author: WATSON, Judge.

text:
    LEE LUMBER COMPANY, LTD., Plaintiff-Appellant, v. INTERNATIONAL PAPER COMPANY, Defendant-Appellee.
    No. 5172.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1976.

      Polk, Foote, Randolph & Percy by Lamar Polk and George M. Foote, Alexandria, Sirote, Permutt, Friend & Friedman by Robert B. Eubanks, Birmingham, Ala., for plaintiff-appellant.
    Madison, Files, Garrett, Brandon & Ha-maker by David I. Garrett, Jr., and Mer-win M. Brandon, Monroe, Gold, Hall, Hammill & Little by Donald Sharp, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HALL, JJ.
   WATSON, Judge.

Plaintiff, Lee Lumber Company, Ltd., filed this suit against defendants, International Paper Company and Willet Timber Company, Inc., asking that a contract dated June 1, 1946, by which Lee leased some 18,000 acres of Louisiana timberland in the parishes of Rapides, Grant and Avoyelles to International be cancelled and Lee be placed in possession of the land. By a prior agreement, Lee had sold all of the timber on the land to International. The primary purpose of the lease was future use of the land in growing timber. The other defendant, Willet, was alleged to be exercising the rights granted to International under the lease agreement. The term of the lease was 61 years and five months, commencing January 1, 1945, and the annual rental was $1400. International filed a peremptory exception of prescription to plaintiff’s action. This was sustained by the trial court which dismissed plaintiff’s suit. Plaintiff Lee has appealed from the adverse judgment.

In connection with this appeal, plaintiff Lee has filed a motion to delete from the appellate record the interrogatories addressed to International and the answers, together with exhibits attached to the answers. This material is included in a supplement and was left out of the original appellate record at the request of Lee and then filed with this court at the request of International. International opposes the motion contending that the answers to the interrogatories form part of the record of this appeal, although not offered in evidence. The interrogatories and answers cannot be considered by this court, because they were not introduced into evidence. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1 Cir. 1975).

Plaintiff-appellant Lee contends on appeal in essence that:

(1) The contract of lease is an absolute nullity because of a potestative condition and therefore the five and ten-year prescriptive periods found in Articles 2221 and 3542 of the Civil Code do not apply; and

(2) Plaintiff’s causes qf action for cancellation of the lease have not prescribed.

The questions presented by the appeal are:

(I) Is the lease an absolute nullity because of a potestative condition?

(II) Have plaintiff’s causes of action prescribed ?

I. Existence of a potestative condition in the lease.

The portions of the contract of lease which are alleged to constitute a potesta-tive condition arc as follows:

“Said annual rental may be reduced by the release of lands by lessee as hereinafter provided.
* * * * * * “The lessee shall have the right to release from this contract any portion of or all of said lands during the term herein provided and be relieved of its obligation to pay rental on the land so released. The annual rental herein provided to be paid by lessee to lessor shall be reduced to the extent of per acre per year on all land so released by the lessee pursuant to the provisions of this paragraph.”

The trial court found that the above provisions of the lease did not constitute a po-testative condition. The pertinent codal articles are as follows:

LSA-C.C. art. 2024:

“The potestative condition is that which makes the execution of the agreement depend on an event which it is in the power of the one or the other of the contracting parties to bring about or to hinder.”

LSA-C.C. art. 2034:

“Every obligation is null, that has been contracted, on a potestative condition, on the part of him who binds himself.”

LSA-C.C. art. 2035:

“The last preceding article is limited to potestative conditions, which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be, that the obligor shall do or not do a certain act, although the doing or not doing of the act depends on the will of the obligor, yet the obligation depending on such condition, is not void.”

LSA-C.C. art. 2036:

“An obligation may also be made, by consent of the parties, to depend on the will of the obligee for its duration. Thus a lease may be made during the will of the lessor, and a sale may be made conditioned to be void, if the vendor chooses to redeem the property sold.”

A similar contention in connection with a contract of lease was made in Thibodeaux v. Boeuf Land Co., Inc., 303 So.2d 576 (La.App. 1 Cir. 1974) and McCain v. Continental Can Company, Inc., 299 So.2d 454 (La.App. 2 Cir. 1974), writ refused La., 302 So.2d 308. In both cases the unilateral right of the lessee to continue or cancel the lease was upheld. In McCain the right was analogized to an option.

If Lee and International chose to agree that the lessee was to have the continuing right to release a portion or all of the land leased, that was their prerogative under LSA-C.C. art. 2036.

Therefore, we agree with the trial court that the lease is not void because of a po-testative condition. See 47 Tulane Law Review 284.

II. Prescription.

A. Five and Ten Yedrs’ Prescription

The trial court held that plaintiff’s action to cancel the contract of lease for nullity had prescribed under the provisions of LSA-C.C. art. 3542 and that, if the prescriptive period of art. 3542 did not apply, then the ten-year period of LSA-C.C. art. 2221 was appropriate. In either case, the trial court held plaintiff’s cause of action had prescribed.

While we have been favored with excellent and extensive briefs, suggesting many authorities, we have been cited to none which would take the contract of lease out of the provisions of Articles 3542 and 2221.

A major argument of appellants is that the lease rental, approximately 7.7‡ per acre per year, is not a serious consideration (or cause, to use the civilian term) and is out of proportion with the value of the thing. For that reason, the argument goes, the lease is an absolute nullity and the present action is not prescribed. This argument is not persuasive for the reason that appellant, logically, is required to contend that the consideration (cause) was not serious and was out of proportion at the time the contract of lease was confected. Therefore, the prescriptive period during which the objection could be raised as to lack of serious consideration (cause) began to run when the agreement was made, and the period has run. The base agreement was made 30 years ago. The lessor cannot now be heard to contest the lack of serious consideration or cause.

Therefore, we agree with the trial court that plaintiff’s alleged cause of action to cancel for lack of serious consideration or cause has prescribed.

B. Lesion

Appellant suggested in the trial court the nullity of the lease for lesion beyond moiety, although this theory is not urged on appeal. We note merely that we agree with the trial court that lesion is not applicable, and in any event, is subject to the prescription of four years. LSA-C.C. arts. 1862 and 1876.

C. Prescription as to Rent and Taxes

Plaintiff’s petition contains an allegation that International has not paid the stipulated annual payments of $1400 under the terms of the contract and the annual taxes on the timber and cutting rights. This allegation, if true, states a cause of action which has not prescribed. International’s obligation to pay rent under the lease is a continuing one. Unquestionably, the failure of lessee International to fulfill its obligations under the lease would give cause for dissolution. LSA-C.C. art. 2729. A lessor may recover possession of leased premises for non-payment of the rent or breach of another condition of the lease. 327 Bourbon Street, Inc. v. Pepe, Incorporated, 257 La. 577, 243 So.2d 262 (1971); Bouterie v. Kleinpeter, 258 La. 605, 247 So.2d 548 (1971).

For the foregoing reasons, the judgment of the trial court dismissing the suit of plaintiff, Lee Lumber Company, Ltd., is affirmed insofar as the trial court held the plaintiff’s causes of action to nullify the lease on the grounds (1) that it contains a potestative condition (2) that the consideration or cause was not serious and (3) lesion beyond moiety have prescribed, but is reversed in part and the matter is remanded for trial on the merits of the plaintiff’s allegations with regard to the failure of International Paper Company to comply with the provisions of the lease concerning rentals and taxes.

All costs to await final disposition.

Affirmed in part, reversed in part and remanded.

      . LSA-C.C. art. 3542
      “Art. 3542. Actions prescribed by five years Art. 3542. The following actions are inscribed by five years:
      That for the nullity or rescission of contracts, testaments or other acts.
      That for the reduction of excessive donations.
      That for the rescission of partitions and guarantee of the portions.
      This prescription only commences against minors after their majority.”

      . LSA-C.C. art. 2221
      “Art. 2221. Prescription for action of rescission
      Art. 2221. In all cases, in which the action of nullity or of rescission of an agreement, is not limited to a shorter period by [a] particular law, that action may be brought within ten years.
      That time commences in case of violence, only from the day on which the violence has ceased; in case of error or deception, from the day on which either was discovered, and for acts executed by married women not authorized, from the day of the dissolution of the marriage or of the separation.
      With regard to acts executed by persons under interdiction, the time commences only from the day that the interdiction is taken off; and with regard to acts executed by minors, only from the day on which they become of age.”


source: Caselaw Access Project

author: HOOD, Judge.

license: Public Domain

text:
    Shelton RITTER et al., Plaintiffs-Appellees, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    No. 5152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1975.
    Rehearing Denied Nor. 13, 1975.

      Dubuisson, Brinkhaus, Guglielmo & Dauzat by William A. Brinkhaus, Opelou-sas, for defendant-appellant.
    J. William Pucheu, Ville Platte, for plaintiffs-appellees.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

This is an action for damages resulting from the death of Mrs. Theresa Ritter, who was killed instantly when struck by an automobile being driven by Paul Jean Du-plechain. Plaintiffs are the four surviving children of the decedent. The suit was instituted against Southern Farm Bureau Casualty Insurance Company, the liability insurer of the Duplechain automobile. The trial court rendered judgment in favor of plaintiffs, and defendant has appealed.

The issues presented are (1) whether Duplechain, the driver of the automobile, was negligent, (2) whether the decedent also was negligent, barring plaintiffs from recovering, and (3) whether plaintiffs are entitled to recover under the doctrine of last clear chance.

