author: PER CURIAM:

text:
    AIR COMPRESSORS, INC. v. BIG CHIEF CONSTRUCTION CO., INC.
    No. 10822.
    Court of Appeal of Louisiana, First Circuit.
    March 26, 1976.
    Thomas G. Donelon, Metairie, for appellant.
    Henry F. Mestayer, New Orleans, for appellee.
    Before SARTAIN, BLANCHE and EDWARDS, JJ.
   PER CURIAM:

The Court, ex proprio motu, has examined the record on appeal and concluded that the appeal taken therein must be dismissed as premature because no final judgment was signed by the district judge until after the appeal was perfected and the record lodged with this Court.

The judgment from which the appeal was taken was rendered on June 23, 1975, but the district judge did not sign a formal judgment until March 22, 1976. Before the final judgment was signed the appellant had obtained an order of appeal on July 23, 1975, and perfected the appeal by depositing with the Clerk of Court the required appeal bond in cash on the following day, July 24, 1975.

This Court noticed the absence of the final judgment after the record was lodged in this Court and verified with the district court that no signed judgment had ever been filed. The district court informed counsel for the appellant of the deficiency and he attempted to correct the record by obtaining a signed judgment and filing it in this Court.

We conclude that the law is that where the record on appeal fails to disclose a final judgment signed by the district judge, the appellate court must dismiss the appeal ex proprio motu as being premature. Forman v. May, La.App., 201 So.2d 683 (3rd Cir. 1967); DiSalvo v. Picard, La.App., 303 So.2d 900 (1st Cir. 1974); Frazier v. Muse, La.App., 88 So.2d 729 (1st Cir. 1956). See also LSA-C.C.P. Art. 1911 and Tate, Civil Procedure. 29 L.L.R. 269 (270-271).

Further, after a premature appeal from an unsigned judgment has been perfected it cannot be cured by the subsequent filing of a signed judgment in the appellate record. Forman v. May; DiSalvo v. Picard, supra.

Accordingly, for the above and foregoing reasons, this appeal is dismissed without prejudice at the cost of the appellant.

APPEAL DISMISSED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Susan Dean Farr FONTENOT v. Delta Wayne FONTENOT.
    No. 10718.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 1976.
    Robert E. Plummer, Mansfield, for appellant.
    Charles S. McCowan, Jr., Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: ELLIS, Judge.

text:
    William B. McDONNEL v. LAMASTUS & ASSOCIATES, INC., et al.
    No. 10520.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 28, 1975.

      Harry R. Cabral, Jr., Metairie, for appellant.
    Richard J. Meunier, New Orleans, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ON MOTION TO DISMISS

ELLIS, Judge.

Judgment herein in favor of plaintiff was signed on March 24, 1975. Defendants Lamastus & Associates, Inc. and Volunteer Construction Company, Inc. moved for a suspensive and/or devolutive appeal on June 26, 1975. The order was signed the same day, fixing the return date on August 26, 1975. Bond for $11,500.00 was posted on June 27, 1975.

On July 15, 1975, plaintiff filed a motion in the trial court for dismissal of the appeal on the ground that it was not timely filed. On July 19, 1975, a motion to the same effect was filed in this court. We issued an order to the parties to show cause, by briefs, on August 7, 1975, why the appeal should not be dismissed. Defendants were granted an extension of time until August 22, 1975, to file their brief, but have not yet done so.

On August 29, 1975, plaintiff filed another motion to dismiss the appeal on the ground that the return day had passed, no extension thereof had been filed, no tender of costs had been made, and the record had not been lodged.

On September 3, 1975, the trial judge signed a judgment on the motion of July 15, recalling the order of appeal as having been improvidently signed, because the motion for appeal came too late.

All of the above circumstances appear from the original record, which was obtained and examined by this court.

We find that defendants’ application for a suspensive appeal was not timely filed. The judgment appealed from was rendered from the bench without the case having been taken under advisement. The record does not reveal that notice of signing of the judgment was requested by defendants, and they were not entitled to notice of judgment under Article 1913 of the Code of Civil Procedure. Under Article 1974, the delay for applying for a new trial is seven days, exclusive of legal holidays, beginning on the day after the judgment is signed. In this case, the last day was April 2, 1975. No application for new trial was filed during that period.

Therefore, under Article 2123 of the Code of Civil Procedure, the delay of 30 days for applying for a suspensive appeal expired on May 2, 1975.

On the other hand, we find the appeal to be timely perfected as a devolutive appeal. Under Article 2087 of the Code of Civil Procedure as applied to this case the delay is 90 days from the expiration of the delay for applying for a new trial, making the last day for applying for a devolutive appeal July 1, 1975, several days after the appeal was granted and the bond posted.

Under Article 2088 of the Code of Civil Procedure, the jurisdiction of the trial court is divested, except in certain cases not relevant herein, on the timely filing of the appeal bond. Since we have found this appeal to be timely and the bond timely posted, the trial court was without jurisdiction to recall its order of appeal.

The record on appeal has not been lodged with this court, and we find no extensions of the time to do so in the original record. However, we are not enlightened as to the reason why. Under Article 2161 of the Code of Civil Procedure, an appeal cannot be dismissed because of such irregularities unless same are imputable to the appellant. The case will therefore be remanded to the trial court, with directions to hold an evidentiary hearing within 30 days hereof, and to return the transcript thereof to this court forthwith for final determination as to the validity of this appeal, and as to liability for costs on this motion.

Remanded, with instructions.


author: HALL, Judge.

text:
    DUNCKELMAN DISTRIBUTING COMPANY, INC., Plaintiff-Appellee, v. S. Aubrey HYDE d/b/a Hyde Furniture & Appliance (American Electronics, Inc., Garnishee), Garnishee-Appellant.
    No. 12926.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.
    Writ Refused Oct. 22, 1976.

      James A. Van Hook and J. Patrick Hennessy by J. Patrick Hennessy, Shreveport, for garnishee-appellant, American Electronics, Inc.
    Love, Rigby, Dehan & Love, by Kenneth Rigby, Shreveport, for plaintiff-appellee.
    Before BOLIN, HALL and MARVIN, JJ-
   HALL, Judge.

Garnishee, American Electronics, Inc., appeals from a judgment against it in favor of the judgment creditor, Dunckelman Distributing Company, Inc., for $1,315.34, the amount found to be due under a garnishment of the wages, salary, commissions or other compensation of garnishee’s former employee, S. Aubrey Hyde. We affirm the judgment of the district court.

In 1968, Dunckelman obtained a judgment in Bossier Parish against Hyde in the amount of $2,315.85. The judgment was subsequently made executory in Caddo Parish. In February, 1974, Dunckelman initiated garnishment proceedings against American and interrogatories were served on the garnishee. ' Pertinent to the instant controversy, the fourth interrogatory and garnishee’s answer thereto were as follows:

Fourth Interrogatory:

“Is the said defendant in writ employed by you, and if so, what is his rate of compensation, in what manner is it paid, and whether or not other judgments or garnishments affect such wage, salary or compensation. You being asked and required to mahe a full disclosure in relation to same.”

Answer to Interrogatory :

“Mr. Hyde is a Representative of American Electronics, Inc. on a commissioned pay scale. He receives an expense draw twice each month. He is scheduled to receive compensation when his commission on sales exceeds his expense draws. At the present Mr. Hydes’ expense draws have exceeded his commission on sales and he is in a minus condition on his commission pay scale. There are no other Judgments or Garnishments that we know about.”

The day following the filing of the answers to interrogatories, Dunckelman obtained an ex parte judgment against the garnishee which judgment recited that the court considered the answers of the garnishee to be in favor of the plaintiff and ordered that there be judgment in favor of plaintiff and against garnishee “for such sums as the defendant herein Aubrey Hyde shall earn over and above the legal exemptions provided by LSA-R.S. 13:3881, said deductions to be made from defendant’s wage, salary or commission on the dates upon which he is customarily paid,” and continuing until the judgment against Hyde is paid in full or until such time as the defendant shall leave the employ of the garnishee, payments to begin from the first day since the running of the garnishment and to be made direct to the office of the sheriff of Caddo Parish. Notice of judgment was mailed to the garnishee.

No payments were made by the garnishee and on May 28, 1975, the judgment creditor filed a rule against the garnishee to show cause why it should not be commanded to account and pay to the sheriff all sums due under the garnishment judgment or, alternatively, why judgment should not be rendered against it for the full sum of the judgment against the judgment debtor. The garnishee filed an exception of no cause or right of action and answer alleging that at the time the garnishment was served Hyde, who was employed on a commission basis, was indebted to garnishee for expense draws in excess of commissions earned and that such indebtedness was never liquidated by the' employee, whose employment was terminated October 7, 1974.

The evidence adduced at trial of the rule, consisting of testimony of American’s marketing manager and payroll records, discloses that Hyde was employed as a commissioned salesman on January 15, 1973 and his employment was terminated October 7, 1974. The employee was paid a bimonthly “draw” or “advance” of $350 which was later increased to $375 and then to $400. Out of each bimonthly payment, $100 was treated as a gasoline allowance from which no deductions were made for taxes. From the balance of each bimonthly draw, the employer deducted income and social security taxes. At the time the garnishment was served the employee’s draws exceeded the employee’s earned commissions by more than $2,000. His commissions never equaled the amount of his draws, and upon termination of his employment the amount of draws still exceeded the amount of commissions earned. There was no evidence of an agreement, express or implied, that the employee was ever obligated to repay to the employer the excess of draws over commissions or that he ever was called upon to or did, in fact, repay any such excess.

