author: SAMUEL, Judge.

text:
    BEST ELECTRIC SUPPLY COMPANY, INC. v. Lloyd RITTINER, d/b/a Rittiner Engineering Co. and Highlands Insurance Co.
    No. 7213.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Sanders & Perlis, Sharon A. Perlis, Me-tairie, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles, Marian Mayer Berkett, New Orleans, for defendants-appellants.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Lloyd Rittiner, d/b/a Rittiner Engineering Company, and Highlands Insurance Company, his surety, to recover $13,473.89 representing electrical supplies furnished by plaintiff to Ainsworth Brothers Electrical Construction Co., Inc. Ainsworth Brothers was Rittiner’s subcontractor for the construction of five three-story apartment buildings, comprising 120 apartments and known as Married Students Apartments, for Louisiana State University in New Orleans. Plaintiff filed two liens under the Public Works Statute (R.'S. 38:2242), totaling the amount levied. These liens were bonded by the defendants, who filed an answer denying liability.

After an extensive trial on the merits, judgment was rendered in favor of plaintiff and against the defendants, in solido, for $13,058.14. The two defendants have appealed from that judgment.

As we read the record and the briefs, and as we appreciate the oral arguments, basically there are only two questions presented for this court’s consideration. First, did plaintiff sustain its burden of proving delivery of electrical supplies to the job site and, if it did, in what amount? Second, is the plaintiff estopped from recovering because of a telephone conversation in which a representative of the plaintiff stated the subcontractor’s account was satisfactory when in fact it was delinquent ?

On May 11, 1972 Rittiner entered into a public works contract with the Board of Supervisors of Louisiana State University for the construction mentioned above. Rit-tiner subcontracted the electrical work on the project to Ainsworth Brothers in June, 1972, and in August, 1972, Ted Ainsworth, a one-third owner of the firm, informed plaintiff his company would purchase from it various wire materials, pipe fittings and other electrical supplies for the project. Such purchases were made and by January, 1973, it became apparent the Ainsworth Brothers’ account with plaintiff was considerably delinquent. Plaintiff filed its two liens in March and April, 1973.

At the trial more than sixty invoices and two credit memoranda were filed into evidence by plaintiff. Certain invoices and various receipts were not admitted because they had not been furnished defendant on discovery. The total amount of plaintiff’s invoices admitted into evidence was $13,170.30, and from this amount the trial court deducted fifteen isolated items resulting in a net figure of $13,058.14 which the court concluded was owed plaintiff by defendants.

The general contractor and its surety are liable for materials furnished the subcontractor which were actually used in the job or consumed during the process of the work. Louisiana’s lien statutes are stricti juris, and the plaintiff must prove its claim for liens by a substantial preponderance of the evidence. However, once the supplier proves delivery to the job site, the burden shifts to the defendant to show the materials were not used in the construction or incorporated into the job.

The supplier need only show by sufficient, competent proof that the materials were delivered to the job site, and need not prove delivery beyond a reasonable doubt as in a criminal case.

The record used by plaintiff in honoring orders made by contractors consists of a multiple carbon form containing seven copies. The first sheet is a shipping and charge ticket, the second a customer Invoice, and the third a delivery and/or dray receipt, depending on whether the items listed thereon are purchased over the counter or delivered to the job site. It is important to note that each form is marked to coincide to the particular job to which the materials are furnished and symbols are used to indicate whether the items sold were picked up over the counter or delivered to the job site.

One of the owners of Ainsworth Brothers, Ted Ainsworth, testified on behalf of plaintiff. He explained that in ordering from plaintiff either he, one of his two brothers, or the job superintendent called in the orders, which were either picked up by Ainsworth Brothers or delivered by plaintiff, depending upon the need for the material and the size of the order. Ainsworth, who was the overall supervisor of the job, specifically stated his firm’s practice was to designate a particular job on which the order was to be used. Ted Ainsworth is a licensed electrician in four parishes and has been an electrician his entire adult life. He testified without reservation that all of the invoices filed by plaintiff were for materials used on the job or consumed in the construction.

He began to explain on an invoiee-by-in-voice basis how the particular supplies appearing on each invoice or dray receipt were used in or incorporated into the dormitory job. His explanation was based on information available on the invoices including dates, signatures, descriptions and other information which showed the supplies sold his firm were clearly designated for and used in the dormitory job and not in any of the other Ainsworth Brothers jobs. In order to shorten the length of the trial, the judge intervened and began an examination of the invoices on a random basis, stating without objection from the defendants that it would be assumed the testimony regarding the sample invoices used would be the same as all invoices.

The trial judge examined Ainsworth regarding three categories, items on which there were both invoices and dray receipts, items on which there were only invoices (the dray receipts for which had been excluded by the court) and items on which the invoices showed over-the-counter sales. After examining Ainsworth at length on the sample documents, the trial judge concluded the plaintiff had established a prima facie case of proof of delivery of the merchandise to the job site and its use on the job site.

To refute Ainsworth’s testimony, defendant relied heavily upon the testimony of Danny Tyrney, who was with the firm which completed the job after Ainsworth defaulted. He testified regarding an excessive purchase of wire from plaintiff, implying some of these purchases were used on another job, certain items on the invoices which he felt were not called for in the plans and specifications, and certain items purchased in excess or which were not used in the construction. The court was impressed with the witness and especially with his candor in admitting that some of the materials found on the job site and not incorporated into the job could have come from other electrical supply firms as well as plaintiff’s firm.

In his reasons for judgment, the trial judge pointed out that most of Tyr-ney’s testimony was based on opinion and estimate and suggested his own disbelief in certain portions of that testimony. As is stated above, once the plaintiff made a pri-ma facie case of delivery to the job site, the burden of proof shifted to the defendant to show the materials were not used in the construction or incorporated therein. It is obvious the trial court concluded defendant’s evidence, including the testimony of Tyrney, was not sufficient to overcome that burden and he found as a matter of fact the materials and supplies were delivered to the job site and incorporated therein. The record is such that the trial judge was faced with conflicting evidence, and we cannot say he committed error by resolving that conflict in favor of plaintiff.

Rittiner bases his argument that plaintiff is estopped from asserting a lien against him upon a telephone conversation of November 15, 1972 between Mayo Canulette, a Rittiner employee, and plaintiff’s president, Richard Baugnon. On that day Can-ulette telephoned Baugnon to inquire of the status of Ainsworth Brothers’ account with plaintiff on the dormitory job. Baug-non at first refused to give any information about the account, but eventually indicated the account was “satisfactory”. No dollar amount was mentioned with regard to any delinquencies. This telephone conversation was one of a series allegedly made by the Rittiner firm to various laborers and suppliers of material to Ainsworth Brothers to determine its liability to them.

The record does not support defendants’ plea of estoppel. Canulette admitted the Rittiner firm had been worried about Ainsworth Brothers’ financial stability when the job was originally awarded to the Ainsworth firm, and knew from the beginning the latter’s financial condition was marginal. It was even admitted the Rittiner firm had checked that financial condition after another contractor had filed a lien against Ainsworth Brothers. At that time Rittiner knew Ainsworth Brothers’" financial stability left much to be desired.

To support a plea of estoppel, a party invoking it must prove he has been induced by the action or conduct of another to do something or to follow a course of action which he would not have otherwise taken and which resulted in damage or detriment to him. The trial court found as a fact Rittiner was concerned from the outset of its contract over Ainsworth Brothers’ financial stability. It found this concern demonstrated itself before Ainsworth Brothers had purchased from plaintiff most of the materials sold for the job, and this concern continued to manifest itself during the entire project. The court also found as a fact plaintiff’s earlier lack of concern about the financial condition of Ainsworth Brothers, as demonstrated by the telephone conversation mentioned above, did not lead Rittiner astray or cause it to do something which it would otherwise not have done.

We agree with those findings. We also conclude Rittiner was not led astray or caused to change its position by the plaintiff.

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

AFFIRMED.

      . Now known as University of New Orleans.

      . Louisiana Highway Commission, v. McCain, 197 La. 359, 1 So.2d 545; John H. Murphy Iron Works v. U. S. Fidelity & Guaranty Co., 169 La. 163, 124 So. 768; Patent Scaffolding Co. v. Ross Corporation, La.App., 172 So.2d 364.

      . Bernard Lumber Company v. Sayre, 230 La. 17, 87 So.2d 713; Laney Co. v. Airline Apartments, 223 La. 1000, 67 So.2d 570; Jim Walter Corporation v. Emanuel, La.App., 274 So.2d 867.

        . Haynesville Lumber Co. v. Casey, 165 La. 1065, 116 So. 559; Jahncke Service, Inc. v. Foret, La.App., 139 So.2d 554; R. F. Mestayer Lumber Company v. Tessner, La.App., 101 So.2d 238; Allen B. Cambre Lumber and Supply Co. v. Loomis, La.App., 94 So.2d 908.