The accident occurred about 5:45 P.M. on December 3, 1970, on Louisiana Highway 29, about two miles south of Ville Platte, in a rural area of Evangeline Parish. Mrs. Ritter’s home was located on the east side of the highway. Just before the accident occurred she was observed walking across the highway, from east to west, toward her mail box which was located on the west shoulder of the road. Shortly after she crossed the center line of the highway, and while she was in the southbound lane of traffic, she was struck by an automobile owned by Norman Duplechain and being driven south on that highway by Paul Jean Duplechain, the owner’s 17-year-old son. Mrs. Ritter died immediately as a result of injuries which she sustained in that accident.

The highway at that point is a straight, level blacktopped thoroughfare, about 20 feet wide. The shoulders on each side of the hard surfaced slab were about 7i/¿ feet wide. There was a dotted white line along the center of the highway.

The weather was clear, and the highway was dry when the accident occurred. It was dark enough that vehicles traveling on the highway at that time had to use their headlights. The headlights of the Duple-chain car were burning, on dimmers, before and at the time the accident occurred. The car was a relatively late model automobile, it was in good mechanical condition, and the brakes worked properly.

Duplechain testified in a deposition taken before trial that he first saw Mrs. Rit-ter when he was about 120 feet from her. He stated at the trial that he was about 300 feet from her when he first observed her walking across the highway. We think his estimate at the trial was more accurate than the one he made earlier, because of the distance the car skidded before it struck the decedent. The evidence shows that Mrs. Ritter was in the southbound lane of traffic, about two or three feet west of the center line of the highway, at the time she was struck. The left front part of the car struck her. After the accident, her body came to rest in the northbound lane of traffic, about 90 feet south of the point of impact. One of her legs was severed by the blow, and her severed leg also came to rest in the northbound lane of traffic, about 110 feet south of the point of impact.

At the time the accident occurred, Mrs. Ritter was wearing a black or dark green dress or pants suit, except that the upper part of her clothing was decorated with orange flowers. The evidence shows that her dark clothing and the weather conditions made it difficult for a motorist to see her on the highway.

Randy Darbonne was riding as a passenger in the car being driven by Duplechain when the accident occurred. Neither Du-plechain nor Carbonne had had any alcoholic beverages to drink, and the evidence indicates that they were observing the road ahead of them just before and at the time of the accident. Both of them saw Mrs. Ritter at about the same time, when she was approximately on the center line of the highway or just as she stepped from the northbound into the southbound lane of traffic.

The evidence shows that the left wheels of the automobile skidded a total distance of 190 feet, the skid marks beginning 160 feet before the car reached the point of impact and continuing 30 feet beyond or south of that point. The right wheels skidded 102 feet, beginning 72 feet north of the point of impact and ending 30 feet south of that point. All of those skid marks began in the southbound lane of traffic, and they continued in a straight line, wholly within that lane of traffic, from the place where they started to the point where the car struck Mrs. Ritter. The skid marks made by the left wheels of the automobile crossed the center line of the highway a few feet south of the point of impact, and it is apparent from those marks that the left wheels traveled 6 to 12 inches into the northbound lane of traffic. The automobile then was turned back into the southbound lane of traffic.

The Duplechain car came to a stop 231 feet south of the point of impact. The evidence shows, however, that after the accident occurred and the car had skidded 30 feet beyond the point of impact, Duple-chain let up on his brakes and at the suggestion of his companion he drove the car onto the west shoulder of the highway and parked it. He then ran back to the scene of the accident, went into Mrs. Ritter’s home and called the hospital and the State Police.

Duplechain and Darbonne testified that they first saw Mrs. Ritter when she was near the center line of the highway, and that immediately after they saw her Duple-chain applied his brakes and began skidding his tires. They stated that Mrs. Rit-ter stopped for a moment, looked directly at them, appeared to freeze for a moment and then she started to take a step backward. They said that Duplechain was unable to avoid striking her, and that the car struck her when she was about one step west of the center line. Both of these witnesses testified that Duplechain was driving at a speed of from 55 to 60 miles per hour when they first saw the decedent, that both of them were observing the highway ahead of him, and that Duplechain applied his brakes as soon as it was possible for him to see Mrs. Ritter.

Two experts in reconstructing automobile accidents testified at the trial. One of them, Mr. Ray Herd, felt that Duplechain was driving from 66 to 70 miles per hour when he first applied his brakes, but he based that estimate on the assumption that the car was traveling at a speed of 45 miles per hour when it struck Mrs. Ritter. He calculated that the automobile would have to be traveling at least that fast for it to knock the decedent’s body through the air a distance of 90 feet. The other expert, Dr. William H. Tonn, concluded that the Duplechain car was traveling at a speed of 60 miles per hour when the brakes were first applied, and that the speed had been reduced to 20 miles per hour by the time the impact occurred. He did not feel that the decedent’s body had been hurled through the air 90 feet, but instead he reasoned that it was carried on the hood of the car at least a part of the distance between the point of impact and the point where it came to rest after the accident. The opinion expressed by Dr. Tonn was supported by the testimony of Darbonne, who stated that Mrs. Ritter’s body came up on the hood toward the windshield after the impact, and that it then fell off to the left side of the car.

The trial judge rejected the testimony of both of the experts who testified at the trial, and he concluded from the remaining evidence that the sole cause of the accident was the excessive speed of Duplechain and his failure to keep a proper lookout.

We have decided that Mrs. Ritter was negligent, that her negligence was a proximate cause of the accident, and that Duplechain did not have the last clear chance to avoid the accident. In view of those findings, it is unnecessary for us to determine whether Duplechain was or was not negligent.

We conclude that when Duplechain first observed Mrs. Ritter walking in a westerly direction on or near the center line of the highway, he was about 300 feet from her. At that time another automobile being driven by Domday Ardoin was approaching the scene of the accident from the south. The Ardoin vehicle was about 300 yards (or 900 feet) from the scene of the accident when Duplechain was about 300 feet from it. Ardoin testified that when he saw the headlights of the Duplechain car “swinging from right to left,” he began applying his brakes. The lights on the Du-plechain vehicle did not swing from right to left until after the impact had occurred. Ardoin then noticed an object in the road ahead of him, so he stopped, walked over to the object and found that it was the body of Mrs. Ritter. He stated that his lights were burning on dim as he approached the scene of the accident.

It is apparent that when Mrs. Rit-ter started to walk across the highway, probably to go to her mail box, the Duple-chain car was approaching from her right and the Ardoin vehicle was approaching from her left. The headlights on both vehicles were burning, and Duplechain was close enough to Mrs. Ritter that she should have realized that it was impossible for her to safely cross the highway before his car would reach her. The fact that she was struck shortly after she crossed the center line shows that she began walking across the highway, in front of oncoming vehicles, when she did not have time to complete her crossing.

Under those circumstances we conclude that Mrs. Ritter was negligent, and that her negligence was a proximate cause of the accident, barring her survivors from recovering in this case.

Plaintiffs contend, however, that young Duplechain had the last clear chance to avoid the accident.

In Fontenot v. Travelers Indemnity Company, 134 So.2d 330 (La.App. 3 Cir. 1961), which involved a case similar to the instant suit, we listed the circumstances which must exist before the doctrine of last clear chance can be invoked, as follows :

“For the successful invocation of the doctrine of last clear chance in a case of this kind, it is necessary that the following facts or circumstances be established: (1) that the pedestrian was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that the driver of the motor vehicle actually discovered or was in a position where he should have discovered the pedestrian’s peril; and (3) that, at that time, the driver of the motor vehicle, with the exercise of reasonable care, could have avoided the accident. Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195; Newton v. Pacillo, La.App. 2 Cir., 111 So.2d 895 (Certiorari denied); O’Dell v. Hood, La.App. 2 Cir., 126 So.2d 373 (Certiorari denied).”

At least two (the first and the third) of the three elements essential for invoking last clear chance are missing in the instant suit.

The evidence does not show, for instance, that Mrs. Ritter was unaware of her position of peril, or that she was unable to extricate herself from it. On the contrary, the evidence shows that she at least should have seen the approaching Du-plechain car and thus should have been aware of it before she began to cross the highway. It also shows that Mrs. Ritter stopped and looked toward that approaching vehicle after she had stepped into the southbound lane, and that at that time she still could have stepped back into a place of safety but failed to do so.

Mrs. Ritter was 69 years of age at the time the accident occurred. The evidence shows, however, that she was a very active and busy person and was not disabled in any way. She kept her own house, cared for her chickens, worked in her garden and drove her own car. The evidence indicates that she was agile enough to have stepped out of the way of the Duplechain car, even after she entered the southbound lane of traffic, if she had exercised reasonable care.

The third element necessary for invoking last clear chance is that the driver of the motor vehicle must have been able to avoid the accident after he discovered or should have discovered the danger. In this case we find that young Duplechain saw the decedent as soon as it was possible for him to do so under the circumstances. He immediately applied his brakes and skidded up to and beyond the point of impact. The evidence shows that he had no control over the direction his car traveled while it was skidding. He thus could not have avoided the accident after he discovered or should have discovered that the decedent was in a position of peril.

Our conclusion is that the doctrine of last clear chance is not applicable here.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendant, rejecting plaintiffs’ demands, at their costs. The costs of this appeal are assessed to plaintif fs-appellees.

Reversed.


author: MILLER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Russell H. FREE, Defendant-Appellant.
    No. 5153.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1976.