After trial, the district court in a written opinion held that the employer failed to establish an agreement, express or implied, that the employee was obligated to repay to the employer any excess of advances or draws over commissions earned, and under the jurisprudence the employer cannot claim an indebtedness due by the employee, citing Savoy v. Soileau, 177 So.2d 644 (La.App.3d Cir. 1965). Judgment was rendered against the garnishee for the nonexempt portion of the employee’s compensation paid after service of the garnishment until termination of his employment, in the amount of $1,-315.34.

On appeal, garnishee-appellant suggests the trial court erred:

(1) In failing to hold that American was released from the garnishment by plaintiff’s failure to timely trav-verse the garnishee’s answers;
(2) In holding that advances against future commissions are not a debt as long as the employee remains in the employ of the employer; and
(3) In computing the amount due to the plaintiff on the basis of the total amount paid to Hyde even though some was an advance against future commissions and some was reimbursement for traveling expenses.

Garnishee-appellant contends that the current proceeding initiated by the judgment creditor amounts to an effort to traverse the garnishee’s answers to interrogatories which the judgment creditor can do only within fifteen days after service of the garnishee’s answer, and that having failed to traverse the answers within fifteen days, the seizure effected by the garnishment was released, under the provisions of LSA-C.C.P. Art. 2414. Article 2414 provides that unless the creditor files a contradictory motion traversing the answer of the garnishee within fifteen days after service upon him of the notice of the filing of the garnishee’s answer, any property of the judgment debtor in the possession of the garnishee and any indebtedness to the judgment debtor which the garnishee has not admitted holding or owing shall be released from seizure.

Under the cited Article of the Code of Civil Procedure, a seizure under garnishment is ipso facto released upon the judgment creditor’s failure to traverse the garnishee’s answers within fifteen days after service thereof where the answers unequivocally and unconditionally deny possession of property of the judgment debtor or indebtedness to the judgment debtor or in the case of garnishment of wages, deny employment of the judgment debtor by the garnishee. Here, the answers of the garnishee admit employment of the judgment debtor for compensation, the factual element essential to the continuing viability of the seizure under a garnishment of wages. There was, therefore, no need for traversing the garnishee’s answer and the judgment creditor’s failure to traverse did not operate as a release of the seizure of the judgment debtor’s compensation, earned and to be earned. Appellant’s argument further ignores the fact that the judgment creditor, on the basis of the garnishee’s answer, proceeded to obtain a judgment against the garnishee. The fact that the garnishee’s answer hinted at an indebtedness due the employer by the employee and that “compensation” would not be paid until the commissions exceeded the draws (an erroneous legal conclusion as will be hereinafter discussed), did not negate the fact of employment for compensation nor render ineffective the seizure of the nonexempt portion of the debtor’s compensation when and if paid and subject to the prior rights of the garnishee if an indebtedness existed.

The seizure became effective upon service of the petition, citation and interrogatories. LSA-C.C.P. Art. 2411. In a wage garnishment, the seizure includes both accrued and future earnings. LSA-R.S. 13:3923. By virtue of the seizure the garnishee became legal custodian of the wages and held them subject to further orders of the court. Sun Sales Co. v. Hodges, 256 La. 687, 237 So.2d 684 (1970). See also Seaboard Finance Corporation v. Anderson, et al, 305 So.2d 598 (La.App. 4th Cir. 1974), writ refused La., 309 So.2d 346.

Payment by the garnishee to the employee after the effective date of the seizure and particularly after the garnishment judgment rendered against it ordering the deduction of the nonexempt portion of the employee’s compensation, was at the garnishee’s peril.

Garnishee-appellant contends that the judgment rendered on March 5, 1974, did not comply with the requirements of LSA-R.S. 13: 3926. The statute provides that where an employee works on a commission basis the judgment shall order a full accounting to be made at each date when such settlements are made and upon the filing of such accounting the court shall fix the exempt portion and order the nonexempt portion paid in satisfaction of whatever judgment may be rendered. The judgment rendered in this case did not contain these detailed provisions. It should be noted, however, that the answers of the garnishee also did not contain the detailed information required of the employer by LSA-R.S. 13:3926 nor the detailed information concerning indebtedness required by LSA-R.S. 13:3925. Further, the garnishee did not ask for a' rehearing or new trial, nor appeal, nor petition to reopen the case after rendition of the judgment. In any event, the current proceeding for an accounting which developed a full disclosure of the term of employment, the amount of the commissions, the method of payment of such commissions, and the dates on which settlements are made, effected substantial compliance with LSA-R.S. 13:3926. Further, as the evidence shows, the employee was not actually paid on a commission basis but was compensated by regular draws of certain amounts and his commissions never came into play in the calculation of his compensation. Since the employee was not actually paid on a commission basis, although entitled to commissions to the extent they exceeded draws, the provisions of LSA-R.S. 13:3926 are not actually applicable. Also, even if the judgment did not fully conform to the provisions of the statute, the seizure nevertheless remained in effect and the garnishee remained as custodian of the nonexempt portion of the employee’s compensation for the benefit of the judgment creditor, subject only perhaps to the judicial determination of the exact amount due, which has now been accomplished. In point is Sun Sales Co. v. Hodges, supra, in which the appropriate judgment against garnishee was not rendered at all until more than two years after the initial seizure and more than one year after the payment of a prior indebtedness of the judgment debtor, from which date the garnishee was required to account, the seizure remaining in effect throughout.

Garnishee-appellant also contends that the “advances” or “draws” against future commissions were a debt of the employee owing to the employer as long as the employee remained in the employ of the employer and that under LSA-R.S. 13 : 3925 the employer was entitled to recover the amount of the indebtedness before the judgment creditor’s garnishment took effect.

As stated previously, at the time the garnishment was served on the garnishee, the employee’s draws exceeded his commissions earned by over $2,000 and at no time throughout his employment did his commissions ever exceed his draws. As also previously stated, however, there was no evidence of any agreement, express or implied, that the employee was ever obligated to repay the excess of draws over commissions. There being no obligation to repay the excess of draws over commissions, it follows that there was no indebtedness due by the employee to the employer and the employer was not entitled to the benefit of the provisions of LSA-R.S. 13:3925.

In Savoy v. Soileau, supra, the court held:

“The jurisprudence of this State is to the effect that an excess of advances to an employee, over and above commissions deducted therefrom, cannot be recovered by the employer in the absence of either an express or implied agreement or promise to repay the said excess. Bardwell v. Szatmary, (La.App., 2 Cir., 1957), 99 So.2d 420; Landry v. Huber, (La.App., 3 Cir., 1962), 138 So.2d 449, 95 A.L.R.2d 499; and Rex-Metallic Casket Company v. Gregory, (La.App., 2 Cir., 1959), 115 So.2d 639, (cert. den.). In the Rex-Metallic case, supra, recovery was allowed on an implied agreement.”

The employee was compensated by the employer on a regular bimonthly basis. Income and social security taxes were deducted from the regular payments, except for $100 per month which was treated as a gasoline allowance requiring no tax deductions under federal tax regulations. The amounts paid were clearly compensation to the employee for services rendered on behalf of the employer, the nonexempt portion of which is subject to garnishment. Regardless of how denominated, the payments were wages, salary, commissions or other compensation within the meaning of the garnishment statute.

The nonexempt portion of the employee’s compensation was correctly calculated by the district court in arriving at the amount of the judgment.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


author: SCHOTT, Judge.

text:
    STATE of Louisiana on the relation of Jay CUCCIA v. FRENCH MARKET CORPORATION et al.
    No. 7527.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.

      Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for plaintiff-ap-pellee Jay Cuccia.
    August J. LaNasa, New Orleans, for defendants-appellants Ernest L. Masson and Cafe Maison, Inc.
    Phillip S. Brooks, City Atty., and Caryl H. Vesy, Asst. City Atty., for defendants-appellants French Market Corp., City Council and City of New Orleans.
    Before LEMMON, SCHOTT, and MORTAL, JJ.
   SCHOTT, Judge.

This suit concerns the validity of a lease by defendant, French Market Corporation, to defendant, Cafe Maison, Inc., which lease was approved by the Council of the City of New Orleans by Ordinance No. 5592 on December 11, 1974. The City and the Council are joined as defendants.

Between February 27 and March 14, 1974, French Market Corporation advertised in the daily newspapers of New Orleans a solicitation for applications to lease some 2600 square feet of space in the French Market for a coffee and doughnut establishment. The advertisement notified those interested that applications for leasing the space could be obtained from the French Market Corporation. The corporation furnished to those interested in making application a form disclosing that the space could be leased for a 10 year period with an option to renew the lease for an additional 10 years. A minimum price of $9 per square foot, or 6% of gross annual sales, had been set. An application form was supplied and the following was included in the information furnished by the corporation’s board:

“The Board would appreciate it if you would fill out this application for space as fully as you can, giving as much detail as possible as to the kind of place you will operate. It would be helpful if you could give some renderings and drawings of your ideas for the space. It should be made clear that the Board is not committed to necessarily leasing the space on the basis of the highest monetary bid. Rather, this will be one of several items considered by the Board whose overriding interest is to find a tenant who will offer unusual decor and profitable operations of the space as well as maintaining the traditions of the French Market. The selection of a name will also be a factor in the Board’s decision.”