      . An example of the conflict presented to the trial judge was testimony regarding the amount of unused material on the premises at the time Tyrney’s firm took over from the Ainsworth firm. Defendants argue vast amounts of material remained on the project but not incorporated therein. This contention was contradicted by Ainsworth, and the testimony of defendants’ two witnesses, Mayo Canulette of the Rittiner firm and Dan Tyrney, both can be construed as establishing only minimum and insignificant amount of material was on the premises after the Ains-worth firm left the job. Moreover, the evidence does not indicate the material which was left on the job was sold by plaintiff.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Sharon Ann BAER, Plaintiff-Appellee, v. Michael Anthony SIMON, Defendant-Appellant.
    No. 5536.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Joseph J. Piccione, Lafayette, for defendant-appellant.
    John Rixie Mouton, Lafayette, for plaintiff-appellee.
    Before MILLER, DOMENGEAUX and PAVY, J.
   MILLER, Judge.

Defendant Michael Anthony Simon appeals the dismissal of his rule against plaintiff Sharon Ann Baer by which he sought to reduce child support payments. This appeal relates primarily to the trial court’s refusal to grant Simon’s December 12, 1975 motion to reduce the $300 monthly child support payments set in the September 24, 1975 judgment of separation which is now final. Baer answered the appeal seeking to reverse the trial court’s decision to tax her with half the court costs of trying 1) her rule to make executory past due alimony payments and to hold Simon in contempt and 2) Simon’s rule to reduce the payments. We affirm.

Simon and Baer were married in 1970. Their two children were born in 1971 and 1975. On January 9, 1975 Baer left the matrimonial domicile and shortly thereafter filed suit for separation alleging cruel treatment; Simon reconvened, alleging abandonment. On September 24, 1975 the trial court granted Simon a judicial separation, awarded custody of the children to the mother subject to reasonable visitation rights, and ordered Simon to pay $300 per month “for the support and maintenance of the minor children born of the marriage.”

On December 8, 1975 Baer filed a motion seeking to have Simon held in contempt for failure to timely pay the ordered child support, and to have arrears of $479.-78 made executory. In his December 12 rule Simon contended his income had been reduced since the September hearing. Both rules were tried on January 12, 1976 and both motions were denied by judgment signed January 23, 1976. Court costs were taxed half to each party.

We find no manifest error in the trial court’s refusal to reduce the father’s support payments which had been set only two and a half months before he filed his December 12 rule. That Rule was based solely on the contention that Simon’s earnings had been reduced since the September 24 judgment was signed.

At the time of the judicial separation Simon was earning $240 per week as an “estimator” for his family’s contracting firm. At the January 12 trial, Simon testified that his pay had been reduced to $160 weekly effective December 1, 1975. He explained his demotion was caused by his failure to show up for work, his drinking in bars, and in general his not producing the work he was paid to perform. Tr. 275. One required to pay support will not be relieved from paying support when he has brought about his own unstable financial condition. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959).

He admits he was delinquent in making support payments when his children’s mother filed the December rule. Tr. 266. The record indicates Simon was financially dependent on his family both before and after the judicial separation. Except for his admitted misbehavior Simon would be earning his previous salary; he has a Bachelor’s Degree in Finance. The trial court was not impressed with the testimony that Simon’s wages were reduced, and specifically cited the fact that Simon’s parents and grandparents were still paying his debts. Tr. 2. There is ample evidence to support that conclusion.

The obligation to pay child support arises out of LSA-C.C. art. 227 and not out of LSA-C.C. art. 148 which deals with alimony pendente lite. Lopez v. Lopez, 264 So.2d 354 (La.App. 4 Cir. 1972). The applicable law on reduction of payments is found in LSA-C.C. art. 232, which allows a reduction when the moving party demonstrates a change in 1) the parent’s ability to pay or 2) the needs of the children. Holman v. Holman, 219 La. 138, 52 So.2d 524 (1951); Bell v. Bell, 269 So.2d 270 (La.App. 3 Cir. 1972); Collette v. Olivier, 309 So.2d 894 (La.App. 3 Cir. 1975); and Trahan v. Adams, 264 So.2d 358 (La.App. 3 Cir. 1972). Simon’s rule (Tr. 63) limited the issue to his contention that his ability to pay had been reduced. We do not consider the arguments raised by brief and at oral argument that the needs of his children have been reduced by virtue of the mother’s earnings.

The trial court has considerable discretion in determining whether to modify child support awards, and will not be reversed except for abuse of that discretion. Bell v. Bell, 269 So.2d 270 at 271 (La.App. 3 Cir. 1972).

Trahan v. Adams, 264 So.2d 358 (La. App. 3 Cir. 1972), is particularly in point. The father sought a reduction in child support for his minor child, alleging a diminution in earnings due to a change in employment. Like Simon, he testified to a reduction in net income. This court affirmed the trial court’s refusal to reduce child support payments on finding the trial court must have concluded the father’s earnings were greater than indicated, and that he was able to continue making the previously ordered support payments.

We follow the rule of appellate review that trial court findings, especially when credibility of witnesses is involved, are to be given great weight. A reasonable latitude must be given trial courts in matters affecting the welfare of children. Trahan, 264 So.2d 358 at 359.

Baer answered this appeal requesting that all trial court costs be taxed to Simon. We find merit to Baer’s contention that costs should be taxed to Simon because her rule was required in order to get Simon to pay past due child support. Simon did not pay all past due child support until the rule came up for trial. On that basis we would have taxed all costs of the rules to Simon. Nevertheless, we will not overturn the trial court’s wide latitude in assessing costs. LSA-C.C.P. art. 1920; Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975). The trial court knows a great deal more about its cases than gets into the record.

The trial court judgment is affirmed at Simon’s costs.

AFFIRMED.


author: STOULIG, Judge.

text:
    Succession of Mrs. Lillian McMurray ADLER, a/k/a Lillian McMurray Alder.
    No. 7427.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied July 29, 1976.
    Gerdes & Valteau, Louis A. Gerdes, Jr., New Orleans, for Charles McMurray, proponent-appellee.

      James E. Young, Jr., New Orleans, for Van and Oscar McMurray, opponents-appellants.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Appellants, Van ¿nd Oscar McMurray, have appealed the judgment in favor of Charles McMurray, executor and sole legatee, dismissing their petition to annul the last will and testament of their deceased aunt Mrs. Lillian McMurray Adler and to recall and vacate the decree of probate and execution of said instrument. In essence they contend (1) the testament is defective in form and the proof adduced did not fulfill the requirements for the probating of a statutory will, and/or (2) the testatrix lacked testamentary capacity when it was executed on February 22, 1972. We affirm the judgment.

The statutory will of Mrs. Adler was admitted to probate on February 15, 1974. Because this action of nullity was filed within three months of that date, defendant had the burden of proving the authenticity of the will and its validity as to form. Louis A. Gerdes, Jr., notary public, executed the will pursuant to the provisions of L.R.S. 9:2442 and his testimony, together with that of Jacinta Duseau, one of the subscribing witnesses, established its geniuneness.

Its validity as to form is apparent from the face of the document. Appellants cite three irregularities they claim render the testament defective as to form, and therefore, null. They are: (1) that “Notary Public” is not printed or typed behind the typewritten name “Louis A. Gerdes, Jr.,” under the signature line; (2) that the witnesses’ names are not printed or typed under the lines on which their respective signatures appear; and (3) that the testatrix’s name is misspelled.

As authority for the proposition the first two alleged defects render the will null, appellants cite L.R.S. 35:12, which directs notaries public to “ * * * print or type the full names of the witnesses and of themselves under their respective signatures.” We see nothing in the act requiring the notary to type the identification “Notary Public” behind his name. As to the failure to type the names of the witnesses under their signatures, this is not a defect that nullifies the document. So reasoned the court in American Bank & Trust Co. v. Michael, 244 So.2d 882 (La.App.lst Cir. 1971). The failure of a notary public to comply with the requirements of L.R.S. 35:12 subjects him to a fine of $100 (L.R. S. 35:13) but does not affect the validity of the document reflecting these omissions.

Both Gerdes and Jacinta Duseau identified their signatures and those of the testatrix and the other witness and declared they all signed in the presence of each other. Thus the evidence establishes the will was properly executed.

As to the third complaint, we note the testatrix executed a typewritten will that was prepared by the notary after he elicited the necessary information from her to draft the document. Although she generally used the name Lillian McMurray and did not use her marriage name of Adler, the will was drafted with the intent to include the name of her deceased husband; however Adler was misspelled as Alder. She first signed “Adler” and then signed “Alder” to conform with the typewritten identification under the first signature line. On the second signature line she signed “Alder.” We conclude that she was under the misapprehension she must misspell her name to conform to the typewritten error and that this does not strike the will with nullity nor does it establish incompetence.

With respect to appellants’ claim the testatrix lacked mental capacity to execute a will when she signed this testament, we simply point out their own medical expert’s first contact with the testatrix was some six months after her will was con-fected. At this meeting he found her to be lucid and mentally alert. He testified that later she suffered from senility caused by arteriosclerotic mental deterioration, from the latter part of 1972 until her death. Appellants had the burden of proving mental incapacity since they alleged it and this they failed to do.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . C.O.P. art. 2932.