      Eugene P. Cicardo, Alexandria, for def endant-appellant.
    L. Paul Gianfala, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   MILLER, Judge.

In this civil proceeding defendant Russell H. Free appeals the judgment ordering him to surrender to plaintiff' State of Louisiana all permits and licenses to operate a motor vehicle on finding him to be a habitual offender as defined by LSA-R.S. 32:1472. We affirm.

Pursuant to the habitual offender statute, the Department of the Public Safety certifies a record of convictions to the appropriate district attorney when a driver accumulates a certain number of prescribed convictions within a five year period. The statute mandates filing a petition in criminal district court which results in an order to defendant to show cause why he should not be adjudged an habitual offender. A judgment so rendered requires defendant to surrender his licenses and permits to operate a motor vehicle and directs him not to operate a motor vehicle on the highways of this state for five years. The penalty for violation of this order is imprisonment for not less than one nor more than five years. LSA-R.S. 32:1480. If a person adjudged an habitual offender is charged (and convicted) of an offense prescribed by this chapter after his adjudication an additional penalty is provided. § 1481.

The threshold issue is the nature of the action — is it civil or criminal? On argument the State conceded statutory interpretation alone would defeat its case if this were a criminal matter for strict construction would then be required. We also note this court’s jurisdiction is restricted to civil matters. Louisiana Constitution of 1974, Art. V, § 10.

CONSTRUCTION

Defendant argues this statute is in derogation of his right to operate a motor vehicle and for that reason should be narrowly construed. We reject this contention.

A distinction is made between “rights” and “privileges” to allow broad construction of statutes affecting privileges. Regard for persons is the pivotal basis for applying narrow construction to statutes as they more directly adversely affect the person.

However, construing a statute narrowly as it affects one interest usually results in a broad construction as it affects other interests. Therefore some reason must be established to determine whose is the prime interest for protection. We take our cue by determining whose interest the “right or privilege” to drive was intended to further. For example, the privilege of holding public office was intended to benefit the public. Ricks v. Department of Public Service, 200 La. 341, 8 So.2d 49 at 56 (1942). The familiar example of the Bill of Rights is one intended to preserve an individual’s liberty and therefore is for his private benefit.

The state’s streets and highways are constructed with public funds as arteries of commerce and transportation for the public’s benefit and well being. There may be incidental private benefit from operating a motor vehicle, but the individual’s right to operate a vehicle is in furtherance of the public interest.

So long, then, as the state is free of arbitrary, capricious or invidious discrimination, it may restrict this “right or privilege” to promote the public welfare it was originally conceived to serve. Courts will “broadly” interpret such statutes in the public’s favor. Perhaps to say the court will give the fullest effect to the premise that the legislature intends to benefit the public interest is more accurate.

EXCEPTIONS

In this court Free filed exceptions of no right and no cause of action. The exception of no right of action was abandoned at argument.

The exception of no cause of action is aimed at two points in LSA-R.S. 32:1472(A)(1)(b), a portion of the law under which the surrender of Free’s driver’s license was ordered. The statute defines habitual offenders as persons who, within a five-year period, have accumulated three or more convictions of certain stated offenses including:

§ 1472(A)(1)(b) Operating or attempting to operate while under the influence of intoxicating liquor or drugs, operating or attempting to operate while impaired by the use of intoxicating liquor or drugs or operating or attempting to operate while intoxicated by the use of intoxicating liquor or drugs .

Free first contends the section does not refer to operating a motor vehicle while intoxicated, since the italicized words do not appear. Secondly, he was convicted of operating a motor vehicle while under the influence of intoxicating beverages (LSA-R. S. 14:98) — not of intoxicating liquor, as required by the above quotation.

MOTOR VEHICLES

The absence of an object for the sentence regarding “operating or attempting to operate” would be a fatal defect in a criminal statute. In this civil statute it creates an ambiguity — operate what ?— which we resolve by ascertaining the legislative intent. The Mary Ann, 21 U.S. 380, 8 Wheat. 380, 5 L.Ed. 641 (1823); State ex rel Reuter v. Board of Commissioners of Port of New Orleans, 161 La. 207, 108 So. 417 (1926). In construing the statute all parts are construed together. Reynolds v. Baldwin, 1 La.Ann. 162 (1846). In the remaining sub-paragraphs, the words motor vehicle appear as the object of the activity described therein. The chapter title is Motor Vehicle Habitual Offender Law.

Examination of the legislative history of Senate Bill 302 (of 1972), the legislative instrument by which this law originated reveals that the ellipsis was present in its inception, not the result of a deliberate deletion by amendment. The context of the statute in which the quoted section appears establishes “motor vehicles” as the object to which “operating” refers. The inference that “motor vehicle” is the proper object is so obvious as to make extended justification unnecessary.

Literally interpreted there is a disparity between the terms “intoxicating liquor” and “alcoholic beverages.” State v. Viator, 229 La. 882, 87 So.2d 115 (1956). But there are alcoholic beverages which are intoxicating. We take judicial notice that one’s driving is impaired because of intoxication from alcohol whether it be in the limited form of intoxicating liquor or in the all inclusive form of intoxicating beverages. The distinction is not essential because the legislature bases the cause of action on the “offenses described” as section (A) characterizes these subsections. Although this language may be inadequate to define a crime, it is sufficient to refer to the convictions which are the relevant facts. The disparity in terms does not defeat the reference. Gardner v. State, Department of Public Safety, 198 So.2d 184 (La.App. 3 Cir. 1967). The legislature intended to prevent multiple “DWI” and other serious driving offenders from driving on the highways.

SUSPENSIVE APPEAL

Free assigns the trial court’s denial of his motion for a suspensive appeal as error. The district attorney contends the statute does not specifically authorize a suspensive appeal ,and the trial court has discretion to grant or refuse a suspensive appeal. We reject this argument.

This action was tried and is before us as a civil proceeding and is governed by civil procedure. These rules for appeals are applicable by the terms of LSA-R.S. 32:1478 wherein appeal is made “in the same manner and form as appeals in civil actions.” LSA-C.C.P. art. 2123 allows suspensive appeals when perfected within thirty days “[e]xcept as otherwise provided by law, . .” Therefore the trial court erroneously denied Free’s application for a sus-pensive appeal. We hold Free’s appeal to have been a suspensive appeal.

ABSTRACT OF CONVICTION

Free contends the Department’s abstract of conviction was improperly admitted because it was not “certified.” The official who signed the certification was not custodian of records. The issues here are: 1) Must the certifying person have some specific capacity; or 2) May any person in the Department of Public Safety “certify” facts as truly reflecting the content of that department’s records ?

The requirements for certified records are set forth in LSA-C.C. art. 2267; LSA-C.C.P. art. 1394; and LSA-R.S. 13:3711. All require the certifying person to be 1) specifically authorized or 2) custodian of the original. LSA-R.S. 32:1473 uses the word “certify” without expressly stating or deleting the requirements. Absent language to the contrary “certify” has the meaning common to the other provisions. Therefore the abstract was improperly admitted because it was not properly certified.

This does not change the result, for under cross-examination Free admitted his three convictions within the five year period. Tr. 32. Since evidence of the convictions is properly in the record exclusive of the abstract, there is no manifest error in the trial judge’s finding.

UNCOUNSELED CONVICTIONS

Defendant attacks the constitutionality of the application of the statute because one of his convictions was made on a plea of guilty without benefit of counsel. Tr. 32.

The problem of uncounseled convictions has two levels. Unwaived absence of counsel is a defect when there is a deprivation of liberty [Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)], or a potential deprivation of liberty. City of Monroe v. Fincher, 305 So.2d 108 (La.1974).

However, this defect becomes an issue to Free when and if the case comes up at the second level—when there is an attempt to use that conviction in a subsequent proceeding. State of Louisiana v. Love, 312 So.2d 675 (La.App. 2 Cir. 1975). Since this is a civil action and no deprivation of liberty is or can be contemplated, the stringent safeguards of criminal proceedings are not applicable. The constitutional restriction on the state’s imposition of criminal sanctions is not germane to determine the state’s right in a civil proceeding to protect its motorists from mayhem on the highways. Further, raising the absence of counsel in the prior criminal proceeding in this civil proceeding amounts to a collateral attack on that judgment which is not allowed. Gardner v. State, supra.

This reasoning will not apply should an attempt be made under LSA-R.S. 32:1481 to proceed under the criminal sanctions of this statute. Defendant may raise his constitutional rights as a defense in that event.

FREE’S TESTIMONY UNDER CROSS-EXAMINATION

Free’s counsel objected to the district attorney questioning his client under cross-examination, contending his client could not be required to testify against himself. This is a civil proceeding involving Louisiana’s civil right to protect motorists from those who have become habitual offenders of serious driving offenses which justifiably question their ability to properly use their right to drive on the highways. The rights of the general driving public are superior to the privilege Louisiana extended to Free to drive on the highways. When the issue is presented as to whether Free abided with the conditions required of those licensed to use Louisiana’s highways, he is subject to cross-examination just as he is subject to cross-examination in civil proceedings involving damages he may have caused.

The trial court judgment is affirmed except insofar as it denied Free’s right to a suspensive appeal. All costs of this appeal are assessed to appellant.

Affirmed.


author: CULPEPPER, Judge.

text:
    Francis S. DEVILLIER, et al., Plaintiff and Appellant, v. TRADERS & GENERAL INSURANCE COMPANY et al., Defendant and Appellee.
    No. 5157.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1976.