Plaintiff, Jay Cuccia, and defendant, Ernest Masson, submitted competing bids for the space: Cuccia offering 7.5% on all sales up to $500,000, 7.75% on all sales if $500,000 is exceeded up to $550,000 and 8% on all sales if sales exceeded $550,000, subject to a minimum monthly rental of $2700; and Masson offering 7% up to $500,000, 8% on the next $250,000, 9% on the next $250,-000, and 10% on sales in excess of $1,000,-000, subject to a minimum annual rental of $26,000.

Both bidders are experienced businessmen and presented evidence of solid financial backgrounds. Masson is an acknowledged expert restaurateur with 25 years of experience in the restaurant business, while Cuccia is a successful candy manufacturer and merchant. Cuccia had for some time been a tenant of the French Market Corporation where he operated his business at the time of the events under consideration. Both parties submitted proposals to use the same name if awarded the bid, that is, Cafe Au Lait, but it developed that Cuccia 'had already reserved this name with the result that Masson adopted another name, Cafe Maison.

These bids were first considered by the Board of Directors of the French Market Corporation on May 9, 1974, when only five of eleven members were present in person and three by proxy. After presentation by Masson and Cuccia of their plans if awarded the lease it was decided to delay action until a special meeting scheduled for May 16 when all members would be urged to attend. At this meeting eight members were present in person and two by proxy. After some additional information was presented to the Board in behalf of the two applicants, the vote was taken with the result that there were five votes cast for each applicant, whereupon the matter was deferred until the next meeting of May 23. At that meeting nine members were present in person and one by proxy. A vote was taken with the result that Mas-son received seven to Cuccia’s three votes. Thereafter, the Council of the City of New Orleans approved this lease. In this suit, filed on October 9, 1975, plaintiff alleged that his bid was higher than Masson’s as a practical matter because until gross sales exceeded $1,125,000 annually plaintiff’s rent would be higher and it was unrealistic to assume such a sales figure since the previous operator had never exceeded $300,000. Alleging that the Board of the French Market Corporation was required by law to award the bid to plaintiff since his was the high bid, he asserted that the ordinance approving the lease was null and void. He further charged nullity of the lease in that it was for 15 years whereas the bids were solicited for a 10-year lease. He sought a declaratory judgment declaring the lease null and void, a writ of mandamus ordering the City and its Council to grant a lease to him and damages.

The defendants filed exceptions of no cause of action and unauthorized use of summary proceedings which were referred to the merits of the case. In his answer, Masson raised a plea of laches and estoppel based on plaintiff’s failure to take prompt legal action while Masson was spending considerable sums to construct the coffee house.

After a trial on the merits the trial judge overruled all exceptions and the plea of laches and estoppel, declared the lease between the French Market Corporation and Cafe Maison null and void, dismissed the alternative writ of mandamus and reserved to the parties their rights with respect to the claim of plaintiff for damages. Plaintiff then filed a motion for a new trial in which he alleged that defendant Masson had publicly expressed his intention to continue with his lease construction irrespective of the judgment which had been rendered against him, and plaintiff sought an injunction against defendant from proceeding with such work. The trial judge denied this motion. Defendants took a sus-pensive appeal and plaintiff answered the appeal urging his plea for a mandamus requiring the City and its Council to grant him a lease and for an injunction against defendant from proceeding to implement the lease which the trial court had declared null and void.

The principal question before us is the applicability of LSA-R.S. 41:1215 to the lease. Other questions are whether plaintiff is equitably prevented from obtaining the relief he sought because of laches and estoppel, and whether plaintiff has a right to a mandamus against the City and its Council. We will deal with these questions in inverse order.

One of the points on which plaintiff relies with respect to his application for a mandamus is that the French Market Corporation Board, at its May 16 meeting, illegally counted votes by proxy. These two votes were cast by the Board’s president for Masson pursuant to written instructions from the absent members, City Councilmen Eddie Sapir and John Lambert. The argument is that these two votes were illegally counted so that Cuccia was in effect awarded the lease by a S to 3 vote. We do not accept this reasoning. No members of the Board took this position at the time the tie vote was taken. On the contrary, they were willing to and did in fact take another vote one week later, and in effect reconsidered their previous vote. We know of no authority which would prevent a Board from taking such action. Even so-, plaintiff’s argument that it became the ministerial duty of the French Market Corporation to enter into a lease with him because of the so-called 5 to 3 vote in his favor at the earlier meeting would not provide a basis for a mandamus against the City compelling it to ratify such a lease. The ordinance authorizing the French Market Corporation to lease its property provided that such leases would be subject to confirmation of the City Council. Assuming the ordinance’s validity ultimate decision was with the Council for the granting of the lease. This prerogative cannot be classified as a ministerial duty under LSA-C.C.P. Art. 3863. On the other hand, if, as plaintiff insists, the ordinance itself is illegal and the City was bound by R.S. 41 :- 1215 the City Council was not required to accept plaintiff’s bid even if it was the highest bid since the statute specifically provides that the leasor has the right to reject all bids.

As to defendant’s argument based on laches and estoppel, the evidence shows that the lease between Masson’s company and the French Market Corporation was signed in November, 1974, and the ordinance was finally approved in December. The building permit was taken out by Mas-son in July, 1975, and Cuccia’s suit was filed in October. The application of the doctrine of laches and estoppel depends on the facts of any case. In this case, the trial judge was apparently not persuaded by the facts and neither are we. Even so, the real issue in this case is the validity of a lease of public property. This is not simply a dispute between private citizens. We are cited no authority which would prevent plaintiff, as a taxpayer and a citizen, from bringing this suit against the City and its agent, French Market Corporation, to set aside a lease which he contends is invalid as a matter of law simply because the lessee had already proceeded with work in anticipation of occupying the leased premises. There may be other remedies available to Masson as between him and the City, and Masson always had the privi-leg of bringing his own declaratory judgment suit to establish the validity of his lease if he desired to protect himself against the eventuality which has come about. To invoke the doctrine of laches and estoppel against plaintiff under these circumstances would be to adopt a judicial statute of limitations against him from attacking a lease as granted in violation of the law. We know of no authority for such a proposition.

We now return to the critical issue of whether this lease was invalid by operation of R.S. 41:1215. We begin by reference to the opinion of the trial judge who held “that the French Market Corporation, pursuant to L.R.S. 41:1215, has a legal obligation to lease the space in question to the highest 'bidder.” That statute provides as follows:

“At the date and hour mentioned in the advertisement for the consideration of bids, the bids shall be publicly opened by the lessor at its office. The lessor shall accept only the highest bid submitted to it by a person or persons who meet all of the conditions of this Part, but the lessor shall have the right to reject all bids.” (Emphasis supplied)

Defendants contend that this entire section of the revised statutes has no application to this particular lease because the French Market Corporation does not fall within the definition of a lessor as found in R.S. 41:1211, though conceding that the property involved is owned by the City of New Orleans. They refer to Ordinance No. 4745 M.C.S. adopted in 1971, which granted a franchise and leasehold to the French Market Corporation of properties located in the market, and the fact that the French Market Corporation as a non-profit corporation, organized pursuant to R.S. 12:201 et seq. is a private legal entity. They show that the revenue bonds issued by the French Market Corporation are not subject to the full faith and credit of the City, and that the City does not obligate itself to pay this indebtedness.

We reject this contention. The cited statute includes in its definition of lessor any “other unit or institution, deriving its authority and powers from the sovereignty of the state.” That language is broad enough to include the French Market Corporation, which derived its authority from the City to lease the property owned by the City which in turn derives authority and powers from the State.

Defendants argue further that R.S. 41:1211 et seq. applies to lands as opposed to the kind of enclosed building space being leased in this case. They contend that a mere reading of these statutes compels a conclusion that the legislature intended them to apply only to raw lands. We disagree. In Louisiana property is either immovable or movable. Land is immovable and improvements become immovable by destination. They become part of the land. The land does not lose its character because a building is erected thereon. To adopt defendants’ reasoning would lead to absurd conclusions. The lease of a parking lot would be controlled by the statute but the lease of a parking building would not. We believe that the only reasonable interpretation of the statute is to include the shell of a building being leased in this case within the meaning of “land” as used in the statute. This conclusion is consistent with the result in Giles v. New Orleans City Park Improvement Ass’n., 306 So.2d 823 (La.App. 4th Cir. 1975) writ refused 310 So.2d 841 (La.1975). The type of space which is the subject of the French Market Corporation’s lease in the instant case is the same as that with which the case was concerned. While defendants’ argument does not appear to have been raised in Giles we have reached the same result.

It should be observed at this point that the actions of the City and the French Market Corporation, in awarding this lease, are authorized by the Home Rule Charter of the City and the Ordinances enacted pursuant thereto. Section 6-307(4) of the Home Rule Charter provides as follows:

“Contracts for leasing of property belonging to the City for periods of more than one year shall be subject to requirements which may be imposed by ordinance.”

In the original Ordinance 4745 M.C.S. referred to above, § 1 (G) provided that the French Market Corporation could lease its properties “subject to confirmation of the City Council and in conformance with Ordinance No. 2500 M.C.S. as amended by Ordinance No. 3913 M.C.S.” The provisions of these ordinances have been discussed in a number of cases, including Barreca v. City of New Orleans, 256 La. 43, 235 So.2d 87 (1970) and Palermo v. City of New Orleans, 226 So.2d 557 (La.App. 4th Cir. 1969). However, the provisions of these ordinances have been deleted from Section 1(G) by operation of Ordinance No. 5061 M.C.S. adopted in 1973, so that Ordinance No. 4745 M.C.S. as amended now provides as follows:

“The Lessee [French Market Corporation] shall adopt a schedule of fees and rents to be charged for the use of the French Market properties and it shall have complete authority to enter into such subleases on such plans, conditions and durations as the said French Market Corporation deems necessary and in the best interest of the leased property; subject to the conformation of the City Council.”