      . O.C.P. art. 2887.


author: HOOD, Judge.

text:
    DLJ OF LOUISIANA #1, Plaintiff-Appellant, v. GREEN THUMB, INC., Defendant-Appellee.
    No. 5535.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Shushan, Meyer, Jackson, McPherson & Herzog by Robert P. Chatelain, New Orleans, for plaintiff-appellant.

      DeBaillon & Miller by Charles De-Baillon, Jr., for appellant.
    Voorhies & Labbe by John Hutchison, Lafayette, for defendant-appellee.
    Before HOOD, WATSON -and PETERS, JJ.
   HOOD, Judge.

Plaintiff, DLJ of Louisiana #1, instituted this suit against Green Thumb, Inc., to have a judgment which previously had been rendered in favor of Green Thumb and against plaintiff decreed to be a nullity. Defendant Green Thumb filed exceptions of no cause of action and no right of action. Judgment was rendered by the trial court in favor of defendant sustaining the exception of no cause of action and dismissing the suit. Plaintiff DLJ appealed.

The principal question presented is one of law, and that is whether a defendant who moves for and perfects a suspensive appeal from a default judgment rendered against him thereby makes a general appearance in the case and subjects himself to the jurisdiction of the court.

Plaintiff alleges, in substance, that a suit was filed by Green Thumb against DLJ in the Fifteenth Judicial District Court, for Lafayette Parish, and that a default judgment was rendered in that suit on November 18, 1974, in favor of Green Thumb and against DLJ, for the principal sum of $9,044.00.

It avers that the return of the Sheriff of Orleans Parish on the citation which was issued in that suit shows that service of citation was made by personal service on DLJ, through its agent, Mitchell W. Her-zog, in New Orleans, on October 17, 1974; that Herzog actually was not in New Orleans on that date; that personal service was never made on him; that DLJ at no time received actual notice of the pendency of that action; and that despite the lack of service of process a default judgment nevertheless was rendered against DLJ.

DLJ alleges that after that judgment was rendered it was “forced to file a sus-pensive appeal with bond in the Third Circuit Court of Appeal of the State of Louisiana.” In the written motion for appeal filed by DLJ, the mover did not allege any particular grounds for that motion, and it did not limit the appeal to any specific issue.

Our records show, and we thus take judicial notice of the fact, that the above appeal was timely perfected as a suspensive appeal and was lodged in this court. We rendered judgment on April 21, 1975, amending the trial court judgment to award Green Thumb damages on the ground that the appeal was frivolous, and affirming that judgment in all other respects. A rehearing was denied on June 18, and writs were refused by the Supreme Court on September 12, 1975. See Green Thumb, Inc. v. DLJ of Louisiana #1, 313 So.2d 284 (La.App. 3 Cir. 1975).

The instant action seeking to annul the above judgment was filed on July 2, 1975. Plaintiff DLJ alleges and contends here that Green Thumb obtained the above default judgment by “using fraudulent means of citation,” that personal service of citation was never made on the agent of DLJ, and that the trial court thus was without jurisdiction ratione personae to render judgment against DLJ. It argues that it is entitled to judgment in the instant suit annulling the default decree which was rendered in the earlier action.

Defendant Green Thumb filed exceptions of no cause of action and no right of action, alleging that “plaintiff (DLJ) made a general appearance in the Fifteenth Judicial District Court . . . and, therefore, this appearance waived the defects complained of in its petition.”

Both parties rely on Article 7 of the Louisiana Code of Civil Procedure, the pertinent parts of which provide:

“Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
* * * * * *
“(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.”

DLJ contends that by filing the above motion for an appeal it merely sought to have the action dismissed on the ground that the court had no jurisdiction over it. It argues that the taking of an appeal in that case comes within the exception listed in Paragraph (5) of the above article, and that the filing of such a motion did not constitute a general appearance in the suit.

Green Thumb concedes that the motion for appeal filed by DLJ “could possibly” have fallen within exception number (S) of LSA-C.C.P. art. 7, if the mover had expressly set forth in that motion the deficiency of citation. It argues, however, that since the motion for appeal “was completely devoid of any grounds or reasons,” the filing of such a motion constituted a general appearance in the case.

When the original suit was before us on appeal, the only argument made by the appellant in this court was that the judgment was null because citation had never been served on it. We noted that fact in the judgment which we rendered in that case (See 313 So.2d 284, 285). On that appeal, therefore, DLJ did not seek any relief other than the dismissal of the action on the ground that the court had no jurisdiction over it.

We also observed in the judgment which we rendered that the record contained no pleadings or evidence of any kind tending to show that service of citation was not made or that the return of the sheriff was invalid or incorrect. The grounds alleged for nullity here thus did not appear in the record of appeal in the earlier suit, and on that appeal we did not consider either of the grounds urged here for annulling the original judgment. (313 So.2d 284, 285). DLJ thus is not barred by LSA-C.C.P. art. 2005 from maintaining this action for nullity.

To support the position it takes here, Green Thumb refers us to Cook v. Deshautreaux & Klein Pediatric Clinic, 294 So.2d 591 (La.App. 4 Cir. 1974), and Mounts v. Dyer et al., 158 La. 383, 104 So. 123 (1925). We have decided that neither of those cases is applicable here.

In Cook, judgment was rendered against two defendants who had not been cited or served. The defendants filed a motion for a new trial alleging, as one ground therefor, that they had discovered new important evidence since the trial. The motion contained no mention of a lack of jurisdiction or an absence of citation or service. The Fourth Circuit Court of Appeal held, correctly we think, that in filing that motion for a new trial the defendants sought relief other than dismissal for lack of jurisdiction, and that they thus made a general appearance in the case.

The Mounts case involved a proceeding by executory process. After the sale, the defendant moved for a devolutive appeal without specifying any grounds for that appeal. In the appellate court he contended that the sale was null because the proceedings had been conducted contradictorily with a curator ad hoc who had been appointed erroneously and illegally, and that the defendant was not properly served with the three days notice required for executo-ry process. The Supreme Court held that the defendant’s motion for appeal “was leveled, in general terms, against the exec-utory proceedings, judgment and sale,” and that by filing that motion the defendant made a general appearance in the case. We distinguish Mounts from the instant suit for two reasons. First, the appeal taken in the present suit, which defendant argues constituted a general appearance by DLJ, occurred after a judgment had been rendered in a suit by ordinary process, whereas Mounts involved a proceeding by executory process, where no judgment was rendered, where no citation was required, and where the three day notice may be given by substituted service of process. And, second, the appellant in Mounts, in addition to alleging a defect in service of the three day notice, also sought to have the sale set aside because of alleged irregularities in the proceedings which led up to that sale.

We believe that a defendant who moves for an appeal from a default judgment rendered against him, without specifying the grounds he intends to urge on appeal, does not by that motion make a general appearance in the case, provided that the only relief he seeks on appeal is the dismissal of the suit on the ground that the court has no jurisdiction over him. If he seeks any other type of relief while the case is on appeal, however, then we think his actions in seeking that relief will constitute a general appearance and an implied waiver of all objections he may have to the jurisdiction of the court.

We have already noted that after DLJ was granted an appeal in the earlier suit, the only relief it sought on that appeal was the dismissal of the suit on the ground that the court had no jurisdiction over it. We conclude that under those circumstances DLJ did not make a general appearance in that case, and that it has not waived its objections to the jurisdiction of the trial court. The trial court erred, therefore, in sustaining the exception of no cause of action and in dismissing this suit.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered overruling the exception of no cause of action filed by defendant, and remanding the case to the trial court for proceedings consistent with the views herein expressed. The costs of this appeal are assessed to defendant-appel-lee, Green Thumb, Inc.

REVERSED and REMANDED.


author: WATSON, Judge.

text:
    ROY BERARD AND SONS, INC., Plaintiff-Appellee, v. John LATHAM, Defendant-Appellant.
    No. 5484.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.

      Logan & deLaunay by Gerald C. de-Launay, Lafayette, for defendant-appellant.
    Daniel L. Regard, New Iberia, for plaintiff-appellee.
    Before HOOD, WATSON and PETERS, JJ.
   WATSON, Judge.

Both parties agree that this suit is to be resolved under the principles of quantum meruit.

The defendant-appellant, John Latham, engaged the plaintiff-appellee, Roy Berard and Sons, Inc., to move four buildings located at Avery Island, Louisiana. One of the buildings was cut in half for purposes of the move, and thus, there were five structures involved. Four of the structures were moved first by truck to a point at which they were loaded on a barge, then moved by water to another point on Avery Island where they were unloaded and moved a short distance to the final destination. The fifth building was moved by road and they were all located at the site designated by Latham.