      Dubuisson, Brinkhaus, Guglielmo & Dauzat by James T. Guglielmo, and Leon S. Haas, Jr., Opelousas, for plaintiff-appellant.
    Davidson, Meaux, Onebane & Donohoe, by Edward C. Abell, Jr., Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ. •
   CULPEPPER, Judge.

This is a suit for damages arising out of an automobile-truck collision. The plaintiffs are Francis Sanders Devillier and Roma Devillier Landos. Mr. Devillier sues for property damages to the automobile which he owned. Mrs. Landos, who was driver of the car, sues for her personal injuries. The defendants are the owner, the insurer and the driver of the truck-trailer. The trial judge found defendants liable. But he awarded only $1,000 for Mrs. Landos’ minor physical injuries. He rejected her claim for damages for traumatic neurosis. She appealed, seeking an award for the neurosis. Defendants answered that appeal, seeking a reversal on the liability issue.

The accident occurred at about 8:30 p. m. on a narrow two-lane blacktop road in a rural area. Mrs. Landos was driving in a northerly direction at a speed of approximately 50 miles per hour. Approaching from the north very slowly, or stopped in the opposite lane, was a truck and trailer owned by Frank Mosing, d/b/a Frank’s Casing Crews, and insured by defendant-appellant, Traders & General Insurance Company. Leston J. Patin, Al Marceaux and John R. Guillot, all employees of Frank’s Casing Crews, were riding in the truck. Patin was driving.

The collision occurred when the left front of the car struck the left rear of the trailer near the center of the highway. The automobile then continued across the highway in a westerly direction through a fence and finally came to rest in a field on the west side of the road. There were no markings designating the center line of the highway. Each driver contends the other was on the wrong side.

The trial judge was greatly impressed by the testimony of ain impartial witness, Mr. Watson. While Watson did not witness the accident, he arrived on the scene shortly after it occurred. He was able to trace the path of the Chevrolet automobile from the roadway off onto the east shoulder, noting a side movement there, and then back across the highway to its resting place in the field west of the road. No witnesses contradicted this. Other witnesses stated that they did not see any tracks, or did not search for them. Mr. Watson also stated that there was broken glass at the location of the automobile’s side movement onto the east shoulder of the road, indicating the truck had infringed on the northbound lane of travel and forced Mrs. Landos off the road.

Mrs. Devillier stated the truck was in her lane and that she pulled over as far as she could but was afraid she might go off in a deep drainage ditch along the east side of the highway.

Mr. Guillot testified that he believed the truck was in its proper lane. But Mr. Marceaux stated he could not be sure. Finally, Patin admitted that he could have crossed the center line. Neither Patin, Marceaux nor Guillot could state the location of the automobile at the time it collided with the left rear end of the trailer.

We are also impressed by the fact that this roadway is only approximately 17 feet wide, and the trailer on the truck involved in the collision is 8 feet wide. Additionally, Mr. Patin agreed that it was necessary to get somewhat close to the center of the highway, in order to turn a truck and trailer of this size. And there was testimony that the truck was turning onto the west shoulder. We are not persuaded by Patin’s statement that the truck was at least a foot off the west side of the roadway when the accident occurred, since neither Mar-ceaux nor Guillot could agree on this.

Wide discretion is accorded the trial court in assessing the credibility and accuracy of the testimony of the witnesses.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” Canter v. Koehring Company, 283 So.2d 716 (S.Ct. 1973). Applying this rule to the present case, we find no error on the liability issue.

Likewise, we find no manifest error in the court’s rejection of plaintiff’s claims for damages for her psychiatric condition. Both psychiatrists, Dr. Reagon and Dr. Rafferty, testified that the accident was the cause of Mrs. Landos’ condition. However, they based their conclusions largely on the history Mrs. Landos herself had given to them. Mrs. Landos admits that she failed to tell them about all of the emotional problems she was having before and after the accident.

The record shows that Mrs. Landos was married to Mr. Landos and lived with him 8 years. She then separated voluntarily from him and began living with Sanders Devillier, the owner of the car she was driving. For the past 9 to 10 years, while living with Devillier, she has been having an affair with Mr. W. A. Darling. The evidence shows she often had trouble with both men. They both had slapped or struck her on occasion. She testified that Mr. Darling had “beat me up.” Additionally, Darling’s wife had called Mrs. Lan-dos and had once confronted her and struck at her with an object. All this was occurring shortly before and after the accident.

At the time of the accident and after-wards, Mrs. Landos was going through menopause. This had caused her to be nervous. She had required medical treatment for her nerves before the accident.

Thus, even considering the testimony of plaintiff’s two daughters, a co-employee and Mr. Darling that the plaintiff’s psychiatric problems began only after the accident, we are unable to say the trial judge manifestly erred in finding as a fact that these conditions existed prior to the accident and were not caused or aggravated by the accident or resulting minor physical injuries. She recovered and returned to her job as a school cook about one week after the collision. She finished the school year in June, but did not return to work in September.

“Applicable here is the jurisprudence that since the symptoms of traumatic neurosis are vague, nebulous and almost entirely subjective, the courts should exercise great caution in allowing recovery for such a condition.” Belson v. Sub-Surface Completion Service, 253 So.2d 686 (3rd Cir. 1971); Jackson v. International Paper Company, 163 So.2d 362 (3rd Cir. 1964).

Appellants urge that in Allen v. Indemnity Insurance Company of North America, 137 So.2d 110 (3rd Cir. 1962), liability for traumatic neurosis was found under less persuasive evidence. However, in that case a jury had found a causal connection existed. This court afforded that finding, as it affords the finding in the instant case, great weight.

The next issue with which we are faced is whether the trial judge erred in disallowing opinion testimony during the new trial. We find that he did not. The order for the new trial provided that no hypothetical question or opinion evidence would be permitted. A trial judge may grant a partial new trial. Rachal v. United States Fidelity & Guaranty Company, 286 So.2d 147 (3rd Cir. 1973); LSA-C.C. P. 1971. This authority necessarily carried with it the power to define and limit the scope of that new trial.

The new trial was ordered presumably for the reason that new evidence had been found indicating that Dr. Rozas had treated plaintiff for a nervous condition subsequent to the accident. It was entirely proper for the trial judge to limit the testimony to this inquiry. The issue was mostly one of fact. The judge reasoned that hypothetical or opinion questions would not help. We find no abuse of his discretion in this regard.

Finally, plaintiff-appellant urges that the cost of preparing the deposition of Mr. Patin, which was filed in evidence on the trial on the merits, should have been taxed as a cost of court. LSA-R.S. 13 :4533 provides:

“The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.”

In Succession of Franz, 242 La. 875, 139 So.2d 216 (S.Ct.1962) our Supreme Court held that where a deposition is introduced into evidence at trial it is “used on the trial” within the intent of the above provision. In the present case, the deposition was introduced and accepted into evidence. The cost of its preparation must be taxed as a cost of court.

For the reasons assigned, the judgment appealed is amended to tax as court costs the cost of preparing the deposition of Mr. Patin. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the plaintiff.

Affirmed, as amended.


author: BEER, Judge. GULOTTA, Judge

text:
    Manfred M. BYE, Jr. v. Clarence B. GIARRUSSO, Individually and as Superintendent of the New Orleans Police Department.
    No. 7021.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Peter J. Compagno, New Orleans, for plaintiff-appellant.
    Blake G. Arata, City Atty., Michael A. Starks, Asst. City Atty., for defendant-ap-pellee.
    Before SAMUEL, GULOTTA, and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant was dismissed from the New Orleans Police Department on November 21, 1969 for disciplinary reasons under Rule IX of the Civil Service Regulations for the City of New Orleans. He did not contest the dismissal but sued to collect 52 3/4 days of accrued annual leave denied him by application of Civil Service Regulations Rule VIII, Section 1.7(c) which provides:

“(c) Where an employee is removed under the provisions of Rule IX he shall not be entitled to annual leave; provided, however, that the appointing authority, may in his discretion, allow the removed employee all of his accrued annual leave, or any portion thereof.”

From a judgment sustaining an exception to Bye’s mandamus proceeding, he appealed and, in that appeal, urged the unconstitutionality of Rule VIII, Section 1.-7(c). We remanded to allow plaintiff an opportunity to fully plead his case as to the unconstitutionality of this rule. On remand, defendant met plaintiff’s constitutional argument and, additionally, filed an exception of prescription alleging plaintiff’s failure to timely sue under Article 3534 of the Civil Code. From a judgment upholding the constitutionality of the provision and overruling defendant’s exception of prescription, plaintiff prosecuted this appeal and defendant answered the appeal seeking reversal of the trial court’s ruling on the exception of prescription.

Bye was dismissed from the New Orleans Police Department on November 26, 1969 but did not institute his suit for accrued vacation time until June 4, 1971.

An employment contract providing for a vacation with pay contains, in effect, a stipulation for additional wages. Sewell v. Sharp, 102 So.2d 259 (La.App. 2nd Cir. 1958). Bradford v. City of Shreveport, 305 So.3d 487 (La.1974) holds that police officers are considered within the scope of the provisions of LSA-C.C. Article 3534. Thus Bye’s action for his accrued annual leave is barred by his failure to timely prosecute his claim. The fact that this exception was not filed until trial on the remand cannot obviate this conclusion. While our remand order addressed itself to the issue of the constitutionality of the cited provision, we did not foreclose appellee’s right to plead prescription. Appellee was able to urge the exception in accordance with Article 928 of the Code of Civil Procedure which states:

“The preemptory exception may be pleaded at any stage of the proceeding in the trial court prior to submission of the case for a decision.”