From the foregoing, it is clear and was so noted by the trial judge that the French Market Corporation ostensibly had the power and authority to lease the space in question and the letter of the law was complied with.

However, the quoted provision of the Home Rule Charter must be considered in the light of Art. 14, § 22 of the Louisiana Constitution of 1921, which authorized the City to adopt a Home Rule Charter and which contains the following:

“The City of New Orleans, in addition to the powers expressly conferred upon it by Act 159 of 1912, as amended through the Regular Legislative Session of 1950, shall have the right and authority to adopt and enforce local police, sanitary and similar regulations and to do and perform all of the acts pertaining to its local affairs, property and government, which are necessary or proper in the legitimate exercise of its corporate powers and municipal functions. The City of New Orleans shall, however, not exercise any power or authority which is inconsistent or in conflict with any general law.” (Emphasis supplied)

In their interpretation of this Constitutional provision, defendants contend that the leasing of city property is a matter of the City’s performing acts pertaining to its property, so that the lease provisions of the Home Rule Charter are consistent with the Constitution, while plaintiff contends that R.S. 41:1215 is a general law so that the subject Charter provisions cannot stand since they are inconsistent, or in conflict with, such law. We have concluded that plaintiff’s argument is sound but depends upon the premise that R.S. 41:1215 is a “general law.” We need refer only to two cases for guidance, and they indicate that the statute is such a general law.

In Knapp v. Jefferson-Plaquemines Drainage Dist., 224 La. 105, 68 So.2d 774, the Supreme Court discussed at length the distinction between local or special laws as opposed to public or general laws. The Court said:

“Under these rules Acts 235 and 236 of 1936 are public or general acts. They regulate the general interest of a political subdivision of the state, are applicable to all whose lands were sold to the district at tax sale, and operate equally and uniformly upon all brought within the relations and circumstances for which they provide. They do not operate on a certain individual or person within a class, but do affect all persons within that class, that is, those whose property was acquired by the drainage district at tax sale. It cannot be said that these statutes were enacted for the benefit of private persons or property within a certain locality, or for some private advantage or advancement for the benefit of private persons or property within a certain locality.”

, Applying these principles to the instant case, there can be little doubt that the subject statute regulates the general interest of the State in public lands and is applicable to all such lands. The statute does not confine itself to certain classes of public owners or public lands and was not enacted for the benefit of persons or lands in certain localities.

Similarly, in New Orleans Firefight. Ass’n v. City of New Orleans, 230 So.2d 326 (La.App. 4th Cir. 1970), writ refused 255 La. 557, 232 So.2d 78 (1970), the Court considered whether Acts 55 and 57 of the Extraordinary Session of 1968 were in violation of that part of Art. 14, § 22, of the Constitution of 1921 which is relied upon by defendants in this case, and concluded that these were general laws so that they were specifically excluded from the powers given to the City by the last sentence quoted above from Art. 14, § 22. The Court cited City of Natchitoches v. State, 221 So.2d 534 (La.App. 3rd Cir. 1969) which contains the following:

“Within the meaning of the Louisiana Constitution, Acts 55 and 57 are general laws. A ‘general’ law is one which applies to all persons, places, or things throughout the state or to all persons, places, or things brought within the classification created; as distinguished from a ‘special’ statute, which under its terms operates upon or affects only a portion of the citizens or a fraction of the property within the classification created, and from a ‘local’ law, which operates under its terms only in a particular locality.”

From this we have concluded that R.S. 41:1215 is a “general law” within the meaning of Art. 14, Section 22, of the Constitution of 1921.

Defendants have relied mightily on Barreca v. City of New Orleans, supra, which does seem to control the instant case and which recognized the right of the City of New Orleans under then existing ordinances, to wit, Ordinance No. 2500 of 1962 and 2870 of 1964, to lease property in the French Market through the French Market Corporation without the restriction that the lease be made only to the highest bidder. In the first place, it is curious that nowhere in the Barreca case is there a mention of R.S. 41:1215. It may very well be that everyone involved in that case, including counsel for both parties, the judges of this Court who considered the matter at 224 So.2d 138 (La.App. 4th Cir. 1969) and the justices of the Supreme Court, considered the statute to be inapplicable, perhaps following the argument mentioned above that the statute has to do with public lands as opposed to space within a public building. The Barreca case was decided before this Court decided Giles v. New Orleans City Park Improvement Ass’n, supra, which as we have stated, applied the statute to the lease of the same kind of space which is involved here. Furthermore, the Barreca case can be distinguished on its facts. The Supreme Court took note of the fact that the lease to Fernandez of the Coffee Shop was of a going concern, including much goodwill which had been created by the efforts of the Fernandez family over a period of 30 years. In effect, the lease under attack by Barreca was a renewal of of a lease to the party who owned the name and if denied a renewal could move that name with the goodwill which had been developed to another location to the possible disadvantage of the City of New Orleans.

The coffee house in the instant case was to be a brand new operation. It was to begin in a location where the previous operator of the Morning Call had been operating for many years. The Morning Call name and all of its attendant goodwill had already been moved from the location. Precisely what the Court felt was a legitimate concern of the French Market Corporation in the Barreca case with respect to Cafe Du Monde had already occurred in the instant case with reference to the Morning Call. This distinction in facts is more than incidental and tends to support a different result than the one reached in the Barreca case.

Finally, defendants contend that their bid was in fact the higher of the two bids because, if the gross annual revenue exceeds $1,125,000, the rent paid to the City would be greater under the Masson lease than it would be under the Cuccia lease. The trial judge apparently rejected this contention and we agree with him. Evidence of gross sales at both the Morning Call and Cafe Du Monde between 1970 and 1973 was as follows:

Year Morning Call Cafe Du Monde
1970 $299,000 $423,000
1971 301,000 533,000
1972 315,000 535,000
1973 297,000 616,000

It is apparent from these figures that defendants in the location of the Morning Call would have to increase their sales by almost 400% over the Morning Call’s best year before the magic figure of $1,125,000 would be reached. Defendants produced evidence to show that the price of coffee and doughnuts had already gone up 50% since 1972, and we will assume that those prices will continue to rise since inflation seems to be inevitable at least for the next few years. Furthermore, the space available to defendants is greater than that used by the Morning Call. Finally, extensive renovation of the French Market would seem to generate more business than in the past. But even making allowance for these factors it is clear that gross sales of $1,125,-000 cannot be anticipated with any reasonable degree of certainty for at least a substantial part of the primary term of the lease. We cannot accept the argument that defendants’ bid was higher because it might produce greater revenue if some unattainable figure of gross sales is used as the basis for comparison.

Finally, the lease entered into between the French Market Corporation and Masson, approved by the City Council, is for a primary term of 15 years, while the advertisement and all applications made and discussions had in connection therewith were based on a term of 10 years. This cannot be reconciled with the provisions of R.S. 41:1215.

Accordingly, the judgment appealed from is affirmed and the costs of this appeal are to be paid by defendants.

AFFIRMED.

      . Masson took the lease through the entity Cafe Maison, Inc.


author: LEMMON, Judge.

text:
    Ginger M. Madden, wife of, and Kenneth MADDEN v. LOUISIANA POWER AND LIGHT CO., INC. and Gregory-Salisbury Metal Company, Inc.
    No. 7366.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Monroe & Lemann, Eugene G. Taggart, New Orleans, for La. Power & Light Co., defendant-appellee.
    Cronvich & Wambsgans, A. W. Wambs-gans and Richard M. Michalczyk, Metairie, for Gregory-Salisbury Metal Co., Inc., defendants-appellants.
    Before LEMMON, MORIAL and BEER, JJ.
   LEMMON, Judge.

This suit for damages is based upon an accident which occurred when a concrete cover of a utility vault, located in the sidewalk in front of plaintiff’s apartment, collapsed and caused plaintiff’s foot to fall through into the vault below. The jury found that Gregory Salisbury Metal Products, Inc. (GS), who manufactured the vault and cover, was liable for the accident and that Louisiana Power & Light Company (LP&L), who purchased, installed and maintained the vault and cover, was not. GS paid the judgment and appealed from the dismissal of its demand against LP&L for contribution.

I

GS manufactured the concrete utility box and cover under a franchise from the patentee, Quickset Vault Sales Corporation, and began selling the product to LP&L in 1970. The cover was designed for installation in sidewalks and was represented to withstand pedestrian and light vehicular traffic and to have a useful life of 20 to 30 years.

LP&L installed this particular vault in January, 1972, prior to the construction of the sidewalk in the subdivision. The foreman of the installation crew testified that the box and cover appeared then to be in good condition. Plaintiff moved into the building in April, 1972, and although she and her husband walked near or over the cover daily, they never noticed any crack or other defect. The testimony of three neighbors was to the same effect. Furthermore, LP&L never received any complaints about the cover.

On May 21, 1972 LP&L servicemen removed the cover in order to perform repairs, placed their hand tools on the bottom of the turned-over cover, and then replaced the cover. All four servicemen testified that they did not notice any cracks or defects.

On July 7, 1972, as plaintiff walked on the sidewalk and stepped on the cover, the cover collapsed. She had seen the cover as she was walking, but had not observed any defects.