There was no discussion between Roy Berard, the principal officer of the plaintiff corporation, and Latham as to the price prior to completion of the work. A short time after the move had been accomplished, Berard and Latham met at the office of a contractor in New Iberia where Berard informed Latham that his charges were $7,-500. Latham objected to this amount and gave Bernard $3,500 as a partial payment. Thereafter, Latham requested an itemized statement; a bill was tendered by Berard’s corporation, reflecting a total price of $8,247.97. Upon Latham’s failure to pay the balance, Berard filed suit, on open account, for the sum of $8,247.97, subject to the credit of $3,500.

After proceedings in which the suit was amended to reflect that the claim was before the court on quantum meruit, the matter went to trial.

After hearing the evidence and considering the documentary exhibits, the trial court gave judgment in favor of plaintiff and against defendant in the amount of $7,500, subject to the credit of $3,500. From this judgment Latham has appealed. The Ber-ard corporation has answered the appeal contending that it is entitled to the full amount of the claim, and also requesting that this court order payment of expert witness fees in the amount of $200.

The principal issue is whether the trial court was manifestly in error in awarding $7,500 on plaintiff’s claim in quantum meruit. Two subsidiary issues are whether there is legal interest due from the date of judicial demand and whether the trial court should have awarded expert witness fees.

Quantum Meruit

The arguments advanced against the amount awarded by the trial court are unimpressive. Counsel for appellant contends that the trial court erred in not considering all of the factors which might go into the calculation of a business’s price for performing certain work. We do not believe that the courts are required under the law to perform as bookkeepers or cost accountants. There is no specific test or formula which must be applied in determining the reasonable value of services. Jones v. City of Lake Charles, 295 So.2d 914 (La. App. 3 Cir. 1974).

The evidence before the trial court included the itemized list of charges and testimony by various principals of the plaintiff corporation as .to how these charges were determined. Also there was testimony from two expert housemovers from the same geographical area who indicated that the itemization of charges was fair and reasonable and their charges for the same work would have been amounts very close to the award by the trial court.

The two housemovers who testified, Alton Landry of Cecilia and Emery Hayes of Lafayette, were consulted by defendant Latham after the move had been made on the pretext of obtaining estimates for moving similar houses. However, they were called as witnesses by plaintiff. Landry testified that, on a square footage basis, $3,246 would be a fair price for moving the houses, but rental of the tug and barge would be additional. Since Landry had only one truck, while Berard used three, Landry would have needed the barge five or six days. Berard required the barge only 26 hours at a cost of approximately $800. Landry’s barge charges would have exceeded Berard’s by approximately $3,000 or $4,000.

The other housemover, Hayes, stated that his total charge for the move would have been $7,000.

There is a reasonable evidentiary basis for the award made by the trial court. We find no manifest error in the trial court’s conclusion that the fair value of the services rendered by the plaintiff corporation to Latham was $7,500.

Expert Witness Fees

Landry and Hayes testified in the capacity of expert witnesses and were of considerable assistance to the court in resolving the issues. Each should be awarded the sum of $100.00 as an expert witness fee and the judgment will be so amended.

Legal Interest.

Appellant contends that legal interest should be awarded only from the date of the judgment under the authority of North Development Company, Inc. v. McClure, 276 So.2d 395 (La.App. 2 Cir. 1973). Ap-pellee does not contest this contention which is supported by Succession of Butler, 294 So.2d 512 (La., 1974). The judgment will be so amended.

Therefore, for the reasons assigned, the judgment of the trial court as to the principal award in quantum meruit is affirmed.

It is further ordered, adjudged and decreed that the judgment of the trial court be and it is hereby amended to award expert witness fees in the amount of $100 each to Alton Landry and Emery Hayes, and these amounts are taxed as court costs.

It is further ordered, adjudged and decreed that the judgment of the trial court be and it is hereby amended to award legal interest on the amount awarded to plaintiff and against defendant from the date of the judgment signed by the trial court.

Costs of this appeal are taxed against the defendant-appellant, John Latham.

AMENDED AND AFFIRMED.


author: MORIAL, Judge.

text:
    Rita Leny Cavet, wife of/and Charles S. CAVET, Sr. v. Joseph A. GETTYS, Jr. and Travelers Insurance Company.
    No. 7492.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Eugene J. Gomes, Jr., New Orleans, for plaintiff-appellee third party defendant-ap-pellee.
    Andry & Andry, Gilbert V. Andry, III, New Orleans, for defendants-appellants plaintiff in reconvention.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   MORIAL, Judge.

Defendant, Joseph A. Gettys, Jr., appeals from a judgment of the district court awarding plaintiffs, Rita Leny Cavet, wife of/and Charles S. Cavet, Sr., the sum of $4,902.83 and dismissing his reconventional demand.

On June 10, 1972 Charles Cavet was driving and his wife, Rita Leny Cavet, was a passenger in a 1966 Chevrolet when the vehicle was struck in the right rear are by a 1969 Ford being driven by Joseph A. Gettys, Jr. At the time of the accident, both vehicles were proceeding in an easterly direction on Judge Perez Drive in St. Bernard Parish.

Plaintiffs filed suit against Joseph A. Gettys, Jr. and his insurer, Travelers Insurance Company (Travelers), for personal injuries to Mrs. Cavet and property damage to the Cavet vehicle. Subsequently, Gettys and Travelers reconvened against plaintiffs and third partied the Cavets’ insurer, Zurich Insurance Company, for personal injuries to Gettys and property damage to the Gettys vehicle. After trial on the merits, the district court, with written reasons, rendered judgment in favor of plaintiffs and against Gettys and Travelers. The district court further dismissed the re-conventional demand. Gettys alone appeals, Travelers having satisfied the judgment. We affirm'.

Defendant contends the trial court erred in finding him solely responsible for the accident and in failing to find Mr. Cavet contributorily negligent.

The record indicates that Judge Perez Drive is a street divided by a canal with two traffic lanes on each side. Mr. Cavet testified that he and his wife were traveling at approximately 10 to 15 mph in the left lane of Judge Perez Drive when they noticed what appeared to be a car with someone trapped inside in the canal. Mr. Cavet stated he glanced at the car for a second or two and his wife then warned him of an approaching vehicle which was about to overtake them at a high rate of speed from the rear. Mr. Cavet testified he attempted to speed up but the collision nonetheless occurred wherein the left front portion of the Gettys vehicle struck the right rear corner of the Cavet vehicle. Cavet testified that at all times before, during and after the accident his vehicle was in the left lane of Judge Perez Drive.

Mr. Cavet’s testimony was essentially corroborated by an independent eyewitness to the, accident, Henry Castignette. Mr. Castignette was at the time of the accident employed as a security guard for a Western Auto appliance store located approximately 40 to 45 feet from the scene of the accident. Mr. Castignette testified that he had an unobstructed view of the scene of the accident and that prior to the accident he saw the Gettys vehicle proceeding down Judge Perez Drive at a high rate of speed. He stated it was obvious that as Gettys approached the Cavet vehicle from the rear that an accident was about to occur. He further stated that the Cavet vehicle never attempted to change lanes and that at all times it was situated in the left lane.

Defendant was the only witness to testify in his behalf. He testified that prior to the accident he was at all times in the right lane of Judge Perez Drive and that the Cavet vehicle either stopped or substantially slowed in the middle of the block and then began to drift over into the middle of the street. He stated that upon seeing the Cavet vehicle’s brake lights about 40 feet ahead he slowed to about 10 mph. His momentum though pulled him to a position parallel with the Cavet vehicle and the accident occurred as the Cavet vehicle drifted into the center and right side of the right lane and its right rear fender struck his left front door. In deposition, however, Gettys stated that immediately prior to impact he was traveling 20 to 25 mph and that he was only 10 feet from the Cavet vehicle when he first applied his brakes.

After listening to all the witnesses, the trial judge concluded that defendant’s testimony was lacking in credibility and awarded judgment in favor of plaintiffs stating:

“Mr. Gettys’ testimony varied greatly in substantive details from the testimony given at prior sworn depositions. His testimony varied greatly by direct and cross examination also. It was the Court’s opinion that Mr. Gettys was not truthfully answering the questions and was avoiding answering the questions of counsel. It is further the opinion of the Court that if Mr. Gettys had been travel-ling at ten miles per hour before the collision, it would have been impossible for him to cause the damage to the Cavet vehicle, as well as the damage sustained by his vehicle. Therefore, the Court concludes that Mr. Gettys must have been travelling at a greater rate of speed than ten miles per hour. It was the final conclusion of the Court that the Cavets’ were acting in a reasonable and prudent manner under the circumstances and were not creating an emergency for Mr. Gettys’ vehicle, but concluded that Mr. Gettys, by operating his vehicle at an excessive rate of speed on Judge Perez Drive in Chalmette, Louisiana, and by his own testimony, noticed the Cavets’ travelling slowly approximately Yi block away, that Mr. Gettys created his own emergency, thereby, the sole and proximate cause of the collision and the damages and injuries sustained by the Cav-ets’.”

Determinations of credibility of witnesses, being within the province of the trial judge, are not to be disturbed by an appellate court in the absence of manifest error. Our careful review of the record convinces us that no such error has been committed.

The judgment of the trial court is hereby affirmed. Defendant is to pay all costs.