Furthermore, Article 2163 of the Code of Civil Procedure allows a party to urge the plea of prescription for the first time on appeal.

Bye prosecuted this appeal seeking a reversal of the trial court’s finding of constitutionality of Rule VIII, Section 1.7(c) of the New Orleans Civil Service regulations. He urges that his annual leave is a vested right acquired prior to his dismissal which is “contractual in nature,” and contends that appellee cannot impair the terms of the contract by denying his annual leave pleading Article 4, Section 15 of the Constitution of 1921.

In Tennant v. Russell, 214 La. 1046, 39 So.2d 726 (1949) “vested rights” are defined as follows:

“A right is a vested right when the right to enjoyment, present or prospective, has become the property of some particular person as a present interest. The right must be absolute, complete and unconditional, independent of a contingency, and not a mere expectancy of future benefit or contingent interest in property.”

In Quartemont v. Avoyelles Parish Police Jury, 228 So.2d 199, (La.App. 3rd Cir. 1969), the court reviewed the meaning of Article 4, Section 15 regarding vested right. It stated:

“The third constitutional limitation is that ‘vested rights’ shall not be divested except for purposes of public utility and then only on payment of just compensation. Generally the ‘vested rights’ protected by this provision are property rights. For instance, property cannot be expropriated except for public purpose and then only on payment of adequate compensation. Also, the rights of a successful litigant under a final judgment become property rights and cannot be divested by subsequent litigation

(Citations omitted.)

In Louisiana Gas Service Co. v. La. Pub. Serv. Comm., 245 La. 1029, 162 So.2d 555 (1964) the Supreme Court held:

“A state law divesting vested rights violates no constitutional provision where it does not impair the obligation of a contract; it is only when legislation acts upon contract, as distinct from vested rights, that the prohibition against impairment of the obligation is infringed.

In State ex rel Munsch v. Board of Comm. of Port of N. O., 198 La. 283, 3 So. 2d 622 (La.1941), plaintiff was dismissed from his clerical position formerly provided for under Civil Service by Act 15 of the extra session of 1915. That law was repealed and plaintiff was dismissed. He argued his dismissal was unconstitutional and that the action of the legislature in repealing Act 15 impaired a contract between himself and the defendant. The court rejected this position and declared:

“But it can hardly be deduced that the Act indicates that the employee was engaged by a contract within the meaning of the term as used in the Constitutions of the United States and of this State. A contract is a reciprocal obligation. Under a civil service law of this type, the employee is not bound to remain in the employ of the State agency. He may leave his employment at any time he sees fit. However, the employing agent may not discharge him without cause— because of the legislature’s declaration of a public policy which gives him ten-grants of tenure do not constitute con-ure for an indefinite period. But such tract and they may be abrogated or altered at the discretion of the Legislature by subsequent enactment.”

In Louisiana Insurance Guaranty Ass’n v. Guglielmo, 276 So.2d 720 (La.App., 1st Cir. 1973) our brothers in the First Circuit further explained the scope of Article 4, Section 15 stating:

“To fall within the constitutional prohibition against divestiture of vested rights, a law must create new obligations, impose new duties or attach new disability to a contract in existence when the law becomes effective.”

Plaintiff-appellant’s rights were not vested nor was there in existence a contract within the ambit of protection afforded by Article 4, Section 15. There has been no legislation altering the relationship of the parties. There is only the fact of his dismissal which he does not contest. In Bondio v. Binder, Inc., 24 So.2d 398 (La.App.Orl.1946), we dealt with an employee seeking vacation pay under a contract of his union with his employer. The case turned upon construction of the contractual provisions relative to plaintiff’s claim and did not deal with Article 4, Section 15 of the Louisiana Constitution. However, we considered the question of “vested right” and declared: “By the same token, we cannot permit recovery to an employee, who has been discharged for good cause — in that he has arbitrarily refused to respect the authority of his employer by laying off his job without permission, on the theory that he had a vested right to vacation pay.”

Bye also argues that under LSA-R.S. 33:2214, he cannot be denied relief. He relies upon that language which states: “Each employee . . . shall be entitled and given with full pay an annual vacation leave of fifteen days during each calendar year, which shall not be denied to any such employee for any reason whatsoever.” However, R.S. 33 :2217 provides : “Nothing contained in this Subpart shall appeal or supercede any civil service law.”

We note that appellant cites no cases in support of the contention that he had a vested right to his annual leave. We find none in our research. We conclude that the Civil Service Regulations (cited previously) recognize no absolute right to annual leave — vested or otherwise. The regulations give the covered employees a basis for a claim for annual leave which may be granted or rejected by the appropriate authority at its discretion — provided such discretion is not abused.

For the reasons assigned, the judgment appeal from is reversed only insofar as it overrules the exception of prescription. That exception is now maintained. In all other respects the judgment is affirmed.

Reversed in part; affirmed in part.

GULOTTA, Judge

(concurring).

I concur with that part of the decree which maintains the exception of prescription.


text:
    Asa TOUCHETTE, Plaintiff-Appellant, v. CITY OF RAYNE, MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 5134.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 21, 1975.
    Rehearing Denied Nov, 13, 1975.

      Edwards, Stefanski & Barousse, by Nolan J. Edwards and Larry Dupuis, Crowley, for plaintiff-appellant.
    Petitjean & Petit jean, by Martin Petit-jean, II, Rayne, for defendant-appellee.
    Before HOOD, CULPEPPER, and MILLER, JJ.
   MILLER, Judge.

Plaintiff Asa Touchette appeals the district court’s judgment dismissing his appeal from the Rayne Municipal Fire & Police Civil Service Board decision upholding his two week suspension from the Rayne City Police force. We remand.

Defendant Board questions this court’s jurisdiction to hear the appeal contending the district court itself was sitting as an appellate court.

LSA-R.S. 33 :2561 grants an “appeal” to the district court. Trosclair v. Houma Fire & Police Civil Service Board, 252 La. 1, 209 So.2d 1 (1968). Art. 14, § 15.1 of the 1921 Constitution was the constitutional version of the Fire & Police Civil Service system also found in the revised statutes, LSA-R.S. 33:2471 et seq. It relates to parishes (regardless of size) and to municipalities with populations above 13,000.

In Trosclair, supra, it was held the appellate court did not have jurisdiction to review district court decisions when the district court exercised the appellate jurisdiction vested by Louisiana Constitution of 1921, Art. 14, § 15.1. The rationale was that the constitutional grant of jurisdiction to appellate courts was limited to a review of decisions of district courts exercising “exclusive original jurisdiction” in civil and probate matters. La.Const. of 1921, Art. 7, § 29.

A similar appeal was provided for smaller municipalities by LSA-R.S. 33:2631 et seq. This created the collateral problem of a statutory grant of appellate jurisdiction to the district court. There were no constitutional provisions for smaller municipalities since Art. 14, § 15.1 provided only for municipalities above 13,000 and parishes. Therefore in Albert v. Parish of Rapides, 256 La. 566, 237 So.2d 380 (1970), the court held the statutory grant of appellate jurisdiction to the district court in LSA-R.S. 33:2561 was an unconstitutional legislative expansion of appellate jurisdiction to the district court.

The legislative grant of power to the district court to review administrative decisions was reconsidered in Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971). The court distinguished between administrative review and judicial review. Since the district court proceeding is the first instance of judicial authority and review, “a district court’s review of an administrative determination is not an appeal; it is in fact an original action.” Since the action was not an “appeal,” the statutory grant of jurisdiction to the district court was affirmed.

A number of changes are made by Louisiana’s Constitution of 1974. Art. V, § 16 (B) of that constitution grants district courts appellate jurisdiction as provided by law. Since the constitution authorizes the legislative grant of appellate jurisdiction to district courts (and LSA-R.S. 33 :- 2561 grants appellate jurisdiction to district courts) the problem relating to the legislative grant of appellate jurisdiction to district courts which was the basis for the decisions in Albert, supra, and Trosclair, supra, no longer exists.

The Trosclair decision (that the appellate court cannot hear appeals from the district court when the district court sits as an appellate court) is no longer the law. Instead, the solution in Bowen, supra, is binding. The judicial review of an administrative decision is essentially a different process than the appellate review of a district court’s judgment. This court therefore has appellate jurisdiction.

Under the 1974 Constitution, even if the district court review is an appeal, this court has jurisdiction to review that decision. Appellate jurisdiction is no longer based on the nature of the jurisdiction exercised by the district court. This court now has jurisdiction over all civil matters decided within its circuit subject to exceptions specified in the Constitution. La. Const, of 1974, Art. V, § 10(A). There is no suggestion this appeal falls within the specified exceptions.

Defendant Board further contends the appeal should be dismissed because the notice of appeal due the Board did not expressly allege the Board’s administrative decision lacked good faith or cause. We reject that contention.

In Odom v. City of Minden, 281 So. 2d 117 (La.1973) it was specifically held that the phrase “in good faith for cause” was not required and “[i]t suffices if the notice of appeal contains a reasonably clear and concise statement of the action from which the appeal is taken.” 281 So.2d at 119.

Touchette’s notice of appeal from the administrative board’s decision named the parties and in pertinent part stated:

Pursuant to the oral request made on October 3, 1974, please consider this a formal request for an appeal of the decision of the Rayne Municipal Fire and Police Civil Service Board dated October 3, 1974, which appeal is returnable to the 15th Judicial District Court in and for the Parish of Acadia, Louisiana.

