance does not render their opinions inadmissible hearsay. State v. Nicolaus, 340 So.2d 296 (La.1976); State v. Vincent, 338 So.2d 1376 (La.1976). Although the expert witness in the present case is a psychologist, rather than a physician, these rules apply equally to him when he is testifying in the area in which he has special training and experience. See R.S. 15:464. As in the case of any expert witness, the nature and extent of his education, training or experience should go to the weight of his testimony, rather than its admissibility. See Wharton’s Criminal Evidence, supra at § 590.

In the present case, defendant pleaded not guilty and not guilty by reason of insanity. C.Cr.P. 552. After the state rested its ease, the defense called Dr. Joseph F. Arnoult, who was qualified as an expert in the field of psychology without objection. R.S. 15:464; R.S. 15:466. When the witness began to relate defendant’s history as a predicate to the procedures used when Dr. Arnoult examined defendant and compiled his results, the state objected on grounds of hearsay. Then the trial court questioned Dr. Arnoult as to the extent of his proposed testimony, and he stated, “I was going to bring out the fact of an illness twice that occurred with some underlying factors, that could possibly be the reason why the subject is having difficulties.” Defense counsel added, “We are talking about something that happened in the ’60’s, the people are in Mississippi, and we can’t get the medical records, because the doctor who treated him is dead . . . ” After some further discussion out of the presence of the jury, the trial court ruled that Dr. Arnoult could not testify as to organic diseases because he did not have any personal knowledge in that regard having received the information from defendant and his parents.

After the trial court’s ruling, Dr. Arnoult continued to testify about the test he administered to defendant and the results he compiled. During his testimony, Dr. Ar-noult stated that defendant exhibited indicators of brain damage, “probably due to the extremely high fever he had as a child.” He further stated that although defendant appeared emotionally stable, he would have a hard time dealing with an environment geared to the average population and would also have a “difficult time dealing with rage and extreme emotional levels due to his organic brain damage.” Finally, he added that it would be possible for defendant to commit an act and “for him not to know why the act is being committed, just acting on impulse . . . ”

In the instant case, although Dr. Arnoult was prevented from fully testifying to defendant’s medical history which defendant and his parents related to him. Dr. Arnoult did state before the jury that the accused had suffered from a high fever during childhood which apparently caused organic brain damage and that brain damage was evidenced in the results of the tests Dr. Arnoult administered. Moreover, in all other respects, Dr. Arnoult was permitted to testify freely concerning the nature of the tests, defendant’s performance on these tests, and his opinion as to defendant’s mental capacity based on these test results. Further, after Dr. Arnoult’s testimony, defendant’s mother testified that in 1963 defendant had a temperature of 105 degrees, had gone into convulsions, and was treated by “Dr. Bob” in Mississippi, who was deceased, and that in 1966 or 1967 defendant had another “attack” and was treated by Dr. Caruso who was still practicing on Bar-ataría Boulevard in Marrero. (Dr. Arnoult also alluded in his testimony to the possibility that if the defense would contact “another doctor here in the city, he might have some records on it.”). Finally, no records were sought to be introduced. Thus, neither the exception relative to certified copies of hospital records, R.S. 13:3714; State v. Trahan, 332 So.2d 218 (La.1976), nor any business record exception, State v. Monroe, 345 So.2d 1185 (La.1977), were even arguably applicable.

Under these circumstances, the trial court’s refusal to allow Dr. Arnoult to relate defendant’s medical history was an error but it is not reversible error.

Assignment of Error No. 3

Defendant contends that the trial court erred in refusing to give his proposed jury charge concerning mental capacity, and argues that this court should modify its interpretation of the McNaughten Rule.

Defendant requested the following two special jury charges:

(1) “The mental capacity and mental condition of the defendant are to be considered by the jury in arriving at a verdict.”
(2) “The mental capacity and mental condition of the defendant are to be considered by the jury in consideration of the possible verdicts of first degree murder, second degree murder and manslaughter.”

After refusing to give these charges, the trial court in its jury instructions explained that all persons are presumed sane; that the defendant has the burden of proving he was insane when he committed the offense; that a person is legally insane when he is unable to distinguish between right and wrong; and that subnormal mentality is no defense to a crime unless the person charged could not distinguish between right and wrong. The trial court also gave a full charge on specific intent, including the statement that “a sane person is presumed to intend the natural and probable consequences of his own deliberate acts. Consequently, it is murder if a sane person intentionally assaults another in such a manner as would likely cause death or likely cause serious bodily harm.” The trial court also instructed the jury at length on the various other elements of first degree murder, second degree murder and manslaughter.

C.Cr.P. 807 provides that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation and is not included in the general charge or in another special charge, if it is wholly correct and pertinent. See, State v. Marse, 365 S.W.2d 1319 (La.1978); State v. Atkins, 360 So.2d 1341 (La.1978); State v. Williams, 346 So.2d 181 (La.1977). The trial judge under the express provisions of the Code of Criminal Procedure must charge the jury with the applicable law of the case:

“If the circumstances indicate that because of a mental disease or mental defect the offender was incapable of distinguishing between right and wrong with reference to the conduct in question, the offender shall be exempt from criminal responsibility.” R.S. 14:14.