AFFIRMED.


author: PRICE, Judge.

text:
    Kathryn Avery ACOSTA, Plaintiff-Appellant, v. Daniel Bernardo ACOSTA, Defendant-Appellee.
    No. 12934.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    James L. Fortson, Shreveport, for plaintiff-appellant.
    Rick Fayard, Bossier City, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ-
   PRICE, Judge.

Kathryn Avery Acosta brought this action against her husband, Daniel Bernardo Acosta, seeking a separation from bed and board and the custody of their ten-month-old child, Daniel Bernardo Acosta, II. This appeal by plaintiff is from a judgment on trial of a rule rejecting her demands for custody and child support, and awarding the temporary custody to the father.

Plaintiff contends, on this appeal, that the granting of custody to the father is contrary to the so called “maternal preference rule” expressed in C.C. Article 146 and the decisions of the Supreme Court interpreting this article.

The thrust of her argument is that the defendant has the burden of proving she is an unfit mother and in the absence of such proof, the trial court must award her the custody of the child because of the preference accorded the mother under the decision of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

The maternal preference rule as pronounced in Fulco is subject to certain qualifications as discussed by this court in Welch v. Welch, 307 So.2d 737 (La.App. 2nd Cir. 1975) as follows:

* * * “ [C] ustody of children of tender years should be awarded to the mother unless it would be to the greater advantage of the children for them to be entrusted to the care of the father. * * * [But] [t]he ‘maternal preference rule’ is only one of the factors to consider in determining what is best for the welfare of the children and is not controlling when there are other factors present which indicate it is to the best advantage of the children to award their custody otherwise.” Murphy v. Murphy, 293 So.2d 909 (La.App., 2nd Cir. 1974).
However, in actual operation, the maternal preference rule, instead of providing a complete guide for a decision of the custody issue, appears only to establish a presumption that the interest of a child will be better served by placing him in custody of the mother. Furthermore, the presumption appears to be a rebut-table one which must yield to convincing evidence that the greater advantage of the child will be served by entrusting his care to the father.

The determination made by the trial judge as to whether it is to' the advantage or in the best interest of the child to be placed in the custody of the father should not be disturbed by the appellate court in the absence of a clear abuse of discretion as mandated by the expression of the Supreme Court in Fulco v. Fulco, supra:

(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So. 2d 424 (1952).

From our examination of the evidence in the record of this case, we do not find any clear showing of the abuse of discretion vested in the trial court.

The parties were married in January 1974, and at that time resided in Bossier City. In May 1975, several months after the birth of the child, plaintiff left defendant and moved to Pascagoula, Mississippi, where her mother resided. Around July 1, 1975, she persuaded defendant to leave his employment in Shreveport and to join her in Pascagoula. In November 1975, defendant returned to Bossier City with the child and established his residence with his parents at 3249 Caroline Drive.

The evidence shows plaintiff is a nineteen-year-old woman who has had some emotional problems prior to and after her marriage to defendant. There is also some evidence she uses marijuana and has on one occasion taken an overdose of sleeping pills. She has changed jobs seven times in the seven month period she has lived in Pascagoula and presently works as a laborer on a night shift in a shipyard. When plaintiff first moved to Pascagoula, she and the child resided with her mother who, although divorced, lives with a man to whom she is not married.

It is apparent from the trial judge’s reasons for judgment that he found it to be in the best interest of the child to temporarily remain in the custody of defendant as he appears to be more stable and the child would move certainly be given proper care in the home of the paternal grandparents in Bossier City.

We are of the opinion this conclusion of the trial judge is supported by sufficient evidence and is within the limits of his discretion under the jurisprudence as outlined above.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s costs.


text:
    In the Matter of ADOPTION OF Joe Brian WILLIAMS.
    No. 7778.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Milling, Benson, Woodward, Hillyer & Pierson, John C. Christian, Elizabeth Rid-nour Háak, New Orleans, for appellants.
    A. M. Trudeau, Jr., New Orleans, for appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Appellants, Mr. and Mrs. Robert Paul Nolting, have appealed a judgment of the Orleans Parish Juvenile Court denying their application to adopt their grandson, Joe Brian Williams. The judge rejected their petition because he concluded the natural mother, Cynthia Nolting Williams, petitioners’ daughter, neve/ gave an informed consent to her son’s adoption.

On April 23, 1974, appellants filed the first pleading required to apply for adopting a child under 17 years of age, in which they sought an interlocutory decree granting them custody of the child and an order to set in motion the investigative process prescribed by law to determine if the adoption would be for the child’s best interest. Among the exhibits attached to the petition is an affidavit signed “Cynthia Diann Nolting Williams” that declares in part:

“ * * * Desiring to act in the best interest of the child, and recognizing that the well-being of the child would best be served by his permanently residing with his grandparents, I hereby consent, pursuant to the Louisiana Statutes on adoption, that Robert Paul Nolting and Doris June Whitehead Nolting be permitted to adopt my son, Joe Brian Williams, in accordance with the appropriate legal proceedings established in Louisiana.”

On May 14, 1974, the natural mother was personally served with a copy of this pleading and failed to appear at the hearing of June 19, 1974 that culminated with a decree granting temporary custody. Because the father is a resident of Texas, a curator ad hoc was appointed to represent him in this proceeding. His consent to the adoption was also evidenced by an undated affidavit.

On January 30, 1975, appellants filed the final petition for adoption. Cynthia Nolt-ing Williams appeared at the hearing on the final decree and objected to her son’s adoption by petitioners. In view of this denial the judge was not satisfied that the natural mother had been fully informed of the legal consequences of the adoption. Nor are we. Mrs. Williams testified she signed the affidavit for the purpose of conferring temporary custody of the child on petitioners. She claimed she was not aware that adoption effectively terminated all rights and responsibilities she had as mother of the child.

We cannot agree with the juvenile court judge’s statement that valid consent prior to rendition of the interlocutory decree could only obtain if the natural parent appeared in court and was advised about the finality and irrevocability of giving consent to adoption. We hold that if the notarial declaration recited the explanation that she had been given as to the consequences of her signing and if she acknowledged having been so advised, this would suffice to constitute a free and valid consent that could not be withdrawn after the interlocutory decree was signed.

In this case the notarial declaration in itself does not prove Mrs. Williams was fully aware of the consequences of her consenting to permit the Noltings to adopt her child. The document contains no language that might be construed as a caveat to the affiant that her maternal relationship with her child is fully and forever severed once the interlocutory decree is signed. It simply states she recognizes the desirability of her son permanently residing with the Noltings.

We do not hold that an affidavit of this sort may not be supplemented by parol evidence to demonstrate the natural mother was in fact fully aware of the consequences of her action. And while the better practice might be to recite or summarize the information that was made available to the mother before she signed the declaration to obviate the problem we have here, the adoptive parents have the right to prove by extrinsic evidence the natural parent gave an informed consent by signing the declaration.

The testimony on this point is conflicting. Petitioners state unequivocably their daughter fully realized she was relinquishing all rights to her child when she signed the affidavit. The natural mother conversely explained she thought temporary custody was at issue and further asserted she did not appear at the interlocutory-hearing because Robert Nolting threatened her with the possibility that she would lose her child forever if she did appear.

If the reasons for judgment clearly stated the juvenile court judge accepted the testimony of Cynthia Williams as more credible than that of her parents and the notary before whom she signed the affidavit, this judgment should be affirmed. But they only indicate in an oblique way that her testimony did influence the result without directly stating her testimony is more believable. The evidence is inconclusive; therefore, in the interest of justice, we will remand this matter to permit appellants and appellee to more fully develop evidence in support of their respective positions as to whether a free and valid consent was given before the interlocutory decree was signed.

For the reasons assigned, the judgment appealed from is annulled and this matter is remanded for further proceedings consistent with the views herein expressed.

JUDGMENT ANNULLED; REMANDED.

      . L.R.S. 9:429 and 432(B); Lange v. Cole, 289 So.2d 304 (La.App. 1st Cir. 1973); In re Adoption of Giambrone, 262 So.2d 566 (La.App. 4th Cir. 1972).


author: CULPEPPER, Judge.

text:
    Roy G. ROBINSON, Jr., Plaintiff and Appellee, v. EMPIRE GAS, INCORPORATED OF LAKE CHARLES, Defendant and Appellant.
    No. 5515.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Plauché, Smith & Hebert by Reid K. Hebert, Lake Charles, for defendant and appellant.
    Ralph J. Hanks, Jr., Raleigh Newman, Lake Charles, for plaintiff and appellee.
    Brame, Bergstedt & Brame by Joseph A. Brame, Lake Charles, for intervenor-appel-lee.
    Before CULPEPPER, GUIDRY and BERTRAND, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries arising out of an automobile accident. Defendant is the employer of one Wilmer Mott, whose negligence caused the accident which injured plaintiff. Plaintiff’s collision insurer, Employers Fire Insurance Company, intervened for recovery of the property damages it paid. From a judgment for plaintiff and the intervenor, defendant appeals. We affirm.