A fuller reference to the action may be desirable, but there is no basis in the record to find this notice not “reasonably clear and concise.” The Board answered the appeal without complaint then or now of surprise, prejudice or adverse effect because of the form of the notice. The notice of appeal is held to be sufficient.

For these reasons we find the trial court erred in dismissing Touchette’s appeal without considering the merits. The district court has the exclusive right to review the Board’s decisions on the first appeal. LSA-R.S. 33:2561.

The trial court’s dismissal of Touchette’s appeal is set aside and the case is remanded to the trial court for its consideration of the merits of the appeal. Costs of this appeal, insofar as is permitted by LSA-R.S. 13:4521, are taxed to defendant appellee.

Remanded.


author: PER CURIAM.

text:
    HOLLYWOOD, INC., a Florida Corporation, Petitioner-Cross Respondent, v. CITY OF HOLLYWOOD, a Municipal Corporation, Respondent-Cross Petitioner.
    No. 44662.
    Supreme Court of Florida.
    April 23, 1975.
    Rehearing Denied Nov. 18, 1975.

      Sherwood Spencer, Ellis, Spencer, Butler & Kisslan, Hollywood, and Carl A. Hiaa-sen, McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for petitioner-cross respondent.
    J. Bart Budetti, City Atty., and Ray H. Pearson, Larry S. Stewart and Bertha Claire Lee, Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for respondent-cross petitioner.
   PER CURIAM.

This cause is before us on a petition and cross-petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, reported at 283 So.2d 581. Our jurisdiction is based on conflict between the decision sought to be reviewed and City of Sanford v. Ashton; Cape Sable Corporation v. McClurg; Ca-ndi v. Areola Housing Corp.; Burnham v. Davis Islands, Incorporated; Wise v. Quina; Owen v. Yount; Katcher v. San Souci Company; Grable v. Nunez; Foremost Properties, Inc. v. Gladman; Downing v. Bird, and City of Palmetto v. Katsch. The petition for writ of certiorari reflected apparent jurisdiction of this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we have determined that the cited decisions present no direct conflict as required by the constitution, except as to the denial of a jury trial.

The facts of this case are as follows.

In the early 1920’s, one Joseph Young began the development of what later became the City of Hollywood (he called it Hollywood-By-The-Sea). Young planned a seaside resort to rival Atlantic City, then at its zenith, one which would appeal to all classes desiring the advantages of climate and oceanfront. The plan for the beachfront was that a thirty foot boardwalk would run the length of the city, paralleling the ocean and upland from it. Between the boardwalk and the water’s edge, the beach would he graded and maintained as a permanent bathing beach.

On January 11, 1924, the plat of Hollywood Beach Second Addition was recorded by Young’s Home Seekers Realty Company; on September 9, 1924, the plat of Hollywood Central Beach was recorded by the same company. On November 25, 1925, the Respondent, City of Hollywood, was created. In August, 1927, Young deeded to Respondent all of “the streets, drives, boulevards, alleys, ways, walks, avenues, parkways, and highways, by whatever name they may be termed, platted and described in that certain plat, also named in an amended plat, of Hollywood Central Beach”. Although Block 205 was not labeled on the plat, the then current price list made it clear that 205 was a “parkway”. Almost two years later, on April 25, 1929, two large money judgments were entered against Home Seekers Realty Company, leading to later execution sales and Sheriff’s deeds. The Respondent’s minutes of July 2, 1930, show that it had actual express notice of the proposed execution sale. On September 1, 1930, Highway Construction Company of Ohio, Inc., acquired title to Block C, Hollywood Beach Second Addition; later, on December 1, 1930, that same company acquired title to Block 205, Hollywood Central Beach. Thereafter, on February 18, 1931, Highway Construction Company conveyed title to Petitioner by fee simple deed, which Petitioner recorded February 21, 1931. In June, 1964, Respondent recorded its notice of claim of ownership. In August, 1964, the tax assessor for Broward County sued both Petitioner and Respondent for a declaratory decree and equitable relief, alleging that both parties claimed ownership of two miles of ocean-front beach and that the tax status of the land was unclear. In September, 1964, Respondent filed its cross-claim against Petitioner.

Petitioner claims that its title to the land in question was derived from a Sheriff’s Deed issued to Highway Construction Company, which company subsequently conveyed its interest to Petitioner in 1931. Respondent predicates its claim of ownership upon various acts and occurrences, including documentary and testimonial evidence reflecting ownership by virtue of a deed from the original owner, as well as ownership arising by dedication and prescription. The trial court held, inter alia, that Respondent possessed neither title nor other interest or rights in the property, and that title is in the Petitioner.

The District Court of Appeal, Fourth District, reversed and remanded for a new trial, finding that the trial court erred in rejecting certain documentary and testimonial evidence bearing on the Respondent’s claims of ownership by dedication. In reversing, the District Court adopted the seven methods for indicating an intent to dedicate land to public purpose as set forth in City of Palmetto v. Katsch. The District Court found that the rejected evidence related to each of the categories established as a test in Katsch, supra, and that it had a direct bearing on the issue of acceptance of dedication. The District Court advised the trial court, on remand, to consider the applicability of City of Daytona Beach v. Tona-Rama, Inc. to the issue of prescription, however, subsequently that decision was quashed by this Court. The District Court held also that prior decisions by it on an earlier interlocutory appeal and by this Court on petition for certiorari were neither conclusive nor dispositive of the Respondent’s claim of ownership of the land. Additionally, the District Court rejected Respondent’s claim for a jury trial.

The Respondent defended its ownership of the beach in question under several legally independent theories, including deed, dedication, prescription and adverse possession. To support its theory of common law dedication, Respondent proffered, inter alia: many of Young’s publications (including pamphlets, magazines, brochures and advertisements) clearly stating that it was his intent that the beach be dedicated to the City; oral testimony of young’s officials and salesmen which corroborates the documentary evidence; oral testimony of Young’s purchasers which corroborates the documentary evidence; the plats themselves; deeds to lots west of the boardwalk indicating conveyance as waterfront property; Young’s price list describing Block 205 as a “parkway”; the Respondent’s newspaper advertisements prior to 1930 proclaiming ownership of the beach; the fact that the present beach has always been open to public use and no permission was needed to use the beach; Respondent’s tax rolls beginning in 1926, showing that it has always treated the beach property as public land belonging to it; Respondent’s publications which have proclaimed its municipal ownership of the beach continuously since 1926; evidence of the fact that in 1938 Respondent granted an easement to the United States for deposit of spoil on the beach; and evidence of Respondent’s continuous maintenance, upkeep and improvement of the beach since 1925. This voluminous mass of data was not admitted by the trial court, an act which was held to be error by the District Court; we agree. Relying on Katsch, supra, the District Court held:

“ a. ‘common-law dedication’ is the setting apart of land for public use, and to constitute it there must be an intention by the owner, clearly indicated by his words or acts, to dedicate the land to the public use, and an acceptance by the public of the dedication. This seems to be the general rule, and whether an express or an implied dedication is relied on, the intention of the owner to set apart the lands for the use of the public is the foundation and essence of every dedication ....
“The act of dedication is affirmative in character, need not be by formal act or dedication, may be by parol, may result from the conduct of the owner of the lands dedicated, and may be manifested by a written grant, affirmative acts, or permissive conduct of the dedicator. In fact, any manner in which the owner sees fit to indicate a present intention to appropriate his lands to public use meets the requirement of the law.
“The means generally exercised to express one’s purpose or intention to dedicate his lands to the public use are by a (1) written instrument executed for that purpose; (2) filing a plat or map of one’s property designating thereon streets, alleys, parks, etc.; (3) platting one’s lands and selling lots and blocks pursuant to said plat indicating thereon places for parks, streets, public grounds, etc.; (4) recitals in a deed by which the rights of the public are recognized; (5) oral declarations followed by acts consistent therewith; (6) affirmative acts of the owner with reference to his property, such as throwing it open in a town, fencing and designating streets thereon; (7) acquiescence of the owner in the use of his property by the public for public purposes.
íjí >}{ Jjí % i{i
“The evidence which was rejected related to each of the categories enumerated in City of Palmetto v. Katsch, supra. The evidence, additionally, had a direct bearing on the question of acceptance of dedication. The acceptance of a dedication may be by formal action of the proper authorities or it may be by public user. Robinson v. Town of Riviera, 1946, 157 Fla. 194, 25 So.2d 277
“To reiterate, the excluded evidence directly related to the issue of the dedicator’s intention to dedicate and the mode and manner of the acceptance of such dedication as to both Block 205 and Block C. The City, therefore, should be afforded the opportunity of presenting evidence on the issue of common law dedication and the trial court should give due consideration thereto. Cf. Boothby v. Gulf Properties of Alabama, Fla.1948, 40 So.2d 117.
“In considering the evidence bearing upon the issue of common law dedication consideration must also be given to the legal effect of the 1927 deed executed by appellee’s predecessor in title in favor of the City as such deed may relate to Block 205. The City sought to introduce the deed and other extrinsic evidence to establish that the conveyance of “walks” and “parkways” referred to in the deed was intended by the owner thereof to be a conveyance of Block 205. Whether the City would have been successful in proving what the grantor’s intention was with respect to the use of the word “parkway” does not determine the question of admissibility of the deed and consideration of extrinsic evidence

Turning our attention to that portion of the District Court’s opinion which refers the trial court to the decision of the District Court of Appeal, First District, in City of Daytona Beach v. Tona-Rama, Inc., we note that this Court in reversing that opinion said:

“It is possible for the public to acquire an easement in the beaches of the State by the finding of a prescriptive right to the beach land ....
* * * * * * “This Court in Downing v. Bird, 100 So.2d 57 (Fla. 1958), set forth the test for right of access by prescription:
'In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment’
* * * * * * “The beaches of Florida are of such a character as to use and potential development as to require separate consideration from other lands with respect to the elements and consequences of title. The sandy portion of the beaches are of no use for farming, grazing, timber production, or residency — the traditional uses of land — but has served as a thoroughfare and haven for fishermen and bathers, as well as a place of recreation for the public. The interest and rights of the public to the full use of the beaches should be protected . > .
;ji ‡ %
“If the recreational use of the sandy area adjacent to mean high tide has been ancient, reasonable, without interruption and free from dispute, such use, as a matter of custom, should not be interfered with by the owner. However, the owner may make any use of his property which is consistent with such public use and not calculated to interfere with the exercise of the right of the public to enjoy the dry sand area as a recreational adjunct of the wet sand or foreshore area.”