An LP&L serviceman replaced the cover after normal working hours and placed the old cover in his truck. However, the replacement occurred on a Friday evening, and the cover was missing on Monday morning, apparently discarded by a cleaning crew over the weekend. Plaintiff’s husband and a neighbor had taken photographs, however, before the cover was replaced.

II

Plaintiff presented the expert testimony of an architect who reviewed the photographs, specifications and deposition description of the manufacturing process. He explained that since concrete is weak in tensile strength, steel rods are used to reinforce the member. Emphasizing the importance of proper placement of the steel rods, he testified that he found evidence in the photographs of displacement or absence of longitudinal reinforcing rods and of improper alignment of transverse reinforcing rods, as well as evidence that the rods were placed near the top rather than the bottom of the cover. He noted that the latter deficiency results in virtually no tensile strength except the negligible amount attributable to the concrete alone. He also emphasized the importance of aggregate size in achieving proper bonding, and he found evidence in the photographs of oversized aggregate and lack of bonding. From his investigation he attributed the failure of the cover to a deficiency in the manufacturing process.

A civil engineer, expert in reinforcement of concrete, reviewed the same information and opined that a 110-pound woman could cause a fracture by stepping on a cover which had appeared to be in good condition. He stated that the cover was at a point of incipient failure because of the lack of proper design and that the defect would not be obvious to the user of the product.

Both experts also noted the manufacturer’s lack of quality control testing procedures and lack of records of the testing that was done.

GS’s vice-president, in describing the manufacturing process, discounted the importance of precise placement of reinforcing bars and in fact stated “you could even leave out a couple of them.” As to the vibration portion of the process, he conceded that if the product were vibrated more than five to ten seconds, “the gravel would go to the bottom and that would be bad”, which contradicted his deposition statement that vibration time was one minute.

GS also presented a consulting civil engineer who classified the cover design as plain (rather than reinforced) concrete, stating that the reinforcing rods were included only to prevent temperature cracking and were not part of the structural design for load bearing efficiency. Defining reinforced concrete as a material in which concrete and steel are designed to function together, he admitted that the product did not conform to the requirements for reinforced concrete. He calculated that the allowable load for the cover as designed was 930 pounds which met the Parish and City code requirements for sidewalks. He opined that the design was not susceptible to incipient failure and that the weight of a person could not collapse the structure unless it had experienced previous failure. In effect, his analysis of the occurrence was that the cover had been previously cracked, probably by being subjected to a load in excess of its ability to carry, and simply gave way when plaintiff walked upon it. He noted from examination of the photographs that “the cracks are of some age”, but he did not state the indicia on which he based this conclusion.

Ill

In answering special interrogatories, the jury found that GS was negligent and LP&L was not.

A manufacturer is liable, without proof of specific fault or of knowledge of the defect, if the injured person proves that he was injured by the product without fault on his own part, that the injury occurred because the product was defective or unreasonably dangerous in normal use, and that the product was defective when it left the hands of the manufacturer. Weber v. Fidelity & Cas. Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971); Prosser, Law of Torts § 103 (4th ed. 1971). After reviewing the record, we find the evidence supports a conclusion that GS’s manufacturing process lacked quality control and that deficiencies in the manufacturing process, more probably than not, caused the product failure and the resulting injuries.

IV

GS’s main contention on appeal was that LP&L was concurrently negligent in failing to adequately inspect its facilities. LP&L had no routine procedure for inspecting the covers on a periodic basis. Instead, LP&L relied on its service and maintenance employees to continuously check all equipment in performing their customary duties.

We need not decide in the present case whether this manner of inspection was adequate, since lack of inspections was not a cause-in-fact of this accident. All witnesses testified that the cover contained no cracks prior to the accident. Since only a visual inspection could reasonably be required for a structure with a 20-year expected life, even daily inspections by LP&L would not have prevented this accident. Therefore, conversely, we cannot say that lack of visual inspections caused the accident.

GS next contends that LP&L is liable since the accident occurred on a structure which it owned and maintained. In accident cases involving a hazard which could be caused either by the owner of the utility structure or by a third party, such as an open manhole cover, a public utility is liable upon proof of actual knowledge of the defect or proof that the hazard has existed for a sufficiently long period of time that the public utility should have discovered and corrected it. In cases such as the present one, however, where the hazard is latent and could not reasonably be attributed to the conduct of a third person (or of the plaintiff), a strong inference arises that the defect was due to deficiencies in the manufacture, installation or maintenance of the structure. The evidence in this case shows, however, that the defect occurred more probably than not in the manufacture of the structure and that the accident could not as reasonably be ascribed to any negligence by LP&L in the installation or maintenance of the cover, especially in view of the inspection by the servicemen six weeks before the accident and of the testimony of area residents that they had not observed any cracking prior to the accident.

GS next contends that LP&L’s engineers requested the manufacture of this particular item and approved the design. The record shows that LP&L had previously bought smaller vaults (Quickset Electrical Series No. E-22) from GS and requested the larger structures for serving apartment complexes with underground wiring. Quickset furnished GS with .the. specifications for the larger vaults (Electrical Series No. E-30) and in November, 1969 specifically transmitted a drawing of “Reinforcing for E-30 Meter Box and Cover”. LP & L’s “approval” of these specifications (by making its own drawing in January, 1970 for its standards committee) cannot reasonably be considered more than an indication the vault fulfilled the company’s need, and certainly cannot serve to relieve the manufacturer of responsibility for design or manufacturing defects.

Finally, GS contends the trial judge erred with respect to certain jury charges and evidentiary rulings.

A jury charge outlining the high degree of care required of electric companies is not pertinent to this case, since electricity was not involved in the injury.

The trial judge charged the jury as to circumstantial evidence giving rise to presumptions of negligence on the part of either or both defendants. Nevertheless, the judge emphasized that the burden of proof is on the plaintiff and must be satisfied by a preponderance of the evidence. We find the charge was not prejudicial, especially to the demand for contribution.

A jury charge regarding the duty of a storekeeper to an invitee was properly refused.

We find no error in the giving of LP&L’s instruction as to contractual indemnity or in the refusing of GS’s instruction on that point. Furthermore, this charge was specifically directed to LP&L’s claim against GS, which became moot when the jury in answering the first special interrogatory found that LP&L was not negligent.

GS’s offer in evidence of a letter from LP&L’s division manager to the corporation secretary was properly excluded as not constituting the best evidence. The proper use of the letter, referring to statements by an LP&L employee who had testified at trial several days before the offer of the letter, was to impeach any earlier contradictory testimony, which the employee would then have had an opportunity to explain. Furthermore, part of the statement constituted an opinion of a non-expert.

The trial judge also properly refused to allow GS, at the conclusion of trial testimony, to read to the jury its requests for admission of facts and LP&L’s responses. The purpose of such requests is to eliminate the necessity of proving un-controverted facts. Voisin v. Luke, 249 La. 796, 191 So.2d 503 (1966). LP&L responded to each request with a denial “as written”. When such requests are denied and the requesting party proves the truth of the facts at trial, C.C.P. art. 1514 provides a penalty under certain circumstances. Denials of such requests, however, have no independent probative value and may not be used to show that a party’s position on the facts was “less than truthful”.

In summary GS is essentially complaining that the jury, when instructed on manufacturer’s liability without instructions on the liability of a public utility for the hazardous condition of its facilities and for failure to inspect, could only return an adverse verdict. Viewed in proper perspective, this is essentially a complaint about the strict liability imposed on manufacturers. While the rule is harsh, liability is not imposed unless the evidence preponderates that the injury was caused by a defect which made the product unreasonably dangerous and that the defect existed when the product left the hands of the manufacturer. The latter proof, available only through circumstantial evidence, is the big stumbling block in most product liability cases. See Case v. Metairie Ford, 272 So. 2d 49 (La.App. 4th Cir. 1973). The requirement of this proof also answers GS’s argument that the manufacturer has no duty to inspect after the sale and cannot know of defects arising thereafter.

We have thoroughly reviewed the voluminous evidence and conclude that the jury’s verdict is supported by the record.

The judgment is affirmed.

      . The exjjert explained that ties or wire mesh are used to prevent horizontal movement and “chairs” or wire clips are used to prevent vertical movement. GS used none of these devices.

      .GS did not take cylinder samples from each batch and thus could not perform the usual slumping and compression tests on samples. Instead, GS tested the covers themselves, as finished products after curing, by selecting 10 to 15 at random every two or three weeks and performing load tests with a pickup truck. All experts agreed that this testing, although primitive, was practical, if the testing was done regularly and if the samples were representative. One difficulty, however, was that GS delivered some covers, during times of high demand, before the structures had cured for seven days (standard curing time was 28 days) and covers from these batches were apparently never tested.

      . Plaintiffs’ expert, in opining that the cover did not comply with the code of the American Concrete Institute for reinforced concrete (which are incorporated in the City and Parish building codes), noted the difference between a sidewalk, which is poured directly on the earth, and this cover, which must bridge the span between the walls of the vault.

      . All witnesses denied that any traffic or other heavy objects had crossed the sidewalk. The vault in question was located in a portion of the sidewalk which did not serve as part of a driveway.