The sole issue for our determination is whether defendant’s employee, whose negligence was found by the trial court to be the sole cause of the accident, was within the course and scope of his employment with defendant at the time of the accident.

The facts are undisputed. Wilmer Mott was employed as a service man by Empire Gas. His job included repairing gas storage tanks, for which he was on call 24 hours a day. He was instructed to keep a company-owned service truck at his home every night so he could make these service calls.

On the night of April 27, 1973, Mott received a call at his home from a customer who reported a gas leak. He proceeded in the company truck to the home of the customer and repaired the leak. He then started driving back toward his home. His route required that he pass through the intersection of Davis Road and Goos Road. Upon reaching that intersection, he would have turned left in order to proceed directly to his home.

However, on this particular night Mr. Mott needed a package of cigarettes, and there was no store open at that hour on the direct route to his home. Therefore, upon reaching the intersection, instead of turning left to go home, he turned right in order to go to a store to purchase cigarettes. The accident happened about one-half mile past the intersection where he made this right turn, but prior to the time he reached the store. As he pulled out into the “T” intersection of Goos Road and Westwood Road he was struck by plaintiff’s automobile.

LSA-C.C. Article 2320 provides in pertinent part:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

Jurisprudence has construed the quoted portion of Article 2320 to mean that the employer is liable for the tortious acts of his employees “committed while acting within the scope and course of his employer’s business.” Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3rd Cir. 1974) and the cases cited therein.

In the recent case of LeBrane v. Lewis, La., 292 So.2d 216 (1974) our Supreme 'Court held that where activity is “primarily employment rooted” or where it is “reasonably incidental” to the employer’s business, tortious conduct caused by that activity will be imputed to the employer. The Court also stated that where the tortious conduct is “so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business”, liability for that conduct will be imposed upon the employer.

In the instant case, we conclude that defendant’s employee, Wilmer Mott, was within the course and scope of his employment at the time of the accident. This conclusion is mandated by the fact that, in the words of the court in LeBrane, the activity precipitating the injury (obtaining cigarettes) was “primarily employment rooted”. Mr. Mott’s only purpose in leaving his home the night of the accident was to go on a service call for his employer. He completed the call successfully and was proceeding home when he chose to stop and buy cigarettes. A short detour for the purpose of buying cigarettes under these circumstances was “reasonably incidental” to the performance of the duties for which he was hired, and for which he was allowed to keep the company truck at home. The purchasing of these cigarettes following a service call at night was “so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business.”

It makes no difference that, at the time of the accident Mr. Mott was on his way home rather than to his employer’s place of business. This is not the situation of an employee causing injury while en route to his home from the employer’s premises. See Leger v. Southern Farm Bureau Casualty Insurance Company, 251 So.2d 801 (La. App. 3rd Cir. 1971). Rather, he was on 24-hour call and was instructed by his employer to keep the company truck at home for the purpose of serving his employer and performing the duties for which he was hired. In the instant case, returning home was the same as returning to the employer’s premises following performance of a work-related function. See Barrett, The Factor of Route In The Doctrine of Re-Entry In Louisiana, 14 Tul.L.Rev. 72 (1939-AO) for an excellent discussion of deviation and re-entry.

Mr. Robert L. Phillips, retail manager of Empire Gas at the time of the accident, testified at the trial that though the company trucks were not to be used for personal missions by the employees there were no restrictions imposed upon the making of reasonable detours while on service calls. He stated that he knew employees made such detours and he knew that Wilmer Mott smoked. Mr. Mott testified that it was not at all unusual for him to stop and get cigarettes following completion of a service call.

We find, therefore, that at the time of the accident Wilmer Mott was performing a function reasonably incidental to his employer’s business as contemplated by the employment contract. There was no deviation and, hence, no necessity for a re-entry.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    Mr. and Mrs. Herbert J. BOUDREAUX v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 7892.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.

      Joseph W. Thomas, New Orleans, for plaintiff s-appellants.
    A. R. Christovich, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

We dismiss this appeal because it was not perfected within the delays prescribed by C.C.P. arts. 2087 and 2088.

Plaintiffs’ suit was dismissed in the trial court by a judgment signed October 9, 1975. Subsequently, they filed a motion for appeal on January 9, 1976. The order granting the appeal was signed on January 14, 1976, conditioned on plaintiffs’ furnishing a $500 bond.

The last day to appeal was January 19, 1976, and no bond had been filed as of that date. On March 9, 1976, plaintiffs obtained an order from the trial judge permitting an appeal in forma pauperis.

Plaintiffs’ counsel now resists dismissal of the appeal by asserting he was not notified of the amount of the bond required as security, and the order granting the right to appeal in forma pauperis relieved appellants of the duty of furnishing any bond whatsoever. To support this position, plaintiffs rely on that language in C.C.P. art. 2161 that prohibits dismissal of an appeal unless the error in perfecting it is attributable to the appellant.

This article is inapposite because the failure to perfect the appeal timely is attributable directly to appellants. The motion for appeal presented requests the court to set a bond. Even though the trial judge did not sign the order on the date it was filed, it was nonetheless appellants’ responsibility to see the bond was in fact set and the security posted before the delays for perfecting the appeal expired. C.C.P. art. 2088. Once the delays for appeal expired without the appeal having been perfected, the judgment became final and a belated order granting the right to appeal in forma pauperis could not revive any rights to appellate review. The arguments advanced for maintaining this appeal were fully considered and rejected by this court in Thomas v. Reliance Insurance Company, La.App., 215 So.2d 515 (1968).

For the reasons assigned, the appeal is dismissed.

APPEAL DISMISSED.


author: BY THE COURT.

text:
    Richard Lee JONES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-321.
    District Court of Appeal of Florida, First District.
    June 17, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Jack Lee LOVING, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-320.
    District Court of Appeal of Florida, First District.
    June 17, 1976.
    Richard W. Ervin, III, Public Defender, and Jack Lee Loving, in pro. per. for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst.. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: PER CURIAM.

text:
    Cecil Thomas BALLEW, Appellant, v. STATE of Florida, Appellee.
    No. X-402.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Cecil Thomas Ballew, in pro. per.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Disposition of this appeal is governed by our opinion on the appeal of a codefendant —Taylor v. State, Fla.App.lst, 330 So.2d 44 (1976), and we, therefore, make the same disposition. The judgments as to the grand larceny offenses are reversed, and the judgments and sentences as to the remaining offenses are affirmed.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    John HANNA & Jimmy Jeffery, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. Z-442.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgments of conviction and sentences are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Albert Aloyslus BROOKE, Appellant, v. STATE of Florida, Appellee.
    No. Z-396.
    District Court of Appeal of Florida, First District.
    June 24, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. State v. Rouse, Fla.App. 4th, 239 So.2d 79 (1970); State v. Liptak, Fla., 227 So.2d 19 (1973), and Langley v. State, Fla.App. 1st, 292 So.2d 613 (1974).

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    STATE of Florida, Appellant, v. Thomas N. OWENS, Appellee.
    No. BB-104.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Murray M. Wadsworth of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for appellee.
   PER CURIAM.

Having considered the record, briefs and oral arguments of counsel and finding that the record is sufficient to sustain the action of the trial court complained of, this interlocutory appeal is dismissed pursuant to Rule 4.2c FAR.

IT IS SO ORDERED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: ALDERMAN, Judge.

text:
    Donald R. CROWDER, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1859, 75-2271.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Rehearing Denied Aug. 2, 1976.
    Robert J. Buonauro and James N. Powers, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Cases 75-1859 and 75-2271 have been consolidated for the purpose of this appeal. Defendant, in the first case, appeals his conviction of buying, receiving and aiding in the concealment of a stolen boat motor. In the second case, the same defendant appeals from the sentence imposed, after he plead nolo contendere pursuant to a plea bargain agreement, to the offense of buying, receiving and aiding in the concealment of a stolen pistol. The two cases will be discussed separately.

CASE NO. 75-1859

Defendant first challenges the sufficiency of the evidence and contends that the trial judge erred in failing to grant his motions for acquittal. We find the evidence sufficient to sustain the conviction. The state presented direct and circumstantial evidence which, if believed by the jury, would have established defendant’s guilt beyond a reasonable doubt. The defendant presented testimony which, if believed by the jury, would have required a verdict of “not guilty”. Apparently the jury resolved the conflicts in favor of the state and against the defendant.

Defendant next contends that reversible error was committed during closing argument when the prosecuting attorney referred to the defendant as a “fence”. In the context of this case, it is debatable whether the use of the word “fence” was a proper comment. However, defendant failed to make timely objection and is foreclosed from raising this issue on appeal. State v. Jones, 204 So.2d 515 (Fla. 1967). The prosecutor’s comment was not of such character and magnitude as to constitute fundamental error.

Defendant’s next point concerns the validity of a special condition of his probation. Condition 10 of the Order of Probation requires the defendant to “make restitution to the following in the amounts to be determined by the probation supervis- or: Robert Anderson, . . .” Robert Anderson was the owner of the stolen property in this case. However, in addition, to Robert Anderson, twenty other persons were named in Condition 10. These other persons were the victims in twenty other burglaries.