Contrary to the facts in that case, we find that the evidence of prescription sub judice satisfies the test of adverse user set forth therein; for example : for over half a century, Respondent uninterruptedly published to the world that the beach belonged to Respondent; although Respondent never asked permission to use the beaches, yet it has openly and adversely occupied the beach by improving it, erecting showers, planting trees, posting city signs, providing life guards and routinely raking, grading and maintaining the beaches; the public has used the beaches daily; Respondent has carried the property on its tax rolls as public beach, although the county did not always do so; although Petitioner twice wrote Respondent (once in 1945 and again in 1948) advising it that the company owned the land and that it wished the lands placed in the company’s name on the tax rolls, Respondent refused to do so; and Respondent spent well over a million dollars on the beaches in its maintenance and improvement of them over a 50-year period. We conclude that on remand the trial court would be well advised to consider the facts developed sub judice in light of this Court’s opinion in the Tona-Rama case, supra.

We have considered the remaining issues raised by Petitioner and find them to be without merit.

Respondent by its cross-petition seeks reversal of the trial court’s order, affirmed by the Fourth District Court of Appeal, denying it a trial by jury. The District Court simply rejected the Respondent’s claim for a jury trial, saying that “the City has failed to demonstrate that it is a ‘defendant ... in actual possession’ so as to give rise to a trial by jury,” citing Fla.Stat. § 65.061 and Albury v. Drummond, 95 Fla. 265, 116 So. 236 (1928).

The facts are that in August, 1964, the tax assessor for Broward County sued both Petitioner and Respondent for a declaratory decree and equitable relief. Although no demand for jury trial was made in its original answer, filed September 3, 1964, the Respondent on February 3, 1970, filed a written motion for a jury trial on the issue of the dedication of the subject property to the municipality prior to 1930, and on the issue of the actual possession of the property. The essential grounds of the motion were that the issues of dedication and possession were factual issues which should be determined by a jury and that no prejudice could be shown to either party by granting a trial by jury. The trial judge, by order dated March 23, 1970, summarily denied the motion for a jury trial. Then, on May 22, 1970, the Respondent filed an amended answer and amended cross-claim against Petitioner, and on June 4, 1970, filed a demand for a jury trial on the issues of dedication and right to possession of the property, based on Fla.Stat. 65.061. Apparently the Respondent also filed another motion for jury trial on August 17, 1970, but in any event all demands and motions for jury trial made by the Respondent were denied by the trial judge.

In its amended answer the Respondent alleged, inter alia, that the subject property had been dedicated to the public and that the Respondent had actually possessed and used the property for the benefit of the public for more than twenty years. By cross-claim against Petitioner, Respondent sought to quiet title and to remove the cloud on Respondent’s title caused by Petitioner’s recorded deed from Highway Construction Company.

Petitioner counter-claimed against the Respondent seeking to remove the cloud from its title by cancellation of Respondent’s previously recorded Notice of Claim to Real Estate and also counter-claimed for damages against Respondent for filing the allegedly false Notice of Claim to Real Estate. As noted above, the Respondent was denied requests for a jury trial before and after the filing of the amended answer and counter-claims.

Respondent’s claim to a right to a trial by jury is based on Fla.Stat. 65.061, which reads in pertinent part as follows:

“65.061. Quieting Title; additional remedy (1) Jurisdiction. — Chancery courts shall determine the title of plaintiff and may enter a judgment quieting the title and awarding possession to the party entitled thereto, but if any defendant is in actual possession of any part of the land, a trial by jury may be demanded by any party whereupon the court shall order an issue in ejectment as to such lands to be made and tried by a jury. Provision for trial by jury does not affect the action on any lands that are not claimed to be in the actual possession of the defendant. The court may enter final judgment without awaiting the determination of the ejectment action.” (Emphasis supplied)

Respondent’s position is that not only was it a defendant in the original suit filed by the tax assessor, but that it was also a counter-defendant against whom affirmative relief and damages were sought by counter-claimant, Petitioner, and granted by the trial judge. It is also contended that the evidence is irrefutable that Respondent was in actual possession of the beach for half a century, exercising exclusive domain and control thereover, thus meeting both tests of F.S. 65.061. In its brief, the Petitioner raises several arguments in support of its contention that the Respondent is not entitled to a jury trial. It is argued, for example, that the Respondent was not a defendant, but a plaintiff, in a quiet title action; that the suit sought declaratory and equitable relief, which raised issues for the court and not a jury; that in the actual trial the Respondent assumed the position of plaintiff upon whom the burden of proof rested; that the respondent’s contention that affirmative relief was awarded based on Petitioner’s counter-claim against the Respondent is unsupported by the record; and that the record completely negates the assertion that the Respondent was in actual possession of the locus in quo. Finally, Petitioner contends that since neither it nor Respondent made any demand for jury trial within a ten-day period following the last pleading, provided by Florida Rules of Civil Procedure 1.430, the Respondent waived the right to a jury trial.

We hold that the Respondent was entitled to a jury trial on the issues of dedication and actual possession of the property and that the right to that jury trial has not been waived. Questions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U. S. and Florida Constitutions. See U. S. Constitution, Amendments 7 and 14, and Florida Constitution, Article I, Declaration of Rights, § 22.

There is substantial evidence in the record to support the Respondent’s contention that it was in actual possession of the property, that it openly improved the beaches for nearly half a century by constructing groins, rehabilitating the beach after devastating hurricanes, planting trees, erecting showers, posting city signs, providing life guards, and routinely and continuously raking, cleaning, grading and maintaining the beaches. For the fifteen fiscal years ending in 1969, the Respondent’s expenditures totalled $1,189,631.43 for the improvement and maintenance of the pubic beaches. Finally, it is undisputed that the public has daily used the beaches.

In the City of St. Petersburg v. Meloche, 92 Fla. 770, 110 So. 341 (1926), the issue before this Court was what constituted possession under the adverse possession statutes. We held:

“[2] As to the title of the complainant by adverse possession, it is true that, his claim not being founded upon a written instrument, or color of title, paragraph 2 of section 2936 of Revised General Statutes of Florida applies as to what constitutes the occupation or possession required, viz.:
T. Where it [the land] has been protected by substantial inclosure; or, 2 —where it has been usually cultivated or improved.’
“In considering the meaning of the word ‘improved’ as used in the statute, each case depends upon the circumstances of that particular case. In the one under consideration it could hardly be expected that the land should be cultivated as a farm, or even to have been inclosed by substantial fence. Reclaiming it from submerged land, having a house extending upon a portion of it,, planting some trees upon it, placing the black dirt upon it, keeping a wood pile thereon, and the general notice to the public, might appear sufficient. In the case of Bensdorff v. Uihlein, 132 Tenn. 193, 177 S. W. 481, 2 A.L.R. 1364, we find very similar circumstances. Under a statute practically the same as ours as to the necessary occupancy or possession, it was held that a triangular piece of land was so adversely held by the claimants, though the only evidence was that they had paved the same, it lying contiguous to their store building, and had used it as an entrance to their store; the general public being also permitted to constantly use the same.” At 342.

It is difficult to comprehend how the Respondent could do more to possess the beach property, short of erecting buildings and enclosures, than by caring for it, maintaining it and allowing unquestioned use of the beach property by the public.

In Albury v. Drummond, supra, this Court held that in a suit to quiet title the Court must first find that the land or some particular part thereof is in the actual possession of one or more of the defendants before a jury trial may be had by any party. The question thus becomes whether either party to this dispute was a defendant in possession of the land.

Section 45.011, F.S.A., defines “plaintiff” as “any party seeking affirmative relief whether plaintiff, counter-claimant, crossclaimant, or third party plaintiff, con-terclaimant or crossclaimant.” “Defendant” is defined as. “any party against whom such relief is sought.” Applying these definitions to the case sub judice, we find that the Respondent easily fits within the definition of the term “defendant”. Not only was the Respondent an original defendant in the suit brought by the tax assessor for Broward County against both Petitioner and Respondent, more importantly affirmative relief was sought and in fact obtained by Petitioner in its counterclaim against Respondent. The trial court below specifically granted the relief sought by Petitioner in the first of its two counter-claims by ordering that the Notice of Claim to Real Estate filed by Respondent on June 22, 1964, and recorded in the Broward County records, be cancelled of record. There is no question that the Respondent, in defending against the counter-claim, the nature of which was an action to remove a cloud on Petitioner’s title, was a defendant in actual possession of the property.