      . In this respect GS complains that the jury erred in not finding LP&L liable for failing to provide routine inspection of facilities, an argument discussed earlier. GS was perhaps entitled to (but did not request) an instruction explaining the liability of a public utility for the hazardous condition of its facilities, but in no event was GS entitled to an instruction on the liability of a storekeeper,


text:
    Robert Dale KNOTT et ux., Plaintiffs-Appellees, v. AETNA CASUALTY & SURETY COMPANY et al., Defendants-Appellees, and Louisiana Health and Human Resources Administration, Intervenor-Appellant. Wesley SPEYRER et al., Plaintiffs-Appellees, v. Pierre MARTIN et al., Defendants-Appellees.
    No. 5474 and 5475.
    Court of Appeal of Louisiana, Third Circuit.
    June 14, 1976.
    Charles F. Castille, Baton Rouge, for intervenor-appellant.
    J. Minos Simon, Ltd., Lafayette by Kenneth dejean, Baton Rouge, Waitz, Wei-gand & Downer by Michael J. Samanie, Houma, for plaintiffs-appellees.
    Voorhies & Labbe by John W. Hutchi-son, Lafayette, for defendants-appellees.
    Before CULPEPPER, WATSON and PETERS, JJ.
   EN BANC.

The above captioned cases are hereby remanded for the sole purpose of enabling the trial court to render and sign a decree relating to the intervention filed by Louisiana Health and Human Resources Administration.


author: HENSLEY, ROBERT E„ Circuit Judge. ENGLAND, Justice MELVIN, Circuit Judge

text:
    CNA INSURANCE, a Foreign Corporation, et al., Petitioners, v. Herman E. MINTON and Diane Minton, Individually, and as husband and wife, Respondents.
    No. 45628.
    Supreme Court of Florida.
    March 31, 1976.
    Rehearing Denied July 19, 1976.
    Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, Miami, for petitioners.
    Paul J. Levine of Noriega & Bartel, Miami, for respondents.
   HENSLEY, ROBERT E„ Circuit Judge.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Third District, reported at 293 So.2d 742 (Fla.App., 1974). We find conflict with Hoffman v. Jones, 280 So.2d 431 (Fla., 1973). We have jurisdiction pursuant to Article V, Section 3(b) (3).

The District Court held in this case that the benefits of Hoffman v. Jones, supra, applied, even though the case had been tried before Hoffman and the benefits were first raised by an assignment of error in the appellate court. There is no dispute that the question of comparative negligence was not raised at any stage of the litigation in the trial court.

In adopting the comparative negligence rule in Hoffman, this court faced the problem of its application to cases which had not yet been filed, as well as to all pending cases, whether the cases were pending in the trial courts or in the appellate courts. Upon consideration of this problem, the court determined that the rule should apply to those cases in which the cause of action had already accrued, but the cause had not yet been filed. The court further determined to apply the doctrine to cases then pending in the trial courts which had not yet been tried. It then clearly stated that it was not applicable to those cases pending in the trial courts and in which the trials thereof had then begun or been completed, with two exceptions. Those exceptions were cases which had been tried on the rule of comparative negligence and those cases which had been tried on the rule of contributory negligence but in which the applicability of the rule of comparative negligence had been properly raised before or during the trial. As to cases then pending in the appellate courts, it did not apply unless the rule had been “properly and appropriately made a question of appellate review.” The rule could not have been properly or appropriately made a question of review unless the applicability of the rule had been raised at the trial level before or during the trial thereof.

Having taken jurisdiction, we determine the other issues. The main other point on appeal is that there was insufficient evidence on which the jury could have found for the Defendants in the trial court on the issue of contributory negligence. A review of the record discloses sufficient evidence to make this a question for the jury to determine. It did so and its decision will not be disturbed.

The decision of the District Court of Appeal, Third District, is quashed and the cause is remanded with instructions to reinstate the judgment of the trial court.

It is so ordered.

ROBERTS, Acting C. J., and SUND-BERG and HATCHETT, JJ., concur.

ENGLAND, J., concurs with an opinion, with which SUNDBERG, J., concurs.

MELVIN, Circuit Judge, dissents with an opinion.

ADKINS, J., dissents and concurs with MELVIN, Circuit Judge.

ENGLAND, Justice

(concurring).

I agree with the majority’s decision to reinstate the verdict and judgment of the circuit court.

In Hoffman we cataloged five procedural stages of litigation for the applicability of the comparative negligence doctrine to pending cases. The enumeration served, in effect, as a judicial statute of limitations for all cases not expressly included in the applicable categories. The district court classified this litigation as being within category 4, relating to “cases on appeal”. In so doing, it erred.

This case was not on appeal on July 10, 1973, the date on which Hoffman was decided. The opinion below states that the trial court heard and orally denied a motion for new trial on that very day. The record on appeal contains a written order denying a new trial, which is dated July 18, 1973, and a Notice of Appeal filed in the circuit court which is dated August 6, 1973. Obviously, this litigation was within the jurisdiction of the trial court, not an appellate court, when Hoffman was decided on July 10. Since it was not “on appeal” it fell within another of the enumerated categories. This litigation falls plainly within the language of Hoffman’s category 3:

“As to those cases in which trial has already begun or in which verdict or judgment has already been rendered, this opinion shall not be applicable, unless the applicability of the comparative negligence rule was appropriately and properly raised during some stage of the litigation.”

Inasmuch as the doctrine of comparative negligence was not raised at any stage of the trial court proceeding, the exception in category 3 is not applicable and the judicial statute of limitations in Hoffman prevents a relitigation of this controversy on the theory of comparative negligence.

SUNDBERG, J., concurs.

MELVIN, Circuit Judge

(dissenting).

I wish to respectfully note my dissent to the majority opinion. In the case here under review, Judgment was entered June 18; Motion for New Trial was argued and verbally denied on July 10; on July 18, the formal Order of Denial was entered by the Court, and Notice of Appeal was dated August 6, 1973.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), this Court recognized the traumatic effect that the judicial substitution of the comparative negligence doctrine, in place of the firmly established doctrine of contributory negligence, would have in the field of tort litigation in the trial and appellate courts of this State. The opinion was filed Tuesday, July 10, and mandate issued Monday, July 16, 1973. Therein, the Court sought to anticipate areas of possible confusion in the application of the new rule, and delineated five areas in which the Court, under the circumstances, envisioned the proper application thereof. Clearly, the Court did not undertake to set guidelines in anticipation of all problems that the future might present.

I do not give the words “appropriately and properly raised” and the words “properly and appropriately made a question of appellate review” in guidelines three and four, text 440, the restraining technical application as apparently is now applied by the Court. My understanding is that the Court thereby sought, under the then known circumstances, to insure even-handed application of the new rule of law in the administration of justice at the trial and appellate levels.

Prior to the finality of the opinion of this Court in Hoffman v. Jones, there was no valid defense of “comparative negligence” that could be appropriately and properly raised in tort litigation in the trial or appellate Courts of Florida.

Between date of trial judgment and appeal, the applicable rule of law was changed by this Court. See Florida East Coast Railway Company v. Rouse, 194 So. 2d 260, 262 (Fla. 1967).

Plaintiffs properly raised the question in the first forum available to them. That Court disposed of the case by applying the law prevailing at the time of appellate review, in accord with the rule concisely stated by this Court in Florida East Coast Railway Company v. Rouse, above cited, and in accord with my understanding of proper application of the rule as set forth in Hoffman v. Jones.

I would discharge the writ.

ADKINS, J., concurs.


author: PER CURIAM. BOYD, Justice

text:
    THE FLORIDA BAR, Complainant, v. Hugh SAWYER, Respondent.
    No. 48851.
    Supreme Court of Florida.
    June 23, 1976.
    Rehearing Denied July 21, 1976.

      Douglas M. Midgley, Fort Myers, and James P. Hollaway, Asst. Staff Counsel, The Florida Bar, Tallahassee, for complainant.
    Michael R. N. McDonnell, of Brown, Pelham, McDonnell & Hart, Tallahassee, for respondent.
   PER CURIAM.

We concur in the referee’s recommendation that Mr. Sawyer be adjudged guilty of Count III, namely “initiating and participating in the distribution of [substantially] all liquid assets of a corporation in which his client was the majority stockholder, and preferring himself in making payment out of the corporate assets for purported past attorney’s fees without advance claim to the client, contrary to DR 5-101 (A); DR 5-105(A), and (B); DR 7-102(A)(7), (8); DR 9-102(A)(2).” In all other respects, we reject the referee’s recommendations that Mr. Sawyer be found guilty of ethical improprieties.

We hereby suspend Mr. Sawyer from the practice of law for a period of three months, beginning 30 days from the date of this opinion. Upon payment of the costs of these proceedings in the amount of $5,070.23, and upon completion of the period of suspension with good behavior, Mr. Sawyer shall automatically be reinstated as a member of the Bar.

It is so ordered.

OVERTON, C. J., ROBERTS and HATCHETT, JJ., and MILLS, District Court Judge, concur.

BOYD, J., concurs in part and dissents in part with an opinion.

BOYD, Justice

(concurring in part and dissenting part).

I concur in the majority opinion except that I would impose a public reprimand instead of suspension from the Bar.


author: PEARSON, Judge.

text:
    FIREMEN’S FUND AMERICAN LIFE INSURANCE COMPANY, Appellant, v. Frankie M. WOHL, Appellee.
    No. 75-755.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied July 6, 1976.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant.
    Donald M. Coon, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The defendant, Firemen’s Fund American Life Insurance Company, appeals a $50,000 judgment upon a jury verdict. The plaintiff, widow of Jack Wohl, sought recovery as the beneficiary of a life insurance policy. The substantial question presented is whether the proofs of Jack Wohl’s death are sufficient. A relevant portion of the policy provided:

“EXPOSURE AND DISAPPEARANCE: When by reason of an accident covered by this policy, the Insured is exposed to the elements and as a result of such exposure suffers a loss for which indemnity is otherwise payable hereunder, such loss shall be covered under the terms of this policy.
“If the body of the Insured has not been found within one year of the disappearance, sinking or wrecking of the vehicle in which the Insured was riding at the time of the accident and under such circumstances as would otherwise be covered hereunder, it will be presumed that the Insured suffered loss of life, resulting from bodily injury caused by an accident at the time of such disappearance, sinking or wrecking.”