The issue is whether the trial judge, as a condition of probation in this case, may require the defendant to make restitution to the victims of twenty other offenses other than the particular offense for which he had been convicted. Under the provisions of Fla.Stat. § 948.03 (1975), the sentencing judge sets the terms and conditions of probation and may include among them the provision that the probationer shall:

“Make reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court.” Fla.Stat. § 948.03 (1975).

We believe that this provision, which allows the court to require a defendant, as a condition of his probation, to make restitution to the aggrieved party in a particular case, would not authorize the court to require the defendant to make restitution in other unrelated cases for which the defendant has not been convicted. (This would not prevent the court from including such conditions in a probation order where the defendant, as a part of a plea bargain, acknowledges his responsibility for the other offenses and agrees to make restitution.) We hold that the trial judge exceeded his authority in requiring the defendant, as a condition of his probation, to make restitution in twenty cases unrelated to the offense for which he was convicted. This portion of Condition No. 10 of the Order of Probation is reversed. The remainder of the probation order is affirmed and it will not necessary for the trial judge to resentence the defendant.

Affirmed in part, reversed in part.

CASE NO. 75-2271

In the second case, the defendant contends that he was not sentenced in accordance with the terms of his plea bargain agreement. He initally entered a plea of not guilty, but after his conviction in Case No. 75-1859, withdrew his guilty plea and entered a negotiated plea of nolo con-tendere. Defendant contends that he was to receive a jail sentence in the earlier case, 75-1859, and was to be placed on probation in the instant case, 75-2271. In fact, the reverse took place. The defendant received a jail sentence in this case, and was placed on probation in the first case. Defendant and his attorney allege that they had a different understanding of the agreement than that expressed by them before the court at the time defendant’s plea of nolo contendere was accepted.

We find that the court below did not violate the terms of the negotiated plea. The record clearly reflects under the terms of the agreement, the judge in one of the two cases would sentence defendant to jail time. If one did not, the other would. Defendant received probation in Case No. 75-1859; therefore his jail sentence in Case No. 75-2271 did not violate the terms of his negotiated plea.

Affirmed.

WALDEN, J., and DAKAN, STEPHEN LEE, Associate Judge, concur.


text:
    James Rodney RUTLEDGE, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. AA-334, AA-377.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Robert A. Harper, Jr., Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc~ CORD, JJ., concur.


text:
    Nathan Curtis WATSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-362.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    John TUTEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-97.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, for appellant'.
    Robert L. Shevin, Atty. Gen., Jeanne D. Schwartz, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Isadore DIXON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-270.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Richard W. Ervin, III, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    William J. WELCH, Jr., and Norma J. Welch, his wife, Appellants, v. J. Brailey ODHAM, Appellee.
    No. 75-1144.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    John V. Baum, Baum & Simmermon, Winter Park, for appellants.
    James E. Foster, Fishback, Davis, Dominick & Simonet, Orlando, for appellee.
   PER CURIAM.

We have considered both the appeal of William J. Welch, Jr. and Norma J. Welch, his wife, as well as the cross-appeal of J. Brailey Odham, and find no reversible error on the part of the trial court.

Affirmed.

WALDEN, DOWNEY and ALDERMAN, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    Alvin Bernard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. AA-275.
    District Court of Appeal of Florida, First District.
    July 13, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant-defendant Davis was informed against, tried and, upon a jury verdict, convicted of possession of a firebomb with intent to burn a building, from which he now appeals.

Determinative of this controversy is appellant Davis’s assertion that he was denied a fair trial within the meaning of the Sixth Amendment, United States Constitution, and Article I, Section 16, Florida Constitution, by reason of prosecutorial misconduct. Appellant’s justiciable grievance is that the prosecuting attorneys improperly coerced a witness to testify against him. We agree and reverse.

At the outset of the trial and in the absence of the jury, Mr. Davis, an assistant state attorney, had the following colloquy with the trial court:

“MR. DAVIS: Your Honor, we request that the swearing in of the jury be delayed for a period of 30 minutes. We have a witness upstairs who has testified at a prior deposition. She saw all of the provocation, which would be factual matters to be brought forth before the jury in this case and she is now advising us that she did not see anything and furthermore, that she will not testify.
“This witness is the girl friend of the defendant [appellant] and we are requesting this additional period of time to work with her in an attempt to get her to either—
“THE COURT: Let him finish, please.
“MR. DAVIS: Requesting the additional period of time to work with her and determine whether or not she will in fact get on the stand and will in fact commit perjury.
“THE COURT: What say you for the defense?
“MR. CANIPELLI: [Appellant’s defense counsel] Your Honor, I would ask that I be allowed, one of the Public Defenders be allowed to be present during this session so no threats are made against this witness.
“THE COURT: Any counsel for the record can speak to any witness and if counsel steps out of line, I’m sure he is sufficiently acquainted with the ethics and I am not going to presume that he is not. Do you understand what I mean?
“MR. DAVIS: Yes.”

After a short recess, the court reconvened (out of the presence of the jury) and at this time the trial judge inquired of Mr. Davis if he was acquainted “with the Lee case in Fernandina” and stated: “You understand it was an unethical matter to threaten someone to change their testimony back or so forth ? Do you remember reading that case?”, and Mr. Davis replied, “No.” The trial court then advised Davis that the usual procedure in the case of a witness changing his testimony is for the court to declare him a hostile witness giving each party the right to cross examine and impeach, and that the question of perjury is a matter outside of the case. Another short recess was had, and upon the court reconvening, Davis advised the trial judge that he had read the Lee case during this last recess but did not think his prior actions fell within the purview of it. Davis then described in detail what had transpired with the witness, viz:

“MR. DAVIS: I was advised at approximately 9:30 this morning that the state’s witness . . . had disappeared. She had come down to the Courthouse. We couldn’t find her.
“I contacted our investigator and gave him a picture of the woman. He located her. She was wandering around the Courthouse here. He located her, kept her in his custody until I had an opportunity to talk with her.
“I took her up to the office. At that time, I attempted to question her as to why she was being uncooperative. For the first five or ten minutes, she refused to answer any of my questions. I told her if she would not tell me what the problem was, I couldn’t understand what the problem was.
“She then said she did not wish to testify-
“I asked her why she didn’t wish to testify and she wouldn’t tell me. I gather from talking with her sister that apparently she is pregnant by the defendant [appellant] and does not wish to testify against him for the reason that he is the father of her child to be.
“Based on that, I told her that — I asked her, I asked her what would she testify to if she were called to the stand and told to testify.
“She said that she would testify that she wasn’t there and she didn’t see anything and he wasn’t there.
“I advised her that she had given a deposition earlier which under oath she testified to facts directly contrary to that. She had testified that she was in fact there; that she had in fact seen the defendant there, and that he had in fact in his possession an incendiary device, apparently a firebomb; that he had lit it and thrown it at the house and she had seen all of his actions done by him.
I further advised her that if she took the stand under oath and testified that she had not seen anything and she was not there, that that would constitute perjury in my opinion, that the penalty for perjury was IS years, and that as an Assistant State Attorney, if she committed perjury under oath, I would have a duty to prosecute for that perjury.
“This is basically what has transpired in a brief sense.
“. . . I am not attempting to prevent this witness from testifying. She certainly — she’s not what I could call a State’s witness. She was a party. She was there. Now she’s trying to tell me, if she is called to the stand she is going to testify she didn’t see anything. I’m trying to get her to take the stand, to tell the truth. I am not trying to get her to give a different story. I think this is where the difference is.”

Assistant State Attorney Silberhorn then revealed to the court that he had informed the witness that she had three choices: 1) to take the stand and say that she saw nothing, subjecting herself to a charge of perjury and IS years, 2) to refuse to testify and be in contempt of court, or 3) to take the stand and tell the truth in which case nothing would happen. The assistant state attorney denied trying to influence or bias the witness.

Ultimately, the witness took the stand and testified that she had seen appellant throw a firebomb at a house. On redirect examination the following transpired:

“Q. [the State] I understand ma’am, now. And you didn’t want to testify against him; is that correct ?
“A. Yeah.
“Q. All right. Now, did you have a conversation with me today? My name is Ed Silberhorn. Do you remember me upstairs ?
“A. Yes.
“Q. Did we discuss this matter about you wanting to testify and not wanting to testify?
“A. We didn’t discuss it. You said something about it.
“Q. . . . Did I not tell you this morning, ma’am, that you had a duty to tell the truth in this case and that if you didn’t tell the truth, that the State could prosecute you for perjury ?
“A. Yes.
“Q. . . . And did I not tell you if you took the stand and refused to say anything against your lover, that the Judge could take that into consideration after you’ve been sworn under oath for purposes of direct contempt?
“A. Yes.
“Q. And did I not also tell you that if you stood up there and told the truth, the truth exactly as you told it, that nothing wrong would happen to you at all?
“A. You did, but the other one said he would personally see to it that I got IS years and took to jail today.
“Q. And have you told the truth ?
“A. Yeah, as long as I can remember I have.