We find no merit in Petitioner’s remaining contentions regarding, inter alia, Respondent’s waiver of its right to a jury trial, and that a jury trial is not allowable in a suit in equity. Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971). With respect to the question of waiver, we notice that although no timely demand for a jury trial was made by either party within ten days of the initial last pleadings directed to the issues desired to be tried, amended pleadings were filed by Respondent in May, 1970, and by Petitioner in June, 1970. In his Final Judgment the trial judge noted that the amended pleadings of Respondent first raised the issue of ownership by prescription, and the pleadings support this conclusion. Where an amended pleading injects a new issue in the case the time for filing a demand for a jury trial is revived although the party making the demand may have waived the right to a jury trial at the time of the initial responsive pleadings. See Leopold v. Richard Bertram and Co., 276 So.2d 225 (Fla. 3d DCA 1973) and Moretto v. Sussman, 274 So.2d 259 (Fla. 4th DCA 1973). It is not contended that Respondent failed to make a demand for jury trial timely to its amended answer and cross-claim.

The determination of whether a trial judge abused his discretion in denying a demand for jury trial must be decided on a case by case basis; however, due to the extreme time lapse between the filings of the pleadings in this case, the fact that amended pleadings were filed raising new issues, and the apparent lack of prejudice resulting to the Petitioner in granting Respondent a jury trial, we hold that the trial judge abused his discretion in denying Respondent’s demand for jury trial.

In conclusion, conflict having been demonstrated, as to the denial of a jury trial, that portion of the District Court’s opinion denying Respondent a jury trial is quashed with directions to remand for proceedings consistent herewith.

ADKINS, C. J., ROBERTS, BOYD and McCAIN, JJ., and FERRIS, Circuit Judge, concur.

OVERTON, J., concurs in judgment only.

DEKLE, J., dissents.

      . Article V, Section 3(b)(3), Florida Constitution.

      . 131 Fla. 759, 179 So. 765 (Fla.1938).

      . 74 So.2d 883 (Fla.1954).

      . 65 So.2d 849 (Fla.1953).

      . 87 So.2d 97 (Fla.1956).

      . 174 So.2d 590 (Fla.App.1965).

      . 198 So.2d 360 (Fla.App.1967), cert. den., Fla., 204 So.2d 330.

      . 200 So.2d 826 (Fla.App.1967), cert. disch., Fla., 217 So.2d 297.

      . 64 So.2d 154 (Fla.1953).

      . 100 So.2d 669 (Fla.App.1958), cert. den., Fla., 102 So.2d 728.

      . 100 So.2d 57 (Fla.1958).

      . 86 Fla. 506, 98 So. 352 (Fla.1923).

      . Id.

      . 271 So.2d 765 (Fla.App.1973).

      . City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974).

      . 232 So.2d 769 (Fla.App.1970), cert. den., Fla., 238 So.2d 111.

      . See Note 14, supra.

      . See Note 15, supra, at pp. 75-78, inch


author: ENGLAND, Justice.

text:
    SUN FIRST NATIONAL BANK OF MELBOURNE, etc., Petitioner, v. Lael N. BATCHELOR, etc., Respondent.
    No. 47101.
    Supreme Court of Florida.
    Oct. 1, 1975.
    Rehearing Denied Nov. 20, 1975.

      Sam Daniels, Miami, and Williams, Gei-lich & Potter, Melbourne, for petitioner.
    Frank Clark III, Cocoa Beach, for respondent.
   ENGLAND, Justice.

This case is here for review of a decision of the Fourth District Court of Appeal, reported at 308 So.2d 649. The district court has certified two questions of law as involving matters of great public interest. We have jurisdiction under Article V, § 3(b)(3) of the Florida Constitution (1972).

For several years prior to July, 1965, respondent was a trust officer of the National Bank of Melbourne and Trust Co. (“National”). Among the trust accounts she handled was that of a Dr. and Mrs. Balch, now deceased. In July, 1965 respondent resigned her position with National and became a personal secretary to the Balches.

Mrs. Balch died in 1966, and Dr. Balch died in 1967. National was appointed executor of Dr. Balch’s estate. During the administration of the estate, it was discovered that substantial assets which had belonged to the decedents were in the name and possession of respondent. National initiated an action of conversion to recover the assets to decedents’ estates. The original proceeding resulted in a directed verdict for respondent which, on appeal, was reversed and remanded.

After remand, petitioner (“Sun”) was appointed administrator ad litem of the Balches’ respective estates. Petitioner was substituted for National in the suit for conversion, after which it amended the complaint to also charge respondent with obtaining the property by undue influence. While the cause was pending, and in exchange for $160,000 from National’s bonding company, Sun released all its claims against National arising out of any conduct on the part of respondent. The effect of that release is the subject of controversy here.

The trial court ruled that the release operated to discharge the alleged liability of respondent arising out of the same tort, notwithstanding section 768.041 (1), Fla.Stat. (1973). That statute provides :

“(1) A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.”

The district court affirmed the trial court and certified to this Court:

“1. Does Section 768.041(1) F.S. abolish in toto the common law rule to the effect that the release of one or more tort-feasors operates as a discharge of all other tort-feasors who may be liable for the same tort?
2. If not, is an action for conversion one which is for ‘property damage to . . . any person’ within the meaning of Section 768.041(1) F.S. ?”

The first certified question is answered in the affirmative, making it unnecessary to answer the second question.

The statute we are asked to construe was first enacted in 1957. Its purpose was to encourage settlements by abolishing the common law rule that a discharge of one joint tort-feasor will discharge all other tort-feasors. There is no policy reason which we can discern, and there is no legislative intent to which we have been referred, which would warrant the exclusion of actions for conversion, or any other tort, from the scope of this statute. Settlements are facilitated whether the liability of the tort-feasor arises from personal injury, conversion or any other definable form of tortious conduct.

Respondent contends, however, and the district court ruled, that the language of the statute precludes the interpretation we suggest. We disagree. Many years before this statute was enacted, this Court defined the word “damage” to mean “loss, injury or deterioration caused by . one person to another in respect to his . . . property.” The use of the word “damage” in the statute should logically be ascribed the same meaning.

The first certified question is answered affirmatively, and the decision below is quashed. The district court is directed to remand the case to the trial court for further proceedings consistent with this opinion.

BOYD, OVERTON and SUNDBERG, JJ., concur.

ADKINS, C. J., concurs with conclusion.

      . National Bank of Melbourne & Trust Co. v. Batchelor, 266 So.2d 185 (4th DCA Fla. App.), cert. denied, 269 So.2d 369 (Fla.1972).

      . See Talcott v. Central Bank and Trust Co., 247 So.2d 727 (3d DCA Fla.App.1971), decision approved, 262 So.2d 658 (Fla.1972) ; Daniels, Torts, 14 U.Mia.L.Rev. 602, 629 (1960). Cf. Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966).

      . A more elaborate discussion of the policy reasons for applying this statute to all forms of torts is set forth in Judge Downey’s dissent below. See Fla.App., 308 So.2d at 652-54.

      . Hanna v. Martin, 49 So.2d 585, 587 (Fla.1950).

      .We note that the 1975 Legislature has reaffirmed the policy expressed in Section 768.-041(1), Fla.Stat. (1973), by the enactment in Chapter 75-108, Laws of Florida, of a new Section 768.31(5) (a), Fla.Stat. We are not called upon to interpret that provision, and we do not pass upon its meaning or applicability to this proceeding.


text:
    HUMBLE OIL & REFINING COMPANY and St. Regis Paper Company, Inc., Petitioners, v. Vinson ATES and Minnie Ates, etc., Respondents.
    No. 47280.
    Supreme Court of Florida.
    Oct. 3, 1975.
   Certiorari denied. 310 So.2d 772.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    David Allen RONSHAUSEN, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    No. 47425.
    Supreme Court of Florida.
    Oct. 3, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    ROYAL INDEMNITY CO. et al., Petitioners, v. Phillip J. MUSCATO and Mary Ann Muscato, Respondents.
    No. 46840.
    Supreme Court of Florida.
    Oct. 3, 1975.
   Certiorari denied. 305 So.2d 228.

ADKINS, C. J., and ROBERTS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    SMITH & SAPP CONSTRUCTION COMPANY, INC., etc., et al., Petitioners, v. TAMPA PRESBYTERIAN COMMUNITY, INC., etc., Respondent.
    No. 47286.
    Supreme Court of Florida.
    Oct. 3, 1975.
   Certiorari denied. 309 So.2d 645.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Joe WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 47172.
    Supreme Court of Florida.
    Oct. 3, 1975.
   Certiorari denied. 308 So.2d 202.

ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents.


text:
    LAKESHORE MORTUARY, LTD., etc., et al., Petitioners, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, Respondent.
    No. 46811.
    Supreme Court of Florida.
    Oct. 6, 1975.
   Certiorari denied. 305 So.2d 22.

ADKINS, C. J., and ROBERTS, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    Jerome E. CURLEY et al., Petitioners, v. George A. SIMON et al., Respondents.
    No. 48174.
    Supreme Court of Florida.
    Oct. 16, 1975.
   Certiorari dismissed sua sponte. 317 So.2d 116.