The applicable rule of law is that generally, in the absence of any policy provisions to the contrary, the death of an insured person and the time of death, or the fact that the death or injury of the insured resulted from accidental means, may be proved by circumstantial evidence, and it is sufficient if there is a preponderance of the evidence, whether direct or circumstantial, on such an issue. See Melbourne Airways & Air College, Inc. v. Thompson, Fla. 1966, 190 So.2d 305, in which the rule is stated:

******
“We conclude that the claim was properly determined on the theory that in a case of this nature both the fact of death and time of death are to be proved as other material facts and may be established by circumstantial evidence. The proof on this issue in compensation claims as in our civil cases generally is sufficient ' * * * if the circumstantial evidence amounts to a preponderance of all reasonable inferences that can be drawn from the circumstances in evidence to the end that the evidence is not reasonably susceptible of two equally reasonable inferences.’ ”
******

See also Johns v. Burns, Fla.1953, 67 So.2d 765.

At trial, the Manager of Benefits and Services at Wometco Enterprises testified that she was the custodian of the personal records of some of the employees, including Jack Wohl. She stated that she had known Wohl for ten years and that he had worked his way up in Wometco to the position of assistant comptroller. She further testified that he was given 90 days leave of absence commencing on September 7, 1973, and that he never returned to work.

William Ortman, a friend of Wohl’s, testified that on September 26, 1973, Jack Wohl and one Raymond Sheer came to Ortman’s house, gathered some groceries and fishing equipment from a boat belonging to Ortman and then left, seemingly with the intention of going on a fishing trip. Ortman also testified that he and Wohl had formed a corporation and were going into a fishing and lobstering business. The corporation operated two fishing vessels and planned to fish off of San Andres, Colombia.

On the evening of September 26, 1973, Peter Wade, an employee of Underwood Marine Corporation, who worked at a marina on the intercoastal waterway located in Ft. Lauderdale, furnished a vessel, the “Button One,” to three men. He described two of the men as having dark hair, and the third man he identified from a photograph later shown to be that of Raymond Sheer. The boat was furnished to the three men at about 7:00 p. m. on the evening of the 26th. Wade observed a great deal of food on board but did not see any fishing equipment. The boat headed out toward the ocean. Wade testified, however, that the records of the marina showed that the slip occupied by the “Button One” was occupied later that night.

Wade’s testimony was offered by the plaintiff, and included testimony that Wade had not seen the boat again after its departure but that the records of the marina did show that the boat had returned, although it was not there when Wade showed up for work the next day.

Robert Sheer, the brother of Raymond Sheer, testified to the fact that Raymond occasionally used Robert’s Buick and was doing so the last time that Robert had seen him in September, 1973. After the disappearance, Robert found his Buick at Harbor West Marina, the marina where the “Button One” was allegedly furnished to Wohl and Sheer. Alongside the Buick was the car belonging to Jack Wohl. Raymond Sheer’s wallet, money, clothes and personal belongings were found in the Buick. Robert Sheer’s testimony also revealed that Raymond was used to boats and went out fishing quite frequently.

Frankie Wohl, the wife of Jack Wohl, testified that the couple had been married since January of 1962 and that they had two sons. Mrs. Wohl further testified that her husband was in good health, not nervous or upset or depressed at the time of his disappearance in September, 1973. Also, she testified that her husband enjoyed fishing and used to go out on Ortman’s boat, the “Thunderbird,” either by himself or with his children. She testified that on September 26, 1973, her husband left the house about 2:30 p. m. to go to Ft. Lauder-dale to meet some friends to go fishing for a few days. He dressed as he always had when going out on a boat. When Mrs. Wohl did not hear from her husband for several days, she became concerned and contacted the Coast Guard ten to fifteen times. She further testified that she has not heard from her husband since September, 1973, and that she believes he is dead. She stated that William Ortman had called her after her husband had left and that he had stated to her that Jack would be home in a couple of days. Her testimony acknowledges, as well, that she made a statement after her husband’s disappearance that the two of them were still working out their problems at the time he disappeared. She also testified that her husband’s checking account was almost depleted. The problem she testified to concerned one Julie Anderson, with whom Jack Wohl had engaged in an affair. Mrs. Wohl testified that the affair had terminated approximately three months prior to her husband’s disappearance. There was no testimony of Julie Anderson’s whereabouts at the time of the trial.

An officer with the U.S. Coast Guard testified that the Coast Guard conducted a search for the lost vessel, “Button One,” but that the report which he received was vague and did not provide information of when the vessel left or when and where it was to return. He testified that there was a ten-day search but that neither the vessel nor the persons aboard were found. He further testified that, from his own personal knowledge, boats which had been lost at sea in the 7th Coast Guard District were sometimes never discovered nor the bodies of their passengers ever found.

Since the evening of September 26, 1973, no one has seen Jack Wohl or the “Button One,” the boat he allegedly was on, nor has anybody seen Raymond Sheer, one of the persons supposedly on the boat with him.

An investigator with the American Express Company, which owns Firemen’s Fund American, testified that he interviewed persons who had been acquainted with Jack Wohl and that he had conducted a thorough but fruitless investigation.

The defendant, in its argument that the evidence is not sufficient under the law and the policy provisions to prove Wohl’s death, first points out that no one can say that the “Button One” sank or was wrecked. We think that this argument is not sufficient for reversal under the law stated in Voelker v. Combined Ins. Co. of America, Fla.1954, 73 So.2d 403, where the court said:

* * * * * *
“. . . when circumstantial evidence is relied upon in a civil case as a method of proof any reasonable inference deducible therefrom which would authorize recovery must outweigh each and every contrary reasonable inference if the plaintiff is to prevail.”
% >{í . 5jC í{í j{í ‡

We hold, therefore, that the evidence of the disappearance of the vessel, under the circumstances of this case, is sufficient to support the finding of the jury that the vessel sank or was wrecked.

Next, it is urged that the finding that Wohl was on board the “Button One” is supported only by an inference upon an inference and is, therefore, legally insufficient to support the jury verdict. See Commercial Credit Corporation v. Varn, Fla.App. 1959, 108 So.2d 638, where the rule is stated:

í|í % ‡ * ‡
“. . . the established rule of evidence is that we cannot construct a conclusion upon an inference which has been superimposed upon an initial inference supported by circumstantial evidence unless the initial inference can be elevated to the dignity of an established fact because of the presence of no reasonable inference to the contrary.”
‡ ‡ ‡ >{;

The evidence that Wohl left with one Raymond Sheer to go fishing and that Sheer arranged for the use of the “Button One” and that Wohl left on that boat with two other men supports the reasonable inference which, coupled with the disappearance of the vessel, Wohl and Sheer, supports the finding of the jury that the probability that Wohl was on the “Button One” outweighs all other reasonable inferences deducible from the facts. The evidence deals not only with Wohl’s disappearance, but also with the disappearance of a vessel and Raymond Sheer. The hypothesis of an arranged disappearance is not as reasonable where it is coupled with the disappearance of others on the same vessel.

But, as pointed out by defendant, there is testimony of one fact which, if true, would render the presence of Wohl on the “Button One” when she was lost as an inference upon an inference. That testimony is the statement made by plaintiff’s witness, Wade, who was the employee at the marina, that the records of the marina would show that the slip occupied by the “Button One” on September 26th was occupied later that night. If this is accepted as an established fact, then the inference that Wohl was still on the boat when it left again would be an inference upon an inference.

The question then is whether the testimony of Wade is sufficient to establish as a fact that the “Button One” left at 7:00 p. m. on September 26th but returned that night and left again thereafter. We think that it is not. The testimony was to the effect that the vessel may have returned but it falls short of certainty. The testimony was a factor that could be considered by the jury in its determination of whether the reasonable inference that Wohl was on the vessel outweighed every contrary reasonable inference. The contrary reasonable inference suggested by the defendant is that Wohl’s disappearance was a planned disappearance. There are facts in evidence which may have made a planned disappearance appear reasonable to the jury. But, we conclude that the evidence in this case is legally sufficient to sustain the jury’s finding that the reasonable inference that Wohl died with two companions when the “Button One” was lost at sea outweighed the inference that Wohl’s disappearance was a planned disappearance.

Affirmed.


author: PER CURIAM.

text:
    Shirley MARSLAND, Appellant, v. Bruce A. JULIEN, Appellee.
    No. 75-792.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Rehearing Denied July 6, 1976.
    Kuvin, Klingensmith & Lewis, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, and James E. Tribble, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff in a medical malpractice action appeals from a summary judgment entered in favor of the defendant. We find error, and reverse.

Upon examination of the record, and consideration of the briefs and argument, we hold a genuine issue of material fact was presented, as to whether there was informed consent of the plaintiff (patient) for the operation. No useful purpose would be served by reciting the deposition testimony of the parties bearing thereon. With regard to negligence as an issue in the case, see Helms v. Sims, Fla.App.1976, 330 So.2d 71, recently decided by this court.