See, State v. Plaisance, 252 La. 212, 210 So.2d 323 (1968), cert. den. 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 470 (1968). R.S. 14:14 is the codification of the well known test in McNaughten’s Case, 1 Car. & K. 130, 10 Clark & F. 200, 8 Eng. Repring. 178 (1843). See Reporter’s Comment, Art. 14 of Louisiana Criminal Code, originally enacted by Act 43 of 1942. See also, State v. Berry, 324 So.2d 822 (La.1976). This court also has consistently held that under the statutory definition in R.S. 14:14, a mental defect short of legal insanity cannot serve to negate specific intent and reduce the degree of the crime. State v. Weber, 364 So.2d 952 (La.1978); State v. Jones, 359 So.2d 95 (La. 1978); State v. Johanson, 332 So.2d 270 (La.1976); State v. Berry, supra.

In the instant case, under R.S. 14:14 and the jurisprudence interpreting'it, the trial court did not err in refusing to deliver the two requested special charges to the jury. However, the defense also contends that this court has given an unduly restrictive interpretation of the insanity defense of R.S. 14:14 and argues that we should modify or liberalize our interpretation of the McNaughten Rule in R.S. 14:14. Defense counsel notes that the McNaughten test has long been criticized and suggests that this court consider the American Law Institute test as a modification of the legislatively mandated insanity test.

This court is not unaware that the McNaughten test has long been under attack, but our legislature has by R.S. 14:14 expressly adopted the McNaughten test of insanity; whether wise or unwise, this legislative choice does not admit of judicial substitution of another test. State v. Berry, 324 So.2d at 825. Any modification or liberalization of our test of insanity in R.S. 14:14 must start with the legislature. See also, State v. Weber, supra; State v. Johanson, supra; State v. Berry, supra; State v. Plaisance, supra; State v. Bickham, 239 La. 1094, 121 So.2d 207 (1960); State v. Jenkins, 236 La. 256, 107 So.2d 632 (1958).

This assignment of error lacks merit.

For the reasons assigned, the conviction and sentence of defendant are affirmed.

      Judge Cecil C. Cutrer, Louisiana Court of Appeal, Third Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . We note that there is some dispute as to the applicability of this rule to physicians employed in anticipation of litigation. See, C. McCormick, supra at §§ 291, 292 and 293. State v. Watley, supra.

      . Dr. Arnoult administered the Weshcler Adult Intelligence Scale, the Wide Range Achievement Test, the Bender Visual Motor Gestalt Test and the Rorschack Ink Blot Test.

      . From the tests, Dr. Arnoult determined that defendant has a full scale IQ of 69 (placing defendant in the educable mentally retarded range); that his mental age was eleven and one-half years; that his achievement levels in mathematics and reading were at fourth and third grade levels respectively; that his psycho-motor level (eye-hand coordination) was slightly below his mental ability; and that he was in basic contact with reality.

      . In State v. Williams, 346 So.2d 181 (La.1977), the defendant had difficulty in placing his medical history before the jury in connection with his insanity defense because the defense in attempting to lay the foundation for an expert opinion that defendant was insane when he committed the offense asked the doctor to recite defendant’s medical history from reports that the doctor did not prepare. The trial court sustained the state’s hearsay objection to the medical reports and this court found the trial court in error. But the error did not prejudice the defense because the witnesses referred freely to the facts in these reports in stating their understanding of defendant’s past medical history and in explaining how this history related to their opinions.

      . Specifically, the charge given by the trial court was:
      “I will now discuss the plea of not guilty by reason of insanity.
      All persons are presumed to be sane, until the contrary has been proven by a preponderance of competent, legal evidence. As a result of this presumption, the burden of proof is upon the defendant in this case to overcome the presumption of law that he is sane by a preponderance of the evidence.
      The burden of proof is not upon the State to show that the defendant is sane. He is presumed to be presently sane. He is also presumed to have been sane at the time of the commission of the crime. Consequently, the burden is upon him to show by a preponderance, or weight of the evidence, that he was insane at the time of the commission of the crime.
      A person in law is said to be insane when, as a result of some disease of the mind, he is unable to contemplate, or foresee the usual, probable, natural and reasonable consequences of his acts. In other words, a person is legally insane when he is unable to distinguish between right and wrong; and in law a person is also said to be insane, if, although he can distinguish between right and wrong, he cannot, as a result of some disease of the will, choose between right and wrong.
      Personal peculiarities, eccentricities, fits of temper or rage, are not of themselves indicative of insanity. They may aid the jury in determining whether or not a defendant is sane or insane, but of themselves, if the defendant is able to distinguish and choose between right and wrong, would not be sufficient for the jury to base thereon a verdict of insanity.
      When you consider the defendant’s mental condition, you should consider all evidence produced by both sides. Weakness of mind or a diminished mental capacity cannot excuse an accused when there exists the capacity to know that the act in question is wrong.
      Otherwise stated, subnormal mentality is no defense to a crime unless the person charged could not distinguish between right and wrong. Insanity, whatever its form, to be an excuse for the commission of a crime, must be of such nature as to render the defendant without sufficient reason to know what he is doing, or to know right from wrong.”