On recross examination the following colloquy was had:

“Q. [defense attorney] Can you describe this other man, ma’am? Can you describe the man who told you that other statement, that he would personally see that you would get IS years ?
“A. They called him Marshall. That is all I know.
[The state stipulated that “the other man” was Assistant State Attorney Davis.]
“Q. Ma’am, were you scared of testifying today?
“A. Yes, I’m scared.
“Q. Is it because any of these prosecutors threatened to give you 15 years?
“A. That is one reason. I told him, ‘How would you like to be locked up?’
“Q. But you did at one point tell him you didn’t remember anything about that night; is that correct ?
“A. I told him I was going to get up here — he said he would have the jury took out and have the Judge put me in jail if I said that.”

The trial court admonished the assistant state attorneys for their conduct but declined to grant a motion for mistrial.

As this court stated in Lee v. State, supra, quoting Mathews v. State, 44 So.2d 664, 669 (Fla.1950), one who interviews witnesses before trial “must exercise the utmost care and caution to extract and not to inject information, and by all means to resist the temptation to influence or bias the testimony of the witnesses.”

It is our opinion that the “interview” of the subject witness shortly before her testimony by the assistant state attorneys, at which time she was threatened with prosecution for perjury, constituted the type of undue pressure condemned in Lee.

While it is true that the assistant state attorneys admonished the witness to tell the truth, it must have been obvious to the witness that the “truth” was that which she had testified to at an earlier deposition. Rules of evidence and procedure exist which are designed to assist prosecution and defense alike in eliciting the truth from balky witnesses. Coercion and threats are not among these rules.

REVERSED for a new trial.

MILLS and SMITH, JJ., concur.

      . Lee v. State, 324 So.2d 694 (1 Fla.App. 1976).


text:
    Orville R. SIMPSON and Thelma L. Simpson, his wife, Appellants, v. MONTGOMERY WARD & COMPANY, Appellee.
    No. 75-331.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Marcia Lippencott and Kenneth W. McIntosh, Stenstrom, Davis & McIntosh, Sanford, for appellant.
    Seymour Benson, Jacob & Benson, Orlando, for appellee.
   PER CURIAM.

Our reading of the record convinces us that the jury’s verdicts on the claim of plaintiff-appellee Montgomery Ward & Company and the counterclaim of appellant Orville Simpson were against the clear weight of the evidence adduced at trial. The final judgment based on those verdicts is therefore reversed, and the cause is remanded for a new trial on all issues raised by the pleadings. Howell v. Blackburn, 100 Fla. 114, 129 So. 341 (1930).

WALDEN and DOWNEY, JJ., and McCAULEY, JAMES A., Associate Judge, concur.


author: GRIMES, Judge.

text:
    Christopher Charles WOMBLE, Appellant, v. John RABER, individually and d/b/a J J Crane & Tree Service and National Indemnity Company, Appellees.
    No. 75-1371.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Rehearing Denied Aug. 5, 1976.
    Patrick J. Murphy of Crabtree, Butler, Syprett & Meshad, P. A., Sarasota, for appellant.
    Sheldon J. Gensler, Sarasota, for appel-lees.
   GRIMES, Judge.

The issue in this case turns on whether appellee (Raber) is entitled to statutory immunity under the Florida Workmen’s Compensation Act prior to its amendment as of October 1, 1974.

Appellant (Womble) was an employee of Abe Davis Construction Company, a carpentry subcontractor of Bob Schey, the general contractor who was engaged in the construction of a house. Raber was an individual proprietor of a crane service business operating under the registered fictitious name of J J Crane & Tree Service. Schey had contracted with Raber to furnish a crane and operator to help erect trusses on the house. Womble was injured in the course of disengaging a truss from a hook on the crane operated by Raber. Womble received workmen’s compensation benefits from his employer. He then sought to recover damages in a third-party tort action against Raber. Raber obtained a summary judgment on the defense of immunity from liability under the exclusive remedy of the Workmen’s Compensation Act.

Under the Workmen’s Compensation Act, the employees of a general contractor or any subcontractor working under the general contractor are deemed to be statutory fellow servants whereby a negligent injury inflicted by any such employee upon another cannot provide a basis for suit against the negligent employee’s employer. The injured employee has an exclusive remedy under the Workmen’s Compensation Act. Miami Roofing & Sheet Metal Co. v. Kindt, Fla. 1950, 48 So.2d 840. The predicate for the statutory immunity under Fla.Stat. § 440.11 (1973) is the obligation of contractors and subcontractors under Fla.Stat. § 440.10 (1973) to secure the payment of workmen’s compensation to all employees injured on the job. Jones v. Florida Power Corp., Fla.1954, 72 So.2d 285. However, there is no immunity under the Workmen’s Compensation Act for an employee who is sued for having negligently injured his fellow employee even though their common employer carried workmen’s compensation insurance. Frantz v. McBee Company, Fla.1955, 77 So.2d 796.

The record reflects that Raber had no employees of his own, and he carried no workmen’s compensation insurance. Womble argues that Raber’s status was tantamount to that of an employee of Schey, thereby making him subject to a suit by a fellow employee. In support of this position Womble cites Cromer v. Thomas, Fla. App.3d, 1960, 124 So.2d 36, in which an employee of the City of Miami Beach was hurt by a crane during the course of some construction and excavation work for the city. The crane was owned by Thomas who was under contract with the city to supply his crane and himself as an operator for use on the job. The court held that Thomas was not immune from suit under the Workmen’s Compensation Act. In addition to pointing out that there could be no immunity because the construction was undertaken without a general contractor, the court further said:

“The present suit was against an independent contractor crane-owner engaged in an integral part of the work, but the injury was alleged to have been caused by him while operating the crane, and not by one of his employees. Therefore, the independent contractor himself, and the owner’s employee whom he allegedly injured, were co-employees or fellow servants under Smith v. Poston Equipment Rentals, [Fla.App., 105 So.2d 578] supra, and an action would lie against Thomas on the additional theory of suit by one employee against a co-employee. See Frantz v. McBee Company, Fla.1955, 77 So.2d 796.”

In Cromer, supra, the plaintiff and Thomas were said to be employees of the same employer, to wit: the City of Miami Beach. In the instant case, even if Raber is held to be an employee, he would be an employee of a different employer than Womble’s employer. Therefore, Cromer is pertinent only if Frantz v. McBee Company, supra, is construed to mean that an employee of one contractor can sue the employee of a different contractor when both are working on the same job. While the two employees in Frantz v. McBee Company, supra, both worked for the same employer, there is nothing in that case which tends to preclude an employee of one subcontractor from suing an employee of either the general contractor or another subcontractor working on the same job. Thus, in that case the Supreme Court said:

“We hold, then, in accordance with the almost universal rule in those jurisdictions where there is no express legislative mandate to the contrary, that a co-employee or fellow servant is a ‘third party tort-feasor’ within the meaning of our Workmen’s Compensation Act.

Raber relies heavily on Shirley v. Asbell, Fla.App. 1st, 1967, 197 So.2d 828. There, a general contractor engaged in the placement of rocks upon a beach contracted with Imler Earth Movers, Inc. to provide trucks and drivers to haul the rock. Not having sufficient equipment of its own to carry out the contract, Imler entered into an agreement under which Asbell would provide his truct and a driver to Imler. One of the general contractor’s employees was injured by a rock which fell from Asbell’s truck at a time when Asbell himself was the driver. The court held that Asbell was immune from suit under Fla.Stat. §§ 440.10 and 440.11. This case may be distinguishable by the fact that the opinion implied that Asbell employed persons other than himself. If this was the case, Asbell would have presumably been required to carry workmen’s compensation insurance and would have been entitled to the statutory immunity.

If the outcome of this case turned solely on whether Raber was an employee of Schey, we would be inclined to affirm, because Raber’s arrangements with Schey have all the earmarks of an independent subcontractor relationship. However, in the final analysis, we believe that the determining factor is whether Raber may be considered as an employing subcontractor who was entitled to immunity under the Workmen’s Compensation Act. The purpose of making employees statutory fellow servants is not to make such employees immune from suits against each other but to protect their employer (who is obligated to provide workmen’s compensation insurance) from liability for the employee’s negligence. Clearly, Raber had no obligation to provide workmen’s compensation insurance because he had no employees. Fla. Stat. § 440.02 (1973). Therefore, he was not entitled to the immunity contemplated by the Act. As the court stated in Frantz v. McBee Company, supra:

“In the Jones case, we held that ‘It is the liability to secure compensation which gives the employer immunity from suit as a third party tort-feasor. His immunity from suit is commensurate with his liability for securing compensation— no more and no less.’ There is, of course, no liability on the part of an employee to secure compensation for a co-employee. And since there is no liability under the Act, there is no immunity from suit under the Act. . . .”

REVERSED.

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

      . The significance of this point is explained in Jones v. Florida Power Corp., supra.