The summary judgment is reversed, and the cause is remanded for further proceedings.


text:
    Mack SIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-884.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied July 6, 1976.

      Phillip Hubbart, Public Defender and Julian Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant Mack Simmons appeals an adjudication of guilt for murder in the first degree. The jury that found him guilty later recommended a sentence of life imprisonment. After the denial of his motion for a new trial, he was sentenced and this appeal followed. Three points are presented here. The first urges error in the court’s failure to have testimony, requested by the jury after the jury had retired, read to them. The second point urges error in the failure to grant a new trial upon defendant’s contention that he was not present in court at the time the jury was sworn. The third point urges that it was error for the court to- deny defendant’s motion to suppress his confessions.

The record contains the following facts concerning the court’s failure to have testimony read to the jury. Defendant’s trial began on April 14, 1975; on April 15th, after hearing seven to eight hours of testimony, the jury retired to consider its verdict at 6:46 p. m. At 7:25 p. m., the jury sent out a request for a typewritten copy of the testimony of two witnesses; Detective Dallas, who was an investigating officer and one of the officers who took the defendant’s confession, and witness Tilley, who was a fingerprint expert. Of course, the typewritten transcript was not then available. The court estimated that it would take seven hours to read the testimony as it was given from the stand. The reporter stated to the court that after the long hours of work, she was physically incapable of reading the testimony to the jury. At the beginning of the discussion, the attorney for the defendant stated that in his opinion the court could do one of two things: (1) tell the jury to rely upon its memory, or (2) have the testimony read to the jury. After further discussion, the defense attorney moved the court to have the testimony read. The court decided that the reading was impractical and instructed the jury that they must rely on their collective memory of the testimony from the stand. It is here urged that the denial of the defendant's motion to have the testimony read to the jury was error.

The defendant relies upon Furr v. State, 152 Fla. 233, 9 So.2d 801 (1942); and Penton v. State, Fla.App. 1958, 106 So.2d 577, for the rule that it is error to refuse the jury’s request to have portions of the testimony read to them. In Furr, the general rule is laid down that it is the duty of the trial judge to respond to a jury’s question and to have material portions of the testimony read where relevant to the question. In Penton, it was held error not to have read to the jury testimony which the Court of Appeal found to have been available, although there had been some question in the mind of the trial court of whether the testimony had been taken by the reporter.

We hold that reversible error has not been shown.

CrPR 3.410 provides in pertinent part:

* % * 5|i ‡ *
“After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them.”
* * * * * *

Thus, it is within the trial court’s discretion to have the court reporter read back testimony of witnesses upon the request of the jury. See LaMonte v. State, Fla.App. 1962, 145 So.2d 889. In the instant case, where the jury did not ask to have the testimony read and the reading of the testimony was impractical, there was no abuse of discretion.

The second point claims error upon the allegation that the record fails to show that the defendant was in the courtroom when the jury was sworn. It is true that the defendant must be present at every essential part of the trial unless he has, by his own actions, waived the right. See CrPR 3.180; State v. Melendez, Fla.1971, 244 So.2d 137; and Cole v. State, Fla. App.1967, 199 So.2d 480. The issue was first raised upon motion for new trial. The record does show that immediately after the swearing of the jury, the defendant announced, by his counsel, that he was ready to proceed. While the record of the swearing of the jury does not affirmatively show that the defendant was present, it does not show his absence. The trial judge took testimony on the issue and determined that, in fact, the defendant was in the courtroom. We hold that no reversible error has been shown. Cf. Richardson v. State, Fla.1971, 246 So.2d 771.

Defendant’s third point claims error upon the denial of his motion to suppress his confession. The basis for defendant’s argument is that he was under actual arrest although not formally arrested at the time he was questioned. Defendant admits that he was fully informed of his constitutional rights but urges reversible error under Wong Sun v. U. S., 371 U. S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), because he was arrested allegedly without probable cause. The evidence before the trial judge when he made his determination supports the finding that the police officer was in the process of investigating the homicide at the time that the defendant voluntarily submitted himself to interrogation. We conclude that no error is shown.

Affirmed.

      . * * * * *
      “I think you ought to do one of two things: This is acceptable practice that is to tell them they are going to have to rely on their colleetive memories, or you must read the testimony back.”


author: NATHAN, Judge. CHARLES CARROLL, Associate Judge

text:
    Solomon SCHWARTZ, as Personal Representative of Sara Schwartz, and Solomon Schwartz, Individually, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, a Foreign Corporation, and Vincent Grande, Appellees.
    No. 75-701.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 6, 1976.
    Jay Dermer and Stuart R. Silver, Miami Beach, for appellant.
    Corlett, Merritt, Killian & Sikes and Donald ,W. Hardeman, Jr., Miami, for ap-pellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by the plaintiff, Solomon Schwartz, individually, and as personal representative of Sara Schwartz, from a summary final judgment in favor of the defendants in an action for damages resulting from an accident which occurred on October 7, 1974, in which Solomon Schwartz was injured, and his wife, Sara Schwartz, was killed.

Defendant, Vincent Grande, was the owner of the automobile which struck the plaintiff and his wife, who were pedestrians crossing the street at an intersection with a green traffic signal. American Home Assurance Company was Grande’s liability insurer and a third defendant, one Jimmie Johnson, was the operator of Grande’s vehicle at the time of the accident. It appears that on the evening of the accident, Grande parked his car in front of a bar and left it unattended with the doors unlocked, a package containing beer and cheese on the back seat and an ignition key in the glove box. While Grande was in the bar, Johnson entered the car, found and utilized the key and proceeded to drive for a few blocks when he struck the Schwartzes, injuring the husband and killing the wife.

The complaint alleged negligence on the part of Johnson and liability on the part of Grande and his insurer, American Home Assurance Company, on the basis of negligence as well as vicarious liability as owner of the vehicle. The answer of defendants Grande and American Home Assurance Company denied liability on the theory of intervening cause. The trial court granted the motion of Grande and American Home Assurance Company for summary final judgment, and this appeal ensued.

The plaintiff contends that Grande, the owner of the car, is liable for damage resulting from negligent operation of the car by a third person stranger where the car was parked unattended with the doors unlocked, cheese and beer on the back seat and an ignition key in the glove box. We do not agree. The principle applied in Florida is that as a general rule, an intervening criminal act breaks the chain of causation. Therefore, the original negligence of Grande was not the proximate cause of the damages resulting from the intervening criminal act. Lingefelt v. Hammer, Fla.App.1960, 125 So.2d 325; Bryant v. Atlantic Car Rental, Inc., Fla. App.1961, 127 So.2d 910. Even though a person may be guilty of negligent acts or omissions, there can be no recovery for damages which were not a reasonably foreseeable consequence of the negligence. To be foreseeable, the negligence must be such that a person, by prudent human foresight, can anticipate that the damages will likely result from the negligence. Cone v. Inter County Telephone & Telegraph Company, Fla.1949, 40 So.2d 148. We conclude that the record reveals no reasonable basis upon which a jury could find that the plaintiff’s damages were proximately caused by Grande’s negligence or were reasonably foreseeable by him. Compare Moser v. Semenza, Fla.App. 1965, 177 So.2d 880. Moreover, since the key was located in the glove box and not in the ignition switch, no violation of any municipal or county ordinance or state statute has been demonstrated. We regard the question involved in this case to be of such importance that we have certified to the Supreme Court of Florida a similar decision in the case of Vining v. Avis Rent-A-Car, Fla. App.1976, 330 So.2d 550.

The summary final judgment in favor of the defendants is affirmed.

CHARLES CARROLL, Associate Judge

(dissenting).

I respectfully dissent. The automobile was left unattended, parked on the street, in front of a bar, in a manner that was in violation of an ordinance as to the securing thereof. The applicable ordinance referred to leaving a motor vehicle unattended without (1) stopping the engine, (2) locking the ignition and (3) removing the key. The first two requirements were complied with. The third was not. Removal of the key, when the vehicle is to be left unattended, means taking the key out of and away from the vehicle, since an intruder could be expected to look for a key in places where normally it would be placed if left in the automobile, such as under the edge of the floor mat, or upon the sunvisor, or in the glove compartment. In my view what happened was a foreseeable consequence.

I dissent from the majority opinion and judgment in this case on the grounds and reasons expressed in my dissenting opinion in Lingefelt v. Hanner, Fla.App.1960, 125 So.2d 325, at 327-328.

      . The judgment purports to be in favor of “the defendants.” We are unable to ascertain from the record whether the third party defendant, Johnson, was ever served or participated in the action.


text:
    Ruben ABOY and Angela Romero, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1253.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 6, 1976.
    Arthur L. Rothenberg, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Defendants Ruben Aboy and Angela Romero, were regularly tried, without jury, and convicted of unlawfully buying, receiving, or aiding in the concealment of stolen property. Aboy was sentenced to one year in the county jail and Romero was placed on five years probation.

The singular determinative question presented in this appeal is whether there was sufficient evidence of defendants’ knowledge of the fact that the property, which was the subject matter of this crime, was stolen. In addition to competent evidence that the property was stolen and in the possession of the defendants, the record reflects substantial evidence adduced by the State regarding the place, time and surrounding circumstances under which the defendants were apprehended. This evidence was sufficient to prove the requisite element of the defendants’ guilty knowledge of the crime for which they were charged. State v. Graham, Fla.1970, 238 So.2d 618.

Affirmed.